author: PRESIDING JUSTICE JIGANTI JUSTICE JOHNSON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.B. BOSTON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1592
    Opinion filed December 5, 1991.
    Rehearing denied February 4, 1992 and pro se rehearing denied February 6, 1992.

      JOHNSON, J., dissenting.
    Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Guy L. Miller IV, and Sandra Z. Nueschen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant J.B. Boston was convicted of rape, armed robbery and home invasion and sentenced to natural life imprisonment for each offense. He appealed raising various issues including whether the prosecutor’s use of peremptory challenges against black members of the venire violated the defendant’s right to due process and equal protection of the law. Based on the United States Supreme Court decisions in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, which held that Batson applies to all cases pending on direct review at the time it was decided, we remanded the cause for a hearing on whether potential jurors had been excluded because of their race. Following the hearing, the trial court determined that the defendant failed to establish a prima facie case of discrimination. The defendant contends on appeal that the trial court’s finding was against the manifest weight of the evidence and that the court erred in considering race-neutral explanations offered by the prosecutor prior to determining whether a prima facie case of discrimination had been established.

The record discloses that at the conclusion of jury selection, after both the defense and the State had exercised all of their challenges, defense counsel asked the court to dismiss the venire because the prosecutor systematically excluded black venire members by the exercise of six of its seven peremptory challenges. The court denied the motion, noting that three black women were on the jury and that the two alternate jurors were black.

On remand, the trial court stated that the hearing would follow the two-step procedure established in Batson. First, the defendant would have to establish facts giving rise to a prima facie case of discrimination; second, if the defendant succeeded in establishing a prima facie case, the prosecutor would be required to come forward with neutral explanations for the use of his peremptory challenges.

The State and the defendant then agreed that the jury had been composed of three blacks, one Hispanic, one Asian and seven whites. Both alternate jurors were black. The record does not disclose the racial identities of the entire venire. The parties agreed that the State used its eight peremptory challenges to exclude seven blacks and one white. Defense counsel then sought to question Arthur Neville, the prosecutor who exercised the peremptory challenges. The State objected on the basis that the prosecutor is not required to offer race-neutral explanations for the use of his challenges until the defendant first establishes a prima facie case of discrimination. Defense counsel responded that his questions would relate solely to issues relevant to the establishment of a prima facie case of discrimination. However, before any questioning took place, the defendant elected to proceed pro se.

After the trial court admonished the defendant concerning the consequences of his decision to proceed without counsel, the defendant argued at length regarding the characteristics of the jurors and the excluded venire members. The defendant then questioned the prosecutor, over an objection by the State, as to his reasons for excluding certain jurors. Both sides presented arguments, with the prosecutor giving rather detailed explanations to justify the exclusion of the seven black venire members. The court then made the following comment:

“I know Mr. Neville from many trials that he tried here. I know his partner, Mr. Webber, who is now a judge from the many trials that he has tried here, and I know that at least in appearances, any statements that they have ever made during the course of working in this courtroom, that neither of those gentlemen have ever expressed, have ever shown any partiality one way or another, because of a person’s race. I have never heard Mr. Neville express any type of statements that would in any way indicate any bias or prejudice on his part concerning a person’s race ***.”

The court at that point asked Arthur Neville to give some of the reasons he had for excluding jurors in this cause. According to the court, the explanation would assist the court in determining whether the defendant had established a prima facie case of discrimination and would also serve to complete the record for appellate review. Neville then explained in very general terms that he tended to exclude jurors who were very religious or who lived in the same general area as the defendant. He also mentioned evasiveness in responding and lack of ties to the community as possible reasons for exclusion.

The court then made a finding that the defendant failed to establish a prima facie case of discrimination. The court noted that 25% of the jury, not including the alternates, was black and that two of the other jurors were members of minority groups. It further stated that the seven blacks peremptorily challenged constituted a homogeneous group in that none were crime victims or had any brush with criminal activity. The court stated:

“It is obvious that the State was looking for people, if they could find them, who had some understanding of being the victim of a crime. Most, if not all of the jurors, most of the jurors who were, in fact, selected had this characteristic which was different and separate from the characteristic of any of the jurors who were excluded.”

The court then reviewed the explanations given by the prosecutor and determined that the peremptory challenges were exercised for race-neutral reasons. The court noted that one juror was excused because he stated that he was worried about his job, and another was excused because he did not fill out the back of the jury card. The court further stated that certain jurors were excused because of their religious or charitable activities. Others lived in the area where the criminal investigation occurred. The court concluded that “1 don’t believe, under the circumstances, and my knowledge of the work of Mr. Neville and Mr. Webber that there was any selection in this case that had anything to do with race; that they were non-racia! reasons.”

On appeal, the defendant contends that the trial court erred both in its manner of conducting the Batson hearing and in its finding that a prima facie case of discrimination had not been established.

With regard to the procedural issue, the defendant contends that the court acted improperly in considering the explanations offered by the State before ruling upon whether the defendant met his burden of establishing a prima facie case.

In People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849, the Illinois Supreme Court stated that Batson envisioned a methodical step-by-step application for judging whether purposeful discrimination has occurred. Under this analysis, the court would first assess whether the dependant had established a prima facie case of discrimanation; next, the court would consider the prosecutor’s explanations in determining whether or not the peremptory challenges were exercised in a race-neutral manner. The court in Hope cautioned against collapsing the Batson analytical steps into “an undifferentiated review of defense contentions and prosecutorial explanations.” Hope, 137 Ill. 2d at 456, 560 N.E.2d at 860.

However, in Hope v. Illinois (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792, the United States Supreme Court granted the defendant’s writ of certiorari, vacated the judgment in Hope and remanded the cause to the Illinois Supreme Court for further consideration in light of Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859. Hernandez involved a situation in which the trial court heard the race-neutral explanations offered by the prosecutor and ruled on the ultimate issue of intentional discrimination without first determining whether the defendant had established a prima facie showing of discrimination. In assessing the impact of the procedure followed in the trial court, the Supreme Court in Hernandez stated that “[t]his departure from the normal course of proceeding need not concern us. *** Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Emphasis added.) Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.

In the case at bar, the trial court ruled that based on the circumstances of the case and his experiences with the prosecutors, the State’s peremptory challenges were exercised for race-neutral reasons. Under the reasoning of Hernandez, the preliminary issue of whether the defendant had made out a prima facie showing of discrimination became moot. (People v. Johnson (1991), 218 Ill. App. 3d 967, 578 N.E.2d 1274.) Therefore, the only question remaining is whether the trial court erred in finding that no discrimination occurred.

Once the prosecutor offers a race-neutral reason for his exercise of peremptory challenges, it becomes the duty of the trial court to determine whether the defendant has established purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 98, 90 L. Ed. 2d 69, 88-89, 106 S. Ct. 1712, 1723-24.) “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) The Hernandez Court, citing Batson, explained that “the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” (Hernandez, 500 U.S. at 364, 114 L. Ed. 2d at 408-09, 111 S. Ct. at 1868.) The trial court’s decision will not be reversed unless the reviewing court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” Hernandez, 500 U.S. at 370, 114 L. Ed. 2d at 412-13, Ill S. Ct. at 1872, quoting United States v. United States Gypsum Co. (1948), 333 U.S. 364, 92 L. Ed. 746, 68 S. Ct. 525.

In the instant cause, the trial court based its finding of no discrimination primarily upon its observation that none of the excluded black jurors had been victims of crime or had friends or family who had been victims of crime. The record reveals that seven of the jurors who had been selected and one of the alternate jurors had either been victims of crime or had friends or family who were crime victims. The trial court noted that it was obvious that the State was looking for jurors “who had some understanding of being the victim of a crime.” The defendant maintains that this shared characteristic does not reflect the real reason that the black venire members were excused because there were members of the panel, both black and white, who were not victims of crime. However, as stated in People v. Young (1989), 128 Ill. 2d 1, 23, 538 N.E.2d 453, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290, the fact that a characteristic shared by the excluded black jurors was possessed by some white jurors who were not challenged does not in and of itself mean that the reason for exclusion was pretextual. The court noted that the jurors who were chosen “may have, in some other respect, exhibited a trait which the prosecutor reasonably could have believed would make him or her desirable as a juror.” Young, 128 Ill. 2d at 23-24, 538 N.E.2d at 458-59.

The trial court also relied heavily upon its knowledge of the prosecutor who selected the jury. As quoted earlier, the court stated that it had extensive experience working with that prosecutor and did not believe that the prosecutor’s exclusion of jurors was based on race. In People v. Mahaffey (1989), 128 Ill. 2d 388, 414, 539 N.E.2d 1172, cert. denied (1989), 493 U.S. 873, 107 L. Ed. 2d 156, 110 S. Ct. 203, the Illinois Supreme Court held that it was proper for the trial court to use its experience, as well as its superior knowledge of local conditions and prosecutors, in determining whether the State’s peremptory challenges were motivated by discrimination. The court therefore acted within its discretion in considering its knowledge of and prior experience with the prosecutors in the instant cause as a factor in determining whether the peremptory challenges were motivated by discrimination.

