author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD BODOH, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2419
    Opinion filed June 15, 1990.

      Kevin P. Bolger, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Rene Goldfarb, James E. Fitzgerald, and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Todd Bodoh, was convicted of reckless homicide and driving while under the influence of intoxicating liquor. The trial court merged the two convictions for sentencing purposes, and defendant was sentenced to two years’ imprisonment and one year of mandatory supervised release. Defendant appeals, alleging that the trial court improperly permitted the jury to consider the results of a blood test not taken pursuant to the Illinois Department of Public Health regulations; that defendant received ineffective assistance of counsel; that the trial court erred in denying defendant’s request for a continuance to obtain new counsel; that the trial court improperly allowed the jury to receive a diagram which allegedly was based on hearsay statements; and that the trial court committed errors, the cumulative effect of which requires reversal of defendant’s conviction.

As to the collision, the following facts were adduced at trial. On December 20, 1985, at approximately 5:33 p.m., defendant was involved in a motor vehicle accident with a vehicle driven by Sharon Haberkorn. The accident occurred in the southbound lanes of Route 171, one-half mile south of Route 83. As a result of the collision, Marcella Botica, a passenger in the Haberkorn vehicle, suffered fatal injuries. Haberkorn sustained multiple injuries. She does not remember the accident itself, but does remember leaving the shopping mall which is in the area of the accident. She also remembers her actions while in the immediate vicinity of the mall.

Michael Kopischke, who was driving northbound on Route 171, testified that he observed a gray or silver Corvette, defendant’s vehicle, enter from a side street onto Route 171 in the northbound curb lane. He observed the Corvette move from the curb lane to the left lane, pass a car travelling in the curb lane, and then swerve back over to the curb lane. As the Corvette moved back into the curb lane, Kopischke saw a yellow Cadillac in the left lane. The Corvette accelerated and passed the Cadillac. As the Corvette accelerated, it began to sway from side to side and then swerved into oncoming traffic, colliding with a southbound vehicle. Kopischke did not see any vehicle cut in front of the Corvette at any time.

Illinois State Trooper Glen DeVries arrived at the scene about 10 minutes after the accident and observed that there had been two separate accidents, one involving defendant’s vehicle and the Haberkorn vehicle, and another involving a tan Cadillac. After making measurements, DeVries contacted Trooper Peter Chico, an accident construction officer, who took photographs and additional measurements of the scene.

At the hospital where defendant had been taken for his injuries, defendant told the officers that he had been cut off by a 1972 green Chevelle and stated that this was why he ended up in the southbound lane. DeVries did not see any green paint on defendant’s car and none of the witnesses mentioned seeing a green Chevelle in the vicinity of the accident. Through his experience in accident reconstruction, Chico determined that the rear damage to defendant’s vehicle was caused or “induced” by the front-end collision and not by a rear-end impact.

Defendant testified that he drove on Bell Road and entered into traffic at the intersection of Bell Road and Route 83 and 171 after stopping for a stop sign. He drove directly into the curb lane of Route 171. He then changed from the curb lane to the inside lane. Defendant did not switch lanes to pass a slower moving vehicle. Defendant stated that while he was travelling in the inside lane, a green car cut in front of him and slammed on its brakes. He then had to slam on his brakes and was hit from behind, forcing his vehicle into oncoming traffic. At this time, his car collided with the Haberkorn vehicle. Defendant did not recall seeing a yellow Cadillac in front of him. Although he stated that he was hit from behind, he admitted that he never saw the car that hit him.

With regard to defendant’s consumption of intoxicating liquor, the following evidence was offered. At the hospital, the troopers detected an odor of alcoholic beverage on defendant’s breath. Defendant told them that he had been coming from a party and that he had consumed eight beers throughout the day. Trooper Chico stated that defendant was 5 feet 10 inches in height and weighed 160 pounds. The troopers read defendant the implied consent warnings, which stated that his license would be suspended if he refused to submit to any chemical test. The troopers did not receive any response from defendant, and they ordered a phlebotomist to withdraw blood in their presence.

Terry Swanburg, a phlebotomist at Palos Community Hospital, testified that she drew defendant’s blood at 9:45 p.m. Swanburg drew the blood using a kit provided by the Department of Public Health. The troopers were present. Swanburg gave the two vials containing defendant’s blood to DeVries. He placed them in an evidence locker and later sent them to the laboratory for analysis. The results of the laboratory were sent to DeVries’ attention at the police station several days later. The analysis revealed a blood-alcohol concentration of 0.087.

Defendant’s blood had been drawn earlier in the evening by Debra Kutka, also a phlebotomist at the hospital. Kutka testified that at 7:55 p.m., she drew specimens of blood from defendant for alcohol-level analysis at the request of Dr. Rose, the emergency room physician. Following the procedure, she took the specimen, labeled with the date, time and her initials, to the hospital laboratory where Mike Navarro, a medical technologist, performed the analysis. Navarro testified that he used a calibrated automatic clinical analyzer. He stated that the analyzer automatically issues an error code when the machine is not functioning properly. There was no error code on defendant’s test. Navarro’s analysis revealed an alcohol concentration of 0.122. Navarro testified that pursuant to hospital procedures, blood samples are kept for one week and then are discarded.

Christopher Long, chief toxicologist for the Illinois State Police, testified as to the interpretation of the blood test results. Long testified that a 160-pound person who stopped drinking at 5:35 p.m. and had a blood-alcohol content of 0.122 grams at 7:55 p.m. and 0.087 grams at 9:45 p.m. would be able to metabolize alcohol at the rate of 0.020 grams per hour. Long used this metabolization rate to determine that this same individual would have a blood-alcohol concentration ranging from approximately 0.14 to 0.18 at 5:33 p.m., and would have had approximately nine beers within the course of the hour-long period beginning at 4:30 p.m., and ending at 5:30 p.m. Long testified that his extrapolations related to total body burden of alcohol and not to blood-alcohol concentration.

With respect to the consumption of liquor, defendant testified that he was employed on the night shift at the B.O.C. division of Fisher Body. At approximately 6 a.m., he left work with two other men, James Weber and another individual. The three men stayed at a Mend’s house for a couple of hours and then proceeded to a company party at Johnny’s 84, arriving at approximately 10 a.m. Defendant stated that he had a beer shortly after he arrived, and that he had five or six more beers during the course of the day. At 3:30 p.m., defendant drove Weber home and then returned to Johnny’s 84. He then drank less than two more beers. Defendant left Johnny’s 84 at 5:30 p.m. Defendant testified that when he left the bar, he was not intoxicated.

James Weber, a friend and co-employee of defendant, testified that he left work with defendant and another individual at 6 a.m. The three men attended an employee Christmas party at Johnny’s 84. They arrived at the party between 10 a.m. and 11 a.m., and remained there until approximately 3:30 p.m. At that time, defendant drove Weber home; Weber’s home was located approximately 30 minutes away from the lounge. Weber stated that he had ample opportunity to observe defendant during the day and that defendant did not appear to be under the influence of alcohol.

Augustine A. Valdivia, a supervisor at B.O.C., testified that he saw defendant at the office party and that defendant had a glass on each occasion Valdivia saw him. Valdivia did not know what was in the glass.

Prior to trial, defendant filed a motion to suppress statements and a motion in limine to prohibit the introduction of the results of a blood test not performed in accordance with Department of Health guidelines. With respect to the motion in limine, defendant contended that he was denied due process of law because the blood samples were not preserved so as to permit him to conduct his own tests. The trial court denied both motions.

The State has filed a motion to strike certain appendices and arguments of defendant on appeal. The State asks us not to consider ineffective assistance of counsel, the trial court’s refusal to grant a continuance, and the cumulative effect of all errors, on the ground that some items in the appendices were not admitted into evidence. The record, however, contains enough material to enable us to consider defendant’s contentions on appeal. Consequently, we will consider all assignments of error.

Defendant first contends that he was denied effective assistance of counsel at trial. Defendant sets forth four bases in support of this contention: that his attorney failed to engage in any pretrial interviews or investigation until after the trial had started; that his attorney failed to retain an expert to rebut the testimony of the prosecution’s State witness; that his attorney failed to locate and call as a witness a waitress from Johnny’s 84; and that his attorney had Lonnie Bodoh, defendant’s father, serve subpoenas for records and witnesses on the third day of trial.

The governing standard for determining incompetency of counsel is whether the alleged incompetence produced substantial prejudice to the defendant without which the result likely would have been different. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Collaterally, defendant is entitled to competent, not perfect, representation and, in the absence of a showing that the outcome of a new trial likely would be different, the constitution does not require a new trial for every defendant whose counsel errs at trial. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) A reviewing court must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Matters involving the exercise of judgment, trial tactics or strategy will not be reviewed by the appellate court, even where appellate counsel or the reviewing court might have handled the case differently. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213.) The defendant bears the burden of proving that counsel’s performance was deficient and that the deficiency prejudiced the defense. People v. Powell (1987), 159 Ill. App. 3d 1005, 512 N.E.2d 1364.

