author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN LANCE, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—2804
    Opinion filed February 26, 1993.
    Michael J. Pelletier, of State Appellate Defender’s Office, and Alison J. Norwood, Panel Attorney/Narcotics Cases, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Sang Won Shim, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, defendant Steven Lance (Lance) was convicted of unlawful delivery of more than 15 grams of cocaine, pursuant to sections 401(a)(2)(A) and 102(h) of the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1989, ch. 56%, pars. 1401(a)(2)(A), 1102(h)) and was sentenced to six years’ imprisonment in the Department of Corrections. Lance now appeals his conviction and sentence, claiming that the sections of the Act upon which his conviction was predicated violate the due process and equal protection clauses of the United States and Illinois Constitutions. For reasons that follow, we affirm Lance’s conviction and sentence.

Evidence at trial revealed that Steven Lance began working for Woodstock Die Casting in November 1988. In the course of his employment, he met Robert Miller (a/k/a Lawrence Miller and Anthony Rizzo), who also worked there. According to Miller’s testimony, he and Lance became friends after they discovered that they were both users of cocaine. Miller testified that in January 1989 he and Lance, at Lance’s suggestion, agreed to split the cost of a quarter ounce of cocaine. Lance procured the cocaine through his supplier, Mark Branwell. Branwell delivered the cocaine to Lance’s home, where Miller then spent the night “partying” “smoked the coke”) with Lance and Lance’s brother. Subsequent to that incident, Miller obtained cocaine through Lance on at least two other occasions and “partied” with him as well.

In February 1989 Miller agreed to act as an informant for the Illinois State Police Northeastern Metropolitan Enforcement Group (NEMEG). When Miller entered the informant program he apparently had a rather significant criminal background, was on probation for a 1987 drug conviction and was experiencing some legal problems. In any event, as a result of his participation in the program, he became involved with Inspector Uher, who was a police officer with the Crystal Lake police department appointed to work as an undercover narcotics officer with NEMEG.

On May 29, 1989, Uher contacted Miller by phone. Miller indicated that he knew someone who would sell cocaine, naming Lance and Branwell. Miller then arranged a drug purchase for Uher with Lance, contacting Lance by phone and agreeing to purchase two ounces of cocaine for $1,600.

At 5:30 p.m. on May 31, 1989, Miller met Uher at the NEMEG task force office in McHenry County. Miller then rode with Uher in Uher’s car to Lance’s residence in Northlake. When they arrived at Lance’s residence, Lance and Branwell met the car at the curb. Miller introduced Uher as his friend “Mike.” Lance then indicated that the cocaine wasn’t there yet and told Branwell to go into the house and make a phone call. When Branwell returned, Lance told Uher and Miller that they had to go to Toys-R-Us on North Avenue in Melrose Park to pick up the cocaine. Lance and Branwell got into Lance’s car and drove off, followed by Uher and Miller in Uher’s car.

After the two cars parked in the parking lot of Toys-R-Us, Lance and Branwell exited their car. Branwell approached Uher’s car and asked Uher for the money, indicating that “she” would be there soon. Uher refused to turn over the money without first seeing the cocaine. Shortly thereafter a white Camaro entered the parking lot. The car had two occupants, a male Hispanic and a female Hispanic. Branwell approached the Camaro and spoke with its occupants. Branwell then came back to Uher and asked for the money. When Uher refused again, Branwell returned to the Camaro. This time when Branwell came back to Uher’s car he had some white powder cupped in his hand. He presented it to Uher and told him to “check it out.” Uher got angry, insisting that he could not be sure that the cocaine he was purchasing was the same as the sample. Again Branwell went back to the Camaro. When he returned to Uher, he told Uher that he could meet with “her.”

Uher and Branwell then walked over to the Camaro. Uher flashed his roll of money and demanded to see the cocaine. The woman in the car then reached under the console of the car and pulled out a clear plastic bag containing a white powder. Uher then gave the arrest signal to his surveillance team. The team moved in and arrested Branwell, Lance and the two occupants of the car. The plastic bag containing the white powder was recovered and it was later determined to contain 45.1 grams of 66% pure cocaine.

On appeal Lance does not deny that he arranged and participated in a planned sale of cocaine. Rather, Lance contends that his conviction for delivery of a controlled substance should be reversed because the statutes under which he was convicted, namely, sections 401(a)(2)(A) and 102(h) of the Act, are unconstitutional.

Section 401(a)(2)(A) of the Act states in pertinent part:

“Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance or controlled substance analog. ***
(a) Any person who violates this Section with respect to the following amounts of controlled or counterfeit substances or controlled substance analogs, notwithstanding any of the provisions of subsections (c), (d), (e), (f), (g) or (h) to the contrary, is guilty of a Class X felony and shall be sentenced to a term of imprisonment as provided in this subsection (a) and fined as provided in subsection (b):

* * *

(2)(A) not less than 6 years and not more than 30 years with respect to 15 grams or more but less than 100 grams of a substance containing cocaine, or an analog thereof.” Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)(2)(A).

Section 102(h) states:

“ ‘Deliver’ or ‘delivery’ means the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship.” Ill. Rev. Stat. 1989, ch. 56x/2, par. 1102(h).

Lance contends that these sections of the Act and section 8 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4) are statutes in pari materia and that, as such, they must be construed in harmony with one another.

Specifically, Lance argues that because section 8 — 4(c)(2) states that “the sentence for attempt to commit a Class X felony is the sentence for a Class 1 felony,” sections 401(a)(2)(A) and 102(h) of the Act must be held unconstitutional because these sections, when allocating penalty, fail to differentiate between an attempted delivery of a controlled substance and the completed act. Furthermore, Lance contends that because the cited sections of the Act treat an “attempted delivery” the same as an “actual delivery,” these sections contravene the legislative intent expressed in section 100 of the Act. (See Ill. Rev. Stat. 1989, ch. 56½, par. 1100.) Accordingly, Lance concludes that sections 401(a)(2) and 102(h) violate the equal protection and due process clauses of the Federal and State constitutions. We disagree.

Lance cites two cases, People v. Stupka (1992), 226 Ill. App. 3d 567, 589 N.E.2d 1068, and People v. Lev (1988), 166 111. App. 3d 173, 519 N.E.2d 1168, in support of his position on appeal. However, these cases not only fail to support his position, they support the opposite conclusion.

In Lev the defendant was charged with and convicted of attempted possession of a controlled substance with the intent to deliver under section 8 — 4, the general attempt statute, based upon his attempted purchase of 30 grams of cocaine from an undercover agent. On appeal defendant challenged his conviction, contending that an attempt to possess a controlled substance with the intent to deliver, the offense with which he was charged, did not exist as an offense in Illinois. He claimed that it was tantamount to a charge of “attempted attempt to deliver” and, thus, was illusory. He also challenged the constitutionality of the offense. The court rejected these claims, finding that the legislature’s failure to specifically prohibit the inchoate offense did not preclude the application of the general attempt statute. It further held that the penalty for the offense did not offend constitutional requirements.

Subsequently, the Lev court went on to express its opinion as to the applicability of section 8 — 4 to a delivery of a controlled substance. The court indicated that section 8 — 4 of the Criminal Code could apply to a delivery, such as where a person is frustrated in his attempt to deliver or transfer possession of a controlled substance. It is clear, however, that the Lev court did not consider the definition of “deliver,” as set forth in the Act, when it made the statement concerning the application of the general attempt statute.

The Stupka case, which is factually similar to the case at bar, involved a defendant (Stupka) who made arrangements to sell cocaine to an undercover police officer. The officer and Stupka met with Stupka’s supplier in a parking lot. The supplier was sitting in a car in the parking lot when the officer and Stupka approached him. The officer turned over the money to the supplier and was handed a paper bag. The officer was then told to throw the bag in a trash barrel located in front of the supplier’s car, where he would find the cocaine. The arrest signal was given and Stupka was arrested. Cocaine was then recovered from the trash barrel.

Stupka, who was charged and convicted of unlawful delivery of a controlled substance, cited to Lev and argued that he was not proved guilty of unlawful delivery of a controlled substance under the Controlled Substances Act, but only of an attempt to commit that offense under the attempt statute. (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4.) The court rejected the argument, finding that in the case before it a constructive transfer of possession of a controlled substance had taken place, for which Stupka was legally accountable.

In addition the court reviewed the Lev decision and considered whether the offense of “attempted unlawful delivery” existed under the general attempt statute, as claimed by Stupka. First, the court held that the Lev court’s proposed creation of the offense of “attempted unlawful delivery” was mere dicta. Next, the Stupka court concluded that the principle of preemption applied, i.e., that the more general statute was preempted by the specific one. Thus, the court found that the legislature’s express inclusion of an attempted transfer in the definition of the substantive offense clearly demonstrated the legislature’s intent to equate an attempted transfer with the seriousness of a completed delivery and, therefore, preempted the general attempt statute. Accordingly, the court held that Stupka was properly charged, convicted and sentenced for the unlawful delivery of a controlled substance despite the fact that a completed delivery did not occur.