Based on our review of the above factors, we are not left with a “definite and firm conviction that a mistake” was committed by the trial court in finding as a matter of fact that no discrimination occurred in the selection of the jury. (Hernandez, 500 U.S. at 370, 114 L. Ed. 2d at 412, 111 S. Ct. at 1872.) A common theme running through the cases addressing the Batson issue is the considerable discretion vested in the trial court. (See People v. Young (1989), 128 Ill. 2d 1, 21, 538 N.E.2d 453; People v. Evans (1988), 125 Ill. 2d 50, 66, 530 N.E.2d 1360, cert. denied (1989), 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175.) As stated in Evans:

“[W]e must keep in mind that the initial determination of whether a prima facie case has been established is left to the judgment of the trial judge, who is in a superior position to determine whether the prosecutor’s exercise of peremptory challenges was motivated by group bias. *** Trial judges are especially well suited to make this determination because they are familiar with local conditions and prosecutors, and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one.” (Evans, 125 Ill. 2d at 66-67, 530 N.E.2d 1366-67.)

Based on the foregoing reasoning, we do not believe that the trial court erred in finding that no discrimination occurred.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McMORROW, J., concurs.

JUSTICE JOHNSON,

dissenting:

I am cognizant that the trial court’s decision as to whether defendant has established purposeful discrimination is given great deference. However, after a review of the record, I am left with a definite and firm conviction that a mistake has been made in this case. (Hernandez v. New York (1991), 500 U.S. 352, 370, 114 L. Ed. 2d 395, 412-13, 111 S. Ct. 1859, 1871-72.) Therefore, I respectfully dissent.

The State must give a clear and reasonably specific explanation of its legitimate reasons for exercising its peremptory challenges. (Batson v. Kentucky (1986), 476 U.S. 79, 98 n.20, 90 L. Ed. 2d 69, 88 n.20, 106 S. Ct. 1712, 1724 n.20.) I believe the majority opinion errs in stating that the prosecutor gave a detailed explanation to justify the exclusion of seven out of eight African-American venire members. After the trial judge postulated reasons for excluding the seven venire members, he then asked the prosecutor to give some reasons he had for the exclusions. The majority correctly recognized that at that point the prosecutor “explained in very general terms” why he excluded the African-American venire members.

The State contends the “initial characteristic” which the excluded venire persons had in common was that they all lived on the south side of Chicago. The State reasons: “The potential exists that jurors who become aware during trial that they live in defendant’s neighborhood may become fearful of retaliation and would, therefore, be preoccupied and uncooperative.” The trial court also found that “people who live in a particular area may actually know more about the case than the jurors are supposed to know.”

I find this logic, as applied to the facts in this case, to be absurd. The incident occurred on the north side of Chicago. The venire persons resided anywhere from the near south side of Chicago to the far southern suburb of Harvey, Illinois. The south side of Chicago encompasses a significant area within the Chicago city limits; to apply the trial court’s logic would mean that everyone living on the south side of Chicago would have more than a passing knowledge of this case. Furthermore, using the State’s rationale, all persons residing on the south side would be fearful of retaliation by someone who lived not even remotely near them. This reasoning would be more applicable to persons living within defendant’s immediate community or the community in which the incident actually occurred.

Notwithstanding the impropriety of this rationale, what I find most disturbing is that I have heard this same general explanation from the State time and time again as to why certain persons of African-American descent are excluded by peremptory challenges. While the State’s explanation may have been legitimate in certain limited instances, it is certainly inappropriately applied to the facts in the instant case.

The second reason the State offered for its exclusion of three of the venire persons was that they were active in religious or charitable organizations. The trial court observed that such people have “a propensity towards seeing the best in people, instead of seeing the worst in people, or seeing the truth in people.” However, after reviewing the record, I find that 5 of the 12 jurors admitted to being active with their church. Furthermore, the State did not ask the jurors with what organizations they were affiliated on a consistent basis. Contrary to what the State now argues, I find that there was no true concern with excluding persons active with religious organizations.

Additionally, as defendant observes, the State at the Batson hearing did not provide explanations for each of the potential jurors it excused. The State has not met its burden of providing “clear and reasonably specific” explanations of its “legitimate reasons” for exercising the challenges. (Batson v. Kentucky (1986), 476 U.S. 79, 98 n.20, 90 L. Ed. 2d 69, 88 n.20, 106 S. Ct. 1712, 1724 n.20.) Moreover I find that the prosecutor’s stated reasons for the exclusions were merely a pretext for the base indignity of racial discrimination.

I also believe the trial court failed to “give appropriate weight to the disparate impact of the prosecutor’s criterion in determining whether the prosecutor acted with a forbidden intent.” (Hernandez v. New York (1991), 500 U.S. 352, 353, 114 L. Ed. 2d 395, 401, 111 S. Ct. 1859, 1863.) In determining whether discriminatory intent exists, the following factors should be considered: “[A] ‘pattern’ of strikes against black jurors; *** [citation]; the disproportionate use of peremptory challenges against blacks [citations]; the level of black representation in the venire as compared to the jury [citations]; [and] whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic [citations]; ***.” People v. Evans (1988), 125 Ill. 2d 50, 63-64.

“If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor’s stated reason constitutes a pretext for racial discrimination.” (Hernandez, 500 U.S. at 363, 114 L. Ed. 2d at 408, 111 S. Ct. at 1868.) “ ‘[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact *** that the [classification] bears more heavily on one race than another.’ ” Hernandez, 500 U.S. at 363, 114 L. Ed. 2d at 408, 111 S. Ct. at 1868, quoting Washington v. Davis (1976), 426 U.S. 229, 242, 48 L. Ed. 2d 597, 608-09, 96 S. Ct. 2040, 2048-49.

In the instant case, as defendant observed, the State peremptorily challenged six of the nine African-American venire members tendered by the defense, whereas the State only challenged one of the white venire members tendered by the defense. The State also used 87% (seven out of eight) of its peremptory challenges to exclude African-Americans. Clearly, there was a disproportionate use of peremptory challenges against African-Americans.

Evidence of racial discrimination was also apparent in the heterogeneity of the excluded African-American jurors. As defendant notes, the excluded African-American jurors included both males and females of varying marital status. The range in age was from 23 to 59 years of age and their occupations were varied. It appears that the only characteristic shared by all of these particular venire persons was their race.

While we acknowledge that “the mere number of black venire members peremptorily challenged, without more, will not establish a prima facie case of discrimination ]” (People v. Garrett (1990), 139 Ill. 2d 189, 203), the number of African-Americans excluded still remains a significant indicia of discriminatory practices. Disparate impact is evidence of discriminatory purpose. (See Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 265-66, 50 L. Ed. 2d 450, 464-65, 97 S. Ct. 555, 563-64; Washington v. Davis (1976), 426 U.S. 229, 242, 48 L. Ed. 2d 597, 609, 96 S. Ct. 2040, 2048.) The number of African-Americans excluded is “unquestionably very relevant to establishing defendant’s case, because, justifiably or not, it represents] a gross racial imbalance in jury selection.” People v. Hope (1990), 137 Ill. 2d 430, 464.

I believe that the disproportionate use of peremptory challenges against the African-American venire members, coupled with the fact that the excluded African-American venire members were of a heterogeneous group, creates a strong presumption of purposeful discrimination in this case. Moreover, I believe the totality of all the relevant facts conclusively established that the prosecutor acted with invidious discriminatory purpose.

The relatively unfettered power to exclude African-American jurors is one of the most effective means of practicing racial discrimination in the criminal justice system. The practice of racial discrimination under the guise of “trial strategy” has a profound effect on not only the defendant but also the excluded venire persons. The Supreme Court recently explained this phenomena in Powers v. Ohio:

“Both the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom. A venireperson excluded from jury service because of race suffers a profound personal humiliation heightened by its public character. The rejected juror may lose confidence in the court and its verdicts, as may the defendant if his or her objections cannot be heard. This congruence of interests makes it necessary and appropriate for the defendant to raise the rights of the juror. And, there can be no doubt that petitioner will be a motivated, effective advocate for the excluded venire-persons’ rights. Petitioner has much at stake in proving that his jury was improperly constituted due to an equal protection violation, for we have recognized that discrimination in the jury selection process may lead to the reversal of a conviction.” Powers v. Ohio (1991), 499 U.S. 400, 414, 113 L. Ed. 2d 411, 427, 111 S. Ct. 1364, 1372.