In our view, none of the bases alleged by defendant demonstrates errors so egregious that their correction would result in a different outcome in a new trial. Defendant contends that defense counsel failed to conduct sufficient pretrial interviews or investigation. He alleges that defense counsel’s ineffective trial preparation is evidenced by the fact that he had defendant’s father serve handwritten subpoenas for witnesses and documents as late as two days after the commencement of the trial. The issuance of a subpoena clearly falls within the purview of trial strategy. Defendant suffered no prejudice by defense counsel’s decision to serve a subpoena on the second day of trial when the witness subpoenaed testified as to when defendant left work, a matter which had no effect on the outcome of the trial.

Defendant also cites as error defense counsel’s failure to call as a witness a waitress from Johnny’s 84. Decisions as to whether to call witnesses for the defense are matters of trial strategy and, therefore, are beyond the scope of review. (People v. Reese (1984), 121 Ill. App. 3d 977, 460 N.E.2d 446.) In the absence of a showing of substantial prejudice, a reviewing court will not second-guess a trial counsel’s decision regarding the calling or questioning of witnesses. (People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.) The failure to find a witness, per se, cannot constitute ineffective assistance of counsel. People v. Kubat (1986), 114 Ill. 2d 424, 501 N.E.2d 111.

In our judgment, defendant has failed to demonstrate that he was substantially prejudiced by defense counsel’s failure to call this witness. Defense counsel interviewed and called as a witness James Weber, who was with defendant from 6 a.m. to 4 p.m. on the date of the accident. Weber testified that he observed defendant drink one beer. Nevertheless, defendant himself testified that he had six to eight beers over the course of the day. Additional witnesses, such as the bartender or patrons of the bar, would only have provided repetitive testimony as to defendant’s alcohol consumption. Moreover, defendant’s alcohol consumption had been scientifically determined by the blood tests administered at the hospital. Additional testimony from the bar patrons could not have refuted this scientific evidence. The lack of such testimony did not prejudice defendant to the extent that the outcome of the trial would have been different. See People v. McVay (1988), 170 Ill. App. 3d 443, 524 N.E.2d 635.

Additionally, we find that defense counsel’s failure to present exculpatory expert evidence did not prejudice defendant so as to entitle him to prevail on his ineffective assistance of counsel allegation. It is true that the failure to call an expert may be grounds for the granting of an ineffective assistance of counsel claim (People v. Greer, 79 Ill. 2d 103, 402 N.E.2d 203); nevertheless, we believe that here, defense counsel’s decision not to call an expert is a trial strategy which falls within the wide range of reasonable professional assistance. (See People v. Hicks (1987), 162 Ill. App. 3d 707, 516 N.E.2d 807.) Contrary to defendant’s contention, we do not believe that Long’s testimony was the sole basis from which the jury inferred that defendant was under the influence of alcohol at 5:33 p.m. The jury had scientific data, as well as witness testimony, from which it reasonably could make this inference. A defense expert would not have been able to refute this data or testimony, but could only refute Long’s extrapolations. We believe that cross-examination of Long adequately served this purpose. Significantly, defendant has failed to indicate whether contrary expert testimony would have been available. Defendant was not prejudiced by defense counsel’s failure to call an exculpatory expert.

Accordingly, we find that defendant was not denied a fair trial by ineffective assistance of counsel. In conjunction with this finding, we also find that defendant was not prejudiced by the trial court’s refusal to grant him a continuance to obtain new counsel. Defendant moved for a continuance after jury selection had commenced and four jurors were about to be sworn in. Defendant stated to the judge that he did not agree with his attorney’s tactics or his way of going about the situation. Defendant claimed that he did not believe his attorney had his best interests in mind. At this time, defendant’s counsel moved for a mistrial. The trial court denied the motion.

The right to counsel includes the right to be represented by counsel of one’s own choice; however, that right is not absolute. (People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741.) The right to choose one’s counsel must be balanced against the equally desirable public need for efficient and effective administration of criminal justice. (People v. Myles (1981), 86 Ill. 2d 260, 427 N.E.2d 59; People v. Winfield (1987), 160 Ill. App. 3d 983, 513 N.E.2d 1032.) The decision to grant a continuance for substitution of counsel is within the sound discretion of the trial judge. (Ill. Rev. Stat. 1985, ch. 38, par. 114—4(e); People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277; People v. Hanson (1983), 120 Ill. App. 3d 84, 457 N.E.2d 1048.) In making this determination, the trial judge may review the history of the case and also may consider the diligence shown by the moving party. People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.

The trial court here determined that in light of the history of defendant’s case, he was not entitled to a continuance for substitution of counsel nor was he entitled to a mistrial. The court stated that it believed defendant’s request for new counsel was a defense tactic designed to avoid trial. The court also noted that it believed defendant requested the continuance due to his dissatisfaction with the jury venire that had been called up. We find that the trial court’s determinations were proper. During the two-year pendency of the case, defendant at no time indicated a lack of satisfaction with his attorney. Moreover, as recent as the day prior to this request for new counsel, a motion had been heard on behalf of defendant, and defendant did not object to the qualifications or participation of his attorney at that time. Our review of the record reveals no basis for defendant’s contention that the trial court erred in denying his request for substitution of counsel and for a mistrial.

We next will address defendant’s contention that the trial court erred in denying his motion in limine and post-trial motions requesting that the jury not be permitted to consider the results of a blood test not taken pursuant to the Department of Public Health regulations. In connection with this contention, defendant also asserts that the trial court improperly failed to instruct the jury as to the limited use of the improperly administered blood test. Defendant maintains that these errors require that his convictions be reversed and remanded for a new trial. The State argues that because defendant did not object to the validity of the test procedures at trial or in a post-trial motion, but rather, objected only to the failure to preserve the samples, he has waived this issue for purposes of our review. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We believe that defendant’s objections at the instructions conference adequately preserved the issue for review, and accordingly, we will address defendant’s contentions.

Defendant was charged with two separate offenses, driving while under the influence and reckless homicide. A conviction under the DUI provision of the Illinois Vehicle Code requires that chemical analysis of the person’s blood be performed according to the standards promulgated by the Department of Public Health. (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501.2.) This statutory requirement, however, does not apply to the reckless homicide charge. The ordinary standards of admissibility apply to such prosecutions. (People v. Murphy (1985), 108 Ill. 2d 228, 483 N.E.2d 1288; People v. Hartwick (1984), 128 Ill. App. 3d 272, 470 N.E.2d 606.) Accordingly, we will consider defendant’s first contention as it applies to each charge individually.

A person is presumed to be under the influence of alcohol when the alcohol concentration in his blood is 0.10 or more. (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501.2(b)(3).) No person who is under the influence of intoxicating liquor may drive any vehicle within this State. (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501.) Any person who drives under the influence of intoxicating liquor automatically consents to a chemical test of his blood to determine its alcohol content if he is arrested for any offense as defined under section 11—501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501) (driving while under the influence of alcohol, other drug or combination thereof). (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501.1(a).) A chemical test performed according to the standards promulgated by the Department of Public Health shall be considered valid for purposes of an action arising out of an arrest for an offense as defined in section 11-501. (Ill. Rev. Stat. 1985, ch. 95½, par. 11-501.2(a)(1).) Compliance with the standards is a prerequisite to admissibility on a DUI charge. People v. Emrich (1986), 113 Ill. 2d 343, 493 N.E.2d 1140.

It is true that blood tests not performed pursuant to the Department of Public Health regulations are inadmissible for the purpose of establishing alcohol concentration. (People v. Emrich, 113 Ill. 2d 343, 493 N.E.2d 1140.) Thus, to the extent the trial court permitted the jury to consider the results of the 7:55 p.m. test as evidence of defendant’s alcohol concentration at that time, it erred. Nevertheless, we find that in view of the overwhelming evidence supporting defendant’s DUI conviction, the error was harmless beyond a reasonable doubt.

A determination of whether a person is under the influence of alcohol does not rest solely on the results of chemical analysis. See People v. Seefeldt (1983), 112 Ill. App. 3d 106, 445 N.E.2d 427 (stating that the term “under the influence of intoxicating liquor,” even without consideration of chemical analyses, is not unconstitutionally vague because that term has long been held to mean a condition, caused by the consumption of intoxicants, that makes a person less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public).

