author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE FOLEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0567
    Opinion filed November 26, 1990.
    Rehearing denied December 31, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Gigi A. Gilbert, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial, defendant, George Foley, was convicted of two counts of criminal sexual assault and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13(a)(1), (a)(3), 12 — 16(d)). Defendant received concurrent terms of eight years for each criminal sexual assault conviction and a concurrent term of five years for aggravated criminal sexual abuse. On appeal, defendant contends that (1) the State produced insufficient evidence to prove him guilty beyond a reasonable doubt; (2) the trial court erred in considering improper evidence against him; and (3) two of his three convictions should be vacated because his actions constituted a single offense.

The evidence adduced at trial established that defendant was 49 years old during July and August 1985 and lived with the. complainant, his stepdaughter, and her brother in a two-bedroom apartment in Chicago Ridge, Illinois. Defendant had adopted complainant sometime prior to her tenth birthday. Complainant’s mother had died on March 13, 1985. Complainant, who was 14 years old during July and August 1985, slept in one bedroom, and her brother slept in the other bedroom. Defendant slept on the living-room couch.

Complainant testified that the day after her brother went into the Audy Home, in the afternoon hours, she was alone with defendant in the apartment. She could not remember the exact date, but testified that it was sometime between July 23, 1985, and August 23, 1985. On that occasion, complainant was wearing a nightgown and underwear and was standing near the bathroom. Defendant was in her brother’s room and asked her to come into the bedroom because he wanted to show her something. When she entered the bedroom, defendant was wearing a T-shirt and underwear and told her to lie on the bed. When she refused, defendant pushed her down on the bed and told her to take her clothes off. Complainant refused, and defendant pulled up her nightgown and pulled her underwear off.

Complainant testified further that as she struggled with him, defendant took off his underwear and started to touch complainant’s breasts and vagina. Defendant first inserted his finger and then his penis into her vagina. Complainant was lying on her back on the bed, and defendant was lying on top of her. While he was having intercourse with her, defendant had one hand over complainant’s mouth and the other hand near her stomach. Complainant tried to scream so that Karen, a friend and upstairs neighbor, would hear her. Defendant subsequently withdrew his penis and ejaculated on complainant’s stomach.

Complainant testified that. defendant then got up and acted as though nothing had happened. He said nothing to her, and complainant started crying and walked out of the room. Sometime later, defendant told her that if she told anyone about the incident he would kill her. Complainant stated that there were other occasions on which defendant hit her and had physical contact with her. On cross-examination, complainant testified that defendant had intercourse with her on more than one occasion.

On redirect examination, complainant described another incident. She testified that in August 1985 while her brother was still in the Audy Home, she was again alone in the apartment with defendant. Complainant had arrived home at about 10:30 p.m. and went directly into the kitchen to prepare a snack. Defendant was sitting naked on the living-room couch. Complainant did not know that defendant was undressed, and when she walked into the living room, he asked her to perform fellatio on him and offered to pay her for it. Complainant refused and said that defendant was crazy. He then pulled her over to him on the couch and told her to perform fellatio. Complainant resisted, and defendant pulled her nearer to him and again told her to perform oral sex on him. Complainant eventually succumbed and performed fellatio on defendant. After defendant ejaculated on himself, complainant left the apartment and spent the night at the home of her friend Chrissy.

Complainant testified that she did not tell anyone about these incidents until June 1986 because she was afraid that defendant would kill her. She never went to a hospital or reported the incidents to the police and did not confide in her boyfriend until after they had been married. After these incidents, complainant ran away from home on several occasions, the last time being in the early part of June 1986. She had been away from home for five days and then turned herself in to the Hickory Hills police department. While at the police station, complainant told Officer Mary Ann Doherty that defendant had been abusing her and had been having physical contact with her. Complainant would not, however, divulge any details about this conduct because she feared that defendant would kill her. She told Doherty about the conduct because she knew that she would not be going back home with defendant. Complainant testified further that in 1987 she told a caseworker at The Harbor, a residential shelter for adolescent girls, that she had been raped and abused by defendant.

The testimony of Officer Mary Ann Doherty corroborated that of complainant. Doherty testified that when she asked complainant why she continually ran away from home complainant responded that it was because defendant had hit her and had intercourse with her after her mother’s death. Doherty also stated that complainant said she didn’t want to go home with defendant because he would kill her and because she didn’t trust him and had been threatened by him. Doherty testified further that she advised juvenile officer Troy that complainant said defendant had physically and sexually abused her. After speaking with Doherty, complainant lived in two foster homes for some time and thereafter went to live at The Harbor.

Defendant presented the testimony of Peggy Roddy, a certified social worker for Worth Township Youth Bureau Services, who stated that she had consulted with defendant and complainant for approximately nine months from September 1985 to May 1986. Roddy saw defendant and complainant together for a part of each session and saw complainant alone for another part of each session. When she saw them together, complainant never exhibited any fear of defendant, and she never mentioned that she had been physically assaulted or sexually abused by defendant. Roddy stated that she had several clients who had been sexually abused, and she had very good success in soliciting that type of information.

Testifying on behalf of defendant, juvenile probation officer John Fei stated that he saw complainant approximately twice a month for 18 months between 1986 and 1987. He saw her at home or at school on a monthly basis, and defendant was frequently present when Fei saw her at home. When he saw complainant and defendant together, complainant never exhibited any fear of defendant, and Fei never observed any marks or bruises on her that would have indicated that she had been physically abused. Complainant never indicated to Fei that she had been sexually abused by defendant.

Detective Robert Troy of the Hickory Hills police department testified for the defense that on June 19, 1986, he spoke with complainant. Part of that conversation was in the presence of Officer Mary Ann Doherty. After the interview, Troy contacted the South Suburban YMCA Service Center. Mary Pat Hennessey, a counselor for that center, came to the station and interviewed complainant. Troy was present for a small portion of that interview, and thereafter he took complainant home to defendant and advised her to contact her counselor.

On rebuttal, the State called Laurie Ihde, a caseworker at The Harbor, the crisis shelter for adolescent girls. Ihde testified over defendant’s objection that she conducted an intake interview with complainant on March 10, 1987. Ihde stated that when she asked complainant about her parents, complainant got very emotional over her mother, the anniversary of whose death was three days away. After Ihde told complainant that she would have to report it if complainant had been sexually abused, complainant stated that she had been sexually abused by defendant.

Defense counsel moved to strike Ihde’s testimony as irrelevant and not rebutting. The court denied the motion, stating that her testimony was relevant and was in rebuttal to the evidence given by Roddy.

Upon considering all of the evidence, the court found defendant guilty of two counts of criminal sexual assault and one count of aggravated criminal sexual abuse and sentenced defendant to concurrent terms of eight years, eight years, and five years, respectively.

In denying defendant’s subsequent motion for a new trial, the court stated that although Ihde’s testimony was not actually a direct rebuttal of anything the defense witnesses said, it was a rebuttal of the fact that she had made no complaint of abuse to the defense witnesses.

We initially consider defendant’s claim that the testimony of complainant was not clear and convincing and was insufficient to prove his guilt beyond a reasonable doubt. We find this argument unpersuasive.

A complainant’s testimony need not be unimpeached, uncontradicted, crystal clear, or perfect to be clear and convincing. (People v. Douglas (1989), 183 Ill. App. 3d 241, 251, 538 N.E.2d 1335, 1341; People v. Findlay (1988), 177 Ill. App. 3d 903, 911, 532 N.E.2d 1035, 1041; People v. Henne (1988), 165 Ill. App. 3d 315, 323, 518 N.E.2d 1276, 1281.) Although complainant was unable to give the specific dates on which the offenses were committed, she testified that they occurred sometime between the beginning of July 1985 and the end of August 1985 and stated without hesitation that the first incident occurred the day after her brother went to the Audy Home. The inability to remember exact dates and times merely affects the weight to be given the testimony and, taken alone, does not create reasonable doubt. (Douglas, 183 Ill. App. 3d at 252, 538 N.E.2d at 1341; People v. Sexton (1987), 162 Ill. App. 3d 607, 612, 515 N.E.2d 1359, 1363.) If minor inconsistencies or discrepancies exist in the complainant’s testimony but do not detract from the reasonableness of her story as a whole, the complainant’s testimony may be found clear and convincing. Douglas, 183 Ill. App. 3d at 252, 538 N.E.2d at 1341; Findlay, 177 Ill. App. 3d at 911, 532 N.E.2d at 1041.