In the present case Lance acknowledges that, as the Stupka court determined, his actions fell within the parameters of the offense of unlawful delivery. His position is that the offense, as such, does not withstand constitutional muster since it treats similarly situated groups differently, i.e., it treats those persons charged with an attempt to deliver a controlled substance differently than those persons charged with an attempt to commit some other crime. We, however, find no violation of the mandates of our Federal and State constitutions.

Statutes are presumed to be constitutional, and it is the party challenging the constitutionality of the statute who carries the burden of proving the violation. (People v. Hamm (1992), 149 Ill. 2d 201, 595 N.E.2d 540.) The equal protection clauses of the United States and Illinois Constitutions do not prevent States from treating different classes of persons differently and, in fact, may treat similarly situated persons differently if there is a rational basis for doing so, the persons are not members of a suspect class and no fundamental right is involved. (People v. Tosch (1986), 114 Ill. 2d 474, 501 N.E.2d 1253.) The same is true when a party challenges the constitutionality of a statute on a due process claim. If no fundamental rights are involved, the question boils down to whether the penalty provision bears a rational relationship to a legitimate purpose and is neither arbitrary nor discriminatory. People v. Hamm, 149 Ill. 2d at 215-16.

First of all, there is no question that the class of persons involved here, i.e., those persons who attempt to traffic in cocaine but do not achieve their goal, is not a suspect class and that no fundamental rights are involved. Thus, the question is whether we can find any rational basis for the legislature’s decision to treat those persons caught in the act of dealing drugs the same as those persons who were caught in the act of dealing drugs but did not consummate the act.

We find the difference between these two groups to be one without a distinction. As noted by defendant, the legislative intent, expressed in section 100 of the Act, is to deter the unlawful and destructive abuse of controlled substances. Thus, we believe that equal treatment of these two groups is rationally related to the legislative purpose of deterring drug trafficking and abuse. No violation of equal protection or due process is evidenced by the legislature’s defining the offense of “delivery” to include an attempted delivery and penalizing both equally.

The rationale employed in People v. Patten (1992), 230 Ill. App. 3d 922, 595 N.E.2d 1141, is applicable here. In Patten, the court held that it was constitutionally within the legislature’s prerogative to advance its goal of deterrence by defining child abduction to include attempted child abduction and penalizing attempted abductors as harshly as those who are able to accomplish the crime.

For all the reasons stated above, we affirm Lance’s conviction and sentence for unlawful delivery of a controlled substance.

Affirmed.

McNULTY and COUSINS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
      In re MARRIAGE OF ERROL C. O’BRIEN, Petitioner, and PAMELA J. O’BRIEN, Respondent-Appellee (Kelly Lynn O’Brien, Additional Respondent-Appellant).
    First District (5th Division)
    No. 1—92—2777
    Opinion filed February 26, 1993.

      Bernard L. Rivkin and Lee M. Weisz, both of Braun & Rivkin, Ltd., of Chicago, for appellant.
    Jay D. Stein, of Gould & Ratner, and David M. Stein, of Stein & Stein, both of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

On July 14, 1992, the trial court issued an order implementing a judgment of dissolution between Errol and Pamela O’Brien. Kelly Lynn O’Brien, an additional party respondent, appealed contending that this court had jurisdiction to review an otherwise nonfinal order because of the injunctive nature of such order. For the reasons which follow, we disagree.

On April 15, 1992, the trial court entered a judgment for dissolution of the marriage of Errol C. O’Brien and Pamela J. O’Brien. In this judgment, the trial court found that Errol had fraudulently conveyed certain assets (including real estate, automobiles, furs and jewelry), which it construed to be marital property, to Kelly Lynn O’Brien, his adult daughter from a prior marriage. (Kelly Lynn had been joined in the dissolution proceedings as an additional party respondent.) Accordingly, the court imposed a constructive trust on a list of specified properties, both real and personal. (These properties had previously been protected by temporary injunctive and restraining orders of June 18, 1991, June 26, 1991, and September 11, 1991.) In the judgment of dissolution, the court ordered that Errol and Kelly were to “as soon as possible” return to the marital estate all marital assets, as defined in the order, and place the assets in the names of Errol and Pamela, jointly. To protect the assets held in Kelly’s name while the transfers were being made, the court continued in place the injunctions which it had previously issued. The court further divided the marital assets based on the premise that these would be returned to the marital estate. The court also ordered Errol and Kelly to account to Pamela for certain receipts and expenditures, and reserved the determination of maintenance and attorney fees. Appellant did not timely appeal that part of the judgment of dissolution of marriage which ordered a return of the marital assets to the marital estate and continued in place the injunctions previously issued.

On July 14, 1992, the trial court issued an order to implement the judgment of dissolution. That order provided in relevant part that Kelly permit access by Baird and Warner to properties in Worth and Orland Park, Illinois; that Kelly sign a real estate contract for the Palos Park real estate, and that the proceeds of such sale be held in escrow; that Kelly find a broker for the Scottsdale, Arizona, property within 14 days; that Kelly and Errol provide a written estimate within seven days for the cost to repair the Mercedes automobile; and that Kelly and Errol provide the accounting required by the dissolution of marriage by a specified date. This is the order from which Kelly has appealed.

In her argument on appeal, Kelly asserts that this court has jurisdiction to review the July 14 order pursuant to Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)), which provides that an appeal may be taken to the appellate court from an interlocutory order granting, refusing, dissolving, or refusing to dissolve or modify an injunction. Appellee maintains that the July 14 order is not an injunction, but rather an administrative or procedural order, designed to implement the judgment for dissolution of marriage and that, consequently, the relied-upon supreme court rule does not provide jurisdictional authority. Black’s Law Dictionary defines an “injunction” as “[a] judicial process operating in personam, and requiring [a] person to whom it is directed to do or refrain from doing a particular thing.” (Black’s Law Dictionary 705 (5th ed. 1979).) Our review of the order at issue indicates that while it does require appellant to do several “things,” those “things” merely serve to implement that part of the judgment of dissolution which ordered a return of the marital assets to the marital estate and an accounting. For example, showing and selling the aforementioned real estate will enable an accurate accounting to be made and will assist the court in arriving at appropriate figures for a maintenance award. The appellant did not timely appeal that part of the judgment of dissolution ordering her to return the above-mentioned property to the marital estate and continuing the previous injunctions in place, nor does she now request a review of the propriety of that part of the judgment. Even if a timely appeal had been taken, in fact, she has not provided us with a record of the proceedings below upon which a review might be predicated. Rather, appellant in her prayer for relief only requests a stay of enforcement of the judgment of dissolution until all pending matters below have been resolved. We have, heretofore, denied a similar request for relief. When all of the issues surrounding the dissolution have been resolved, then all will be appealable simultaneously. Until then, we must follow the well-settled policy of our supreme court which discourages piecemeal litigation of judgments of dissolution. (In re Marriage of Leopardo (1983), 96 Ill. 2d 114, 449 N.E.2d 137.) Accordingly, we dismiss this appeal.

Dismissed.

MURRAY and COUSINS, JJ., concur.

      Although the order appealed from does contain final and appealable language (“there is no just reason to delay enforcement on appeal”), appellant does not argue that this court has jurisdiction pursuant to Rule 304(a) (107 Ill. 2d R. 304(a)). However, even if appellant had advanced this argument, it would fail as the order does not terminate the litigation between the parties, and therefore, the special finding language does not make a nonfinal order appealable. In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 544 N.E.2d 454.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYLES LINTON, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—2282
    Opinion filed March 2, 1993.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Winston & Strawn, both of Chicago (Patrick Hess, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Lou Anne Corey, and Jason H. Payne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

On March 16, 1990, defendant Myles Linton was charged with two counts of attempted first-degree murder and two counts of aggravated assault. Before trial, the State declared a nolle prosequi as to the aggravated assault charges. Following a jury trial in the circuit court of Cook County, defendant was found guilty of one count of attempted first-degree murder and was sentenced to 18 years’ imprisonment. Defendant now appeals. For the following reasons, we affirm.

The record on appeal discloses the following facts. At defendant’s trial, Chicago police officers Matthew Brandon, Robert Wallace and Sergeant Michael Drawhorn gave similar testimony regarding the events of February 11, 1990. On the night in question, these witnesses were assigned to public housing south. At about 11:56 p.m., they responded to a radio call concerning a loud party and gang disturbance at 3519 South Federal, which is part of the Stateway Gardens housing complex.

After dispersing the party, the police heard gunshots coming from the south and saw several people running toward them from that direction. As they ran by, these people told the policemen that people were shooting. Officer Wallace testified that he received a partial clothing description of a man wearing a sports team jacket with a team name on the back that began with the letter “B.”

The police headed south. At 3653 South Federal, they saw a group of people at the top of a ramp leading into the building and a person at the base of the ramp. Officers Brandon and Wallace testified that the lighting in the area was adequate, though Officer Wallace could not see the face of the person at the base of the ramp. Sergeant Drawhorn could see the silhouette of the person at the bottom of the ramp.