The jury here was instructed that “[a] person is under the influence of alcohol when as a result of drinking any amount of alcohol his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.” (Emphasis added.) We believe that the jury was presented with sufficient evidence to permit it to conclude that defendant was under the influence at the time of the accident. Defendant himself testified that he began drinking at approximately 10:30 a.m. and that he had approximately six beers during the day. Defendant additionally testified that he had one to two beers during the hour before he left the bar. DeVries and Chico testified that defendant told them he had consumed eight beers prior to leaving the bar. Defendant’s supervisor, Valdivia, testified that he saw defendant with a glass in his hand throughout the day. Defendant’s friend, Weber, testified that when he and defendant arrived at the bar, he observed defendant drinking beer. A witness to the accident observed defendant driving erratically in the seconds preceding the accident. The State troopers, DeVries and Chico, each testified that defendant’s breath smelled of alcohol. Moreover, the hospital phlebotomist also smelled alcohol on defendant’s breath.

Additionally, the jury was presented with expert testimony regarding defendant’s total body burden of alcohol based upon the results of the two blood tests. Long testified as to his extrapolations as well as to the methodology employed to arrive at these extrapolations. Long emphasized that his extrapolations did not relate to alcohol concentration, but only to total body burden of alcohol. We believe that in view of this testimony, and the factors detailed above, the evidence is not so improbable as to raise a reasonable doubt of guilt. (See People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353 (a reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt). See also People v. Bentley (1989), 179 Ill. App. 3d 347, 534 N.E.2d 654 (evidence that defendant admitted drinking some alcohol, smelled of alcohol, was unable to walk without support, and had slurred speech sufficient to sustain a DUI conviction).) Accordingly, we conclude that any error engendered by the admission of the results of the 7:55 p.m. blood test was harmless in view of the overwhelming evidence in support of defendant’s DUI conviction.

We next address defendant’s contention that the trial court improperly admitted the results of the 7:55 p.m. blood test for purposes of the reckless homicide charge. As noted earlier, the statutory requirements applicable to blood tests for purposes of a DUI charge are not applicable to a reckless homicide charge. Accordingly, the ordinary standards of admissibility apply. People v. Murphy, 108 Ill. 2d 228, 483 N.E.2d 1288.

We believe the 7:55 p.m. blood test was properly admitted for purposes of the reckless homicide charge. Initially we note that, in our judgment, the State provided ample foundation, through Kutka’s and Navarro’s testimony, for the admission into evidence of this test. Defendant argues, however, that People v. Emrich requires that the trial judge make a specific factual finding regarding the accuracy of a blood test before he can determine whether the results of that test are admissible. Defendant points out that no such factual finding was made here. We disagree with defendant’s interpretation of the Emrich decision.

In Emrich, the supreme court considered the propriety of the trial court’s decision to suppress the results of a blood test which was taken without the use of anticoagulant or preservative and which was performed more than seven hours after the blood was drawn. The court determined that it had no basis to determine admissibility where there had been no finding by the trial judge as to the accuracy of the test. (People v. Emrich, 113 Ill. 2d 343, 493 N.E.2d 1140.) The Emrich court, however, considered a situation in which there was a conflict in the testimony as to the validity of the test results. Here, there is no such conflict. The jury heard extensive testimony from Debra Kutka and Mike Navarro regarding the procedures used to draw defendant’s blood. Moreover, Navarro specifically testified as to the accuracy of his testing procedures. Defendant at no time contradicted this testimony. In light of this extensive testimony, it is our view that the jury had sufficient information to conclude whether it believed the 7:55 p.m. test results were credible. There was no need here, as there was in Emrich, for the trial court to make a factual finding as to the test’s validity. Accordingly, we find that the trial court did not err in admitting that test for purposes of the reckless homicide charge.

We additionally find that the jury had sufficient evidence to find defendant guilty beyond a reasonable doubt of reckless homicide. A person commits recldess homicide if, while driving a motor vehicle, he unintentionally kills an individual and the acts which cause death are performed recklessly so as to create a likelihood of death or great bodily harm to some person. (Ill. Rev. Stat. 1985, ch. 38, par. 9—3(a).) A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are such as are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation. (People v. Evans (1984), 124 Ill. App. 3d 634, 464 N.E.2d 1083.) Being under the influence of alcohol at the time of the alleged violation shall be prima facie evidence of a reckless act. (Ill. Rev. Stat. 1985, ch. 38, par. 9—3(b).) This prima facie evidence may be rebutted by showing that although the accused was under the influence of alcohol when he performed the acts causing the death of another, the acts were not in fact performed recklessly. (People v. Jackson (1987), 118 Ill. 2d 179, 514 N.E.2d 983.) The mental state of recklessness is to be inferred from all the facts and circumstances in the record, and whether the given conduct is reckless is a fact question for the trier of fact to decide. People v. Gittings (1985), 136 Ill. App. 3d 655, 483 N.E.2d 553.

As noted previously, we believe that the jury had sufficient evidence to conclude that defendant was under the influence of alcohol at the time of the incident. Accordingly, we find that the State set forth prima facie evidence that defendant acted recklessly at the time of the incident. In our view, defendant failed to adequately rebut this prima facie evidence. That is, we believe the jury had sufficient evidence to reasonably conclude that defendant acted recklessly and consciously disregarded a substantial risk that his acts could cause death or great bodily harm.

Defendant admitted that throughout the day, but before he drove that evening, he consumed six to eight beers. Michael Kopischke testified that he observed defendant change lanes three times within a two-minute period. Defendant switched from the curb lane to the left lane, then back to the curb lane, then accelerated and switched back to the left lane and lost control of the vehicle. Defendant’s vehicle swerved into incoming traffic and collided with the Haberkorn vehicle. Although defendant testified that he was forced into oncoming traffic by a collision in the northbound lane, Kopischke testified that he observed no such collision. It is the jury’s prerogative to resolve the conflicting evidence, and a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses; a reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Davis, 95 Ill. 2d 1, 447 N.E.2d 353.) Here, the evidence is not so improbable as to raise a reasonable doubt of defendant’s guilt. The jury properly found defendant guilty of reckless homicide.

Defendant next contends that the trial court erred when it did not instruct the jury as to the limited use of the 7:55 p.m. blood test. As noted previously, the improperly administered blood test was invalid for purposes of establishing defendant’s blood-alcohol concentration with respect to the DUI charge, but was valid for purposes of establishing defendant’s blood-alcohol concentration with respect to the reckless homicide charge. The relevant instructions which were given are as follows:

“If, you find that, while driving a motor vehicle, the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his blood was 0.10 percent or more by weight of alcohol, there is a presumption that the defendant was under the influence of alcohol.
* * *
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of alcohol.
* * *
If you find that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his blood was in excess of 0.05 but less than 0.10 percent by weight of alcohol, this shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor.”

At the instructions conference, defense counsel objected to these instructions because they did not indicate the difference in applying the instructions to the two offenses, reckless homicide and driving under the influence. Nevertheless, defense counsel did not tender an alternative instruction to the court.

Generally, the party desiring a specific instruction must offer it and request the court to give it; the court has no obligation to instruct on its own motion. (People v. Jovicevic (1978), 63 Ill. App. 3d 106, 379 N.E.2d 665.) This rule is modified only by the requirements of fair trial. (People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810.) The trial court bears only the responsibility of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence, and on the burden of proof. (People v. Williams (1981), 97 Ill. App. 3d 394, 422 N.E.2d 1091.) A defendant who desires the advantage of limiting instructions has the burden of submitting them. (People v. Gratton (1963), 28 Ill. 2d 450, 192 N.E.2d 903.) On review, a defendant cannot complain that an instruction was not given when he never tendered that instruction at trial. People v. Williams, 97 Ill. App. 3d 394, 422 N.E.2d 1091.

Defendant objected to the instruction which the court gave to the jury, but did not tender an alternative instruction. The trial court properly instructed the jury on the elements of the crimes charged, the presumption of innocence and the burden of proof. Defendant bore the responsibility of presenting limiting instructions at the time of trial, but failed to do so. Defendant may not now allege error in the instructions.

Defendant next contends that the trial court erred in admitting into evidence a diagram prepared by Officer DeVries depicting the scene of the accident. Defendant asserts that the diagram was based on hearsay testimony and that, accordingly, he was denied his sixth amendment right to confrontation.

The diagram depicted the direction of the vehicles and their final resting places. DeVries testified that during his investigation he personally took measurements regarding the resting positions of the vehicles and that he personally observed the positioning of the various debris. DeVries also testified, however, that he spoke with Haberkorn, who told him that she believed she was travelling southbound in the outside lane prior to the accident. Her statement was the reason that DeVries placed her car in that location in the diagram. DeVries further testified that the positioning of defendant’s vehicle came from Kopischke, but that he did not personally talk to Kopischke. It was Sergeant Michael Edie who spoke with Kopischke and reported the conversation to DeVries.

