author: JUSTICE McCUSKEY

text:
    BRYAN KELLEY, a Disabled Person, by his Guardian, Paul Kelley, Plaintiff, v. ASSOCIATED ANESTHESIOLOGISTS, INC., et al., Defendants and Cross-Plaintiffs-Appellees (Burroughs Wellcome Company, Defendant and Cross-Defendant-Appellant).
    Third District
    No. 3-91-0277
    Opinion filed March 20, 1992.
    Rehearing denied April 23, 1992.

      Livingston, Barger, Brandt & Schroeder, of Bloomington (William R Brandt and Richard E. Stites, of counsel), for appellant.
    Rooks, Pitts & Poust, of Joliet (Robert R. Gorbold and Pamela Davis Gorkowski, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant drug manufacturer appeals from a judgment entered on a jury verdict apportioning liability between it and defendant anesthesiologists. The drug manufacturer contends the trial court should have entered judgment n.o.v. in its favor or, alternatively, ordered a new trial as to liability. We vacate the judgment against the drug manufacturer and assess total liability against defendant anesthesiologists.

Plaintiff, Bryan Kelley, brought an action in medical malpractice against defendants Associated Anesthesiologists, Inc., and John C. Burdon, M.D. (collectively Dr. Burdon), and in products liability against defendant Burroughs Wellcome Co. (Burroughs). Plaintiff’s action involved a surgical operation performed during his recovery from an automobile accident.

In May 1985, plaintiff was injured in an automobile accident and taken to St. Francis Medical Center in Peoria, Illinois. He had suffered a closed head injury, a fractured femur, six double-fractured ribs with a flail chest, a collapsed and contused lung, crushed vertebrae, and partial and complete paralysis of the lower extremities. Plaintiff underwent one surgery to repair the femoral fracture, and another on his spinal column to prevent further neurological damage. Later, when the surgical wound on his back reopened, plaintiff was taken to the operating room for a brief surgical procedure to close the wound. It was estimated this procedure would take less than 30 minutes.

Dr. Burdon was plaintiff’s anesthesiologist for the third surgery. Dr. Burdon reviewed plaintiff’s chart and performed a brief physical examination. Dr. Burdon testified he knew plaintiff had a closed head injury and crushed vertebrae. He felt plaintiff had some lower extremity nerve disfunction, but he did not think plaintiff was extensively denervated. Experts for plaintiff and Burroughs countered with testimony that plaintiff did have extensive denervation of skeletal muscle in his lower extremities at this time.

Plaintiff was brought into the operating room on a gurney in a supine position. Dr. Burdon first administered sodium pentothal to put plaintiff to sleep. Dr. Burdon then administered a drip solution of succinylcholine (a muscle relaxant marketed by Burroughs as Anectine) to allow the insertion of a breathing tube into plaintiff’s throat. After one unsuccessful attempt at intubation, Dr. Burdon increased the flow of succinylcholine to further relax plaintiff. Plaintiff was then successfully intubated.

Plaintiff was removed from the gurney and turned to a prone position on the operating table. Immediately after plaintiff was turned, Dr. Burdon was unable to get a pulse. The EKG machine registered a flat tracing. Resuscitative efforts were begun. Hospital records indicate that succinylcholine was initiated at 2035 hours, with cardiac arrest occurring at approximately 2050 hours. Plaintiff was revived, but was without a heartbeat for approximately 29 minutes. The drip solution of succinylcholine was inadvertently left on during a portion of this time. Plaintiff is now severely impaired.

Succinylcholine is a muscle relaxant used to rapidly relax the throat muscles to facilitate insertion of an endotracheal tube. Succinylcholine renders a patient completely flaccid in 30 to 120 seconds, and its effect is gone in four to six minutes.

A risk of using succinylcholine is present in patients with extensive denervation of skeletal muscle, as in a patient with spinal injuries. In patients with extensive skeletal muscle denervation, succinylcholine can cause an excessive rise in the level of potassium in the bloodstream. A hyperkalemic patient can develop serious cardiac arrhythmias and cardiac arrest leading to death.

Plaintiff alleged that Anectine was unreasonably dangerous because of improper and insufficient labeling in the package insert. Plaintiff alleged the insert was deficient in that it (1) stated the drug could be used cautiously or with great caution in patients who tend to become severely hyperkalemic because of its administration; and (2) failed to state the drug should not be used in patients who are at risk to becoming severely hyperkalemic because of its administration.

The jury returned a verdict in favor of plaintiff and against Dr. Burdon and Burroughs. Based upon counterclaims for contribution filed by defendants, the jury apportioned the verdict 90% against Dr. Burdon and 10% against Burroughs. The trial court entered judgment on the verdicts rendered on plaintiff’s claims and on defendants’ counterclaims.

Burroughs’ main contention on appeal is that the trial court erred in denying Burroughs’ motion for judgment notwithstanding the verdict. Burroughs argues that plaintiff failed to show causation between his injury and Burroughs’ alleged failure to contraindicate administration of Anectine to patients exhibiting symptoms like plaintiff’s. We agree.

A party is entitled to a judgment n.o.v. only in cases in which all the evidence, when viewed in a light most favorable 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, 510, 229 N.E.2d 504, 513-14.) We conclude from our examination of the record that Burroughs’ motion for judgment n.o.v. was improperly denied.