The judiciary must cease endorsing discriminatory “trial tactics.” As I stated in my special concurrence in People v. Loggins (1985), 134 Ill. App. 3d 684:

“A criminal trial is a public event whose significance reaches beyond the truth or falsity of the accusation. A trial includes the ceremonial trappings of history, the appearance of justice, and the participation of citizens in passing judgment. Our entire society, therefore, is represented at a criminal trial. [Citation.] * * *
*** [There is an] appearance of injustice when courts appear to condone racial discrimination through the prosecutor’s use of peremptory challenges. As Chief Justice Robert N.C. Nix of the Pennsylvania Supreme Court asked in his dissenting opinion in Commonwealth v. Martin (1975), 461 Pa. 289, 299, 366 A.2d 290, 295, ‘[i]s justice to sit supinely by and be flaunted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy that permits the use of presumption to hide the existence of an obvious fact?’ The judiciary must stop this discrimination in its courts to avoid appearing to be an accomplice to it.” Loggins, 134 Ill. App. 3d at 698.

We must not be an accomplice to a discriminatory jury selection process. After reviewing the record, I find that defendant has clearly established a case of purposeful discrimination. The trial court’s finding was clearly erroneous. For the foregoing reasons, I would reverse the decision of the trial court.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    J. CHRISTOPHER PHELPS, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0676
    Opinion filed December 19, 1991.

      Michael Resis, Ellen L. Karecki, and G.A. Finch, all of Querrey & Harrow, Ltd., and William H. Farley, Jr., of Chicago Transit Authority, both of Chicago, for appellant.
    Mark S. Komessar and Paul J. Fina, both of Komessar & Wintroub, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, J. Christopher Phelps, brought a negligence action against the defendant, the Chicago Transit Authority (CTA), to recover damages for injuries he sustained when he was beaten by fellow passengers on a CTA bus. The jury returned a verdict against the CTA and in favor of the plaintiff and awarded damages in the amount of $120,000. The CTA appeals, contending that the trial court erred in allowing the plaintiff’s treating physician to testify concerning the permanent nature of the plaintiff’s injuries based on an examination conducted shortly before the physician testified. The CTA also contends that the jury was improperly instructed as to the CTA’s duty of care, that the jury verdict was excessive and that the plaintiff's cause of action was barred by the immunity provided for in amended section 27 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 327).

The 22-year-old plaintiff was riding on a CTA bus on December 10, 1984, when he observed three teenage girls attacking a female passenger. He came to the aid of the passenger and pushed the girls off of the bus. The plaintiff was then dragged off of the bus by a number of young male passengers who beat him severely, fracturing his jaw. The attackers fled before the police arrived.

The plaintiff testified that he was taken by ambulance to a hospital emergency room where he received stitches to close a cut on his head. The next day he went to see his family physician, Dr. Harold Goodman. According to Dr. Goodman’s evidence deposition, the plaintiff had numerous scrapes and bruises, swelling on both sides of his head and a cut that had been stitched. The plaintiff could open his mouth only one to two inches, approximately one-third of a normal expansion. He was admitted to the hospital the next day.

Dr. Bruce L. Douglas, an oral surgeon, testified that X rays revealed that the plaintiff had a nondisplaced upper jaw or maxillary fracture. When Dr. Douglas first saw the plaintiff, the plaintiff was extremely upset, his face was swollen and he had difficulty opening his mouth. The plaintiff was given a neurological consultation and treated with medication for pain and muscle spasms. Under general anesthesia, the plaintiff’s jaw was wired shut to allow it to heal properly. The plaintiff remained in the hospital from December 12, 1984, until December 21,1984.

Prior to trial, the last time Dr. Douglas examined the plaintiff was on January 3, 1985. He then testified that he examined the plaintiff on the day of the trial in the law office of the plaintiff’s attorney. The CTA objected to any testimony concerning the results of the examination on the grounds that no disclosure had been made. The trial court overruled the objection. Dr. Douglas then testified that the jaw fracture had healed and that the plaintiff’s teeth were in good position. However, the plaintiff still complained of pain, muscle spasms and a limited ability to open his mouth. Dr. Douglas’ examination showed that the plaintiff was able to open his mouth only one-half of the normal width. Dr. Douglas heard popping, clicking and grating sounds when the plaintiff opened and closed his mouth. The plaintiff had to wear a plastic splint between his teeth to relieve pressure on the temporomandibular joint. It was Dr. Douglas’ opinion that the plaintiff suffered from a temporoman-dibular joint problem related to the beating incident and that it was an incurable, irreversible problem which would require treatment for an indefinite period. Dr. Douglas testified that the plaintiff would need the benefit of a splint for the rest of his life and that he would permanently suffer pain and discomfort.

The evidence at trial showed that the plaintiff incurred $8,009.45 in medical bills and lost wages in the amount of $408. The facts concerning the jury instruction on the CTA’s duty of care and the CTA’s claim of immunity will be detailed later in connection with our discussion of those issues.

The CTA first contends that the trial court erred in admitting the treating physician’s testimony that the plaintiff’s injuries were permanent because that testimony was based upon an examination conducted on the day of trial which was not disclosed to the CTA.

The CTA argues that this was surprise testimony resulting from a “conceived plan of nondisclosure” on the part of the plaintiff.

Under Illinois law, a treating physician may give opinion testimony regarding the permanency of a patient’s injuries, providing a recent examination has been performed. (Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894; Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 353 N.E.2d 273.) The supreme court has determined that the Supreme Court Rule 220 (134 Ill. 2d R. 220) disclosure and discovery provisions do not apply to treating physicians. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234-35, 529 N.E.2d 525.) In Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894, the supreme court held that the length of time between the treating physician’s actual treatment of the plaintiff and the treating physician’s examination of the plaintiff on the last day of trial did not make the treating physician an expert witness subject to Supreme Court Rule 220.

The CTA has failed to direct us to any authority supporting its argument that Dr. Douglas’ testimony concerning the permanency of the plaintiff’s injuries was inadmissible. The CTA has not identified any case law prohibiting a treating physician from examining the plaintiff on the day of trial. Nor has it pointed to any supreme court rule which would require disclosure of the result of such an examination.

In Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894, the supreme court allowed testimony by the treating physician concerning the permanency of the plaintiff’s injuries based on an examination conducted on the last day of trial without disclosure to the defendant. The CTA’s argument here is that Wilson is distinguishable because the facts in Wilson did not show a conceived plan of nondisclosure on the part of the plaintiff. In fact, however, the Wilson court stated only that the record did not “unambiguously support” the assertion that the plaintiff had engaged in a conceived plan of nondisclosure. (Wilson, 126 Ill. 2d at 176, 533 N.E.2d at 897.) It then held that “[t]his type of surprise *** must be avoided by adequate trial preparation and not through reliance on the ‘protection’ of Supreme Court Rule 220.” (Wilson, 126 Ill. 2d at 176, 533 N.E.2d at 897.) Two dissenting justices, in separate opinions, noted that no amount of trial preparation would have prevented the surprise resulting from the treating physician’s eleventh-hour examination. The dissenting opinions concluded that allowing this practice gives the plaintiff an undue advantage and is “not playing by the rules.” Wilson, 126 Ill. 2d at 177-78, 533 N.E.2d 2d at 897 (Ryan, J., dissenting); Wilson, 126 Ill. 2d at 178, 533 N.E.2d at 898 (Miller, J., dissenting).

We do not condone the practice in question here. The Wilson decision demonstrates, however, that the supreme court is well aware of the problems caused by such undisclosed last-minute examinations. Despite this awareness, the court has not acted to amend its discovery rules to address the situation. Perhaps this is an area which should be covered by supreme court rules or appropriate legislation. However, given the complete lack of authority supporting the CTA’s position, we decline to reverse the trial court’s decision to admit the testimony in question.

The CTA next contends that the jury was improperly instructed regarding the standard of care. The allegedly improper instruction stated:

“The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant failed to exercise the highest degree of care consistent with the mode of conveyance used and the practical operation of its business as a common carrier by bus;
Second, that the plaintiff was injured;
Third, that the failure of the defendant to exercise the highest degree of care was a proximate cause of the injury to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.”

The CTA maintains that the instruction was improper because the third paragraph did not contain the phrase “consistent with the mode of conveyance used and the practical operation of its business as a common carrier by bus” to qualify the duty of care owed by the CTA. The CTA argues that because the phrase was not included, the jury could have believed that the CTA’s duty to exercise the highest degree of care was absolute and not qualified by the type of vehicle being operated or the circumstances under which the driver had to perform his job.

A reviewing court will not reverse a cause on the basis of an improper jury instruction unless it is able to conclude that the instruction clearly misled the jury. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 646, 432 N.E.2d 1267.) The relevant determination is whether the instructions considered as a whole were sufficiently clear so as not to mislead the jury. Nicholl, 104 Ill. App. 3d 642, 432 N.E.2d 1267.