We agree that the diagram, based partially on what Haberkorn and Kopischke told police officers, contained hearsay and that the trial court erred in admitting the diagram into evidence. We find, however, that its introduction constituted harmless error. Admission of hearsay evidence is harmless error if there is no reasonable possibility that the verdict would have been different had the hearsay been excluded. (People v. Carr (1988), 168 Ill. App. 3d 669, 523 N.E.2d 393; People v. Jones (1983), 114 Ill. App. 3d 576, 449 N.E.2d 547.) In the present case, both Haberkorn and Kopischke testified for the State and were subject to cross-examination. Haberkorn stated that she did not remember how the accident occurred. Kopischke’s testimony was consistent with what he reported to the police. It is undisputed that the vehicles of Haberkorn and defendant wound up in the lane of oncoming traffic, and it is of no significance as to whether Haberkom’s vehicle was in the inside or outside lane. The introduction of the diagram into evidence was harmless error.

Defendant finally contends that even if each alleged error was not prejudicial, the cumulative effect of the alleged errors denied defendant a fair trial. In view of our findings, it is our judgment that defendant was prejudiced neither by the alleged errors individually nor by the cumulative effect, if any, which they engendered. The evidence at trial overwhelmingly supports defendant’s convictions, and we find that he received a fair trial.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
    LUBIN MANAGEMENT COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harold A. Voelpel, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—2542WC
    Opinion filed June 15, 1990.

      Womack & Galich, of Chicago, for appellant.
    Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

An arbitrator found that the petitioner, Harold A. Voelpel, sustained injuries arising out of and in the course of his employment with the respondent, Lubin Management Company, and awarded him temporary total disability benefits of $339.10 per week for 755/? weeks, $6,215.70 in medical expenses, and permanent partial disability benefits of 15% of the man as a whole. (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(a), (b), (d)(2).) The Industrial Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The respondent appeals.

At the hearing before the arbitrator, the petitioner testified that since 1974 he had been employed as the resident maintenance manager of an apartment complex owned by the respondent. He was responsible for maintaining the interior and exterior of the complex and was on call 24 hours a day for emergencies.

He stated that on June 8, 1982, at approximately 11 p.m., he received a call asking him to pick up a tenant’s son whose car had broken down about one quarter of a mile from the apartment complex. Using the vehicle provided for him by the respondent, he drove to where the man and another tenant who was a passenger in the car were stranded. The petitioner testified that on the way back to the complex, he was forced to drive off the road to avoid hitting an oncoming car. In doing so, his vehicle hit a boulder and landed in a ditch. The petitioner’s head struck the roof of the car and his neck was bent backwards. His right leg was jammed under the dashboard. The following morning he went to the emergency room, where X rays were taken. The petitioner complained of pain in his lower back and in his right leg radiating downward to his foot. His chiropractor, Dr. Lawrence Smith, diagnosed his condition as a traumatic cervical strain resulting from a hyperextension reaction, complicated by a cervical radiculitis with left upper extremity paresthesia.

The petitioner testified that in the past he had provided assistance to tenants off the complex premises. He provided jump starts to tenants whose cars would not start and towed their cars out of snow banks and ditches. He had also given tenants rides back to the complex when their cars were disabled either as a result of an accident or mechanical problems.

The petitioner noted that Robert Lubin, the respondent’s president, was aware that he was assisting the tenants when they were off the premises. He admitted that Lubin had not given his express permission to provide such assistance, but added that he had not prohibited him from doing so either. Lubin did, however, tell him to notify the tenants that such services were not part of his duties.

The petitioner further testified that after the accident he immediately returned to work, but subsequently resigned in January 1984. In November 1984, he moved to California, where he was employed as a patrol officer. He testified that in November of 1985, he was involved in a motorcycle accident in which he suffered separated ribs. The petitioner stated that as a result of the 1982 accident, he continued suffering from back pain, a stiff neck, and swelling of the right leg.

Rental agent Geraldine Gotter, who was the petitioner’s ex-wife, testified that she was aware the petitioner had assisted tenants who were off the premises and noted that he did so in the interest of maintaining good landlord-tenant relations. She stated that these services by the petitioner were beyond the call of duty. Further, she testified that she had informed Lubin that the petitioner was assisting tenants in this way and he had indicated that such activities helped promote a good relationship with the tenants. She stated that Lubin never instructed the petitioner to discontinue providing such assistance to the tenants.

Lubin testified that he was not aware the petitioner was assisting tenants who were off the complex premises. He stated that he did not give the petitioner permission to provide such services. Further, he testified that the petitioner’s duties did not include providing pick-up service to tenants off the premises.

The arbitrator found that the petitioner had sustained accidental injuries in the course of his employment. Consequently, he awarded the petitioner temporary total disability benefits of $339.10 per week for 755/7 weeks, $6,215.70 in medical expenses, and permanent partial disability benefits of 15% of the man as a whole. (Ill. Rev. Stat. 1981, ch. 48, pars. 138.8(a), (b), (d)(2).) The Commission affirmed the arbitrator, and the circuit court confirmed the Commission.

The respondent argues on appeal that the Commission’s finding that the petitioner’s injuries arose out of his employment was against the manifest weight of the evidence, since the petitioner’s injuries resulted from an automobile accident that occurred off the respondent’s premises while the petitioner was engaged in activities other than his specific job duties.

An injury is compensable under the Act only if it arises out of and in the course of employment. (Panagos v. Industrial Comm’n (1988), 171 Ill. App. 3d 12, 524 N.E.2d 1018.) For an injury to arise out of one’s employment, it must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) An injury is in the course of employment when it occurs within the period of employment at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto. (Panagos, 171 Ill. App. 3d at 15, 524 N.E.2d at 1020.) An automobile accident which occurs off the employer’s premises but which originates from the employment is compensable. See Technical Tape Corp. v. Industrial Comm’n (1974), 58 Ill. 2d 226, 317 N.E.2d 515.

In the instant case, the evidence showed that the petitioner was required to be on emergency call 24 hours a day. The petitioner testified that in the past he had provided assistance to tenants who were off the complex premises. Further, he testified that Lubin was aware he was assisting the tenants in this manner and never told him not to do so. Gotter also testified that Lubin was aware of the petitioner’s activities and said he indicated that in doing so the petitioner was promoting good landlord-tenant relations. On the other hand, Lubin denied any knowledge of the petitioner’s activities.

We note that in their appeal briefs the respondent and the petitioner discuss several cases dealing with situations where an employee was off the employer’s premises and not working when he or she was injured. (Quarant v. Industrial Comm’n (1967), 38 Ill. 2d 490, 231 N.E.2d 397; Panagos v. Industrial Comm’n (1988), 171 Ill. App. 3d 12, 524 N.E.2d 1018.) The issues in those cases revolved around whether some special circumstance, such as the employer requiring the employee to use a certain route to gain access to the premises, could be construed to have extended the employer’s liability. We find those cases distinguishable from the instant case since the only issue here is whether the activities in which the petitioner was engaged when he was injured were part of his job duties.

It is the function of the Industrial Commission to decide questions of fact and causation and to judge the credibility of the witnesses. (O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 403 N.E.2d 221.) Given the evidence of the instant respondent’s knowledge and implied approval of the petitioner’s activities, we find that the Commission’s decision was not against the manifest weight of the evidence.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    NORA FAHEY, Plaintiff-Appellant, v. STATE AND MADISON PROPERTY ASSOCIATION, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—2717
    Opinion filed June 15, 1990.
    Rehearing denied July 24, 1990.

      Ialongo & Meyer, of Chicago, for appellant.
    Matyas & Norris, of Chicago, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County dismissing plaintiff’s second amended complaint. The issue on appeal is whether the complaint stated a recognized cause of action under Illinois law.

On April 1, 1985, plaintiff was a patron of a restaurant in a building owned by the State & Madison Property Association which was located at Seven West Madison Street in Chicago. Plaintiff went to a washroom in the building and fell on some steps that were inside the washroom.

On October 30, 1985, plaintiff filed a complaint against the building owners, alleging that they were “careless and negligent in one or more of the following respects:

(a) Carelessly and negligently failed to provide handrails for steps located in said washroom.
(b) Carelessly and negligently failed to maintain paint upon the stairs in the washroom which would distinguish the stairway from the rest of the floor.
(c) Carelessly and negligently failed to provide personnel in said washroom to protect patrons in the washroom from the dangerous conditions existing there.
(d) Carelessly and negligently failed to provide warning signs to advise persons lawfully upon the premises of the dangerous conditions existing.”