Contrary to defendant’s claim, the complainant in the instant case testified clearly and in great detail as to the specific acts of sexual assault and abuse committed by defendant. She stated that the first incident occurred when defendant called her into her brother’s bedroom. After he told her to lie on the bed and she refused, defendant pushed her down onto the bed and told her to take her clothes off. When she again refused, defendant pulled up her nightgown and pulled her underpants off. While complainant struggled, defendant removed his underwear and touched her breasts and vagina. He then inserted his finger and subsequently his penis into her vagina. While he was having intercourse with her, defendant had one hand over complainant’s mouth and the other hand near her stomach. After this incident, defendant told complainant that he would kill her if she told anyone what he had done.

Complainant also testified that on another occasion defendant forced her to sit near him on the living-room couch and to perform fellatio on him. She stated further that she told no one about these incidents until June 1986 because she was afraid that defendant would kill her. This testimony was given without hesitation or equivocation and was unimpeached, and the trial court specifically found it to be credible. Defendant presented absolutely no evidence to contradict the testimony of complainant. Rather, he introduced the testimony of Roddy and Troy, who merely stated that complainant had not told them of the incidents of sexual abuse by defendant.

Complainant’s testimony cannot be rejected merely because she did not tell anyone of these incidents until June 1986. A delay in reporting incidents of sexual abuse may be reasonable where the victim’s silence can be attributed to fear of the offender or to shame, guilt, and embarrassment felt by the victim. (People v. Escobedo (1986), 151 Ill. App. 3d 69, 83, 502 N.E.2d 1263, 1272.) Under such circumstances, a delay of several months in reporting incidents of sexual abuse will not detract from the reasonableness of a complainant’s testimony. Escobedo, 151 Ill. App. 3d at 82-83, 502 N.E.2d at 1272.

Although complainant did not give Officer Doherty and Laurie Ihde detailed accounts of the defendant’s acts of sexual abuse, their testimony does corroborate complainant’s statement that the incidents occurred and were committed by defendant. In a bench trial, it is the province of the trial court to judge the credibility of witnesses, to determine the weight to be accorded their testimony, and to draw inferences from the testimony. (People v. Jarvis (1987), 158 Ill. App. 3d 415, 511 N.E.2d 813; People v. Purnell (1984), 126 Ill. App. 3d 608, 467 N.E.2d 1160.) In the case at bar, the trial judge specifically found the testimony of complainant credible and stated that he understood how her fear of defendant could preclude her from immediately reporting the offenses. Consequently, the evidence in the record supports the trial court’s finding that defendant was guilty beyond a reasonable doubt.

We next address defendant’s assertion that the trial court erred in considering improper rebuttal evidence. Defendant argues that the court erred in considering the testimony of Laurie Ihde offered in rebuttal to his claim that complainant’s testimony must be rejected because she did not make a prompt complaint to Roddy, Troy, or to anyone else until June 1986, long after she said the incidents of sexual abuse had taken place. Defendant asserts that since the State’s rebuttal evidence did not directly contradict, repel or disprove his claim, its admittance into evidence was error.

Because Ihde's testimony does not directly contradict the testimony of Roddy and Troy, it appears that the standard for admitting rebuttal testimony was not entirely met and that some error was committed. Yet, it has been held that the decision to permit rebuttal testimony rests largely in the discretion of the trial court (People v. Andrews (1988), 172 Ill. App. 3d 394, 526 N.E.2d 628; People v. Egan (1978), 65 Ill. App. 3d 501, 382 N.E.2d 477), and that decision will not be reversed on appeal unless the court has abused its discretion resulting in prejudice to the defendant (Egan, 65 Ill. App. 3d 501, 382 N.E.2d 477; People v. Thornton (1977), 54 Ill. App. 3d 202, 369 N.E.2d 358). In the instant case, the record does not reflect and defendant has not shown any prejudice suffered by him as a result of the admission of Ihde’s testimony. The evidence established that complainant told Officer Doherty in June 1986 that defendant had sexually abused her, and the court found this evidence as well as complainant’s testimony credible. Consequently, the evidence supported defendant’s convictions regardless of the admission of Ihde’s testimony. In light of the fact that defendant has not shown prejudice from the admission of this evidence, his convictions will not be set aside on this ground. See Egan, 65 Ill. App. 3d 501, 382 N.E.2d 477.

Defendant relies upon People v. Ellison (1980), 89 Ill. App. 3d 1, 411 N.E.2d 350, on People v. Sepka (1977), 51 Ill. App. 3d 244, 367 N.E.2d 138, and on People v. Karmazinas (1967), 80 Ill. App. 2d 322, 224 N.E.2d 287, in support of his argument. Yet, all of these cases involved trials by jury and are factually distinguishable from the case at bar. Thus, they are not controlling here.

Finally, we determine whether two of defendant’s convictions should be vacated because his actions constituted a single offense. This claim is without merit.

The Illinois Supreme Court has determined that where a defendant commits more than one criminal act in a single episode or transaction, the State may prosecute for more than one offense unless the charges involve precisely the same physical act. (People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) Thus, where the physical acts are distinct, the defendant can be convicted of more than one offense and concurrent sentences may be imposed. Segara, 126 Ill. 2d 70, 533 N.E.2d 802; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

In the instant case, count I of the indictment charged defendant with criminal sexual assault in that he committed an act of sexual penetration upon the complainant who was under 18 years of age at the time the act was committed and defendant was a family member (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(3)). Count II of the indictment charged defendant with criminal sexual assault in that he committed an act of sexual penetration upon the complainant by the use of force or threat of force (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1)). Count III of the indictment charged defendant with aggravated criminal sexual abuse in that he committed an act of sexual penetration upon the complainant who was at least 13 years of age but under 16 years of age and the defendant was at least five years older than the complainant (Ill. Rev. Stat. 1985, ch. 38, par. 12—16(d)).

A “family member” is defined as “a parent, grandparent, or child, *** and includes a step-grandparent, step-parent or step-child.” (Ill. Rev. Stat. 1985, ch. 38, par. 12—12(c).) The phrase “force or threat of force” is defined as “the use of force or violence, or the threat of force or violence, including but not limited to the following situations: when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or when the accused has overcome the victim by use of superior strength or size, physical restraint or physical confinement.” (Ill. Rev. Stat. 1985, ch. 38, par. 12—12(d).) The term “sexual penetration” is defined as “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, *** including but not limited to cunnilingus, fellatio or anal penetration.” Ill. Rev. Stat. 1985, ch. 38, par. 12—12(f).

The evidence established that defendant committed three separate and distinct acts of sexual penetration by inserting his finger and then his penis into complainant’s vagina and by forcing her to perform an act of fellatio. In addition, defendant touched complainant’s breasts. Consequently, defendant could properly be convicted of and sentenced for two counts of criminal sexual assault and one count of aggravated criminal sexual abuse. Segara, 126 Ill. 2d 70, 533 N.E.2d 802; King, 66 Ill. 2d 551, 363 N.E.2d 838.

The type of sexual penetration is not an element of the offense, and its inclusion in the indictment is merely surplusage. (People v. Taranto (1954), 2 Ill. 2d 476, 119 N.E.2d 221; People v. Tanner (1986), 142 Ill. App. 3d 165, 491 N.E.2d 776; People v. Young (1973), 12 Ill. App. 3d 310, 297 N.E.2d 578.) If the statutory language used describes specific conduct, it is unnecessary for the indictment to specify the exact means by which the conduct was carried out. (People v. Wisslead (1985), 108 Ill. 2d 389, 484 N.E.2d 1081.) The State need only prove that a type of sexual penetration occurred beyond a reasonable doubt. Tanner, 142 Ill. App. 3d at 169, 491 N.E.2d at 778.