A review of the record reveals that among the instructions given to the jury were instructions concerning the issues, damages, concurrent negligence, the duty of a common carrier to its passengers and the duty of a carrier to protect passengers from other passengers. (Illinois Pattern Jury Instructions, Civil, Nos. 20.01, 30.01, 12.04, 100.01, 100.03 (2d ed. 1971).) Each of these instructions stated that the duty owed by the CTA to the plaintiff was to exercise the “highest degree of care consistent with the mode of conveyance used and the practical operation of its business as a common carrier by bus.” Also, the very instruction of which the CTA complains contains the qualifying language in paragraph 1, although it is omitted from paragraph 3. In light of the fact that the jury was properly instructed as to the CTA’s duty of care in six separate instructions, we do not believe that the failure to include the qualifying language in paragraph 3 of the instruction in question served to mislead the jury as to the CTA’s duty of care.

The CTA next contends that the amount of damages awarded by the jury was excessive.

An award of damages will be found excessive and unfair only where the amount falls outside the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 359, 484 N.E.2d 542.) Damages are particularly within the province of the trier of fact, and a reviewing court will not disturb them on appeal unless the award is obviously the result of passion or prejudice. Shaheed, 137 Ill. App. 3d 352, 484 N.E.2d 542.

As summarized above, the evidence showed that the 22-year-old plaintiff was severely beaten, causing him to sustain a fractured jaw which required surgery. He remained in the hospital for nine days and incurred medical bills totaling $8,009.45 and lost wages in the amount of $408. After the fracture had healed, the plaintiff continued to experience pain and muscle spasms and was unable to open his mouth more than one-half of the normal width. He often wore a splint between his teeth to relieve the pressure between his upper and lower jaw. The plaintiff’s treating physician testified that the plaintiff suffered from a chronic temporomandibu-lar joint problem and that it was an incurable, irreversible problem which would require treatment for an indefinite period. The doctor testified that the plaintiff would need the benefit of a splint for the rest of his life and that he would permanently suffer pain and discomfort. Given this evidence, we do not believe that the award of damages fell outside the necessarily flexible limits of fair and reasonable compensation.

Finally, the CTA contends that the plaintiff’s lawsuit is barred by amended section 27 of the Metropolitan Transit Authority Act, which provides:

“Neither the Authority, the members of its Board nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.” Ill. Rev. Stat. 1989, ch. 111⅔, par. 327.

The record reveals that amended section 27 became effective after the date this lawsuit was filed. In Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 568 N.E.2d 18, and Hopkinson v. Chicago Transit Authority (1991), 211 Ill. App. 3d 825, 570 N.E.2d 716, this court determined that amended section 27 should be applied prospectively. We agree with the reasoning expressed in Young and Hopkinson and therefore decline the CTA’s invitation to reconsider the issue.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER KNOTT, Defendant-Appellant.
    First District (5th Division)
    No. 1—85—3248
    Opinion filed December 27, 1991.
    Rehearing denied January 29, 1992.
   The above-captioned case, filed December 27, 1991, was vacated pursuant to an order entered by the Illinois Supreme Court on October 15, 1993.


author: JUSTICE McNULTY

text:
    DOW CHEMICAL COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—2367
    Opinion filed December 27, 1991.

      Charles L. Michod, Jr., and William A. Kummerer, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Dow Chemical Company appeals the decision of the circuit court affirming the Illinois Department of Revenue’s (the Department’s) determination that it was barred by the statute of limitations from filing for a $401,237 overpayment which first came to light following the Department’s reaudit of Dow’s tax returns for 1975 through 1978. We affirm the decision of the circuit court.

Appellant Dow Chemical Company is a corporation doing business in Illinois and organized under the laws of the State of Delaware. The Department conducted an audit of Dow’s tax returns for the years 1975 through 1978 and issued a notice of deficiency in the amount of $241,153 to Dow on December 4, 1979. (Both Dow and the Department employed the separate entity method in computing Dow’s income.)

On January 17, 1980, Dow filed a timely notice of protest to the notice of deficiency. Several meetings between Dow and the Department were held and it was agreed that certain errors in the audit would be corrected by the Department. In March 1982, the Department forwarded the matter to one of its examiners for reaudit and for determination of whether Dow and its subsidiaries were a unitary group for purposes of tax computations.

On December 7, 1983, the reaudit was completed employing the unitary method of tax computation and revealed an overpayment of Illinois taxes by Dow and the other members of its unitary group for tax years 1975 through 1978 in the amount of $401,237. On December 20, 1983, Dow filed its amended and restated protest, requesting the return of the overpayment. The Department notified Dow that a refund for the overpayment would not be allowed because Dow’s request was filed after the statute of limitations had expired. (Section 911 of the Income Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 9—911) requires that claims for income tax refunds be filed not later than three years after the date the return was filed.)

Thereafter, on September 13, 1985, when Dow filed its return for the tax year ending December 31, 1984, it claimed $76,243 of the $401,237 overpayment as a credit against its 1984 tax liability. The Department held a hearing in June 1986 to resolve the issues regarding Dow’s overpayment. In its decision, issued one month later, it determined that the original notice of deficiency was void, but that Dow was not entitled to a refund or a setoff of any part of the existing overpayment. Dow’s request for a rehearing was denied, and the decision of the Department was upheld upon administrative review by the circuit court.

On appeal Dow argues that the circuit court erred in applying an improper standard of review to the decision of the Department. While review of administrative decisions extends to all questions of fact and law presented by the entire record before the court (Ill. Rev. Stat. 1983, ch. 110, par. 3—110), a reviewing court is not bound to give the same degree of deference to an agency’s conclusions of law as it gives conclusions of fact. (Flex v. Department of Labor (1984), 125 Ill. App. 3d 1021, 466 N.E.2d 1050.) Thus, while a reviewing court need only determine whether an agency’s findings of fact are supported by substantial evidence, and are not against the “manifest weight of the evidence,” it must exercise independent review of questions of law. Flex, 125 Ill. App. 3d at 1024, 466 N.E.2d at 1053.

In the case at bar, the parties had stipulated to the essential facts during the administrative proceeding. Therefore, the central issue upon review of the Department’s decision was a legal one: whether the Department was statutorily prohibited from crediting or refunding Dow’s overpayment due to the expiration of the limitations period on claims for refund. Although the case involved an issue of statutory construction, the trial judge stated that the administrative decision could not be overturned unless it was shown to be “against the manifest weight of the evidence and contrary to the law.” Nevertheless, in his opinion, the trial judge completed a detailed statutory analysis in which he interpreted the applicable sections of the Illinois Income Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 1—101 et seq.) and their relationship to each other. Therefore, the correct standard of review was actually applied to the decision of the Department of Revenue, despite the trial judge’s reference to the manifest weight of the evidence standard.

Dow next contends that a proper construction of the Illinois Income Tax Act (the Act) requires the Department to refund known overpayments where the Department has made errors in calculating the taxpayer’s liability, even in the absence of a timely refund claim. In support of this argument, Dow relies on sections 904 and 909 of the Act (Ill. Rev. Stat. 1983, ch. 120, pars. 9—904(a), 9—909(a)). Section 904(a) of the Act provides as follows:

"As soon as practicable after a return is filed, the Department shall examine it to determine the correct amount of tax. *** If the Department finds that the tax paid is more than the correct amount, it shall credit or refund the overpayment as provided by Section 909.” (Ill. Rev. Stat. 1983, ch. 120, par. 9—904(a).)

Section 909 refers to credits and refunds and provides as follows:

“(a) In general. In the case of any overpayment, the Department may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of the tax imposed by this Act, regardless of whether other collection remedies are closed to the Department on the part of the person who made the overpayment and shall refund any balance to such person.” Ill. Rev. Stat. 1985, ch. 120, par. 9—909.

Dow maintains that these sections impose an affirmative duty on the Department to refund a taxpayer’s overpayments, or at least to apply the overpayment to any existing tax liability. As viewed in isolation, the relied-on statutory authority does just that. However, as the Department contends, each part of a statute should be interpreted in light of every other provision, and the entire statute should be construed to produce a harmonious whole. (See Stelzer v. Matthews Roofing Co. (1986), 140 Ill. App. 3d 383, 488 N.E.2d 1293.) Dow’s interpretation of sections 904 and 909 of the Act ignores the provisions of section 911 (Ill. Rev. Stat. 1983, ch. 120, par. 9—911) which impose an affirmative duty on the taxpayer to file for a refund of overpaid taxes and provides in pertinent part:

“Limitations on Claims for Refund, (a) ***
(1) A claim for refund shall be filed not later than 3 years after the date the return was filed *** or one year after the date the tax was paid, whichever is the later; and
(2) No credit or refund shaU be allowed or made with respect to the year for which the claim was filed unless such claim is filed within such period. * * *
(c) Extension by agreement. Where, before the expiration of the time prescribed in this section for the filing of a claim for refund, both the Department and the claimant shaU have consented in writing to its filing after such time, such claim may be filed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.”