The plaintiff further alleged that defendant’s negligence was the cause of her fall and subsequent injuries. On January 14, 1986, plaintiff obtained leave of court and amended her complaint. In her amended complaint, plaintiff alleged that defendant breached a duty to provide handrails pursuant to the Chicago Municipal Code section 10.3 (1984) as opposed to a common law duty which was alleged in her initial complaint. On February 18, 1986, defendant filed a motion to dismiss plaintiff’s amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619). Briefs were submitted by the parties in support and opposition to the motion. On May 22, 1986, the trial judge entered an order striking paragraph 8(c) of plaintiff’s amended complaint, which alleged that defendant was negligent in failing to provide personnel in the washroom to protect patrons from the dangerous condition existing within. Defendant’s motion as to the remainder of plaintiff’s complaint was denied. The parties proceeded with discovery, and defendant subsequently filed a motion for summary judgment pursuant to section 2— 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005). On July 8, 1987, the trial court granted partial summary judgment with respect to paragraph 8(a) of plaintiff’s amended complaint, which alleged that defendant was negligent in failing to provide handrails for the stairway pursuant to the Chicago Municipal Code. Summary judgment as to the remaining allegations was denied. Defendant then filed a second motion for summary judgment. On August 1, 1989, the trial court granted defendant’s motion as to paragraphs 8(b) and (d) of plaintiff’s amended complaint, which alleged that defendant was negligent in failing to provide paint on the stairs which would distinguish them from the washroom floor and in failing to provide warning signs regarding the presence of the stairway in the washroom. In the same order, the trial court granted plaintiff leave to file her second amended complaint. The second amended complaint, which was filed that day, again alleged four separate acts of negligence by defendant which were the proximate cause of plaintiff’s injuries. However, the only allegation which had not previously been dismissed was defendant’s breach of a common law duty to provide handrails for the steps in the washroom. Three days later defendant filed a motion to dismiss plaintiff’s second amended complaint alleging that plaintiff failed to state a cause of action recognized under Illinois law. The trial court granted defendant’s motion and dismissed plaintiff’s second amended complaint. Plaintiff then filed a timely notice of appeal.

Plaintiff contends that the trial court erred in dismissing her second amended complaint because the allegations stated a cause of action which could support a verdict in her favor. In her original complaint, plaintiff alleged four separate acts of negligence by defendant which were the proximate cause of plaintiff’s injuries. However, the only allegation which remained at the time of plaintiff’s second amended complaint was the one which claimed that defendant:

“a. Carelessly and negligently failed to provide handrails for the stairway located in said washroom.”

Where a judgment appealed from is entered as a result of the allowance of a motion to dismiss, all properly pleaded facts must be taken as true. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360, 446 N.E.2d 224.) In addition, all reasonable inferences that can fairly be drawn from the well-pleaded facts must also be considered true. (Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 190, 478 N.E.2d 603.) The court, however, is not required to draw unwarranted or unreasonable inferences in order to sustain a pleading. (Carlson v. Moline Board of Education, School District No. 10 (1984), 124 Ill. App. 3d 967, 970, 464 N.E.2d 1239.) Furthermore, a court will also consider matters of which it may take judicial notice, judicial admissions in the record, bills of particulars and exhibits which are attached to the pleadings. (R. Michael, Illinois Practice §27.4, at 504-05, §27.6, at 516 (1989), citing City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 365, 155 N.E.2d 34; Weimann v. County of Kane (1986), 150 Ill. App. 3d 962, 968, 502 N.E.2d 373; Island Lake Water Co. v. La Salle Development Corp. (1986), 143 Ill. App. 3d 310, 320, 493 N.E.2d 44. See also Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 442 N.E.2d 86.) While well-pleaded facts are taken as true, conclusory allegations of law or fact are not so taken, and if, after deleting such, there are not sufficient facts alleged to support a claim, the pleading will be stricken. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976.) Finally, a “cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” Ogle, 102 Ill. 2d at 360-61; Evans v. Control Products Corp. (1979), 73 Ill. App. 3d 681, 684-85, 392 N.E.2d 239.

Plaintiff, in this case, attempts to allege a cause of action for negligence which consists of a duty, a breach of that duty and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617; Lindquist v. Highland Park Hospital Foundation (1976), 40 Ill. App. 3d 722, 725, 353 N.E.2d 156.) While questions of whether a duty has been breached and whether the breach proximately caused the injury are factual matters (Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1045, 462 N.E.2d 502, citing Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116), the existence of a duty must be determined by the court as a matter of law. (Cunis, 56 Ill. 2d at 374; Zimmermann, 122 Ill. App. 3d at 1045.) The Zimmermann court stated that: “[T]he most quoted statement concerning the determination of duty found in Illinois cases is from Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231. The plaintiff in that case was a nine-year-old boy who suffered from hemophilia. His condition was known to defendants, and the complaint alleged that while he was an overnight guest in defendant’s home, the defendants negligently permitted him to play with a needle which got into plaintiff’s throat and was thereafter sucked into the inner part of his lung. The supreme court held that the complaint was properly dismissed for its failure to show a duty owed by the defendants to the plaintiff. The court spoke to the basis of duty in negligence cases as follows:

“ ‘In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires— the assertion of a duty and its breach. [Citations.] ***
After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.’ ” (Zimmermann, 122 Ill. App. 3d at 1046-47, quoting Lance, 36 Ill. 2d at 518.)

In the case sub judice, the trial court weighed these factors and determined as a matter of law that the complaint did not allege sufficient facts to impose upon defendant a duty to provide a handrail in the women’s washroom. We agree.

Pursuant to section 2 of the Premises Liability Act, the duty owed by an owner or occupier of a premises to the entrants is one of “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Ill. Rev. Stat. 1985, ch. 80, par. 302.) Although the defendant in this case had a duty to exercise reasonable care to the entrants of the washroom, plaintiff has not alleged facts to show that this duty included the duty to provide handrails for the steps at issue. The allegation that a duty exists without facts to support it is not sufficient to sustain a cause of action for negligence. (Erne v. Peace (1987), 164 Ill. App. 3d 420, 428, 517 N.E.2d 1203.) We conclude that the statement in the complaint that defendant failed to provide handrails did not, standing alone, support plaintiff’s allegation that defendant breached a duty of reasonable care.

Plaintiff cites Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146, and Halpin v. Pekin Thrifty Drug Co. (1967), 79 Ill. App. 2d 153, 223 N.E.2d 708, for the proposition that Illinois has recognized a duty to protect stairs with handrails. However, in Allgauer, liability was based on the fact that the stairway was steep and narrow, and hidden by a closed door which led directly to the first step of the stairway. In Halpin, the finding of liability was based on the fact that the appearance of the area where the stairway was located was deceptive because of the sameness of the floor covering, insufficient lighting and the absence of a guardrail or warning signs. Neither case stands for the limited proposition that there was a common law duty to provide a handrail for the stairway in this case. Therefore, we conclude that plaintiff’s second amended complaint failed to state a cause of action recognized by Illinois law and the trial court’s dismissal of the complaint was proper.

Accordingly, we affirm the order of the circuit court.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE HEIPLE JUSTICE STOUDER,

text:
    RICHARD C. RUVA et al., Plaintiffs-Appellees, v. ROBERT L. MENTE et al., Defendants-Appellants.
    Third District
    No. 3—89—0667
    Opinion filed July 13, 1990.

      William R. Banich, P.C., of La Salle (William R. Banich, of counsel), for appellants.
    Boyle, Goldsmith, Shore & Bolin, of Hennepin (Linn C. Goldsmith, of counsel), for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

On December 18, 1984, defendants-appellants, Robert, Charlene and Rena Mente (Mentes), entered into an installment agreement to purchase property owned by defendants Frank and Mary Kotar. The contract concerned real estate, and furniture, fixtures and equipment related to the business on the premises. The subject real estate included two separate structures, a structure used as a restaurant/ lounge and a 1,200-square-foot home which was used as a rental unit. In August 1986, the Mentes and plaintiffs-appellees, Richard and Brenda Ruva (Ruvas), entered into an assignment entitled “Transfer of Interest and Novation Regarding Articles of Agreement,” whereby the Mentes assigned their interest to the Ruvas. The Ruvas operated the restaurant and tavern until June 1988, when they filed a complaint for rescission based on noncompliance with section 2 of “An Act relating to installment contracts to sell dwelling structures” (the Act) (Ill. Rev. Stat. 1987, ch. 29, par. 8.22).

Section 2 of the Act (Ill. Rev. Stat. 1987, ch. 29, par. 8.22) provides for the voidability of an installment contract for the purchase of a dwelling structure when a certificate of compliance or warranty that the real estate is free from dwelling code violations is not attached to the contract. Plaintiffs filed a motion for summary judgment on liability, stating that the certificate of compliance or the appropriate substitute had not been attached to the assignment. The trial court denied the plaintiffs’ motion and plaintiffs filed a motion to reconsider. Upon reconsideration, the trial court reversed its earlier decision and granted plaintiffs’ motion for summary judgment. Defendants’ application for leave to appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) was allowed by this court on January 16, 1990.