When the police were approximately 70 to 90 feet from the ramp, they heard someone yell “here they come, folks.” According to Officer Brandon, “folks” is a term used by the members of the Disciples street gang. Officer Wallace testified that “folks” are friendly to the Disciples, whereas “people” are fighting the gang. Over defendant’s objection, Officer Brandon testified that 3653 South Federal was marked with graffiti that included the Disciples’ gang sign. Officers Brandon and Wallace testified that the yell came from the person at the base of the ramp.

After hearing this yell, Officers Brandon and Wallace saw the person at the base of the ramp raise his arm, heard gunshots and saw at least four muzzle flashes aimed in their direction. Sergeant Drawhorn saw the person at the edge of the ramp point a pistol towards Officers Brandon and Wallace, saw the muzzle flashes in their direction and heard the gunshots. Officer Wallace moved to his left and dropped to a prone position 90 feet from the ramp. Officer Brandon was standing approximately 45 feet in front of and 20 to 30 feet to the right of Officer Wallace. Sergeant Drawhorn was 30 to 35 feet to the left of Officer Brandon. Officers Brandon and Wallace returned fire. All three policemen testified that the people at the top of the ramp left when the gunfire started.

The three policemen then saw the person at the base of the ramp crawl up the ramp and behind a wall on the side of the ramp. They ran towards this person as he crawled up the ramp. Officer Wallace never lost sight of this person as he went up the ramp. Sergeant Drawhorn lost sight of the person when the person dropped behind the wall, but testified that Officer Brandon should have been able to see defendant at that point. Officer Brandon testified that he lost sight of the person for approximately two seconds when the person dropped behind the wall.

The police saw the person crawl into a cubbyhole and come to rest; at trial, the policemen identified that person as defendant. The policemen also testified that defendant was holding a gun in his right hand. Officer Brandon ordered defendant to throw the gun out; defendant complied. Officer Brandon picked up the gun, identified as a nine-millimeter semi-automatic pistol. According to Officer Brandon, the gun was warm, had traces of gunpowder around its ejector and the clip was empty of bullets.

The police searched defendant and handcuffed his arms behind his back. Defendant told the police he had been shot in the arm. According to Officer Brandon, to examine defendant’s arm, the police pulled defendant’s clothes down around his arms such that they made contact with defendant’s hands. Officer Brandon examined the ramp area and retrieved 12 shell casings from the base of the ramp.

Officer Robert Smith testified that he was assigned to the firearms identification section of the Chicago police department crime laboratory; defendant stipulated to Officer Smith’s qualifications. Officer Smith opined that 4 of the 12 shell casings recovered from the base of the ramp at 3653 South Federal had been fired by the pistol recovered from defendant. The other eight shells had been fired by another gun.

The State rested. Defense counsel orally moved for a directed verdict. Defense counsel argued in part that while the evidence may suggest the defendant was guilty of some offense, the State failed to prove that defendant intended to kill the police officers. The trial court denied the motion.

Defendant called Robert Berk, a trace evidence analyst for the Chicago police department crime laboratory, as his first witness. Berk testified that when a firearm is discharged, a cloud of smoke engulfs the shooter’s hands. A gunshot residue test, in which cotton swabs moistened with nitric acid are applied to a suspect’s hands and then examined microscopically, may reveal trace elements that have adhered to the suspect’s hands from discharging a firearm. Berk testified that a gunshot residue test was performed on defendant’s hands. Berk opined that the test results indicated three possibilities: (1) defendant had not fired a gun; (2) any gunshot residue on defendant’s hands was removed before the test; or (3) defendant shot a gun that did not deposit residue.

Berk testified that gunshot residue can be dissipated from the hands in several ways. If a shooter were to rub his hands on his clothing, a significant amount of residue would be dissipated. If the shooter were able to wash his hands, it would remove almost all the residue. Residue would also be dissipated if the shooter crawled on his hands and feet. Berk stated that defendant’s hands were not swabbed until 2 hours and 19 minutes after his arrest, and that a significant amount of residue can be removed through normal activity in that time.

Berk further testified that he had not test-fired the nine-millimeter pistol at issue to determine whether it would deposit residue. Berk also indicated that wind could cause a cloud of smoke emitted by a gun to blow away from a shooter’s hands.

Shanta Hayes testified that on the night in question, she saw defendant at a party at 3517 South Federal. She testified that defendant was drunk and that she and another woman decided to walk defendant to his nearby aunt’s house. The three heard gunshots as they approached 3653 South Federal; Hayes did not see defendant fire a gun. Upon hearing the gunshots, Hayes ran away and did not see in which direction defendant went.

Chicago police officer Joseph Moran, an evidence technician, testified that he swabbed defendant’s hands for the gunshot residue test at about 2:15 a.m. According to Officer Moran, defendant identified himself as Romario Williams and told Moran he could not remember the last time he washed his hands. Officer Moran stated that defendant’s hands appeared soiled at the time they were swabbed.

Defendant testified on his own behalf. The first portion of his testimony is substantially similar to Ms. Hayes’ testimony. Defendant then testified that upon hearing the gunshots at 3653 South Federal, he ran up the ramp leading into the building. He testified that he did not have a gun. After running up the ramp, he realized he had been shot in the arm and hid in the cubbyhole. Defendant could hear more shooting and people talking nearby. According to defendant, he laid his hand down on the ground and felt a gun, but did not pick up the gun.

Defendant then testified that Officer Brandon arrived at the cubbyhole, saw the gun and kicked it away from defendant. Defendant admitted that he was wearing a black “Bruins” starter jacket on the night in question. Defendant told the police that four people had been standing nearby shooting guns, but the police did not ask whether the nine-millimeter pistol belonged to one of these people. Defendant also told the police that he had been shot in the arm, but the police did not remove his clothing because when they tried to do so, they realized they could not do so without removing defendant’s handcuffs.

Defendant admitted that he identified himself to the police as Romano Williams because there was a warrant outstanding for his arrest and he did not want to go to jail. Defendant admitted that he was convicted of possession of a controlled substance with intent to deliver in 1990.

In rebuttal, Chicago police officer Patrick Mulligan testified that on the night in question, he was called to 3653 South Federal, whereupon he took defendant to the hospital. Officer Mulligan observed defendant remove his own jacket and sweat shirt and wipe his hands on his thighs. Officer Mulligan also escorted defendant to the washroom.

Detective George Carey testified that he interviewed defendant at the hospital. Defendant identified himself as Romario Williams and described himself as a bystander to gunfire between the gangs and police.

Following closing arguments and jury instructions, the jury found defendant guilty of the attempted murder of Officer Brandon and not guilty of the attempted murder of Officer Wallace.

I

Defendant initially contends that the failure of his counsel to tender a jury instruction on the lesser included offense of aggravated assault amounts to a denial of his right to effective assistance of counsel, guaranteed by the sixth amendment to the United States Constitution. Typically, to prove ineffective assistance of counsel, defendant must prove both prongs of the test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (People v. Albanese (1984), 104 Ill. 2d 504, 526 N.E.2d 1246.) Defendant must demonstrate that his counsel committed errors so serious that, judged by an objective standard, his performance was incompetent and the errors caused prejudice to defendant without which there is a reasonable probability that the result of the proceedings would have been different. (Strickland, 466 U.S. at 687-94, 80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-68; People v. Collins (1985), 106 Ill. 2d 237, 273, 478 N.E.2d 267.) There is a strong presumption that trial counsel’s performance is within the “wide range of reasonable professional assistance,” and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana (1955), 350 U.S. 91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164.

The decision not to tender a jury instruction on a lesser-included offense is generally a matter of trial strategy. (People v. Barnard (1984), 104 Ill. 2d 218, 231-32, 470 N.E.2d 1005, 1009-10; People v. Canet (1991), 218 Ill. App. 3d 855, 862-63, 578 N.E.2d 1146, 1151; People v. Palmer (1989), 188 Ill. App. 3d 414, 428, 545 N.E.2d 743, 754.) The Canet court noted that the Seventh Circuit granted relief to the defendant in Barnard because the jury appeared confused, but declined to follow the Federal decision. Canet, 218 Ill. App. 3d at 862-63, 578 N.E.2d at 1151 (discussing United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798).

In addition, unlike Barnard, defendant does not point to evidence of jury confusion. The cases defendant relies upon concern a trial court’s refusal to give a tendered lesser-included offense instruction rather than defense counsel’s decision not to tender the instruction. People v. Ross (1992), 226 Ill. App. 3d 392, 394-96, 589 N.E.2d 854, 855-56; People v. Krueger (1988), 176 Ill. App. 3d 625, 629, 531 N.E.2d 396, 399.

Defendant claims that his counsel’s argument for a directed verdict shows that the decision not to tender an aggravated assault instruction was a mistake, not a strategy. The record shows that defendant’s attorney argued that the State may have proved defendant guilty of some offense other than attempted murder. That argument seems to support, rather than rebut, the presumption that defense counsel pursued the strategy of forcing the jury to find defendant guilty of attempted murder or acquit him entirely. Indeed, the record shows that defendant was found guilty of only one of two counts of attempted murder, which may arguably indicate that such a strategy was partially successful.