The plain meaning of section 911 is that the taxpayer has an affirmative duty to file for a tax refund within a prescribed period of time. Furthermore, this time may be extended by agreement with the Department. When section 911 is read in conjunction with sections 904 and 909, it indicates, as determined by the trial judge, that although there is no limitation on the Department’s authority to make a refund or a credit, there is a limit on the taxpayer’s ability to file for one. Since Dow filed its claim for refund on December 12, 1983, well beyond the three years allotted by the statute of limitations, and without an agreement for extension thereof, the Department maintains and we agree that such claim is now time barred.

Although Dow postulates that the three-year limitation period only applies to taxpayer-discovered overpayments, there is little factual basis for such a finding. Dow’s sole support for this argument is an unpublished Nebraska State trial court decision, Kellogg v. Donna Dames, Nebraska State Tax Commissioner, which construed statutory provisions which were virtually identical to sections 904(a) and 911 of the Illinois Income Tax Act as set forth above to mean that the Tax Commissioner was required to refund a known overpayment of income taxes where the Commissioner had erroneously used the improper formula in its reaudit even when the taxpayer had made no written claim for refund within the time permitted by law.

Dow also argues that changes in section 909, effective July 1, 1983, support its argument that the Department is required to refund or credit its overpayment of taxes. Before its amendment in 1984, section 909(a) provided that “[i]n the case of any overpayment, the Department, within the applicable period of limitations, may credit the amount of such overpayment *** and shall refund any balance to such person.” (Ill. Rev. Stat. 1983, ch. 120, par. 9—909(a).) The 1984 amendment struck the quoted language and added the phrase, “regardless of whether other collection remedies are closed to the Department.” (Ill. Rev. Stat., 1984 Supp., ch. 120, par. 9—909(a).) These statutory modifications thereby enhanced the Department’s ability to collect time-barred tax liabilities by withholding subsequent overpayments from taxpayers. (See La Pine Scientific Co. v. Lenckos (1981), 95 Ill. App. 3d 955, 420 N.E.2d 655.) This language, however, did nothing to enhance a taxpayer’s ability to require the Department to credit a time-barred overpayment against a future tax liability.

Dow finally argues that based upon equitable principles it should be allowed to recover its substantial overpayment of taxes. Dow admits that the doctrine of “equitable recoupment” which does allow tax overpayments to be recovered in certain situations (those where a single transaction has been taxed twice on two inconsistent legal theories) does not apply to the case at bar. Nevertheless, it urges this court to mitigate the harsh results of the determinations of the courts below.

In support of its equitable argument, Dow notes that the Department itself originally used the wrong formula in computing Dow’s taxes. (In its first audit, the Department employed the separate entity basis, while the reaudit, completed four years after Dow’s initial protest, utilized the unitary method.) Dow argues that it should not bear the burden of the uncertainty in the law regarding the use of the unitary method, and cites conflicting Department of Revenue bulletins regarding this method. Dow further maintains that this confusion in the law was not resolved until 1983 when the Illinois legislature gave the Department the authority to use this method of reporting. (Ill. Rev. Stat. 1983, ch. 120, par. 3—304(e).) Although this is an appealing argument, it is substantially undercut by the fact that although one Department bulletin (ITIB 1975 — 1) did state that unitary or combined reporting was no longer authorized, a second such bulletin (ITIB 1975 — 2) issued eight days later retracted this provision. In Citizens Utilities Co. v. Department of Revenue (1986), 111 Ill. 2d 32, 488 N.E.2d 984, the Illinois Supreme Court rejected the argument that a taxpayer could reasonably have interpreted the Department’s position, as evidenced by these bulletins, as prohibiting the use of combined reporting.

Although Dow is correct in maintaining that if this court affirms the decision rendered below that the Department will receive a windfall at its expense, this fact alone does not provide justification for rendering a contrary judgment. Although it might seem reasonable to judicially toll the statute of limitations in order to fashion a remedy for Dow, such a decision is not supported by Illinois case law which holds that no exceptions which toll a statute of limitations or enlarge its scope will be implied. (See Severe v. Miller (1983), 120 Ill. App. 3d 550, 555, 458 N.E.2d 173, 176. See also Morgen v. People (1959), 16 Ill. 2d 374, 158 N.E.2d 24.) However, we note that Dow fails to explain why it did not file a claim for refund as a protective device before the statute of limitations expired on filing such a claim, or at the very least, obtain an extension for filing a claim as provided in section 911 of the statute. While Dow is doubtlessly in a most unenviable position, its legal arguments are weak. Its sole really viable argument is the Nebraska decision in the Kellogg case which nevertheless must be balanced against our own case law which favors a strict construction of statutes of limitations. This seems to be a case which calls for a legislative remedy rather than a judicial one.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.

      The law in Illinois regarding separate entity reporting and unitary apportionment had undergone changes effective December 15, 1982, when the Illinois Income Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 3—304(e)) was amended to require combined apportionment (usually resulting in a tax savings) for unitary businesses.

      We note that the Michigan legislature has provided that “[t]he running of the statute of limitations shall be suspended for the period pending final determination of litigation of or bearing on a taxpayer’s federal income tax return OR [(emphasis added)] of the return required by this act.” See Mich. Comp. Laws Ann. §206.411 (West 1986); Mich. Stat. Ann. §7.557(1411) (Callaghan 19_).


author: JUSTICE MURRAY

text:
    JAMES DILLARD, Plaintiff-Appellee, v. WALSH PRESS AND DIE COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—2817
    Opinion filed December 27, 1991.

      Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Mark A. Miller, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Robert A. Rosin & Associates, Ltd., of Chicago (Robert A. Rosin, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, James Dillard, filed a strict products liability action against defendant, Walsh Press & Die Company, after he was injured while operating a punch press which defendant manufactured. After a jury trial, a verdict was returned in plaintiff’s favor, and defendant now appeals raising the following issues: (1) whether it was an abuse of discretion to exclude certain testimony at trial; (2) whether it was an abuse of discretion to allow evidence of prior similar occurrences; (3) whether it was reversible error to change a ruling previously allowing defendant’s jury instruction after defendant’s closing argument; and (4) whether the jury’s verdict was against the manifest weight of the evidence. For the following reasons, we affirm.

Plaintiff, an employee of Punch Products Company (Punch Products), sustained injuries to both hands while operating a punch press on March 21, 1977. He filed a products liability complaint against defendant, the manufacturer of the press, alleging that it was unreasonably dangerous. The following testimony was presented during a jury trial.

Plaintiff testified that at the time of the accident, he was operating the punch press with the hand levers. The press was also equipped with a foot pedal but it was disconnected at that time. The foot pedal was not moving while plaintiff was using the press. Plaintiff inserted a sheet of plastic into the press and pushed the hand levers down, which signaled the ram of the press to descend and stamp the sheet. When the ram was ascending to its rest position at the top of the press, he took the plastic sheet from the press, turned it around and inserted it into the press again. He signaled the press to begin another stroke. After the ram stamped the sheet and while the ram was ascending to its rest position, plaintiff released the hand levers and put his hands into the press to retrieve the sheet. The ram then descended on his hands, causing serious injury.

On cross-examination, plaintiff stated that the ram stopped at the top of the press before the accident. When defendant again asked whether the ram stopped just before the accident, plaintiff stated that the ram did not stop. Plaintiff admitted that in his deposition he testified that the ram stopped before he was injured. On redirect, plaintiff admitted that in his deposition he also stated that from the time the ram rose to the top of the press and descended on his hands it was a split second. Defendant agreed with the trial judge that plaintiff had the right to use the deposition on redirect to clarify plaintiff’s testimony.

Walter L. Seligman, former president of Punch Products, testified that Punch Products purchased the press from defendant in 1959. At that time, defendant knew that Punch Products only had single-stroke presses and that the new press would be used in a single-stroke operation. Defendant recommended the press in question based on Punch Products’ needs.

When purchased, the press was equipped with a foot pedal and, on defendant’s recommendation, Punch Products subsequently added the hand levers. Defendant inspected the press at Punch Products after it installed the hand controls to check whether it was operating properly. Punch Products used the press with a variety of different dies to stamp shapes into nonmetallic material. Seligman testified that Punch Products alternated the connection of the hand levers and the foot pedal depending on the job being performed. When the hand levers were connected, the foot pedal was disconnected, and when the foot pedal was connected, the hand levers were disconnected. However, the press was never operated with both controls connected at the same time.

After plaintiff was injured and taken to the hospital, Seligman tested the press and found it was operating properly. Only the hand levers were connected at that time. He then assigned another employee to operate the press. Punch Products continued to use the press and alternated the connections between the hand levers and foot pedal.