The issues presented on appeal are: (1) whether the provisions of the sale of dwelling structures act (Ill. Rev. Stat. 1987, ch. 29, par. 8.21 et seq.) apply to the assignment of this contract for the sale of real estate; and (2) assuming arguendo that the Act applies to this assignment, whether the incorporation by reference of the terms and attachment of a previous installment contract for the sale of real estate, which contract contained the requisite express warranty and compliance with said Act, is sufficient, to preclude the assignee from voiding the agreement under the Act.

Defendants first contend that the Act does not apply to the transaction between the parties because the instrument in question is an assignment rather than an installment contract. Section 2 (Ill. Rev. Stat. 1987, ch. 29, par. 8.22) states, in part:

“After the effective date of this Act, any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance, or in the absence of such a certificate (i) an express written warranty ***.”

The statute contemplates application to installment contracts for the sale of residential real estate. Section 1(e) (Ill. Rev. Stat. 1987, ch. 29, par. 8.21(e)) provides as follows:

“ ‘Installment Contract’ means any contract or agreement, including contracts for deeds, bonds for deeds or any other sale or legal device, whereby a contract seller agrees to sell and a buyer agrees to buy a dwelling structure, wherein the consideration for such sale is payable in installments for a period of at least one year after buyer takes possession of the dwelling structure and the contract seller continues to have an interest, or security for the purchase price or otherwise in that property.”

The assignment that is the subject of dispute does not fit the above statutory definition. An installment contract was never effectuated by the parties to this appeal. The parties in this case executed an assignment of an existing installment contract. An assignment indicates a transfer of some identifiable property, right, or claim from the assignor to the assignee. (Hobart v. Hale (1985), 132 Ill. App. 3d 845.) The assignment operates to transfer to the assignee all of the assignor’s right, title, or interest in the thing assigned. (In re Estate of Martinek (1986), 140 Ill. App. 3d 621.) The assignee, by acquiring the same rights as the assignor, stands in the shoes of the assignor. (Carlyle v. Jaskiewiez (1984), 124 Ill. App. 3d 487.) Applying these principles to the instant case, plaintiffs now stand in the position of defendants by way of the assignment.

The provisions of the sale of dwelling structures act, then, do not apply to assignments.

Plaintiffs, however, acquired defendants’ right to rescission trader the Act through the assignment, because defendants did enter into an installment contract for the purchase of the subject property. The remaining inquiry is whether the provisions of the Act were met by defendants’ original contract for purchase. The record indicates that the previous installment contract contained the requisite express warranty and compliance with said Act. Plaintiffs, therefore, are precluded from voiding the agreement under the Act, and the trial court erred in granting plaintiffs’ motion for summary judgment.

In view of our holding, we need not address the other issues raised by defendants.

For the foregoing reasons, the judgment of the circuit court of Putnam County is reversed.

Reversed.

GORMAN, J., concurs.

JUSTICE STOUDER,

dissenting:

I would affirm the judgment of the trial court because I find the assignment contract in the instant case to fall within the coverage of the Act relating to installment contracts to sell dwelling structures (Ill. Rev. Stat. 1989, ch. 29, par. 8.21 et seq.). In this case, the assignment provided for the conveyance and transfer to the plaintiffs of the Mentes’ “right, title and interest *** in and to the assets involved herein.” Section 1(d) of the Act defines in pertinent part a contract seller to be “the owner of a legal or beneficial interest in a dwelling structure” (Ill. Rev. Stat. 1989, ch. 29, par. 8.21(d)), and section 1(e) defines an installment contract to mean “any contract or agreement, including contracts for deeds, bonds for deeds or any other sale or legal device, whereby a contract seller agrees to sell and a buyer agrees to buy a dwelling structure, wherein the consideration for such sale is payable in installments for a period of at least one year after buyer takes possession of the dwelling structure and the contract seller continues to have an interest, or security for the purchase price or otherwise in that property” (Ill. Rev. Stat. 1989, ch. 29, par. 8.21(e)).

In the instant case, prior to the assignment, the Mentes had been making installment payments on the original contract and therefore acquired a beneficial interest in the property. (See Shay v. Penrose (1962), 25 Ill. 2d 447, 185 N.E.2d 218.) The Mentes, as owners of a beneficial interest in the property, come within the definition of contract sellers. The assignment of the contract provided for a payment of $50,000 by the plaintiff to the Mentes, and for the plaintiffs to assume the remaining installment payments on the original contract. There were over eight years remaining on the original contract. Therefore, the assignment provided for installment payments to be made over a period in excess of one year. In sum, the assignment contract falls within the Act’s definition of an installment contract and had to contain the certificate or warranty required by section 2 of the Act (Ill. Rev. Stat. 1987, ch. 29, par. 8.22). Since this assignment contract did not comply with the provisions of section 2, the trial court correctly granted plaintiffs’ summary judgment motion.

In addition, I find the majority’s interpretation of the statute inimicable to the purposes of the Act. The purpose of the Act is to force the seller to furnish information for the protection of the buyer as to the condition of the property he is buying without requiring that the buyer search the records or cause an inspection of the dwelling for possible violations of municipal or county ordinances, as well as of other government dwelling authorities, such as State health and fire protection and environmental protection agencies. (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 446 N.E.2d 1217.) The person in possession is the party most likely to have knowledge of possible problems. Under the majority’s interpretation of the statute, only the original seller is held to the requirements of the Act, even though, as in the instant case, the original seller may not have been in possession of the property for a number of years. The Act was meant to protect individuals like the plaintiffs and the majority’s narrow reading of the Act’s provisions frustrates that purpose.

For these reasons, I dissent.


author: JUSTICE HARTMAN

text:
    RONALD M. HARKALA et al., Plaintiffs-Appellants, v. WILDWOOD REALTY, INC., et al., Defendants-Appellees (Robert G. Hilgert et al., Defendants).
    First District (2nd Division)
    No. 1—89—2176
    Opinion filed June 19, 1990.

      Jacobson, Brandvik & Anderson, of Chicago (Craig E. Anderson and Charles J. Corrigan, of counsel), for appellants.
    Judge & Knight, Ltd., of Park Ridge (Elizabeth A. Brown, Janella L. Barbrow, and Sarah Hansen Sotos, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

The circuit court entered summary judgment for defendants on plaintiffs’ complaint charging violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (Ill. Rev. Stat. 1981, ch. 121½, pars. 262 through 272). Later, the court directed verdicts for defendants on counts charging breach of fiduciary duty and negligent misrepresentation. Plaintiffs appeal.

Plaintiffs Ronald and Sharon Harkala (Harkalas) bought a house located at 5157 North Kilbourn in Chicago, from defendants, Robert and Lorraine Hilgert (Hilgerts). Wildwood Realty (Wildwood) acted for both the Hilgerts and the Harkalas in this transaction. Wildwood’s Joe Rosprim was the Hilgert’s broker, and Wildwood’s Mary Lou Quinn was the Harkalas’ broker. The Harkalas moved into their new home on September 9, 1979. In February 1980, the Harkalas discovered that the house was termite infested.

The decade-long history of this case began on September 26, 1980, when the Harkalas filed their first complaint against the Hilgerts, Wildwood, Rosprim, Quinn and Wildwood’s president, Helen Beierle. This appeal arises out of the Harkalas’ second amended complaint filed on February 19, 1982, which consisted of five counts. Count I of the complaint alleged fraud against the Hilgerts, as vendors. Count II alleged negligent misrepresentations by Wildwood and its brokers (sometimes collectively defendants). Count III alleged common law fraud against defendants. Count IV alleged violations by defendants of the Act. Count V alleged a breach of fiduciary duty by the realtors.

Summary judgment in defendants’ favor was granted as to counts III and IV of the second amended complaint. The order also struck count II, an amended version of which was later refiled with leave of court.

In July 1989 the cause proceeded to trial. The Harkalas adduced the following evidence. Sharon Harkala testified that she moved into the house on September 9, 1979. Wildwood’s Quinn helped the Harkalas sell their old house, and they asked her to help them find a new one. Sharon first saw the Kilbourn house at an “open house” after reading about it in a newspaper. While there, the Harkalas met Wild-wood’s Joe Rosprim, who showed them around the house. Sharon explained that, as she toured the house, she looked for “interior type things” such as “how big the rooms were and things like that.” Her husband also looked for “the basic things that you look for in a house.” At this time, no one mentioned any problems with or defects in the house. Sharon detected none. Quinn also was at the open house although she only stayed for 15 to 20 minutes; she and Quinn had little conversation on that date.