Defendant also argues that his trial counsel acknowledged that the decision was a mistake by listing it as an example of ineffective assistance of counsel in the post-trial motion. Yet trial counsel did not state that the decision was a mistake in the post-trial motion; rather, trial counsel stated that he should have tendered the instruction. Trial counsel may have come to believe that the decision not to tender was a mistake after defendant was found guilty, but hindsight does not remove the decision from the realm of strategy. Defendant has failed to present any evidence to rebut the presumption that the failure to tender the instruction was an intentional strategy.

Defendant argues that this is not a case where introducing an instruction would have been inconsistent with his defense (as in Palmer) or where defense counsel questioned the consequences of tendering the instruction (as in Barnard). Defendant argues in his brief that '

“defense counsel here conceded Myles Linton’s guilt of something and then mistakenly failed to tender an instruction regarding that something: aggravated assault.”

Assuming arguendo that defense counsel made such a concession, the record shows that this was not done before the jury. Moreover, we decline to hold that defense counsel was constitutionally required to submit an instruction on an offense where counsel concedes defendant’s guilt of that offense.

In sum, defendant has failed to show that his attorney’s conduct fell below an objective standard of reasonableness or that he otherwise received ineffective assistance of counsel in this case.

II

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. This court will disturb a criminal conviction only when the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. (E.g., People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.) The standard on appeal is whether any rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense beyond a reasonable doubt. (People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.) In this case, the State was required to prove that defendant committed an act which constituted a substantial step towards the commission of a murder with the intent to commit murder. (See People v. Garrett (1991), 216 Ill. App. 3d 348, 353, 576 N.E.2d 331, 335.) Defendant contends that the State failed to prove the element of intent.

Defendant concedes that this court has previously held that the firing of a gun at a victim evinces the requisite intent to kill. (See People v. Wilson (1991), 224 Ill. App. 3d 364, 367, 586 N.E.2d 547, 549.) Nevertheless, defendant claims that the distance between the shooter and the victims, the lighting of the scene, the time of day, the victims’ lack of sensation of a bullet passing near them and the distance between the police officers operate to negate any inference of intent. Defendant also contends that there was no evidence that the shooter varied his aim.

It is the province of the jury as the trier of fact to determine whether the requisite intent has been proved. (See People v. Tarcios (1992), 228 Ill. App. 3d 583, 598, 593 N.E.2d 907, 918.) In this case, the jury heard evidence that the person at the base of the ramp shouted to others when the police approached and then fired in the direction of two of the officers, as evidenced by muzzle flashes. The jury heard evidence that Officer Brandon was the officer closest to the shooter and that Officer Brandon arrived on the scene shortly before the other officers. The jury also heard evidence indicating that defendant was the shooter. The jury heard evidence that defendant fired in the direction of Officers Brandon and Wallace and that Officer Wallace then moved to his left and dropped to the ground before returning fire. Thus, in finding defendant guilty of only one of the two counts of attempted murder, it appears that the jury weighed the factors which defendant argues above.

In sum, a rational trier of fact could conclude that defendant was guilty of the attempted murder of Officer Brandon.

Ill

Finally, defendant contends that the trial court denied him a fair trial by admitting testimony implying he was a member of a street gang. Defendant relies almost exclusively on People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900. That case suggests that the State cannot impute a gang-related motive to a defendant simply because he had been seen with a known gang member. (See Smith, 141 Ill. 2d at 58-59, 565 N.E.2d at 907-08.) Generally, evidence of gang membership or activity must be related to the crime charged to be admissible. See Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.

In this case, the re,cord shows that the police went to 3519 South Federal due to a radio call indicating a loud party and gang disturbance. After dispersing the party, the police heard gunfire coming from the south and proceeded to 3653 South Federal, where they saw a group standing at the top of a ramp and a person at the bottom of the ramp. Immediately before the shooting, the shooter at the bottom of the ramp (later identified as defendant) used gang terminology in alerting the others as they stood in a location where gang signs were present. It would appear that the evidence tended to suggest that the shooting was gang-related in a far more direct manner than in Smith. Thus, there was no error in admitting the evidence in this case. See People v. Nichols (1992), 235 Ill. App. 3d 499, 507-09.

Even if the introduction of this evidence could be considered error, defendant’s partial acquittal indicates that defendant was not unfairly prejudiced by the introduction of this evidence, thus rendering any error in this regard harmless beyond a reasonable doubt. (People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1018, 516 N.E.2d 382, 388-89.) Moreover, unlike Smith, the State’s arguments to the jury did not exacerbate the alleged error. Cf Smith, 141 Ill. 2d at 60-61, 565 N.E.2d at 908-09 (gang-related motive was argued extensively and was basic theme of the argument).

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


text:
    HEIDI HASSELL, Plaintiff-Appellant, v. JOHN WENGLINSKI, Defendant-Appellee.
    First District (5th Division)
    No. 1—92—1846
    Opinion filed March 5, 1993.

      Daniel L. Starkman, of Chicago, for appellant.
    Williams & Montgomery, Ltd., of Chicago (Edward R. Moor, Ginamarie A. Gaudio, Barry L. Kroll, and Lloyd E. Williams, Jr., of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Heidi Hassell filed a multiple-count complaint for injuries caused by two dogs owned by defendant John Wenglinski. Count I of the complaint alleged that plaintiff was entitled to recover under the Animal Control Act. (Ill. Rev. Stat. 1991, ch. 8, par. 351 et seq.) Defendant moved for judgment on the pleadings as to count I of the complaint. The trial court granted the motion, made a finding of appealability under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and plaintiff timely appealed.

Plaintiff was an employee of defendant. Her position required her to care for defendant’s mother in defendant’s home. On the day of the alleged injury, plaintiff reported for work at defendant’s home as usual. At the time of plaintiff’s alleged injury she was walking defendant’s dogs because she had agreed to do so as a favor to defendant. Her complaint alleged that as she was holding on to the dogs’ leashes, the dogs suddenly pulled her forward, causing her to trip and fall, resulting in bodily injury.

The sole issue presented for review is whether a person having control over an animal may maintain a cause of action under the Animal Control Act (Ill. Rev. Stat. 1991, ch. 8, par. 357 et seq.) against the animal’s legal owner for injuries sustained while the person has such control.

Section 16 of the Animal Control Act (Ill. Rev. Stat. 1989, ch. 8, par. 366), entitled “Liability of owner of dog attacking or injuring person,” provides as follows:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.”

Section 2.16 of the Act (Ill. Rev. Stat. 1989, ch. 8, par. 352.16) defines the term “owner” as follows:

“ ‘Owner’ means any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premises occupied by him.”

In the case at bar, plaintiff was walking the dogs as a favor to defendant and thus had the animals in her care and custody at the time of her mishap, bringing her "within the definition of “owner” under the Animal Control Act.

As the law has developed in this State, a person who is in the status of an “owner” as that term is defined in section 2.16 of the Animal Control Act, set forth above, has no cause of action under the Act if such person is injured by the animal he or she “owns” or controls.

In Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917, the Illinois Supreme Court reviewed the legislative history of the Animal Control Act. It found that “the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them.” (Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919.) In Harris the plaintiff had rented a horse from defendant’s stable and sustained injuries when he fell off the horse. Defendant presented evidence that plaintiff signed and understood an exculpatory agreement. In denying recovery under the Animal Control Act, the supreme court held that by voluntarily entering into a relationship with the defendant whereby plaintiff took control of defendant’s animal, plaintiff had taken himself out of the category of persons the legislature intended to protect.

In Clark v. Rogers (1985), 137 Ill. App. 3d 591, 484 N.E.2d 867, the appellate court considered a situation where a plaintiff had voluntarily entered into a relationship with the defendant animal owner whereby plaintiff was employed to train defendant’s horses. While performing that activity, plaintiff was injured by one of defendant’s horses. In denying recovery under the Animal Control Act, the court held that plaintiff had assumed the risk of injury by accepting the employment to train defendant’s horses and assuming control of the animals. It further found that the legislature, by adopting the Animal Control Act, did not intend to abrogate the defense of assumption of risk in cases arising under the Act. See also Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 403 N.E.2d 756 (licensed horseshoer assumed the risk of being kicked by a horse he was shoeing).

These policy considerations came together in Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 528 N.E.2d 1104. In Wilcoxen, plaintiff owned and operated a dog board and grooming business. She agreed to board defendant’s dog for a fee. While defendant’s dog was in plaintiff’s care, it attacked and seriously injured her. In affirming the trial court’s denial of recovery to plaintiff under the Animal Control Act, the appellate court said, “plaintiff voluntarily accepted responsibility for controlling the defendant’s dog, placing herself within the definition of an ‘owner’ under the Act. The trial court therefore correctly ruled that she could not recover from the dog’s legal owner, when her injuries resulted from her own failure to control the dog.” Wilcoxen, 174 Ill. App. 3d at 543, 528 N.E.2d at 1106.

Plaintiff in the case at bar argues that Wilcoxen was incorrectly decided, or, in the alternative, should be limited to its specific fact pattern involving a dog groomer hired to service the animal. However, neither the legislative history of the Animal Control Act nor the reasoning of the Wilcoxen decision persuades us that it was incorrectly decided or that its rationale should be limited to cases in which the plaintiff and defendant have entered into a contractual relationship involving the animal causing the injury.