Seligman testified that one month after the accident, Jerome Heyda, defendant’s president, inspected the press at Punch Products. Nothing had been changed on the press since the accident except that connections of the hand levers and foot pedal were alternated. On cross-examination, Seligman was questioned about his deposition testimony where he stated that there were no changes to the controls or parts on the press after the accident until Heyda inspected it one month later. Seligman explained that he thought the question at the deposition involved changes to a mechanical device such as a clutch assembly.

Outside the presence of the jury, plaintiff informed the trial judge and defendant that he would present evidence of prior similar occurrences. Plaintiff relied on the testimony of Heyda, defendant’s president, in a previous case against defendant where Heyda admitted that there were several other cases which involved similar occurrences. Defendant argued that the testimony was based only on allegations in complaints and that the testimony was taken out of context. The judge, acknowledging that under applicable law evidence of prior occurrences was admissible if they were substantially similar, allowed plaintiff to present the evidence.

Plaintiff called Heyda as an adverse witness in his case in chief. Heyda testified that the press would continuously operate if pressure was kept on the controls. The press was not equipped with an anti-repeat device which would have prevented it from continuing into a second stroke if the operator inadvertently kept pressure on either the hand or foot controls too long. Also, the press did not have a guard over the foot pedal, but it required 78 pounds of pressure to activate. Heyda admitted that at the time the press was manufactured, it was reasonably foreseeable that the press would be used in a single-stroke operation. It was also known that operators would place their hands in the press when it was fed manually.

Heyda testified that although defendant’s presses were manufactured in different sizes, they operated in the same manner as the press in question. When plaintiff asked Heyda about prior similar occurrences, defendant objected, stating, “I object to this line of questioning based on allegation[s] in plaintiff’s complaints as set forth in our prior conversation.” The judge overruled the objection, and Heyda testified that prior to plaintiff’s accident he was aware that other operators of defendant’s presses, which were not equipped with anti-repeat devices, alleged they were injured when the press continued into a second stroke.

Plaintiff’s engineering expert, Ronald Lobodzinski, testified that because the press had a full revolution clutch, it would complete a full stroke when the controls were activated. When signaled, the ram would descend approximately 3V2 inches onto the bed, rise again, and stop. One stroke of the press was completed in seven-tenths of a second. To start another stroke, the operator would have to signal the press again through the controls.

Lobodzinski testified that the press was not manufactured with an anti-repeat device and without such a device, the press would continuously operate if the operator kept pressure on the controls. An anti-repeat device would have prevented the press from continuing to a second stroke if the operator inadvertently kept pressure on the controls for too long. An anti-repeat device was required under applicable industry standards. Lobodzinski also testified that it was reasonably foreseeable that the press would be used in a single-stroke operation, as Punch Products used it.

In Lobodzinski’s opinion, plaintiff was injured because he kept pressure on the controls for a fraction of a second too long which signaled the press to start a second stroke. Lobodzinski testified that because the press had a full revolution clutch and did not have an anti-repeat device, it was unreasonably dangerous. He testified that the proximate cause of plaintiff’s injury was the absence of an anti-repeat device on the press.

Lobodzinski also testified that if both the hand levers and foot pedal were connected when plaintiff was operating the press, the foot pedal would have been moving during the operation. If both controls were connected and plaintiff accidentally activated the foot pedal, as defendant contended, the press was unreasonably dangerous because it did not have a guard on the pedal.

Plaintiff rested his case and defendant presented the following testimony.

Jerome Heyda, defendant’s president, testified that the press was a continuous-stroke press but, at the time the press was manufactured, it was foreseeable that it would be used in a single-stroke operation, as Punch Products used it.

Ralph Barnett, defendant’s engineering expert, testified that the press was designed for use in a continuous-stroke operation. Under industry standards applicable at the time the press was manufactured, an anti-repeat device was recommended, but not required, for a continuous-stroke press. Because the press was not equipped with an anti-repeat device, it was not reasonably foreseeable that it would be used in a single-stroke operation. Without an anti-repeat device, the press was unreasonably dangerous for use in a single-stroke operation.

Barnett testified that the installation of hand levers on the press was foreseeable; however, it was not foreseeable that the hand and foot levers would be connected at the same time. The press should have been operated only through either the hand levers or the foot pedal. Barnett also testified that the foot pedal was reasonably safe for its intended use, although it did not have a guard, because of the amount of pressure required to activate it and its position on the press.

Barnett testified that, in his opinion, plaintiff accidentally activated the foot pedal when both the hand levers and the foot pedal were connected at the same time, which signaled the ram of the press to descend. It was also possible, although unlikely, that plaintiff signaled the press through the hand levers to start a second stroke and then inadvertently put his hands in the press before the ram descended. It was unlikely because of the speed required to “beat the ram” and put his hands in the press. If the ram stopped at the top of the press before it descended on plaintiff’s hands, plaintiff did not signal the press inadvertently by keeping pressure on the hand levers. In that event, an anti-repeat device would not have prevented plaintiff’s injury. Barnett also acknowledged that the accident could have been caused if plaintiff held the hand levers down too long, signaling a second stroke.

During trial, defendant was precluded from introducing certain testimony. Defendant was not allowed to present Heyda’s testimony of his observation of the press one month after the accident. Heyda testified in an offer of proof that approximately one month after the accident, he examined the press at Punch Products and Seligman told him it was in the “same condition” as the day of the accident. Heyda observed that both the hand levers and the foot pedal were connected at the same time and, as a result, either could be used to activate the press.

Defendant was also not allowed to present testimony that Punch Products failed to adequately guard the press. In offers of proof, both Heyda and Barnett testified that because the press was multifunctional, it was Punch Products’ responsibility, rather than defendant’s, to install guards at the point of operation on the press according to how the press would be used. Defendant could not guard the press because it did not know how the press would be used and Punch Products’ failure to guard the press caused plaintiff’s injury.

In the jury instruction conference held before closing arguments, defendant offered a modified version of Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1991) (hereinafter IPI Civil 3d No. 12.04). Defendant told the judge that the appellate court approved the instruction for a products liability case in Ballweg v. City of Springfield (1984), 130 Ill. App. 3d 241, 473 N.E.2d 342, aff’d in part, rev’d in part (1986), 114 Ill. 2d 107, 499 N.E.2d 1373. Defendant did not inform the judge that the case was appealed to the supreme court. Defendant adapted IPI Civil 3d No. 12.04, which is a negligence instruction, for use in a strict products liability case. Defendant included the second paragraph of the instruction, which stated that if the jury found that another person’s conduct was the sole proximate cause of plaintiff’s accident, then it should find in favor of defendant. The trial judge, overruling plaintiff’s objection, allowed the instruction.

Defendant referred to the instruction twice in its closing argument. Immediately after defendant’s closing argument, plaintiff requested that the judge reconsider his ruling in allowing the instruction. In discussing whether the instruction should be given, the judge asked defendant whether Ballweg was cite checked. Defendant represented that Ballweg was “good law.” The judge continued to ask whether the case was cite checked and defendant then stated that Ballweg was appealed to the supreme court and was affirmed. The judge read the supreme court’s opinion in Ballweg and learned that it reversed the appellate court’s ruling that there was some evidence presented to support giving the instruction with the second paragraph. The judge sustained plaintiff’s objection and disallowed the instruction.

Defendant moved for a mistrial, arguing it was prejudiced because it referred to the instruction in closing argument and asserted that it informed the judge of the supreme court’s opinion in Ballweg by citing it in a previously filed memorandum of law. The motion for mistrial was denied. Defendant then moved that there be no comment made to the jury that the instruction referred to in its closing argument would not be given. Plaintiff agreed not to comment.

The jury returned a verdict for plaintiff and against defendant awarding $770,985 in damages. Defendant now appeals.

Opinion

I

Defendant first argues that the judge abused his discretion when he excluded certain testimony during trial. The admission of evidence at trial rests within the discretion of the judge and will not be reversed on appeal absent an abuse of discretion. Palumbo v. Kuiken (1990), 201 Ill. App. 3d 785, 559 N.E.2d 206.

At trial, defendant was not allowed to introduce Heyda’s testimony that he inspected the press one month after the accident and observed that both the hand and foot controls were connected at that time, nor was he allowed to present evidence that Seligman told Heyda that the press was in the same condition as the day of the accident.

Defendant argues that this testimony should have been admitted because it supported its theory that plaintiff signaled the press to start another stroke by accidentally stepping on the foot pedal. This testimony would have established that plaintiff’s conduct was the sole proximate cause of his injury.

Defendant contends such testimony was relevant, relying on Sanchez v. Black Brothers Co. (1981), 98 Ill. App. 3d 264, 423 N.E.2d 1309, Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 340 N.E.2d 276, and Santiago v. Package Machinery Co. (1970), 123 Ill. App. 2d 305, 260 N.E.2d 89. Each of these cases held that a defendant in a products liability case may present evidence at trial as to how the product was being used at the time of the injury to support its defense that plaintiff’s conduct was the sole proximate cause of the injury.