Each count in the indictment here charged defendant with sexual penetration, the specific conduct prohibited in the relevant statutes, and it was unnecessary for the indictment to specify the exact means by which the sexual penetration was carried out. Consequently, the indictment’s reference to sexual penetration through contact between defendant’s penis and complainant’s vagina was merely surplusage and need not have been proved for defendant to be convicted of the offenses charged. In light of the evidence that defendant had committed three separate and distinct acts of sexual penetration upon the complainant, the trial court properly found defendant guilty of two counts of criminal sexual assault and of one count of aggravated criminal sexual abuse.

For the forgoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA JUSTICE RAKOWSKI,

license: Public Domain

text:
    CHARLES ADAMS, Plaintiff-Appellee, v. SALLY WARD, Director, Department of Employment Security, et al., Defendants-Appellants (Wm. Wrigley, Jr., Company, Defendant).
    First District (6th Division)
    No. 1—89—3022
    Opinion filed November 26, 1990.
    Rehearing denied January 15, 1991.

      RAKOWSKI, J., specially concurring.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and John A. Morrissey and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Eugene C. Edwards and Carl K. Turpin, both of Cook County Legal Assistance Foundation, Inc., of Harvey, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff Charles E. Adams was fired from his job and then refused unemployment insurance benefits on the ground that he was discharged for misconduct, as defined by the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.). The circuit court reversed that decision, finding the employer had no articulated “reasonable rule” governing plaintiff’s conduct, plaintiff did not act with “willfulness” or “deliberateness” and the employer had suffered no harm, as required by the newly modified Act. Defendant, the Department of Employment Security Board of Review (Board), appealed, contending Adams was properly denied benefits.

We affirm the trial court decision and find that the 1988 modification of the Act requires that employers meet a new requirement, a proof of actual harm suffered, to comply with the Act’s definition of “misconduct.”

Adams of Calumet City was fired from his job November 28, 1988, after he admitted he threw out two company uniforms which he said were on the floor already in a pile of trash. Adams had worked at Wm. Wrigley, Jr., Company since December 1985, primarily as a parts cleaner. When a hand injury left him unable to continue in his regular job, Adams .began working as a janitor for the company. His duties included cleaning locker rooms where employees changed out of dirty uniforms after working with printers ink. Though employees were to place the dirty uniforms in separate laundry bins, two were left on the floor on November 23, 1988. Adams threw the uniforms into a dumpster along with the trash. The uniforms were later retrieved by another employee and, on the next work day, Adams was fired.

Adams sought unemployment benefits for November 27, 1988, through December 10, 1988. On January 5, 1989, a claim’s adjudicator denied Adams benefits, finding Adams negligently destroyed company property and his action was within his control to avoid. Adams appealed to a hearing referee, who reversed the decision of the claims adjudicator.

Adams testified before the hearing referee that on November 23, 1988, he was cleaning a locker room and came across two ink-stained uniforms in a pile of trash on the floor. He swept the uniforms up with the trash and later emptied the trash into a gondola. A printing operations supervisor, Ed Kozlowski, testified before the hearing referee that he later removed the uniforms from the trash after another employee told him of Adams’ conduct. That employee was never identilled or produced at subsequent hearings. The next business day, Kozlowski questioned Adams about the incident and then fired Adams.

Only the hearing referee heard testimony. No witnesses to Adams’ actions were produced before the referee. Adams testified that he admitted to Kozlowski at the time that he had indeed thrown the uniforms away. He testified that the uniforms were already in a pile of trash and he believed they were to be thrown away. He testified that when he threw the uniforms away, other uniforms were already in the trash though he had not placed them there. He admitted he knew of the company policy of keeping a separate bin for ink-covered uniforms intended to be laundered.

Kozlowski testified before the referee that when he questioned Adams, Adams admitted throwing uniforms out in the past. But at that same hearing, Kozlowski later changed his statement, saying Adams admitted only throwing out the two uniforms the previous working day. Kozlowski also testified that Adams told him at the time that he was not going to be picking up “after a bunch of babies.” Adams was not asked whether he made such a statement but he did deny that he had thrown uniforms away in the past.

Adams testified that before he threw the uniforms away, he was never warned or disciplined for poor work performance. Defendant contends plaintiff was warned because his supervisor spoke to him after the uniform incident, but did not fire him until the next working day.

Hearing referee Harry Bobbin took testimony from Adams and two company employees, Ed Kozlowski, who was the printing operations supervisor, and Michael Aldridge, who was the personnel supervisor. In his findings of fact, Bobbin said “claimant had accidentally thrown the entire bundle [of uniforms and trash] out. *** He had a good record and had not received any prior warning about his job performance.” Bobbin concluded in his decision February 3, 1989, that “the evidence did not establish a wrongful intentional course of conduct toward the employing unit.”

The company appealed to the agency’s Board, which reversed the decision of the hearing referee. The Board of Beview found the record adequate and “no further evidentiary proceedings necessary.” The Board found “claimant was discharged from his position doing clean up work for intentionally throwing two employees uniforms in the garbage but testified that they were very dirty [and] that he thought they were supposed to be [discarded]. However, a witness for the employer testified that he had heard that [Adams] threw the uniforms away because he is not going to be picking up after people.”

Here, the Board of Review mistakenly interprets Kozlowski’s testimony as hearsay. However, we make note that Kozlowski, testifying before the hearing referee, said Adams spoke to him directly and said he wouldn’t pick up after “babies.”

In its conclusion, the Board noted that Adams “intentionally injured the employer’s interests by putting the uniforms in the garbage. Even though the uniforms were retrieved the employer was injured because it had to go through the trouble of recovering the uniforms and investigating this incident.” We note that the record contains the following scenario: an employee reported to Kozlowski that Adams threw two uniforms into the trash dumpster, that Kozlowski retrieved the uniforms and that Kozlowski then spoke with Adams about the incident. The record is devoid of any further “investigation.”

Adams sought review of the Board decision by the circuit court, which heard arguments from both sides. The circuit court reversed the Board decision. This is an appeal of the circuit court decision.

A reviewing court cannot reweigh the evidence. Its function is to determine whether the administrative agency’s decision is against the manifest weight of the evidence. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 513, 475 N.E.2d 879, 885.) It is the decision of the Board, not the referee, which is reviewed by the court. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 379, 465 N.E.2d 1052, 1056.) No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facia true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) However, a reviewing court is not bound to give the same deference to an agency’s conclusions of law, such as its construction of a statute, as it gives to its findings of fact. Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 1024, 466 N.E.2d 1050, 1053.

Several Illinois cases hold unemployment insurance benefits are a conditional right and the burden of establishing eligibility rests with the claimant. (Collier v. Department of Employment Security (1987), 157 Ill. App. 3d 988, 510 N.E.2d 623; Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266.) Illinois courts have required that the Act be liberally interpreted to favor the awarding of benefits. Flex, 125 Ill. App. 3d at 1024.

Initially we must consider the effect of the modifications to the Unemployment Insurance Act. The Illinois Supreme Court first defined the term “misconduct” in 1985 to assist the Department of Labor and reviewing courts on questions of unemployment compensation. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879.) Prior to that time, each reviewing court provided its own definition, for the statute offered none.

Jackson defined “misconduct” as:

“ ‘wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employer’s duties and obligations to his employer.’ ” Jackson, 105 Ill. 2d at 511-12, quoting Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259-60, 296 N.W. 636, 640.

That same year, however, Public Act 85 — 956 was introduced and subsequently enacted effective January 1, 1988, providing modifications to section 602(A) (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). The changes include a one-sentence definition of misconduct similar to the one adopted by the court in Jackson.