When asked by Sharon’s husband about the electrical wiring, Rosprim responded that the house was in a nice area; a good buy; in good condition; and in sound condition. About one week later, the Harkalas, accompanied by Quinn, returned to the house and looked around again, checking window and room sizes. Again, Sharon noticed nothing unusual about the house. She overheard Quinn tell her husband that the house was a “good buy” and in a “good area.” In September, the Harkalas bought it and moved in. Sharon never asked the Hilgerts about termites nor did she ask Quinn about any insect or structural problems.

Sharon first discovered termites in February 1980. She found little white ants crawling inside a porch post, called a pesticide control company, and had it start treatment to kill the termites. Sharon stated that she and her husband found termites in the kitchen and bathroom window sills, and in a concrete stump below some outside wood.

The evidence deposition of Charles Johnston was read into the record. Johnston knew the Hilgerts for over 30 years and was distantly related to Lorraine Hilgert. In 1976, Johnston did repair work on the Hilgert home, fixing the gutters, the window sills and the cement stoop. Hilgert had told Johnston that every time it rained, water would come down the side or leak in and cause the wood to rot. Johnston saw no termites during his repairs; the wood he used to cover the cement stoop was brand new and bug free. Hilgert never asked Johnston to rip out the wood, but just to seal it. Johnston concluded further that the damage was all water related.

Ronald Harkala’s testimony mirrored his wife’s in all material aspects. He insisted Rosprim told him, during the open house, that the house was in good condition and that he “shouldn’t have any problems with it.” Harkala did not recall any further conversation with Rosprim or Quinn. On the second visit to the house one week later, Harkala looked at the rooms “basically to visualize the size of the rooms for the furniture in the bedrooms.” Harkala spoke with Hilgert regarding the electrical wiring of the house. Hilgert told him of a defective garage door. Harkala saw no other defects, stating the house looked “very clean” and “very nice.”

After the Harkalas discovered termites, they made extensive repairs to the house. Harkala did some of the work himself, and he hired a contractor to do the rest. Harkala did not ask either the realtors or the Hilgerts about possible termite infestation, nor did he ask about the condition of the roof, whether the windows leaked or when the house had last undergone major repair. He had no inspections done before the closing. Quinn told him the house was “structurally sound.”

Ronald Harkala’s mother, Mildred, testified that she accompanied him and his wife to the Hilgert open house. At the open house, Rosprim told them that the house was in “very good condition.” Mrs. Harkala also stated that the house looked “very nice.”

Robert Hilgert testified that he was the previous owner of the home, having purchased it in 1972. In 1976, Hilgert instructed Johnston to do some repairs, and Johnston complied. The following year Hilgert painted the house “inside and out.” He never saw any termites at that time.

The Harkalas questioned Quinn as an adverse witness. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1102.) Quinn was not initially at the Hilgert open house with the Harkalas, having been conducting another open house in the vicinity. The Harkalas stopped by and asked her to accompany them to look at a house they claimed was “perfect” for them. The Harkalas showed Quinn the house on Kilbourn, asking for her opinion. She left after 15 minutes; she could not recall either saying that the house was “in good condition” or visiting the house a second time.

Quinn explained that, prior to visiting the Hilgert home, she had given the Harkalas information as to all the property in the area in the price range they were looking for. The Hilgert property was not an exclusive listing, but was on a “multiple listing.” Realtors are “free to show other office’s listings.” Quinn was not familiar with the condition of the Hilgert home; it was not her job to do an investigation. She only received commissions when she sold another office’s property. Wildwood received two commissions on the Hilgert/Harkala sale; however, both commissions were paid by the Hilgerts.

Helen Beierle, president of Wildwood Realty, testified that she had never met the Hilgerts until the first day of trial. She stated that the area in question did not have a reputation for insect infestation.

Defendants moved for a directed verdict, arguing that plaintiffs produced no evidence showing that the house was infested with termites before they moved in 1980 and that defendants had no duty to discover latent defects. The court reserved its ruling on the motion.

Jerome Serszen, a real estate appraiser for the Harkalas’ mortgage holder, testified that he appraised the house on August 9, 1979. He noticed nothing unusual. His report, made at the time, indicated no check next to the area concerning termites, which meant that “they weren’t checking it for termites, for infestation of any type.” Had Serszen noticed any termite or water damage, he would have changed his opinion regarding the house. Serszen valued the home at $73,500.

Mary Lou Quinn testified in her own behalf consistently with her earlier statements. She represented the Harkalas in the sale of their former house on Linder in Chicago. For their new home, the Harkalas’ main concerns were location, safety for their children, and price. The house “appearance-wise” was in good condition. She denied telling the Harkalas that it was a “good buy.” On July 16, 1979, she conveyed the Harkalas’ offer of $73,500 to the Hilgerts. Quinn worked very hard to get the Harkalas a favorable mortgage. She was not the one who informed them of the availability of the Hilgert home. She never told them that the property was a better piece of property than any other property. She denied accompanying the Harkalas on their second visit to the house. She lives in the same area of Chicago as the house in question, but never heard that it had a reputation for termites. Since the closing, in February 1980, Ronald Harkala called her and told her that he had been doing repairs in the kitchen and the “window came out too easily, it fell out of [his] hands.” She was “shocked” at this report. The next time she saw him, after the instant litigation had started, she asked him, “[H]ow can you do this? [Y]ou know that the accusations are not true.” Harkala allegedly replied, “I know but our attorney says you have to sue everybody involved in the case — it’s a shotgun approach.”

Defendants rested and again renewed their motion for a directed verdict. At that time, the Harkalas voluntarily dismissed Beierle from the action. The court granted defendants’ motion, stating that there was no evidence of defendants’ wrongdoing.

The trial thereafter proceeded to a jury verdict, which found the Hilgerts liable to the Harkalas in the sum of $10,500. The Hilgerts are not a party to this appeal.

On appeal, the Harkalas seek review of the September 22, 1988, order granting summary judgment for defendants on their consumer fraud violation cause of action and challenge the court’s directed verdicts entered July 12, 1989.

I

The Harkalas contend that the circuit court erred in dismissing count IV of their complaint, which alleged that defendants violated section 2 of the Consumer Fraud Act (Ill. Rev. Stat. 1981, ch. 121½, par. 262).

Section 2 of “An Act to protect consumers *** against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) applies to misrepresentations by real estate brokers to prospective purchasers (Seligman v. First National Investments, Inc. (1989), 184 Ill. App. 3d 1053, 1063, 540 N.E.2d 1057; Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448), defining a deceptive practice as the “concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact.” (Ill. Rev. Stat. 1981, ch. 121½, par. 262.) The Act is intended to provide broader consumer protection than the common law action of fraud (Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E.2d 1259); therefore, a plaintiff need not show actual reliance or diligence in ascertaining the accuracy of the misstatements. (Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 485 N.E.2d 855 (Munjal); Beard v. Gress, 90 Ill. App. 3d at 627-28.) The good or bad faith of the seller is irrelevant under the Act; consequently, a plaintiff can recover for an innocent misrepresentation. (Munjal, 138 Ill. App. 3d at 183; Beard v. Gress, 90 Ill. App. 3d at 627-28.) The Act, however, should not be used to turn nondeceptive and nonfraudulent statements or omissions into actionable affirmations. Kellerman, 132 Ill. App. 3d at 306.

The Harkalas argue that Wildwood’s representations that the house was a “good buy”; in “very good condition”; and in sound condition and that plaintiffs “shouldn’t have any problems with it” were misrepresentations in violation of the Act. A similar contention was raised in Munjal, but the appellate court disagreed, declining “to find a real estate broker liable for latent or hidden defects of which he had no prior knowledge.” Munjal, 138 Ill. App. 3d at 183.

The legislature amended the Act in 1982, which excluded:

“The communication of any false, misleading or deceptive information, provided by the seller of real estate located in Illinois, by a real estate salesman or broker licensed under “The Real Estate Brokers License Act,” unless the salesman or broker knows of the false, misleading or deceptive character of such information." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121½, par. 270b(4).)

This is persuasive evidence that the Act was not intended to impose liability upon a broker for latent or hidden defects. The Harkalas argue that the amendment does not apply to defendants because it concerns only representations made by the seller and passed along innocently to the buyer by way of a broker and the Hilgerts never represented to defendants that the house was structurally fit. The Hilgerts carefully concealed all signs of the termite damage; these cosmetic physical manifestations served to make a sufficient, albeit nonverbal, misrepresentation so as to come within the policy of the Act’s provisions in this case.