These cases, however, do not support defendant’s argument that Heyda’s observation of the press one month after the accident was relevant to determine how the accident occurred or how plaintiff was using the press at the time of the accident. Heyda testified in an offer of proof that Seligman told him that the press was in the “same condition” as the day of the accident. However, Seligman testified at trial that immediately after the accident, Punch Products continued to use the press and alternated the connections of the hand and foot controls depending on the job being performed. The evidence showed, and defendant does not dispute, that the connections of the press were changed continuously from the time of the accident until Heyda saw it one month later. Therefore, Heyda’s testimony concerning the connections of the controls one month after the accident was not probative of the proximate cause of the accident. The trial judge did not abuse his discretion in excluding it.

Defendant also complains that the trial judge excluded evidence that the sole proximate cause of plaintiff’s injury was Punch Products’ failure to install guards at the point of operation on the press. In offers of proof, both Heyda and Barnett testified that because the press was multifunctional, it was Punch Products’ responsibility, rather than defendant’s, to install guards on the press according to how the press would be used.

A manufacturer has a duty to produce a reasonably safe product which cannot be delegated to the user or purchaser of the product. (Doser v. Savage Manufacturing & Sales, Inc. (1990), 142 Ill. 2d 176, 568 N.E.2d 814.) That duty is not obviated when the manufacturer puts a multifunctional machine into the stream of commerce. Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.

In Scott, plaintiff was injured when the ram of a press brake descended on his hand after he had turned off the power and accidentally stepped on the foot pedal. Evidence was presented that the flywheel of the press would continue in motion for a short period of time after the press was turned off which could cause the ram to move. A lock-out device would have prevented the press from operating after it was turned off. The trial judge excluded evidence offered by the manufacturer that because the press was multifunctional, the employer who purchased the press had the sole responsibility to install safety devices at the point of operation. On appeal from a jury verdict in plaintiff’s favor, the court stated that the jury could have found that the press was unreasonably dangerous without the lock-out device, which was unrelated to its multifunctional character. It found that exclusion of the manufacturer’s evidence was proper and stated:

“To allow such evidence in circumstances where the appropriate safety devices have not been provided to the purchaser would inject into the case an improper conclusion of law so far as the issues of strict liability are concerned. [Citations.] The evidence here was not relevant to the issue of whether the press was unreasonably dangerous and improperly sought to delegate the duty of the manufacturer to the conduct of a third party.” Scott, 26 Ill. App. 3d at 988, 326 N.E.2d at 85.

Similarly here, the absence of an anti-repeat device was not related to the multifunctional nature of the press. Introduction of the evidence defendant offered would have been an attempt to delegate its duty to Punch Products. As a result, the exclusion of the evidence was not an abuse of discretion.

II

Defendant next argues the trial judge abused his discretion when he allowed testimony of prior occurrences without a foundation of similarity.

Evidence of prior occurrences is admissible in a trial for products liability if the trial judge, in the exercise of his discretion, determines that the prior occurrences were substantially similar to the case at bar. Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.

In this case, plaintiff relied on Heyda’s trial testimony in another case against defendant where he admitted that there were several other cases which involved similar occurrences. Defendant asserted it was based on allegations in complaints. Although the judge did not expressly state that he found the prior occurrences were similar, he allowed the testimony, recognizing that prior occurrences were admissible if they were substantially similar. Defendant’s objection to the testimony during trial was not specifically based on the lack of foundation. Heyda testified that defendant’s presses operated in the same manner as the press in question and that he was aware of allegations that other operators of defendant’s presses were injured when the press continued into a second stroke and the press was not equipped with an anti-repeat device. Under these circumstances, the trial judge did not abuse his discretion in admitting the testimony.

III

Defendant also argues that the trial judge committed reversible error when he changed his previous ruling and disallowed one of its jury instructions after defendant referred to the instruction in closing argument.

Prior to closing arguments, “[t]he court shall hold a conference with counsel to settle the instructions and shall inform counsel of the court’s proposed action.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1107(c).) The trial judge has discretion in determining which instructions should be tendered to the jury and refusal to tender an instruction is not an abuse of discretion unless prejudice has resulted. Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 520 N.E.2d 733.

In this case, during the jury instruction conference defendant represented that IPI Civil 3d No. 12.04 was supported by the appellate court opinion in Ballweg (130 Ill. App. 3d 241, 473 N.E.2d 342, aff'd in part, rev’d in part, 114 Ill. 2d 107, 499 N.E.2d 1373), but did not inform the judge that it was appealed to the supreme court and was reversed, in part, on that point. Even in the subsequent argument on the issue after defendant’s closing argument, defendant represented to the judge that the supreme court affirmed Ballweg. In light of these omissions or misrepresentations, whether intentional or inadvertent, defendant cannot complain now that it was prejudiced when it caused the alleged error. Although defendant now argues that the judge “took absolutely no measures to correct the misapprehension which had been thrust upon the jury by [his] late change of heart,” defendant specifically requested that no comment be made to the jury regarding the fact that the instruction would not be given. Defendant did not request the judge to give an explanation to the jury-

Additionally, defendant argues that the judge erred in denying the instruction, relying on Dugan v. Sears, Roebuck & Co. (1983), 113 Ill. App. 3d 740, 454 N.E.2d 64, which defendant stated was an example of a products liability case where the instruction was properly given. However, the court in Dugan did not consider whether the instruction was proper. Further, the second paragraph of the instruction should only be given if there was some evidence presented at trial that another’s conduct was the sole proximate cause of the accident. (Illinois Pattern Jury Instructions, Civil, No. 12.04, Notes on Use (3d ed. 1991).) Defendant claims there was evidence presented that both the hand and foot controls on the press were connected at the time of the accident which was the sole proximate cause of plaintiff’s injury. However, the only evidence presented on the point was plaintiff’s and Seligman’s testimony that only the hand levers were connected at the time of the accident. As a result, the judge did not abuse his discretion in disallowing the instruction.

IV

Lastly, defendant argues that the jury’s verdict was against the manifest weight of the evidence.

In an action against a manufacturer for strict products liability, plaintiff must show that an unreasonably dangerous condition of the product caused his injury and that the condition existed at the time it left the manufacturer’s control. (Doser, 142 Ill. 2d 176, 568 N.E.2d 814.) It is the jury’s function to determine the credibility of the witnesses and to resolve conflicting testimony; its verdict will not be reversed on appeal unless it was against the manifest weight of the evidence. Walker v. Midwest Emery Freight Systems, Inc. (1990), 200 Ill. App. 3d 790, 558 N.E.2d 470.

In this case, the evidence at trial supported the jury’s verdict. Plaintiff testified that when he was using the press, only the hand levers were connected. After releasing the hand levers, the ram descended on his hands. Seligman, Punch Product’s former president, testified that only the hand levers were connected at the time of the accident. He also testified that defendant knew Punch Products would use the press in a single-stroke operation.

Both Lobodzinski, plaintiff’s expert, and Heyda, defendant’s president, testified that it was reasonably foreseeable that the press, which was a continuous-stroke type, would be used in a single-stroke operation as Punch Products used it. Heyda acknowledged that an anti-repeat device would have prevented the press from continuing into a second stroke if the operator inadvertently kept pressure on the controls too long. Lobodzinski testified that, in his opinion, plaintiff’s accident was caused by inadvertently keeping pressure on the controls too long and the proximate cause of the accident was the absence of an anti-repeat device. He also testified that without an anti-repeat device the press was unreasonably dangerous. Even Barnett, defendant’s expert, acknowledged that the use of a continuous-stroke press in a single-stroke operation without an anti-repeat device was unreasonably dangerous.

Conflicting evidence was also presented at trial. Defendant relies on plaintiff’s deposition testimony that the ram of the press stopped before it descended on his hands. If the jury believed this testimony, it would have found that the absence of an anti-repeat device did not cause plaintiff’s injury. However, plaintiff testified at trial that the ram did not stop. Although defendant now argues it was improper to “rehabilitate” plaintiff’s testimony on redirect with other portions of his deposition testimony, at trial defendant agreed with the judge that plaintiff could clarify his testimony in this manner.

Another conflict in the testimony was Barnett’s denial that it was reasonably foreseeable that the press would be used in a single-stroke operation, disputing the testimony of Lobodzinski and Heyda. It was the jury’s function to resolve these inconsistencies and it resolved them in plaintiff’s favor.

A review of the evidence at trial establishes that the jury’s verdict was not against the manifest weight of the evidence.

Affirmed.

GORDON and McNULTY, JJ., concur.