In Ennen v. White (1992), 232 Ill. App. 3d 1061, 598 N.E.2d 416, plaintiff voluntarily mounted defendant’s horse named Coke on defendant’s property and was injured when the horse threw her from its back. Excerpts from the pleadings set forth in the Ennen opinion do not establish a contractual relationship between the parties like that existing in Harris, Clark, Vanderlei and Wilcoxen. Ennen sued defendant White under the Animal Control Act to recover for her injuries. The appellate court affirmed the trial court’s dismissal of this claim, stating:

“The Act was not designed to protect [plaintiff] from the injuries she incurred after voluntarily mounting Coke. ***

* * *

*** [P]laintiff in this case assumed control over Coke by mounting the horse. * * *
*** Once the rider mounts the horse, the rider is no longer a bystander or observer but is someone who has asserted dominion over the animal and is an active partner with the animal in recreational activity. The rider assumes control and responsibility for the horse. While a cause of action may be stated under other theories of liability, there is none under the Act.” Enríen, 232 Ill. App. 3d at 1065-66, 598 N.E.2d at 418-19.

Plaintiff also contends that she should not be considered an “owner” under the statute because she had only brief control over the dogs. Nothing in the Act, however, requires a person to exercise care or custody of an animal for a set period of time in order to meet the definition of ‘ ‘owner. ’ ’

Plaintiff Hassell admits in her complaint that she was an employee of defendant although her duties did not normally include exercise of his dogs. She further acknowledges that the dogs were in her custody at the time of her injury. She had an existing relationship with defendant; she voluntarily assumed care and custody of the dogs as a favor to defendant; and she was injured while exercising that control.

For the foregoing reasons, we hold that the Wilcoxen and Ennen decisions properly interpret the definition of “owner” in the Animal Control Act. Therefore, the trial court was correct in ruling that plaintiff was not entitled to recover on the theory alleged in count I of her complaint, and its decision is affirmed.

Affirmed.

MURRAY and COUSINS, JJ., concur.


author: JUSTICE KNECHT COOK, J., PRESIDING JUSTICE STEIGMANN,

text:
    FRED COCKRUM, Plaintiff-Appellee, v. KAJIMA INTERNATIONAL, INC., a/k/a Kajima, Defendant-Appellant.
    Fourth District
    No. 4—92—0603
    Opinion filed March 30, 1993.
    Rehearing denied April 29, 1993.

      STEIGMANN, P.J., dissenting.
    Karen L. Kendall (argued), Robert V. Dewey, Jr., and Stephen J. Heine, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    James W. Yoder (argued) and J. Stephen Yoder, both of Bloomington, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Kajima International, Inc. (Kajima), appeals from a $500,000 McLean County jury verdict entered against it in favor of plaintiff, Fred Cockrum, for injuries he sustained while cleaning windows at the Diamond-Star Motors plant in Bloomington, Illinois. Kajima argues the evidence was insufficient to establish its liability under the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) because (1) it was not “in charge” of the work being performed and (2) there was no evidence it willfully violated the Act. It also argues the trial judge erred by refusing to admit its jury instruction relating to the proximate cause of plaintiff’s injuries. We disagree and affirm.

I. Facts

A. Cockrum’s Testimony

In November 1987, 56-year-old Cockrum was employed part-time by Atlas Window Cleaning, Inc. (Atlas). The injuries were incurred on Saturday, November 14, 1987, while he washed windows at the construction site for Diamond-Star Motors.

He initially worked at the site approximately a month before the November 14 accident. He had worked there four or five times before November 14. The other times he worked there were weekdays and he would work a couple of hours or a little longer. When he arrived at the site, he had to sign in at a guardhouse. Before entering the site, he had to tell who he worked for and the contractor at the Diamond-Star site with whom his boss subcontracted.

Atlas began the window cleaning project at Diamond-Star at the north end. When the accident occurred, approximately three-quarters of the windows had been cleaned. Cockrum worked cleaning the windows from the inside and outside. The ladder Cockrum was using when the accident occurred was his personal ladder which his employer had borrowed sometimes for jobs. It was a 24-foot aluminum extension ladder. Cockrum had seen other people using aluminum ladders to clean the windows at Diamond-Star. Other people used Cock-rum’s ladder and he used it for other jobs he performed while working for Atlas.

Butch Jackson worked with Cockrum the day of the accident. Jackson was using one portion of a 28-foot ladder owned by Atlas. Cockrum was using both portions of his ladder. He testified it was his employer, Bernstein, who decided whether to use a ladder to wash the windows. No Kajima employee told him to use a ladder or that he could not use other means to clean the windows. Cockrum testified Bernstein had rented a “boom” to clean windows at a bank on one occasion and he had used the device where he was in a “bucket” on another occasion.

The day the accident occurred, Cockrum arrived at Diamond-Star at 8 a.m. or 9 a.m. He signed in at the security gate. Other people were working at the plant that day. Cleaning the windows was time-consuming because the glass had glue, caulking debris, dirt, and plaster on it which had to be scratched off with a razor. After removing these markings Cockrum washed the windows. Washing them involved two trips up and down the ladder. When he was on the ground the ladder was freestanding and had blown over two or three times before the accident.

Cockrum and Jackson had cleaned approximately 15 or 16 eight-foot windowpanes before the accident. He had to move the ladder twice to clean each pane. When the accident occurred, Cockrum felt the wind and the movement of the ladder. He tried to jump from the ladder, but his foot became entangled in a ladder rung. He landed on his hip and sustained injuries. The extent of his injuries is not at issue.

The ladder he was using was not defective when the accident occurred. He had used it all day. It had rubber feet. The windy conditions caused the ladder to fall. He had asked Bernstein to provide him a lift, a scaffold, or a “boom” to wash the windows at Diamond-Star, but Bernstein did not want to do so.

Cockrum had washed windows professionally for about 30 years. He had worked for Bernstein’s father when he operated Atlas. Bernstein had operated the business for approximately 20 years. When Cockrum’s injuries occurred, he had been on the ladder for approximately five minutes before the wind blew it over. When the wind caught the ladder, he was not square on the ladder, but was leaning over to scrape debris off a window. On November 14 Cockrum did not speak with any Kajima employee.

B. Max Cheatham

Max Cheatham owns a glass company in Bloomington, Illinois, called JMC Glass & Mirror. He had worked as branch manager for Swanson Gentlemen (Swanson), a contractor which had done business in Bloomington also under the name Harkin Gentlemen. Swanson is no longer operating. Cheatham was responsible for the work Swanson was doing at the Diamond-Star site in 1987. It had a contract to install aluminum windows and glass and aluminum doors at the site. The contract also required Swanson to arrange to have the windows cleaned after they were installed.

Swanson originally subcontracted with ABC Window Cleaning (ABC), to clean the glass, but it was unable to perform the contract. After cancelling the contract with ABC, Cheatham hired Atlas to clean the windows. The contract between Kajima and Swanson required Swanson to notify Kajima and obtain written consent from a Kajima representative before subcontracting with any other company.

Cheatham did not know Atlas, Cockrum, or any other Atlas worker was working on November 14. The agreement between Swanson and Atlas did not require Swanson to provide any equipment for Atlas to use to wash the windows. Atlas was to provide its own equipment and personnel.

C. Kajima International

Diamond-Star Motors was a 50/50 joint venture between Chrysler Corporation and Mitsubishi Corporation of Japan. It employed Mitsubishi International as a training company. It also employed Kajima as a design builder with full responsibility for designing and constructing the project within the specified requirements. The site for Diamond-Star covered 425 acres. The plant covered 48 acres.

Kajima had a contract with Mitsubishi International which required, in part, the design builder was responsible for supervision of safety precautions and programs in connection with the work. Kajima had a safety and jobsite manual. The manual states, in pertinent part:

“This company is responsible for ensuring that all construction work on each project job site is performed in a safe manner and in conformity with all applicable Federal and State safety, health, environmental, and fire regulations and standards, as well as accepted safe practices of the construction industry.”

An additional provision states:

“The extent to which these objectives are met depends upon active management promotion and support of the program and the complete cooperation of job site supervisors and construction personnel in carrying out the following basic procedures:
1. Plan all work to minimize personal injury, property damage and loss of production time.
2. Maintain a system of prompt detection and correction of unsafe practices and conditions.”

Terrence L. Reid was Kajima’s manager during construction of the Diamond-Star plant and was primarily responsible for enforcing the safety and jobsite manual. He had been employed by Kajima for 71/2 years. There were 35 to 40 prime subcontractors on the project to perform site work, landscaping, electrical, mechanical, foundation work, window work, and to construct caissons. Kajima hired an outside security service which was stationed at the gate.

In addition to manager Reid, there were a number of area supervisors who were construction managers. The safety director, Stan Wicker, was the coordinator of the subcontractors concerning safety. He is no longer employed by Kajima. Kajima required all subcontractors to implement and promote a full safety program. According to Reid, Wicker and his support staff met daily with subcontractors to ensure work was being performed safely. The safety department had 75 to 80 support staff, including a nursing staff and ambulances on site.