The statute defines “misconduct” as:

“the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction.” Ill. Rev. Stat. 1987, ch. 48, par. 432(A).

As of the date of the hearing before the trial court, we can locate no cases that have applied the updated statute.

The definitions in Jackson and the revised statute are similar in the first two requirements, (1) a showing of “willful” and “deliberate” conduct, which is (2) based on a “reasonable” employer rule. But the statute also requires a harm to the employer or another employee. In Jackson, the court explicitly stated that disqualifications were not limited to “cases in which the employee’s conduct is harmful or potentially harmful to the employer.” (Jackson, 105 Ill. 2d at 512.) The court further stated that “conduct which is harmful or potentially harmful to the employer may fall within this definition.” (Jackson, 105 Ill. 2d at 512.) “An employer’s financial loss is a relevant factor in determining if a claimant should be denied benefits.” (Winklmeier v. Board of Review of the Department of Labor (1983), 115 Ill. App. 3d 154, 156, 450 N.E.2d 353, 355.) In a later case, the court held that the potential for injury is not enough to establish a finding of misconduct. Pesce v. Board of Review of the Department of Employment Security (1987), 161 Ill. App. 3d 879, 883, 515 N.E.2d 849, 852.

Since the statute’s effective date, January 1, 1988, two first district appellate panels decided misconduct cases but relied on the language in Jackson and pre-1988 cases to aid in their interpretation. The misconduct alleged in each case occurred prior to January 1, 1988. (London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 532 N.E.2d 294; Rias v. Department of Employment Security (1989), 187 Ill. App. 3d 328, 543 N.E.2d 211.) Two second district cases followed the same approach. Loveland Management Corp. v. Board of Review of the Department of Employment Security (1988), 166 Ill. App. 3d 698, 520 N.E.2d 1070; Crowley v. Department of Employment Security Board of Review (1989), 190 Ill. App. 3d 900, 546 N.E.2d 1042.

A fifth case, decided in 1989, makes reference to the new statute and notes that while “deliberate and willful” misconduct will prevent a person from collecting benefits, “carelessness and negligence” will not. (Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760.) Siler and the four cases above do not discuss the question of “harm” to the employer.

Plaintiff’s actions and firing here occurred after the effective date of the statute. We hold that the statute has added a third element to the test: a requirement that the employer show “harm.”

First, an employer must show the former employee violated a reasonable company rule. Every violation of a company rule will not constitute misconduct. The rule must be a reasonable rule governing the conduct or performance of an employee. Jackson, 105 Ill. 2d at 512.

Defendant contends that the employer’s reasonable rule was simply one of caring for the employer’s property. Adams testified before the hearing referee that the company had one bin for trash and a separate hamper for dirty uniforms. Adams testified that when he worked as a parts cleaner, he had taken his dirty uniforms off and placed them in a hamper. He also testified that as a janitor, he had picked up dirty uniforms in the past and placed them in the hamper but that those uniforms were found on the floor in the locker area.

Defendant argues that even if the company policy was not explicit, it was implicit in the employee/employer relationship. Defendant contends that it is implicit that the employee owes a duty of loyalty and fidelity to an employer and cannot act inconsistently with his agency or trust. ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 683, 379 N.E.2d 1228, 1237.

The defendant argues before us that obviously a policy against destruction of company property would be implicit in the employer/employee relationship and the fact that uniforms regularly were washed and reused by the company demonstrates they were of value to the company. No one testified for the company that Adams was ever told that in cleaning up the area, he was required to place all uniforms in the laundry bin regardless of their condition and regardless of where they were found.

Plaintiff denies a reasonable rule exists, posing the alleged rule as one of “whether Wrigley had a policy that uniforms in a pile of trash may reasonably be discarded.” No description for Adams’ job was provided. The Board did not consider what if any reasonable rule existed but ruled based on the principle that defendant had a duty. In reversing the Board’s decision, the circuit court found no reasonable rule existed. “There is no rule or policy clearly articulated here in this particular case with the exception [that] soiled uniforms are to be placed by the employees in the container.” The court went on to rule in Adams’ favor, saying that even if the rule was implicit, Adams did not deliberately or willfully violate it.

We agree with the trial court and find Wrigley’s argument inconsistent since it admits no rule existed. How is an employee to follow rules such as separating dirty uniforms from trash when he is never told that such a rule exists? We would expect that at some point in time a uniform would have no further value to the employer, at which point it would be discarded or destroyed. No testimony was produced to establish a company policy which identified the person charged with making the determination of uniform obsolescence. In the absence of such testimony, the circuit court found no articulated or implicit company rule. We agree.

As to the second element of the test, a showing of “willfulness” and “deliberateness,” we look to Jackson and a handful of appellate court cases for guidance.

Every discharge even if justifiable does not disqualify the former employee from receiving unemployment benefits. An employee’s conduct may be such that the employer may properly discharge him. Such conduct may not, however, constitute misconduct connected with work. (Jackson, 105 Ill. 2d at 512.) A finding of misconduct is improper where there was no showing of an unreasonable and improper course of conduct from which could be imputed a lack of proper regard for the employer’s interests. (Pesce, 161 Ill. App. 3d at 883.) The Act was not intended to benefit those who are unemployed on account of their own misdeeds. Popoff, 144 Ill. App. 3d at 577.

Plaintiff portrays his conduct as an isolated incident lacking evidence of an intentional course of conduct. No evidence showed prior loss of uniforms during Adams’ shift. At best, plaintiff argues, Adams is guilty of a good-faith error in judgment, which is not a willful disregard of the employer’s interest. Winklmeier, 115 Ill. App. 3d at 156, 450 N.E.2d at 355.

Adams’ version of events, which was believed by the circuit court, was simply that plaintiff picked up two dirty, ink-stained, uniforms in a pile of other trash and decided that they were intended for the trash bin and not the laundry hamper. He testified he believed they were to be thrown away. He also testified that when he went to dump the trash bin into a gondola where other trash bins were emptied, he noticed that there were other uniforms in there that he had not put there.

Plaintiff’s explanation is unconvincing, defendant argues. Adams knew dirty uniforms were washed and reused and he testified that part of his job as a janitor was to pick uniforms up, though he said he usually found them located between lockers. Defendant also contends plaintiff was warned about poor work performance; however, Adams’ testimony indicated his supervisor first spoke to him about his work performance shortly after he threw the uniforms out. No evidence shows Adams was warned and then repeated the error.

Defendant contends that Kozlowski’s testimony evidenced willfulness on Adams’ part. Kozlowski testified before the hearing referee that Adams told him he didn’t want to clean up after “babies.” He did not testify that Adams told him that was the reason he put the uniforms in the trash dumpster.

Kozlowski testified that when he questioned Adams, plaintiff admitted he had thrown uniforms out in the past. But then later, Kozlowski testified that Adams admitted only that he threw out the two uniforms in question. The hearing referee, after taking testimony both from Adams and Kozlowski, made findings of fact that claimant had accidentally thrown the uniforms and trash out and found that the evidence did not establish a wrongful intentional course of conduct by Adams against his employer’s best interest. The referee, as the only one taking testimony, was in the best position to judge witness credibility.

The Board took no additional testimony but on the record made before the hearing referee found that Adams intentionally injured the employer’s interest because even though the uniforms were retrieved, the company “had to go through the trouble of recovering the uniforms and investigating this incident.” On this basis, the Board reversed the findings and conclusions of the hearing referee. The Board construed Adams’ actions as a deliberate violation or disregard of implied general standards of behavior which an employer has the right to expect of his employee.

On review, the circuit court judge reversed the Board, finding Adams had no willful intention to violate the employee/employer relationship. The circuit court noted that Adams was the only eyewitness and he testified that the uniforms were already in a pile of trash when he found them. Even if a reasonable employer rule existed, the court said, “claimant *** stated that [the employer’s] property was extremely soiled and it was in the garbage pile.” Kozlowski testified before the hearing referee that Adams told him, “I’m not picking up after babies,” but Adams was not asked about this when he testified.