       After oral argument in this case, Presiding Justice Lorenz recused himself from further participation and Justice McNulty was substituted. Although she did not participate in the oral argument, she has read the briefs, audited the tape of the oral argument, and otherwise participated in the decision-making process.


text:
    JOHN P. SHEA, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF THE STATE OF ILLINOIS et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—1098
    Opinion filed December 27, 1991.

      John M. Tira, of Tira & Tira, of Coal City, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff John Shea appeals from an order of the circuit court affirming the Civil Service Commission’s (Commission’s) decision to discharge him from his employment with the Illinois Department of Revenue (Department). Mr. Shea contends that the court erred in affirming the Commission’s decision. We agree.

On December 13, 1988, Cathy Shea, the ex-wife of John Shea, a revenue collections supervisor, pled guilty to felony theft over $10,000. Cathy acknowledged embezzling approximately $250,000 from her former employer, Pendry Labor Publications, over a nine-year period. (She was married to John during eight of the years involved.) Cathy denied any knowledge or involvement by John Shea in her criminal activities.

John reported the charges ¿gainst his ex-wife to his superior at the Department. Shortly thereafter, the Department began a full-scale investigation into John, culminating in four charges being filed, and John ultimately being dismissed. The Department initially charged John with three counts of interfering with an official investigation, with failure to comply with State tax laws, with falsification of an employment application, and with failure to obtain approval for outside employment. A hearing was held in May 1989, and on July 19, 1989, the Commission adopted the decision of the hearing officer and found that the charges proven against John warranted his discharge. However, the Commission did determine that not all charges against John had been proven. It found John guilty of only one count of interference with an official investigation, rather than three. It also determined that the falsification of employment application charge had not been proven. Thus, the Commission’s final decision was based on one count of interference with an official investigation, failure to comply with State tax laws, and failure to obtain approval for outside employment.

The circuit court affirmed the decision of the Commission to dismiss John. However, it determined that the charge of failure to comply with State tax laws had not been proven. Thus, its decision was based only on interference with an official investigation and failure to obtain approval for outside employment.

On appeal, John argues that the decision of the Commission as to findings of fact is contrary to the manifest weight of the evidence. (The scope of judicial review of an administrative agency’s findings of fact is limited to determining if they are against the weight of the evidence. (See Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885).) In support of this argument, John first maintains that the Commission’s decision that he failed to comply with tax laws is against the weight of the evidence. John argues that even though over $164,000 of unreported income was deposited in the couple’s joint checking account, he was never aware of his wife’s illegal activities, he never wrote more than a few checks on the account during the years at issue, and his wife managed all household finances and prepared all papers for the accountant who filed the joint tax return for the couple. John also argues that according to statutory authority (Ill. Rev. Stat. 1987, ch. 120, par. 9—904), an initial determination of tax deficiency must be made by the Department and not the Commission. These statutory provisions also provide a comprehensive framework for determining the amount of tax due to the State of Illinois, as well as procedures for collecting said taxes, and guaranteeing certain rights to the taxpayer to challenge the assessment.

The Commission responds to this argument by stating it is not really making a determination of a tax deficiency, but only deciding that John had not included all of his income on his tax returns. Furthermore, the Commission argues that the real issue is not what John knew of his wife’s activities as regards the joint account, but what he should have known. Considering John’s status as a revenue collections supervisor, the Commission found that he should have been aware of the considerable amounts of unreported income which maintained his lifestyle. On this basis it determined that John had failed to comply with tax laws.

In his analysis of this issue, the trial judge focused on the procedure used by the Commission to determine that John had violated State tax laws. He noted that prior to John’s discharge hearing, the Department had not made a determination regarding the sufficiency or lack of sufficiency of the Sheas’ income tax returns for the years at issue. “No notice of deficiency had ever been filed against the Sheas. No state liens for insufficient payment had ever been filed against them. No hearing or inquiry under the Revenue Code had ever been conducted. No appeal rights had ever been waived because no claim of tax shortage had been made against the Sheas.” The trial court concluded that because the Department had sought to establish a tax delinquency by proceeding through the Commission, it had acted outside the prescribed statutory procedures. For these reasons, it reversed the Commission’s finding that John had failed to comply with State tax laws.

We agree with the trial court’s analysis of the failure to comply charge. Even though the Commission argues that it did not make a deficiency determination, such a determination is impliedly part of its reason to charge, John with failure to comply. Since statutory authority provides that the Department and not the Commission must in the first instance make the deficiency determination, the Commission’s decision as to this factual finding is in error and must be reversed.

John also argues that the hearing officer erred by allowing into evidence the hearsay statements contained in the report of Investigator Medveskas. The Department’s first charge against John was that he interfered with an official investigation. As support for this charge, the Commission considered the testimony of Investigator Medveskas (the Department investigator) that: (1) Cathy had told her that John had advised her to destroy all bank records in her possession, and further (2) John had acknowledged to Officer Medveskas in an informal conversation that he had so advised his wife. The Commission also considered, as John alleges, Officer Medveskas’ official report which parallels her in-court testimony. The Commission also considered John’s in-court testimony that he never told his wife to destroy the records, as well as sworn affidavits from Cathy, who did not testify at trial. Even assuming that Medveskas’ official report is hearsay, as it is not an official business record, the hearing officer did not admit the report for the truth of the matter asserted, but only to show John’s state of mind when he withdrew his consent to have the bank release his records to the Department. Although the investigator’s testimony as to what Cathy said is hearsay, this objection was not made at trial. The investigator’s testimony as to what John said is not hearsay as it constitutes a statement against interest. Thus, as the trial court found, the hearing officer had valid admissible evidence going in each direction as to this charge and was entitled to rely on the credibility of the Department investigator, rather than that of John. For this reason, it affirmed the finding of the hearing officer that John had in fact interfered with an official investigation by advising his wife to destroy records. We find no reason to do otherwise.

John next argues that the decision to discharge him for cause was arbitrary, unreasonable, and unrelated to the requirements of employment. Unlike findings of fact, agency determinations of cause for discharge are not considered prima facie true and correct and are subject to full judicial review. See Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 478 N.E.2d 541.

In support of its contention that John’s discharge was reasonable, the Department cites case law which supports its authority to determine in the first instance the sanction to be imposed for employee misconduct. (See Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358 (in which a Department of Revenue employee’s discharge for conflict of interest was affirmed on appeal); see also Guzell v. Civil Service Comm’n (1974), 17 Ill. App. 3d 266, 308 N.E.2d 351 (in which a Department of Revenue employee was discharged for accepting $3 from a taxpayer to change a tax return. This discharge was also upheld on appeal).) While the reviewing court did affirm the Commission’s discharge determinations in both of these instances, it also affirmed all factual findings supporting the discharge. Since we do not affirm all the Commission’s factual findings in the case at bar (most notably the failure to comply finding), the persuasiveness of the cited authority diminishes.

In its consideration of whether the two remaining findings would support discharge, the trial court noted that the failure to obtain prior approval for a one-time, eight-year-old consulting job was a “nonsensical eight year old charge about not disclosing” that would never support discharge. However, the trial court concluded that this charge coupled with the interfering with an investigation charge, which it likened to an obstruction of justice charge, would be sufficient to support the Commission’s decision. We cannot agree. Instead we find that because only two of the Commission’s factual findings have been affirmed, the Commission itself should be given the opportunity to make a new determination as to cause in light of the revised factual findings. We thus reverse on the issue of cause.

John also maintains that the decision of the Commission violates his rights under the first, fifth, and fourteenth amendments. Although John presented these issues in his trial court brief, none of them were raised during argument before the trial court or addressed in the trial court’s opinion. Furthermore, John’s arguments as to the fourteenth amendment violations contain no cited authorities, as required by Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). In Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358, the appellate court refused to consider an appellant’s arguments which were not supported by authority. This court shall do likewise.

Although John does cite authority for his other two constitutional arguments, neither of them has merit. John contends that his first amendment rights were violated by the Department rule requiring him to obtain approval for outside employment because the employment was political in nature. However, this argument fails because the charge against John was not that he participated in political activity, but that he violated the Department rule requiring approval for outside employment. It was the violation of the Department rule and not the nature of the outside activity which gave rise to the Department’s charge. Finally, although John argues that his fifth amendment rights against self-incrimination were violated, such is not the case. The trial court in a civil case may draw negative inferences from a litigant’s refusal to testify.

Accordingly, for the aforementioned reasons, the decision of the trial court affirming the Commission’s determination to discharge John is reversed. The cause is remanded to the Commission with directions to reconsider its decision in light of our revised factual findings.

Reversed and remanded with directions.

LORENZ, P.J., and MURRAY, J., concur.

       While it does not affect our resolution of the issues at bar, we nevertheless note that Shea was criminally charged with income tax evasion and with filing a fraudulent Illinois income tax return. These cases were dismissed pursuant to a directed finding.