In response to questioning by Cockrum’s counsel regarding who was responsible for safety on the site, Reid stated: “The safety program and the insurance of compliance with that program was fully our responsibility.”

Reid testified most of the contractors were experienced and knew how to perform their work safely. The safety department continually monitored projects to ensure the jobs were being done safely. If a Kajima employee discovered a subcontractor performing work in an unsafe manner, Kajima could stop its work. Each subcontractor was required to make Kajima’s safety manual part of its contract with Kajima and agree to carry out these safety programs.

Kajima also required each subcontractor to meet with its employees each Monday morning to tell them about safety issues and listen to any suggestions or complaints. Reid also stated each subcontractor had to ensure each of its subcontractors was responsible for safety issues at the site.

On Fridays Kajima had a safety patrol during which a safety worker would take a supervisor or safety advisor to each location where a subcontractor was working. If they saw something required attention, they made sure it was corrected and indicated hazardous work areas. In addition, on the first Friday of each month they stopped the project at 12:30 and gathered all employees, supervisors, and managers together to discuss safety issues. Kajima also issued safety awards to recognize safe work by contractors and subcontractors.

Reid also testified Kajima did not designate how work should be performed. It was a standard within the industry for the contractor to determine the means for accomplishing a task. He also stated that while it is customary for subcontractors to furnish their own equipment, Kajima was authorized to stop work if equipment used or the method employed was not safe. It would have done so whenever it knew about problems.

D. Swanson as Subcontractor

Swanson had a contract with Kajima as a subcontractor. Swanson is a specialty firm which installed curtain walls, an aluminum entry type of material, and glass and glazing. It did the glass and glazing for the project and subcontracted some of its contractual duties with Kajima, including cleaning the windows. Its work came toward the end of the construction project when the staff was thinner. The facility was turned over to Diamond-Star Motors March 1,1988.

The contract Kajima had with Swanson required Swanson to take all reasonable safety precautions in performing its work and to comply with all safety measures initiated by the design builder including all Federal and State safety requirements and local regulations. It also stated Swanson remained responsible for the prevention of hazards to personnel and property, for the care, safety and protection of all materials, installed work, personnel, and equipment, and all items under the contractor’s jurisdiction. The subcontractor was also responsible for correcting all unsafe conditions.

The contract also provided Swanson could not subcontract, assign or transfer its contract, or any part of it, unless Kajima consented in writing. Swanson was required to submit and obtain approval from Kajima before employing any subcontractor.

The glazing contract between Kajima and Swanson required Swanson to have the windows cleaned and washed upon completion of glazing. The contract listed ABC as the subcontractor to perform the final window cleaning. Kajima did not consent to Swanson hiring Atlas to clean the windows. According to Reid, he learned Atlas was involved as a subcontractor at the Diamond-Star site Monday after Cockrum’s injury because it was in the newspaper.

The windows Cockrum was cleaning when the accident occurred had a western exposure and were 15 to 18 feet above ground. They could be seen from the back door entrance of Kajima’s offices. Reid opined the portable ladder was not being used properly when the accident occurred. The length of it prevented it from reaching the top of the building where it could have been tied off as required by Kajima’s safety manual. A provision in it states: “ ‘Portable ladders shall be tied, blocked or otherwise secured to prevent the ladder from being unintentionally displaced.’ ”

Reid testified if he had seen a man on a portable ladder washing windows, he would have stopped the work. He listed a number of alternate methods for cleaning the windows which would have been more appropriate. A swing state or scaffolding could have been used. Mobile work platforms would also have been preferable. One of a number of types of mechanical lifts would also have been a proper way to safely reach the windows for cleaning.

Each subcontractor was required to complete a daily jobsite checklist for its work areas. One subheading with respect to ladders was whether they were properly tied off or secured against movement. Reid could not say whether these daily checklists were collected by Kajima. He explained this would have been the responsibility of the safety director, who was no longer employed by Kajima. He could only say he could not find them in Kajima’s files.

Reid also testified that according to Kajima’s rules, normal working hours for subcontractors were Monday through Friday, 8 a.m. to 4:30 p.m. Anyone working off-hours or unusual hours was to notify the security and safety department so Kajima could have people on the site while they were there. Kajima did not know anyone would be working at the site the day Cockrum was injured. However, a nurse and ambulance were present to attend to Cockrum after his fall. Reid explained they were at the site because Diamond-Star employees had begun moving in equipment. Kajima had not been notified by Atlas that Cockrum would be working at the site on November 14.

At the close of the evidence, Kajima’s motion for a directed verdict was denied. The jury returned a $500,000 verdict in Cockrum’s favor. Kajima filed a post-trial motion seeking a judgment n.o.v. Its motion was denied and this appeal followed.

II. Liability Under Structural Work Act

A. Cause of Action as a Matter of Law

Kajima contends the facts are undisputed and this court must conclude a cause of action could not, as a matter of law, have been maintained against it under the Act because plaintiff, an employee of a subcontractor, was injured on (1) a nonscheduled workday, (2) while using his own equipment. It also argues it could not have been liable under the Act because (3) it was not informed work would be performed on the nonscheduled workday, although notice was required to ensure safety personnel could be present; (4) the subcontractor of Kajima, Swanson, did not obtain prior written approval to subcontract its contractual duties to Atlas as required by its contract; (5) it did not know Swanson had subcontracted its contractual duties to Atlas; (6) it did not know the work which caused plaintiff’s injuries was being performed on the nonscheduled workday; and (7) Atlas determined what equipment and method would be used to clean the windows.

To sustain a cause of action for violation of the Act, Cockrum must have established the following elements: (1) he was involved in a construction activity protected under the Act; (2) the activity took place on a structure covered by the Act; (3) a scaffold or similar device defined by the Act was being used; (4) the device was unsafe or not safely placed or located; (5) the unsafe condition proximately caused Cockrum’s injury; (6) Kajima had charge of the work; and (7) Kajima willfully violated the Act. Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 307-08, 549 N.E.2d 984, 987; Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 488, 531 N.E.2d 51, 55.

Defendant contends it is the final three elements which were missing from Cockrum’s evidence at the trial level: (1) Kajima had charge of the work being performed; (2) Kajima willfully violated the Act; or (3) a defect attributable to Kajima proximately caused Cock-rum’s injuries.

Contrary to Kajima’s contention, the proper standard to apply to determine whether a judgment n.o.v. or a directed verdict should have been granted is whether, when viewing the evidence most favorably to the nonmoving party, the evidence so overwhelmingly favors the moving party that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14; Smith, 176 Ill. App. 3d at 492, 531 N.E.2d at 57.) In this case, the evidence was not undisputed regarding the alleged three missing elements in Cockrum’s evidence.

1. Control Over Cockrum’s Work

Defendant argues it was not “in charge of” plaintiff’s work for the following reasons: (a) Swanson, the subcontractor to Kajima, violated its contract with Kajima by hiring Atlas without Kajima authorizing this arrangement, as required by its contract; (b) the evidence was undisputed Kajima did not know Cockrum was working at the site the day the accident occurred; (c) the evidence was undisputed Kajima did not know Atlas would be at the site the day of the accident; (d) the evidence was undisputed Kajima did not know, should not, and could not have known Cockrum or his employer was on the premises at any time; (e) plaintiff was injured while using his own ladder; and (f) the evidence was undisputed plaintiff and his employer were solely responsible for deciding what equipment and methods would be used to clean the windows.

Kajima directs us to cases which have affirmed summary judgments in favor of a defendant where the facts were undisputed and the court concluded as a matter of law defendant was not in charge of the work being performed when the injury occurred. Each case is distinct from the facts we address.

In Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 110-11, 514 N.E.2d 188, 189-90, the Illinois Supreme Court concluded the defendant company was not in charge of the work where its only connection to a sewer line project was to provide the equipment and operators who worked under the supervision of plaintiff’s employer, S. M. Wilson Construction (hereinafter Wilson), which had been hired to construct a hospital addition. The undisputed evidence showed Wilson retained all responsibility for determining, among other considerations, job safety, and could discharge the operators if it was dissatisfied with their performance. There was no evidence from which a jury could conclude the defendant company assured the safety of all workers at the site.

Kajima correctly notes the fifth district ruling in Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 241-42, 493 N.E.2d 1204, 1205-06, concluded defendant was not liable under the Act for plaintiff’s injuries when plaintiff provided his own equipment while delivering concrete blocks to defendant’s home which defendant was independently constructing. However, unlike our scenario, there again was no claim defendant assured plaintiff’s safety while plaintiff carried out his job delivering the blocks and his hoist came in contact with low lying electrical wires.

Kajima is again correct in arguing that to be liable under the Act an owner of the property must have been in charge of the operation during which the injury occurred. The Illinois Supreme Court made this ruling in Warren v. Meeker (1973), 55 Ill. 2d 108, Ill, 302 N.E.2d 54, 56. Not noted by Kajima, however, was the Warren court’s observation the defendant company did not appear to have the authority “to stop plaintiff’s work if it was being performed in a dangerous manner.” Warren, 55 Ill. 2d at 112, 302 N.E.2d at 56.