We agree with the trial court’s finding of no willfulness. The Board found that plaintiff’s conduct was intentional. On review, the circuit court made a determination from the record before the Board that the evidence did not support the Board’s finding of willfulness and instead the court specifically found that the evidence required a finding of no willful conduct by plaintiff. We agree.

We add that, with no reasonable and articulated rule to guide him, it was apparently up to Adams to decide when a uniform was so soiled that it could no longer be used. No one was present when Adams determined that the uniforms should be thrown away and yet he was fired for making a decision on his own. Adams testified that he saw other uniforms in the trash when he went to dump the trash in the bin in which he had thrown the two soiled uniforms. This does not show willfulness or deliberateness on Adams part.

As to the third element, harm, the Board found the employer had been injured because “it had to go through the trouble of recovering the uniforms and investigating this incident.” The Board argues that the “potential for financial loss to the employer is quite clear.” In addition, before the circuit court, the Board argued that the statute does not quantify the amount of harm required, saying harm to the employer can be in many forms. “The plaintiff should not be exonerated from his actions because of the fortuitous intervention of the employer,” the Board argues. The Board places particular emphasis on the potential financial injury to the company if plaintiff discards uniforms in the future that the employer does not have a chance to recover. It is obvious this will not happen since plaintiff’s employment has been terminated.

Plaintiff contends, however, that the statute as amended requires actual harm and that none existed in this instance. The once-discarded uniforms were retrieved by another employee. No property was destroyed. Plaintiff also points to a previous appellate court ruling that held that misconduct could not be found in a potential injury. (Pesce, 161 Ill. App. 3d at 883.) In addition, plaintiff argues that his ready admission that he threw away the uniforms obviated the necessity for investigation, one of the harms noted by the Board in its decision.

The circuit court agreed with the plaintiff and found “no particular harm outside the fact that if it hadn’t been caught, the uniforms would have been destroyed.” Defendant can identify no other harm, only potential future injury. The record supports the circuit court finding that no harm occurred.

For these reasons, we affirm the circuit court decision.

Affirmed.

McNAMARA, J., concurs.

JUSTICE RAKOWSKI,

specially concurring:

While I also affirm because of the absence of a rule, I respectfully do not agree that the Board’s finding of willfulness was against the manifest weight of the evidence. Further, I do not agree that harm to the employing unit did not exist merely because the uniforms were recovered.

The rule in Illinois is that findings and conclusions of an administrative agency on factual questions are prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3—110.) Further, a court cannot reweigh the evidence; the agency’s finding must be affirmed unless it is against the manifest weight of the evidence. (Smith v. Department of Public Aid (1986), 150 Ill. App. 3d 584, 586-87, 502 N.E.2d 42; Meyers v. Illinois Department of Public Aid (1983), 114 Ill. App. 3d 288, 291, 448 N.E.2d 1176.) In order for a finding to be considered against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Kelley v. Department of Labor (1987), 160 Ill. App. 3d 958, 962, 513 N.E.2d 988; Smith, 150 Ill. App. 3d at 587.

Here, the Board found plaintiff’s conduct to be willful as evidenced by his statement “that he was not going to be picking up after a bunch of babies.” Certainly this is evidence from which a finder of fact could infer a willful state of mind. Whether defendant’s conduct did or did not constitute willfulness was a determination to be made by the Board and as such can only be reversed if an opposite conclusion is clearly evident. Such is not the case here. While the majority discusses findings made by the referee and the trial court, neither are germane. The referee’s decision is not subject to judicial review. (Ill. Rev. Stat. 1989, ch. 48, par. 471.) The Board may affirm, modify, or set aside a referee’s decision. (Ill. Rev. Stat. 1989, ch. 48, par. 473.) The Board, not the referee, is the ultimate finder of fact. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 379, 465 N.E.2d 1052.) Similarly, the trial court is not a finder of fact in an administrative review action; rather, its function is to determine whether the Board’s decision was or was not against the manifest weight of the evidence. I submit that it was not.

Finally, the majority holds that no harm occurred in this instance because the once discarded uniforms were retrieved. While I agree that no harm occurred in this instance because of the de minimis nature of the incident, I believe that carried to its extreme, such a narrow construction would be incompatible with the underlying policy of the Unemployment Insurance Act. The purpose of the Act, after all, is to provide benefits to workers whose unemployment is not occasioned by their fault. (Grobe v. Board of Review of the Department of Labor (1951), 409 Ill. 576, 583-84, 101 N.E.2d 95.) An employee caught stealing would find protection in the majority’s opinion and receive unemployment benefits so long as the items were recovered. Such a result could not have been what the legislature had in mind in enacting section 602(A) (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)).


text:
      In re Y.C. et al. (The People of the State of Illinois, Petitioner-Appellee, v. Rhonda Cathey, Respondent-Appellant).
    First District (6th Division)
    No. 1—89—3067
    Opinion filed November 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This appeal stems from an order of the circuit court of Cook County which determined that the two subject minors were neglected, adjudicated them wards of the court, and placed them in the guardianship of the administrator of the Department of Children and Family Services (DCFS). Respondent, who is the children’s mother, now appeals from that judgment, contending that the court’s determination was contrary to the manifest weight of the evidence.

The record shows that on April 13, 1989, petitions for the adjudication of wardship were filed alleging that the respondent’s children, who were then 4 years and V-k years of age, were neglected because their parents or those responsible for their welfare had not provided the care necessary for their well-being. (Ill. Rev. Stat. 1987, ch. 37, par. 802—3(l)(a).) A second count in the petition alleged that they were dependent in that they were without proper care due to the mental and/or physical disability of the parent, the respondent. Ill. Rev. Stat. 1987, ch. 37, par. 802—4(l)(b).

At the adjudicatory hearing held on September 13, 1989, Jeanette Cathey identified herself as the wife of respondent’s maternal uncle who, together with her husband, had been appointed guardians of the now 20-year-old deaf respondent. At the time of this appointment, respondent was pregnant with R.C., and she and her daughter, Y.C., moved into the Cathey household. Since Jeanette and her husband were both employed (and had children of their own), respondent was responsible for the care of her own children while she was living with them.

Jeanette further testified that respondent was a good mother when she had her head “on straight,” but recalled instances when respondent would become angry, leave the household without her children and stay out all night without making arrangements for the care of the children, who were then left with Jeanette and her family. In one instance respondent asked Jeanette’s daughter to care for the children while she went to the store; however, she did not return until the next day. When respondent returned, she told the Catheys that she had been raped, and an investigation by law enforcement personnel and an examination by hospital personnel were made. Later, however, respondent admitted that she had lied and apologized to them for the situation she had caused.

Jeanette also recalled an incident which occurred in the spring of 1988 when respondent had asked permission to go away for the weekend with her children and a girlfriend, but she did not return as promised. Jeanette eventually received a call at work asking her to come to the police station, and when she and her husband arrived there, she saw respondent, standing on the steps soaking wet from being out in the rain, and R.C., with no bottle or diapers. Respondent told them that her boyfriend, with whom she had spent the weekend, had taken her belongings.

Jeanette also testified that while she was living with them, respondent was seeing a therapist at Michael Reese Hospital in order to prepare her for independent living. On the day in January 1989, which was supposed to be her final visit with the therapist, respondent’s boyfriend and R.C. accompanied her to the hospital. Later that evening, however, Jeanette and her husband were called to pick up R.C. when respondent was hospitalized. Jeanette was unable to speak with respondent at this time, but respondent’s boyfriend told her that he was also being admitted after he admitted that they intended to commit suicide. Jeanette stated that she and her husband were unable to care for the children without respondent in the household, and she contacted her husband’s sister, Denise, who then took over the care of the respondent’s children.