In her affidavit, Quinn swore that she had no knowledge of whether the house was infested with termites and that she knew of no facts, circumstances or conditions that would lead her or anyone to believe that the house was then or ever had been termite infested. Helen Beierle’s affidavit stated the same facts, adding that Rosprim, deceased by then, had been the “listing” agent for the house. The Harkalas’ complaint alleges that the “[v]endors made *** repairs which concealed all evidence of termite damage and/or infestation with the express intention of inducing plaintiffs to believe that said property was in good repair *** [and that the] damage would not be apparent to plaintiffs upon an ordinary inspection of the house.” The concealment of the damage was so effective that, at her deposition, Sharon Harkala agreed Quinn could not have known that there were termites in the wall unless she took the wall down or apart. In Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623 (Lyons), the court, in addressing the tort of negligent misrepresentation, held that there is no breach of duty unless the realtor could have discovered the falsity of the representation by exercise of ordinary care. (Lyons, 71 Ill. App. 3d at 260.) Neither Munjal nor Lyons creates a duty for realtors to undertake an investigation for hidden or latent defects. We hold that in the absence of any reason to do so, as in this case, there was no duty imputable to defendant brokers that would have compelled them to investigate plaintiffs’ home for concealed impairment of its structure.

The identification of duty is a matter of law to be determined by the court; and, where an issue is solely one of law, as here, summary judgment is proper. Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358; Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 348, 546 N.E.2d 651.

Based upon the foregoing, the circuit court correctly granted summary judgment to defendants on the consumer fraud cause of action.

II

The Harkalas next assert that the circuit court erred in directing a verdict for defendants on the breach of fiduciary duty claim.

A motion for directed verdict should be granted only when all the evidence, viewed favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) In deciding whether the circuit court erroneously directed a verdict, a reviewing court applies the same standard that was applied at the trial level. Thomas v. Nelson Brothers Furniture Co. (1988), 167 Ill. App. 3d 49, 520 N.E.2d 1078.

A real estate broker can become the agent of the purchaser for a particular transaction, if the purchaser requests the broker’s assistance in obtaining a particular piece of property. (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167, 171, 510 N.E.2d 65.) The Harkalas allege in their third amended count II that Quinn agreed to become their agent. Real estate brokers occupy a position of trust with respect to purchasers with whom they are negotiating and owe a duty to exercise good faith in their dealings with purchasers. (Munjal, 138 Ill. App. 3d at 181; Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 385-86, 432 N.E.2d 849.) Misrepresentations of material facts made intentionally by a broker and relied upon by purchasers may be the basis of a suit for fraud and deceit. Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 891, 453 N.E.2d 1129; Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 491-92, 429 N.E.2d 1267.

Here, the evidence does not show that Wildwood or Quinn either intentionally or in culpable ignorance of the truth misrepresented that the house was termite-free. The record reveals that Charles Johnston elaborately repaired the Hilgert home to the point where all those who viewed it considered it attractive. Plaintiffs, themselves, never asked any questions regarding structural damage or pest problems, nor did they make use of their contractual right to freely inspect the premises. Nothing in the record suggests that the brokers should have been looking for termite problems or damage when neither the sellers nor the appearance of the home gave evidence of infestation. The Harkalas, however, argue that the liability arose when the defendants falsely represented that there were no defects in the house.

In Munjal, the appellate court was “unwilling to find a duty on the part of a real estate broker to discover any latent material defects on property which a seller has not disclosed to him prior to sale” (Munjal, 138 Ill. App. 3d at 182), because such a duty would place an unwarranted burden on brokers. We find this rationale compelling.

The Harkalas cite several out-of-State decisions as authority for their position, among them Hoffman v. Connall (1986), 43 Wash. App. 532, 718 P.2d 814. There, the appellate court ruled that a broker could be liable for making negligent misrepresentations to buyer; however, this holding was later reversed by the Washington Supreme Court, which found that a broker is not liable if the sellers give no indication that there is a need to confirm the representations. (See Hoffman v. Connall (1987), 108 Wash. 2d 69, 736 P.2d 242.) In Bevins v. Ballard (Alaska 1982), 655 P.2d 757, the court held that, under the theory of negligent misrepresentation, a duty arises when a broker becomes aware of facts contrary to his representations or when a buyer makes an affirmative inquiry and the broker fails to check the accuracy of his response. Similar circumstances did not arise in the present case. Finally, in Gouveia v. Citicorp Person-to-Person Financial Center, Inc. (1984), 101 N.M. 572, 686 P.2d 262, the court recognized that if a broker exercising reasonable care should have had actual knowledge of defects in the property, he may be liable for negligent failure to discover and disclose them. The evidence in the case sub judice, however, does not indicate that Quinn or Wildwood knew or should have known that the house was structurally unsound, especially since the Harkalas made only vague inquiries into the building’s general fitness. The Harkalas never specifically asked Quinn or Rosprim about insect infestation or other particular types of damage or problems. The foreign authorities are of little support to plaintiffs under these facts.

Upon this record, the circuit court did not err in directing the verdict for the defendants on this issue.

Ill

The Harkalas lastly argue that the court erred in directing the verdict for defendants on their negligent misrepresentation cause of action.

The elements of a negligent misrepresentation include a duty owed by defendant to plaintiff, a breach of such duty, and injury proximately resulting from such breach. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409; Lyons, 71 Ill. App. 3d at 259.) Illinois courts have adopted the tort of negligent misrepresentation from the formulation of the Restatement (Second) of Torts. Restatement (Second) of Torts §552 (1977).

The test of negligent misrepresentation involves the breach of a duty to use care in obtaining and communicating information upon which others reasonably may be expected to rely in the conduct of their affairs. (Zimmerman, 156 Ill. App. 3d at 163.) The person making a representation may believe it to be true, but because of negligent expression it is, in fact, false. (Zimmerman, 156 Ill. App. 3d at 163; Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 484 N.E.2d 473.) In Lyons, the court upheld vendor liability under this theory based upon the vendor’s statement that the property was fully connected to the local sewer system, except for a particular basement drain which was connected only to a septic tank. Upon reviewing the evidence, the court noted that several of the vendor’s officers were generally aware of the possibility of septic tank service, but took no steps to ascertain its applicability to the property at issue. (Lyons, 71 Ill. App. 3d at 261.) The vendor’s broker, however, was not found liable because the court ruled that she did not have a duty to independently substantiate the vendor’s representation unless she was aware of facts which tended to indicate that the seller’s representation was false. Lyons, 71 Ill. App. 3d at 261; see also Rotello v. Scott (1981), 95 Ill. App. 3d 248, 419 N.E.2d 1233.

The Harkalas point to a number of decisions from other States as persuasive authority for imposing liability on brokers when termites are discovered after the purchase of realty. One such case, Hughes v. Holt (1981), 140 Vt. 38, 435 A.2d 687, however, is not in point as the court reversed the jury’s verdict because of an erroneous instruction regarding the burden of proof on a fraud count. Miles v. McSwegin (1979), 58 Ohio St. 2d 97, 388 N.E.2d 1367, concerns the buyers’ mortgage holder’s inspection of the house which found termites; however, the lender did not tell the buyers after obtaining this knowledge. Clearly, this does not apply to the instant case, where the evidence does not suggest that the realtors ever knew that termites were present at the Hilgert home. Another inapposite decision, Maser v. Lind (1967), 181 Neb. 365, 148 N.W.2d 831, held that a misrepresentation of the condition of buildings by the vendor is actionable if made and relied upon as a positive statement of an existing fact where the purchaser by the exercise of ordinary care is unable to discover the true damaged condition. No brokers were involved in that transaction; the vendors here, the Hilgerts, were found guilty by the jury and have not appealed.

In a recent American Law Report annotation, in every case imposing broker liability, but one, real estate brokers were held liable to purchasers for termite damage only where the brokers concealed or failed to disclose their knowledge of the specific problem by suppressing reports of termite infestation; or affirmatively asserted that no termite damage existed; or were specifically asked by the buyers to secure a termite inspection. (Annot., 46 A.L.R.4th 601 (1986).) The one exception did not discuss these issues. In contrast here, no allegations were made, nor evidence of the brokers’ knowledge demonstrated, nor concealment of reports shown, nor specific reassurances communicated to plaintiffs by the brokers.

The testimony adduced at trial here produced no evidence to support the Harkalas’ allegations that defendants knew or should have known of the termites and their damage without tearing down the walls and conducting tests. Nothing in the record indicates that, in the absence of some reason to do so, the brokers should have undertaken such action. We are unwilling to impose that burden upon them under the facts of this case.

From the foregoing, it is clear that the circuit court properly directed a verdict for defendant brokers on the negligent misrepresentation count.

The circuit court decisions entering summary judgment on plaintiffs’ consumer fraud count and directing verdicts on the remaining counts must be affirmed.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.

       Rosprim, who died prior to trial, was dismissed as a party during the course of the trial.