Kajima’s alleged liability for Cockrum’s injuries is not based on its ownership interest in the property where Cockrum was injured. Kajima retained the authority to stop any contractor or subcontractor’s work which was being performed in an unsafe manner. In fact, Reid testified if he had been aware the windows were being cleaned with portable ladders he would have stopped this work.

The Act does not impose absolute liability on all contractors, subcontractors, and other persons involved in the project on which a plaintiff is injured, but this principle does not bolster Kajima’s position. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 318-19, 175 N.E.2d 785, 792.) Kajima’s liability was not based on this principle.

Kajima relies on a third district ruling in Marine Bank v. Archer Daniels Midland (1987), 156 Ill. App. 3d 576, 579, 509 N.E.2d 163, 166, for its argument it could not have been liable for plaintiff’s injury because Atlas had the sole responsibility for determining how plaintiff performed his work, when he was to do it, and what equipment would be used. Kajima also contends it was not in control because it was not informed Atlas was cleaning the windows, or that Atlas would be working on Saturday when safety personnel were not generally present.

The Marine Bank court based its ruling on the reasoning plaintiff’s injury was not covered under the Act, the defendant company had no control over the operation, and plaintiff did not establish any willful violation of the Act by the defendant company. (Marine Bank, 156 Ill. App. 3d at 579, 509 N.E.2d at 165-66.) Kajima emphasizes only the Marine Bank court’s rationale that the defendant company did not determine the manner and means by which the work was to be completed. However, an important additional characteristic not noted by defendant was the court also observed defendant had no authority over the safety of the construction project. (Marine Bank, 156 Ill. App. 3d at 579, 509 N.E.2d at 166.) Kajima retained full authority-over the safety of all construction at the site.

In Jacobson v. 190 North State Street, Inc. (1971), 2 Ill. App. 3d 256, 263-64, 276 N.E.2d 367, 371-72, the first district ruled a directed verdict should have been granted for defendants where as a matter of law defendants were not found to have been in charge of the project during which plaintiff was injured. The court reached this conclusion although defendants had supplied and had some control over the elevator which was used as a scaffold.

Kajima relies on Jacobson in arguing as a matter of law it could not be liable for Cockrum’s injuries because Cockrum and Atlas were not invited onto the site and their presence was unknown to Kajima. However, the evidence on these issues was in dispute and the trial judge was correct in leaving the ultimate determination to the jury.

Kajima’s final argument relies on another first district ruling in Zuelsdorf v. Montgomery Ward & Co. (1978), 64 Ill. App. 3d 408, 413, 380 N.E.2d 1130, 1135, in which the court approved a jury verdict for defendant. The court reasoned the activities of defendant which established it was in charge of operations must be directly connected with the operations. Kajima correctly notes the court based its ruling on the absence by defendant of any authority to control the electrical work being performed. Moreover, defendant’s foreman had no connection with performance of the work, supervision of workers, nor the right to discharge a worker.

These facts are again distinct from those we address. Kajima contends Zuelsdorf provides support for its claim it cannot be held liable under the Act because it was not in charge of the operation which involved the injury. Kajima contends in its brief that “all of the evidence” indicates only Atlas retained control over the window cleaning. It states in its brief, “the mere fact that Kajima was the design builder does not render it in charge of every aspect of the work at every moment.” However, the evidence clearly characterized Kajima’s role as more involved than only the design builder. In fact, Reid conceded on numerous occasions its primary responsibility was to carry out the safety precautions set out in its manual.

Although not relied on by Cockrum, or distinguished by Kajima, this court has ruled, “[o]ne possessing the right to stop the work if it is being done in a dangerous manner is a person ‘having charge’ within the meaning of the Act.” (Scrimager v. Cabot Corp. (1974), 23 Ill. App. 3d 193, 196, 318 N.E.2d 521, 523, citing Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.) In Scrimager, the court concluded the defendant company which had a contract with the plaintiff’s employer, which provided defendant had a right to stop painting work if it were being done in an unsafe manner, could be liable under the Act because it retained control over the painting task. Plaintiff fell from a roof while painting. Scrimager, 23 Ill. App. 3d at 196, 318 N.E.2d at 523.

Cockrum relies on the first district ruling in Pantaleo v. Gamm (1969), 106 Ill. App. 2d 116, 245 N.E.2d 618. Cockrum contends it presents similar facts because the court rejected the defendant company’s argument it was not in charge of the work because its workers had not been present at the work site the day the accident occurred or for 13 days before the accident. (Pantaleo, 106 Ill. App. 2d at 125-26, 245 N.E.2d at 623-24.) However, this does not address whether liability fails in the present case because Kajima required notice if subcontractors wished to work during nonwork hours.

Pantaleo (106 Ill. App. 2d 116, 245 N.E.2d 618) and Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 186, 498 N.E.2d 522, 526, do support the principle a defendant company which retains control over the entire work project can be held liable under the Act. Kajima retained such control over the Diamond-Star site. It was in charge of security and safety issues and could stop work it found to be contrary to its safety rules.

Kajima contends the following facts as undisputed: (1) it did not know, nor could it have reasonably known, Swanson subcontracted for the window cleaning with Atlas, and (2) it could not have agreed to be in charge of Cockrum’s work because it did not know, nor could it have reasonably known, Cockrum would be working at the site when the accident occurred. However, these facts were in dispute.

Testimony showed Kajima hired the security firm which operated the guardhouse at which all persons entering the site had to stop, report who they worked for and from what company their employer had subcontracted the work they were performing. Although Kajima argues in its reply brief there was no evidence it had authority over the security firm, neither was there evidence presented to the contrary. The only evidence presented, that Kajima hired the firm, combined with the fact Kajima was in charge of security, could reasonably have been viewed by the jury as evidence Kajima could have learned or did learn Atlas had assumed Swanson’s duty to have someone clean the windows.

In addition, if the security records were checked or used in day-today operations, Kajima could have known Cockrum, and the numerous additional workers present on the weekend day on which the accident occurred, were present at the site and were performing subcontractor tasks.

The evidence included facts which were in dispute. A directed verdict or judgment n.o.v. would not have been proper under these circumstances. Whether a defendant had charge of the work within the meaning of the Act is primarily a question for the jury. (McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101, 338 N.E.2d 868, 873.) The trial judge properly placed this determination in the control of the jury.

B. Was a Willful Violation Established?

Kajima also contends a willful violation of the Act was not established because the evidence showed it did not know, nor could it, or should it reasonably have discovered the support device — the ladder used by plaintiff — was a dangerous condition. A willful violation of the Act occurs only when evidence shows defendant knows or, in the exercise of reasonable care, should know the dangerous condition exists. Smith, 176 Ill. App. 3d at 55.

Kajima argues Cockrum’s use of a ladder improperly on a nonscheduled workday was not reasonably discernible. It contends the Illinois Supreme Court ruling and a first district ruling relied on by Cockrum are distinct because in each, the defendant company had a representative on the site who could have discovered the dangerous condition. McInerney, 62 Ill. 2d at 100-01, 338 N.E.2d at 873; Ryan v. E.A.I. Construction Corp. (1987), 158 Ill. App. 3d 449, 459, 511 N.E.2d 1244, 1250.

Kajima’s citation to the fifth district ruling in McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787, does not support its argument that the improper use of a ladder at the Diamond-Star site, at which it was responsible for ensuring safe construction practices, was not readily discernible. In McMahon, plaintiff was injured when he fell from a ladder which had been set on ground which caved in. McMahon, 135 Ill. App. 3d at 217, 481 N.E.2d at 791.

Similarly, in a previous ruling by this district, plaintiff’s injury was incurred when he slipped on ice which had formed within only an hour and 15 minutes after plaintiff and his co-workers had travelled the same steps to return from lunch and noted no ice formation. (Smith, 176 Ill. App. 3d at 491, 531 N.E.2d at 57.) In both cases the dangerous condition arose quickly and could reasonably have been viewed as outside defendant’s expectation such danger would arise.

Cockrum had used the same ladder without securing it on four or five additional occasions on weekdays. By the time Cockrum was injured, nearly three-quarters of the windows had been cleaned. Cock-rum had seen others cleaning the windows in this fashion. The site where the windows were being cleaned could be seen from Kajima’s office location. With 70 to 80 employees entering the rear of the building on occasion each day, it was reasonable to conclude, as the judge did, there was a factual question about whether a Kajima employee should have previously noted the dangerous technique employed for cleaning the windows.

Reid testified there was a safety checklist which was to be filled out by each subcontractor weekly. However, he did not know if Kajima personnel reviewed or even collected these weekly checklists. He could find no record of the safety checklists in Kajima’s files. If the checklists had been reviewed, Kajima could have discovered (1) a subcontractor which it was allegedly not aware of was cleaning the windows; and (2) it was using an unsafe technique contrary to the safety policies established by Kajima and which were to be followed.