Denise Cathey testified that she is respondent’s maternal aunt and took over the care of respondent’s children after being apprised of the situation by her brother. She then contacted DCFS, but for a period of months cared for the children with her own resources. She also brought them to visit respondent during this period. She stated that respondent never visited them at her home and reported that respondent even refused to come to the birthday party which she had scheduled for Y.C. Denise surmised that respondent’s refusal had to do with Denise’s rule concerning respondent’s boyfriend, who was not welcome at her home. Denise also informed the court that respondent resided at the Bridge for a period of time, which was then identified as an adult, independent living program for the deaf.

In her further testimony, Denise acknowledged that she had filed a false report with DCFS alleging that the children had been left in an abandoned building because she had no response from DCFS and had been unable to procure monetary assistance for their care. This report finally elicited a response from DCFS, and she admitted the falsity of her statement to them immediately. She subsequently began receiving money for the care of the minors. After Denise received the first check from DCFS, respondent was released from the Bridge and gave Denise the money from her public aid check for their care.

Wanda Wilson testified that she is a DCFS child welfare specialist who was assigned to the cases of the minors at bar. In that capacity she visited respondent at the hospital where respondent told her that she had been kept because of her suicide pact with her boyfriend. Wilson also reported that she was currently attempting to arrange a proper placement for respondent, and that during her observations of respondent’s visits with her children, she found respondent’s behavior to be appropriate. Respondent also told her that she had an agreement with her aunt to care for the children.

After the state rested, respondent testified on her own behalf. She stated that when she was hospitalized in January, Jeanette and her husband picked R.C. up at the hospital and brought the children to Denise, who cared for them while she was a patient. When she was released from the Bridge, she gave Denise her entire check of $187 for the care of the children.

At the close of argument, the court found that the evidence showed that respondent was hospitalized for psychiatric reasons in January 1989, and that in the absence of a care plan for her children, her relatives took over their care. The evidence further showed that in the next five months, respondent did not provide any financial support for the minors and that her aunt made a false report to DCFS in order to obtain some financial help. The court concluded on the evidence presented that the State had proved the allegation of care necessary as to both children by a preponderance of the evidence.

At the dispositional hearing which followed, reports were presented to the court concerning the efforts made to enroll respondent in parenting classes and to obtain housing for her and her children. The court was also apprised that respondent had recently been hospitalized for about three weeks and that the children were doing well in their placement with their aunt. The DCFS social worker then recommended to the court that the administrator of DCFS be appointed guardian of the children with the right to place them with the aunt until respondent found suitable housing. At that point the court entered a finding of “inability” as to the respondent, a finding of “unwilling” as to the father, and a determination that the best interests of the children would be served by the appointment of the guardian as indicated. The court also scheduled a progress report on respondent’s pursuit of suitable housing.

In this appeal , respondent contends that the trial court’s neglect determination was against the manifest weight of the evidence. Respondent maintains that the trial court’s focus was improper in that it centered on the neglect of the parents, rather than on the actual condition of the children, and since there was no showing in this case that the children had been neglected, the court’s decision should be reversed.

Under the current codification of the Juvenile Act (Act), a neglected minor includes “any minor under 18 years of age whose parents or other person responsible for the minor’s welfare does not provide the proper or necessary support *** or other care necessary for his or her well being.” (Ill. Rev. Stat. 1987, ch. 37, par. 802— 3(l)(a).) The petitions for the adjudication of wardship in this case alleged that the children were neglected in this respect and named their mother as respondent. The State had the burden of proving these allegations by a preponderance of the evidence (In re Aaronson (1978), 65 Ill. App. 3d 729, 382 N.E.2d 853), and the determination as to whether the State had met its burden fell upon the trial court, which was in a superior position to observe the demeanor and conduct of the parties and the witnesses. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) On appeal, the trial court’s determination will not be disturbed unless it is against the manifest weight of the evidence. In re Stilley, 66 Ill. 2d 515, 363 N.E.2d 820.

In the case at bar, the court found neglect in the evidence which showed that respondent had been hospitalized in January 1989 after revealing a suicide pact with her boyfriend. Her relatives were called to the hospital to pick up R.C., and others assumed the responsibility for the children’s care. The court found that there was no initial plan provided for the children and that from January through May, respondent failed to provide any financial support for them. This, in turn, led respondent’s aunt to make a false report to DCFS in order to get their attention and some financial aid. On this evidence the court found the neglect allegation was proven by a preponderance of the evidence and subsequently adjudicated the children wards of the court. Although defendant takes issue with that finding because there was no showing that the children were actually neglected, we find, for the reasons which follow, that the court’s focus on the parent was proper and its decision supported by the record.

In the recent case of In re B.T. (1990), 204 Ill. App. 3d 277, a similar argument was raised and rejected. In that neglect case, respondent pointed out that no physical harm had befallen her minor children; however, the appellate court determined that the present codification of the statute focuses on parental neglect in providing the necessary care for the minors’ well-being, and held that respondent’s good fortune did not negate the evidence of her dereliction of duty with regard to her children. In reaching that conclusion the court found that the reasoning set forth in In re Stilley and In re Ritchie (1978), 58 Ill. App. 3d 1045, 374 N.E.2d 1292, had been incorporated into the current statute, then distinguished In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568, which is also cited by respondent in this case, in that it predated the current statute and does not comport with its plain language. (In re B.T., 204 Ill. App. 3d at 281.) We find this decision dispositive of the argument raised by respondent in this case. Here, as in the case of In re B.T., the evidence showed that respondent had failed to provide the care necessary for her children’s well-being, and, accordingly, that they were neglected within the plain meaning of the statute.

In reaching this conclusion, we bear in mind that “neglect” is generally considered to be the failure to exercise the care that circumstances justly demand and encompasses both willful and unintentional disregard of parental duty. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769.) The term is not one of fixed and measured meaning, but rather takes its content from the specific circumstances of each case (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820; In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872). In this case, we find that the court properly focused on the parent in determining whether neglect had been established and that its decision was consistent with and supported by the manifest weight of the evidence.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and EGAN, JJ., concur.


text:
    MARY WALKER JONES, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0152
    Opinion filed November 26, 1990.

      Benjamin & Shapiro, Ltd., of Chicago (Elena Martinez and Fred I. Benjamin, of counsel), for appellant.
    William Farley, of Chicago Transit Authority, of Chicago (R Scott Neville, Jr., of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This action was brought to recover damages for personal injuries allegedly suffered by plaintiff as a result of the negligent conduct of defendant, Chicago Transit Authority (CTA). The circuit court granted summary judgment in favor of defendant and plaintiff has appealed.

Plaintiff, Mary Walker Jones, brought an action seeking damages for personal injuries allegedly suffered on December 3, 1987, as a result of the negligent conduct of defendant. On June 1, 1988, plaintiff filed her complaint which asserted that she was injured when she slipped and fell as she was exiting a bus owned and operated by defendant. Plaintiff alleged that she fell on the steps of the bus and that her fall was caused by rain water on the steps. Plaintiff asserted that defendant was negligent in (1) failing to keep a proper lookout for alighting passengers; (2) failed to remove debris and liquid from the exit in order to provide the plaintiff with a safe place to alight from the bus; and (3) carelessly and negligently operated the bus without exercising the highest degree of care consistent with its practical operation so as to avoid injuring the plaintiff. The complaint also alleged that because the action was brought within six months of the date of the injury, plaintiff was not required to serve defendant with the statutory notice of the claim.

Defendant’s answer to the complaint denied plaintiff’s allegations of negligent conduct and denied that the filing of the complaint exempted plaintiff from giving the required statutory notice. The half-sheet and the sheriff’s restoration information reflect that defendant was served with summons on June 6,1988.

Defendant subsequently moved for summary judgment alleging that defendant did not have a duty to remove a natural accumulation of rain water from the steps of the bus. Defendant’s motion was supported by an excerpt of the transcript of plaintiff’s deposition testimony, including a transcript of a statement given the defendant on the date of the injury. Plaintiff responded to defendant’s motion, arguing that defendant had a duty to alleviate the problem of excessive rain water on the steps of its buses by purchasing buses equipped with a drainage device which would allow water to flow onto the street. After a hearing, the trial court granted summary judgment in favor of defendant.