Kajima had 70 to 80 employees hired to ensure safety policies were being followed. No Kajima safety employee noted the dangerous technique used for cleaning the windows even though workers had used it on numerous occasions. Furthermore, Kajima’s reliance on the argument it could not have known Atlas’ workers were cleaning the windows is also unconvincing.

Kajima was in charge of security and safety issues. Kajima hired the security for the gatehouse through which all persons entering the site had to pass and record who they worked for and the company their employer subcontracted with. If Kajima had inspected the records of the gatehouse indicating who entered the site, it could easily have determined the windows were being cleaned by Atlas.

Kajima’s argument it is not reasonable to have expected it to know workers would be present at the site the day of the accident also fails. Clearly the security guards were aware of all who entered. Testimony indicated there were numerous workers admitted the day the accident occurred. If admission was barred, security should have kept the workers from entering the site. If the jury concluded Kajima was in charge of the work, it could also conclude Kajima knew or, in the exercise of reasonable care, should have known about how the ladder was being used and that workers might be present at the site on the day of the accident.

There were factual questions about whether Kajima could reasonably have discovered the dangerous condition employed for cleaning the windows at the Diamond-Star plant. The trial judge properly denied Kajima’s motion for a directed verdict and judgment n.o.v., and left the determination of these questions in the control of the jury.

III. Jury Instructions

Defendant argues in the alternative it should receive a new trial because of the trial judge’s prejudicial error which occurred when the jury was not properly instructed Cockrum had to prove Kajima’s willful violation of the Act proximately caused his injury.

Kajima submitted the following instruction:

“If you decide that the plaintiff has proved all the propositions of his case under the Structural Work Act, then it is not a defense to the plaintiff’s claim that some conduct on the plaintiff’s part may have contributed to cause the injury.
However, if you decide that the sole proximate cause of the occurrence was the conduct of the plaintiff, then you should find for the defendant.”

Although initially described as a modified version of Illinois Pattern Jury Instructions, Civil, No. 180.17 (3d ed. 1992) (hereinafter IPI Civil 3d), after further discussion, defense counsel indicated the instruction was not a recognized modification of IPI Civil 3d No. 180.17, but an alternative to IPI Civil 3d No. 180.19.

The trial judge provided the following jury instruction submitted by Kajima:

“More than one person may be to blame for causing an injury. If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense to the plaintiff’s claim that some third person who is not a party to the suit and plaintiff’s employer may also have been to blame.
However, if you decide that the sole proximate cause of the injury to the plaintiff was something other than a violation of the Structural Work Act by the defendant, then your verdict should be for the defendant.” IPI Civil 3d No. 180.19, at ISO-53.

In addition, the jury responded in the affirmative to a special interrogatory submitted by Kajima which found Kajima had violated the Act. The jury was properly instructed and its response to the special interrogatory indicates it knew in order to find Kajima liable for Cockrum’s injuries it must determine whether Kajima violated the Act.

IV. Conclusion

The trial judge properly denied Kajima’s request for a directed verdict at the close of the evidence and for a judgment n.o.v. after the jury ruled against it. The evidence presented a question of fact about whether Kajima was “in charge” of the work being performed when Cockrum was injured and whether Kajima willfully violated the Act. In addition, the trial judge did not err by denying defendant’s jury instruction. The jury was properly instructed.

Affirmed.

COOK, J.,

concurs.

PRESIDING JUSTICE STEIGMANN,

dissenting:

Dissenting judges commonly state that they “respectfully dissent” even when one suspects that their claim reflects tradition more than reality. In this case, I truly do respectfully dissent because the majority opinion, in many ways, is compelled by previous decisions of the supreme court and the appellate court, which in turn are constructions of the Act — an historical anomaly that has long since outlived its reason for existence.

That the defendant in this case should be ordered to pay this plaintiff a half million dollars in many ways confirms what much of the public already suspects: that the law truly is an ass. Further, until the General Assembly finally abolishes the Act or the supreme court reinterprets it to avoid some of its more ridiculous applications (particularly this very case), the verdict here should stand as a semaphore, warning prospective businesses thinking of locating in this State that they will be treated like so many “marks” in a legal system that works like a confidence game.

The majority opinion states that defendant correctly argues that to be liable under the Act, an owner of the property must have been in charge of the operation during which the injury occurred. (243 Ill. App. 3d at 412.) However, the majority then notes that the supreme court decision stating this ruling, Warren (55 Ill. 2d at Ill, 302 N.E.2d at 56), also observed that the defendant company in Warren did not appear to have the authority to stop plaintiff’s work if it was being performed in a dangerous manner. (243 Ill. App. 3d at 412.) Although the majority correctly reads Warren, surely the supreme court could not have meant the full implications of that statement. After all, if a homeowner contracts with a roofing company to repair his roof and, upon returning home from work, observes a roofer performing circus stunts on the homeowner’s roof, surely he has the authority to order the work stopped because it is being performed in a dangerous manner. But if the roofer fell 15 minutes before the homeowner came home and injured himself as a result of doing his circus stunts, should the homeowner still be liable because, had he returned home in time, he “could have stopped the work from being performed in a dangerous manner”? To so hold does not make any sense. This example reveals just one of the areas that the supreme court must address as long as Illinois citizens continue to be burdened by the Act.

Although the majority opinion also correctly states that the Act in theory does not impose absolute liability on prospective defendants (243 Ill. App. 3d at 412), reality indicates to the contrary, as shown by cases like the present one. This case in particular and the Act in general represent the worst aspects of the “indemnification society” that we have become. Here, defendant essentially did nothing at all wrong, yet is being punished for having expressed its concern for the safety of its workers although it could not guarantee that its workers would not be injured (or, as here, injure themselves because of their own gross negligence).

Clearly defendant would have been much better off had it never said anything on the subject of worker safety or had it tried to shift all safety concerns to others. This half million dollar judgment provides a perverse disincentive for contractors to set forth in writing their goal of providing a safe workplace and the steps they plan to utilize to achieve that goal. Further, one can hardly dispute, based on this case, that the more safety concerns a contractor expresses, the higher a standard plaintiff’s counsel will argue the contractor has set for itself, and the bigger (and more expensive) the fall that awaits the contractor.

The majority opinion also states the following: “A willful violation of the Act occurs only when evidence shows defendant knows or, in the exercise of reasonable care, should know the dangerous condition exists.” (Emphasis added.) (243 Ill. App. 3d at 415.) The majority cites Smith (176 Ill. App. 3d at 488, 531 N.E.2d at 55) as support for this holding. In turn, Smith cites Kohutko (148 Ill. App. 3d at 187, 498 N.E.2d at 526 (“[f]or a wilful violation, it is only necessary that the defendant know, or in the exercise of reasonable care should have known, of the existence of a dangerous condition”)), which cites Blake v. Tri-State Crane Service, Inc. (1983), 114 Ill. App. 3d 1059, 1067, 449 N.E.2d 946, 953 (“[a] violation of the Act is wilful when a person having charge of the work knew or, in the exercise of ordinary care, should have known of a dangerous condition”), which cites Lavery v. Ridgeway House, Inc. (1969), 117 Ill. App. 2d 176, 186, 254 N.E.2d 117, 122 (“[tjhere can be no liability under the Act without evidence that the Act was violated and that such violation was ‘wilful’ ”), which — finally—cites a supreme court decision, Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 129, 171 N.E.2d 60, 67, where the supreme court wrote the following: “The term ‘wilfully’ in the Scaffold Act has been construed by this court to be synonymous with ‘knowingly,’ and it is not necessary that there be a reckless or wanton disregard of the provisions of the [A]ct in order to constitute an actionable violation thereof.”

How did we get from the supreme court’s construction of the term “willfully” as being synonymous with “knowingly” — a not particularly remarkable interpretation — to the present state of the law, as stated in Smith (176 Ill. App. 3d at 488, 531 N.E.2d at 55), that a willful violation of the Act occurs not only when the evidence shows the defendant acted willfully or knowingly but, in the exercise of reasonable care, should have known that the dangerous condition existed? I submit the Act is bad enough without this judicial gloss that the appellate court has given it that, in effect, renders a contractor absolutely liable for injuries suffered by its structural workers. As the present case all too starkly reveals, a claim that a contractor “in the exercise of reasonable care, should have known that the dangerous condition exists” is almost impossible to defend, especially if the contractor is foolish enough to ever express any concerns about — or to take any steps to address — the safety of its workers.

As a simple matter of statutory construction, even if a “willful” violation of the Act is synonymous with a “knowing” violation of the Act, how can this court possibly countenance a finding of a willful violation of the Act — which is, after all, the statutory term — when the evidence here shows that the defendant in fact did not know of the dangerous condition but perhaps should have? To hold that a defendant under these circumstances “willfully” violated the Act is the judicial equivalent of holding up is down, green is blue, or right is left. The “should have known” standard applies to simple negligence; it has no place in an analysis of a standard that provides liability only for a “willful” violation.

In conclusion, I add again that I disagree not so much with the particular decision in this case as with the Act itself and the judicial gloss that has been given to it. The time has come to chip away at the patina of this ill-thought-out precedent, and this case would be a good place to start.