The record indicates that at about 10:30 a.m. on December 3, 1987, plaintiff was a passenger on a CTA bus which was travelling north on Michigan Avenue. At the intersection of Michigan Avenue and South Water Street, the bus stopped and plaintiff began to alight from the bus. As she descended the steps in the front of the bus, plaintiff slipped, fell, and landed sitting on the bottom step with her feet on the pavement. Plaintiff testified at her deposition that there was a lot of rain on December 3, 1987, and the steps of the bus were slippery or wet because of the rain.

On appeal, plaintiff asserts that the trial court erred in granting defendant summary judgment because defendant had a duty to provide buses which were equipped with a drainage system allowing excessive rain water to flow from the steps of the bus onto the street, and because the evidence presented created a question of fact as to whether defendant breached that duty.

We find that the trial court's decision was proper because defendant did not have a duty to protect plaintiff from the fall and injuries she sustained.

To state a cause of action for negligence, a plaintiff must allege the existence of a duty of care owed by defendant to plaintiff, a breach of that duty, and damages proximately resulting from the breach. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 1364; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116, 118.) Although the issues of whether a duty has been breached and whether the breach proximately caused the injury are factual matters, the question of the existence of a duty is one of law for the court. Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364; Curtis, 98 Ill. 2d at 163, 456 N.E.2d at 119.

Whether the law imposes a duty upon a defendant for injuries to a plaintiff depends upon the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. (Rowe, 125 Ill. 2d at 228, 531 N.E.2d at 1370; Lance v. Senior (1967), 36 Ill. 2d 516, 518-19, 224 N.E.2d 231, 233.) If it appears from the facts that defendant owed no duty to plaintiff, summary judgment is proper. Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, 540; Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538.

The issue to be decided here is whether defendant had a duty to remove rain water from the steps of its bus. Upon examination of the considerations set forth above, it is evident that although the likelihood of injury is great, even greater is the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. It would be impractical to require the CTA to replace or retrofit each and every bus so all of its vehicles were equipped with a drainage system to allow water to flow onto the street. (See Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265, 271, 505 N.E.2d 1034, 1039.) Defendant, a common carrier, was required to operate its bus with the highest degree of care consistent with the practical operation of the bus. (Serritos, 153 Ill. App. 3d at 271-72, 505 N.E.2d at 1038.) We do not believe that replacement or retrofitting of each and every bus is consistent with the practical operation of the CTA’s bus service.

Moreover, we do not believe that a drainage device would cure the problem of which plaintiff complains. Plaintiff has not alleged that there was standing water on the steps of the bus. Consequently, there would not have been any water to drain through such a device. Plaintiff asserted that the steps were wet and slippery from the rain. Yet, a drainage device would not necessarily ensure that the steps of buses would remain dry or eliminate the possibility that a passenger might slip on steps that are slightly wet.

Plaintiff relies primarily upon Wasserman v. City of Chicago (1989), 190 Ill. App. 3d 1064, 547 N.E.2d 486, and argues that defendant owed the highest degree of care to plaintiff and was obligated to provide plaintiff with a reasonably safe place to alight from the bus.

In Wasserman, the plaintiff fell on a pile of snow after she alighted from defendant’s bus. The evidence established that the only point of egress from the place where the bus stopped was into deep piles of snow with no passages for pedestrian traffic and that plaintiff fell after taking just one step. In that case, this court noted that defendant had presented no evidence indicating that it was impossible to stop farther from the curb and the snow piles or at some other point along the street where plaintiff would have been able to circumvent or pass through the deep piles of snow. Accordingly, we held that the record presented a question of fact as to whether defendant had breached its duty to plaintiff. Thus, Wasserman focused on the conduct of the bus driver and found a question of fact as to whether defendant had breached its duty to provide the plaintiff a safe place to exit the bus.

In the instant case, there is no allegation that the driver stopped the bus at a point which was not safe for the plaintiff to alight. Rather, plaintiff has alleged that her injuries were caused by excessive rain water on the steps and argues that defendant was obligated to provide transportation on a bus which was equipped with a drainage device. Therefore, the focus in this case is on the safety of defendant’s vehicles rather than on the driver’s conduct or on the safety of the stopping point. Consequently, Wasserman is factually distinguishable from the case at bar and is not controlling here.

A motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.) Considering the entire record in a light most favorable to the plaintiff, we hold that the defendant in this case had no duty to provide plaintiff transportation on a bus which was equipped with a drainage device to allow rain water to fall onto the street from the steps of the bus.

Defendant has asserted in this court that the plaintiff’s complaint should have been dismissed because she failed to comply with the statutory notice provision. (Ill. Rev. Stat. 1987, ch. 1112/3, par. 341.) The record indicates, however, that in the trial court defendant never filed a motion to dismiss the cause for failure to give the statutory notice and that the trial court’s ruling was not predicated on the plaintiff’s failure to comply with the notice provision. Based upon our determination that the trial court properly entered summary judgment in favor of defendant, we need not address this argument here.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILBERT CLARK, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2673
    Opinion filed November 26, 1990.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Elizabeth Sklarsky, Special Assistant State’s Attorney, and Renee Goldfarb and Anne C. Scrivner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Gilbert Clark pleaded guilty to the offense of residential burglary. The trial court deferred his sentence and committed him to a drug treatment program, Treatment Alternatives to Street Crime (TASC). When defendant failed to successfully complete the program, the court entered judgment and sentenced him to four years’ imprisonment. The issue on appeal is whether the trial court erred when it revoked defendant’s probation due to his failure to complete the drug treatment program.

At the hearing on the State’s motion to enter judgment, defendant’s TASC caseworker testified that on December 21, 1987, defendant was placed in an outpatient TASC treatment program, pending the availability of residential. placement. The outpatient program required that defendant attend a clinic twice a week for individual and group counseling sessions. The caseworker testified that prior to February 1988 defendant had complied with the rules prescribed by TASC. On February 23, 1988, a TASC representative telephoned defendant and advised him that he was to be at TASC on the morning of February 25 in order to be placed in a residential treatment program. Defendant failed to keep the appointment. On March 17, 1988, the clinical staff at TASC informed defendant’s caseworker that he had not been at, nor had any contact with, TASC for a 30-day period and that he was unsuccessfully discharged from TASC supervision. The caseworker testified that about one week later defendant called him and explained that he was unable to keep his February 24 appointment at TASC because he had been arrested on that date. When asked if defendant had been discharged from the TASC program because he failed to keep that appointment, the caseworker replied “[t]hat is not why he [defendant] was discharged from TASC. He was discharged from TASC for 30-days no show/no contact with the clinic.” The caseworker added that “we still would not want him back in the TASC clinic.” At this point we note an apparent conflict between the testimony offered at the hearing and TASC’s conduct in discharging defendant because he failed to have contact with the agency within a 30-day period. According to the testimony, defendant spoke with a TASC representative on February 23, but he was discharged less than 30 days later, on March 17, for failing to have contact with the agency within a 30-day period.

Defendant testified that he had planned on reporting to TASC on February 25 in order to sign himself into an “in-custody” TASC program, but was unable to do so because he was arrested on the preceding day. Because he was unable to post bond he remained in custody until March 21, at which time the charges were dropped. Defendant stated that while in custody he placed two collect telephone calls to TASC, but that no one would accept the calls. He also testified that he asked a public defender to call TASC, but the individual refused to do so. Defendant indicated that he appeared in court on six separate occasions while in custody, but he did not ask any of the judges for permission to call TASC. Upon his release from jail, defendant called TASC and explained the situation.

The record includes a document from TASC dated March 21, 1988. The document indicates that defendant failed to satisfy the requirements of the program effective March 17, 1988, and that such conduct constituted a failure to comply -with the orders and conditions of probation. The document included a “treatment summary report” which provided:

“December 22, 1987 to March 17, 1988 Mr. Clark [defendant] was orientated to TASC criteria and treatment expectations prior to out-patient placement. Initial reports from the clinical staff indicated that Mr. Clark’s overall participation and behavior at the clinic was satisfactory. On February 23, 1988, TASC spoke with Mr. Clark (via telephone) and informed him that TASC had made the necessary arrangements to place him in residential treatment. TASC explained to Mr. Clark that he was to be at the TASC office on February 25, 1988 at 8:30 a.m. Mr. Clark was made aware of the consequences of not keeping this appointment. Mr. Clark failed to keep this appointment for residential placement. TASC made efforts to contact Mr. Clark and were unsuccessful. On March 17, 1988 TASC received information from the clinical staff that Mr. Clark was unsuccessfully discharged from the clinic for 30 days no contact. Consequently, Mr. Clark was unsuccessfully discharged from TASC supervision effective March 17, 1988.”

Before entering judgment the trial court stated:

“The Court would find that not withstanding the fact that the defendant was in custody on 2-24-88, and he remained in custody to March 21st, 1988, that that is not sufficient justification for him not to make — [flor the TASC Agency to — [t]o compel the TASC agency to accept him back. TASC did terminate as unsuccessful, the treatment program, before the defendant got into it.
Now, there’s been some — [t]he defendant has said he was in custody on the other case, but it seems to me that, not withstanding [sie] that fact, that the — [a]nd that he tried to call TASC on two different occasions, that there is [sic] sufficient facilities in the jail so that he could have notified the TASC Agency that he did not — as to tell TASC his whereabouts. He did not do that. And having not done that, although it’s not stated, TASC, I don’t think, knew where he was. There is no — [flhat’s no excuse for the defendant not to make the effort to get into or to perform his part of the drug abuse program.
There is no testimony here that he sought or told his supervisor in the jail or any supervisory official that — [t]hat he told any person in TASC. There is no testimony — [o]r there’s been some testimony rather, that he — [flhat he was out to various courtrooms during that period of time, but that he did not make any calls indicating, or the inference being, that the Public Defenders did not allow him to do so. He did not approach the Judge or anyone else. I’m — I tend to — I will disbelieve him as far as the Public Defenders are concerned. If you had told them, they had a duty to make that phone call to help out in any way they could.
For those reasons, the judgment of conviction — [l]et me add one more thing. And that is, finally, that the TASC Agency is an agency provided by the State of Illinois for the purpose of rehabilitation of drug addicts. I’m not certain this Court has a great authority to compel something they don’t wish to do, and for those reasons, the judgment will be entered on the conviction.”

Defendant argues that the trial court erred in revoking his probation. In addressing this claim we are guided by the general legal principle that a reviewing court will not disturb a trial court’s order revoking probation absent an abuse of discretion. (People v. Moaton (1989), 182 Ill. App. 3d 161, 163, 537 N.E.2d 989.) Given the particular facts of this case, we find that the trial court abused its discretion.

The issue in a probation revocation proceeding is twofold: First, whether a probation violation actually occurred, and second, whether the purposes of defendant’s probation are being served by his continued liberty. (People v. Butler (1985), 137 Ill. App. 3d 704, 712, 484 N.E.2d 921.) Our consideration of this case focuses on the second prong since the fact of a probation violation is undisputed. It is evident that the purpose of placing defendant on probation was to enable him to obtain treatment for his drug problem. Defendant was determined to be an addict who demonstrated a likelihood for rehabilitation through drug treatment. For several months defendant satisfactorily participated in an outpatient program which included his attendance at regular counseling sessions. On February 23, defendant was informed that there was an opening for him at an inpatient residential treatment facility and that he was to report there on February 25. On February 24, he was arrested and remained in custody until March 21, at which time the charges against him were dropped and he was released. According to defendant’s testimony, he made some effort to contact TASC during his incarceration and explain his absence, but was unable to do so. TASC unsuccessfully discharged him because of his failure to make contact within a 30-day period.

This case is similar, though not identical, to People v. Hamelin (1989), 181 Ill. App. 350, 537 N.E.2d 3, and People v. Carter (1988), 165 Ill. App. 3d 169, 518 N.E.2d 1068. In Hamelin, the defendant was sentenced to four concurrent six-month terms of imprisonment and four concurrent four-year terms of probation under the supervision of TASC. When the defendant entered jail to begin serving his sentence, he was found to be in possession of cocaine. The appellate court held that the trial court abused its discretion in resentencing the defendant to incarceration without the benefit of a rehabilitation program as prescribed in the original sentence. The court explained that the legislature enacted the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1985, ch. 111½, par. 6301 et seq.), in an effort to restore substance abuse addicts to good health and useful citizenship, that the courts have interpreted the Act as strongly favoring rehabilitation programs for drug addicts in need of treatment and that a trial court should not use its discretion to frustrate the purposes of the Act. Hamelin, 181 Ill. App. 3d at 354-55.

In Carter, the defendant pleaded guilty to retail theft and was placed on probation for the purpose of receiving drug rehabilitation through TASC. While on probation, he participated in an outpatient program. Before receiving any inpatient treatment for his problem, he committed another retail theft. At the revocation hearing, both the assistant State’s Attorney and defense counsel recommended the defendant’s placement in an inpatient treatment program. The trial court revoked probation and sentenced defendant to three years’ imprisonment. In reversing the trial court, the appellate court stated that while the court is given discretion in granting treatment pursuant to the Act, this discretion should not be used to frustrate the purposes of the Act. (Carter, 165 Ill. App. 3d at 175-76.) The court then explained that the case did not involve a situation where the defendant failed to complete his treatment or, having completed it, reverted back to criminal behavior; rather, the defendant never had the opportunity to participate in the inpatient program that the trial court initially prescribed for him since he was still on the waiting list for such a program when he was arrested. Carter, 165 Ill. App. 3d at 176.

Recognizing the factual distinctions between Carter and Hamelin on the one hand and the case before us on the other, we nonetheless find the reasoning behind those cases persuasive and applicable to our case. Although the trial court is allowed discretion on sentencing matters, it still has a fundamental obligation to exercise that discretion responsibly and in a manner that reflects the constitutional mandate that all penalties shall be determined according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (See Ill. Const. 1970, art. I, §11.) It is also relevant to consider the policy behind the Act pursuant to which the trial court placed defendant on probation, that being to provide rehabilitation so that those who abuse drugs maybe restored to good health and become productive citizens in the community. (Ill. Rev. Stat. 1987, ch. 111½, par. 6302.) Bearing these policies in mind, we examine the trial court’s actions. Originally, the trial court determined that defendant should be treated for his drug addiction, rather than be incarcerated. Defendant demonstrated a level of commitment to his rehabilitation by his satisfactory participation in a TASC outpatient program pending admission to an inpatient residential treatment facility. Before defendant was able to participate in that program he was arrested. While in custody he made some effort to contact TASC. Shortly after his release, he contacted TASC to explain his absence. A revocation of defendant’s probation under these circumstances thwarts the fundamental objective of restoring him to useful citizenship, frustrates the purpose of the Act, is contrary to the courts' tendency to interpret the Act to strongly favor rehabilitation and results in an unsatisfactory application of the law to the facts of this case. We also note the unfair result from TASC’s questionable enforcement of its “30-day contact” rule given defendant’s prior satisfactory participation in its outpatient program, his effort to contact TASC, his reason for being unable to do so and his conduct in contacting them soon after his release from jail.

For the reasons stated above, we find that the trial court abused its discretion in revoking defendant’s probation. Accordingly, we reverse the trial court’s judgment and remand this case back for further proceedings consistent with this opinion.

Reversed and remanded.

CAMPBELL and MANNING, JJ., concur.

      This statute has been repealed and replaced by the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6351 — 1 et seq.).