The package insert for Anectine stated in pertinent part:

“PRECAUTIONS:
***
Succinylcholine should be administered with great caution to patients recovering from severe trauma *** because in these circumstances it may induce serious cardiac arrhythmias or cardiac arrest. Great caution should be observed also in patients *** who are paraplegic, or have suffered *** extensive denervation of skeletal muscle due to *** injury of the central nervous system *** because such patients tend to become severely hyperkalemic when given succinylcholine.
* * *
ADVERSE REACTIONS: Adverse reactions consist primarily of an extension of the drug’s pharmacological actions. It causes profound muscle relaxation resulting in respiratory depression to the point of apnea; this effect may be prolonged. *** The following adverse reactions have been reported: cardiac arrest, *** arrhythmias, *** hyperkalemia, [and] prolonged respiratory depression or apnea ***.
DOSAGE AND ADMINISTRATION: The dosage of succinylcholine is essentially individualized and its administration should always be determined by the clinician after careful assessment of the patient. ***
For Short Surgical Procedures: The average dose for relaxation of short duration is 0.6 mg/kg (±2.0 ml) Anectine *** Injection given intravenously. The optimum dose will vary among individuals and may be from 0.3 to 1.1 mg/kg for adults (1.0 to 4.0 ml). Following administration of doses in this range, relaxation develops in about 1 minute; maximum muscular paralysis may persist for about 2 minutes, after which recovery takes place within 4 to 6 minutes. However, very large doses may result in prolonged apnea. An initial test dose of 0.1 mg/kg (±0.5 ml) may be used to determine the sensitivity of the patient and the individual recovery time.
For Long Surgical Procedures: The dosage of succinylcholine administered by infusion depends upon the duration of the surgical procedure and the need for muscle relaxation. The average rate for an adult ranges between 2.5 and 4.3 mg per minute.
Solutions containing 0.1% to 0.2% (1 to 2 mg per ml) succinylcholine have commonly been used for continuous intravenous drip. *** The more dilute solution (0.1% or 1 mg per ml) is probably preferable from the standpoint of ease of control of the rate of administration of the drug and, hence, of relaxation.”

Dr. Burdon testified he was aware of the contents of the package insert. The package insert specifically warned that Anectine may induce hyperkalemia and cardiac arrest in patients recovering from “severe trauma” or in patients with “extensive denervation of skeletal muscle.” Evidence presented at trial supported these statements. Dr. Burdon testified the package insert correctly summarized medical literature on the subject and appropriately listed those persons at risk to experience a hyperkalemic reaction to succinylcholine. Dr. Burdon also testified he was aware of the risk of administering succinylcholine to denervated patients. He stated he had used succinylcholine before on extensively denervated patients without adverse results.

Expert testimony established it was basic knowledge to anesthesiologists that the administration of succinylcholine to an extensively denervated patient entailed the risk of hyperkalemia leading to cardiac arrest. Plaintiff’s experts opined the administration of succinylcholine to plaintiff caused hyperkalemia and cardiac arrest, and that Dr. Burdon’s failure to stop the flow of succinylcholine delayed efforts to revive plaintiff.

No direct proof was presented which showed Burroughs’ product was the proximate cause of plaintiff’s injury. No testimony was presented that the package insert was unreasonably dangerous or that Burroughs’ failure to “positively contraindicate” use of Anectine in extensively denervated patients proximately caused plaintiff’s injury. Experts for the parties testified it is not necessary to absolutely contraindicate the use of succinylcholine in patients with denervated muscle. The experts further acknowledged the package insert’s use of the language with “great caution” was not inappropriate.

Crucial to Dr. Burdon’s decision to administer succinylcholine was his determination that plaintiff was not extensively denervated and therefore not at risk with respect to succinylcholine. Dr. Burdon based his belief on professional literature on the subject and his personal experience in nearly 40 years of practice. Dr. Burdon testified that plaintiff had suffered neither the type nor quantity of “severe” trauma necessary to place plaintiff at risk for cardiac arrest from a hyperkalemic reaction to succinylcholine. Evidence at trial, however, showed that plaintiff was indeed extensively denervated. Since Dr. Burdon failed to identify plaintiff as someone at risk with respect to the administration of succinylcholine, the package insert could not have played a causative role in his injuries. Dr. Burdon never felt plaintiff was in the class of persons within which succinylcholine should be prohibited or used with great caution.

Evidence also showed that Dr. Burdon’s failure to stop the flow of succinylcholine hampered efforts to revive plaintiff. Testimony was presented that the failure to stop the flow of succinylcholine during resuscitation efforts resulted in the maintenance of a high potassium level in plaintiff which would hinder establishment of a heartbeat. Dr. Burdon acknowledged it was his responsibility to discontinue the drip.

The manner in which Dr. Burdon administered Anectine to plaintiff was not recommended by the package insert. The drip method used by Dr. Burdon was recommended only for long (rather than short) surgical procedures. The insert also stated the 0.2% solution used by Dr. Burdon was the highest recommended dosage rather than the lowest recommended diluted solution (0.1%). Dr. Burdon testified he felt he was administering Anectine cautiously by using it for a brief period of time. He also testified that a 0.2% solution is the amount he would customarily administer.

The record demonstrates that Dr. Burdon understood the risks involved in administering succinylcholine. Dr. Burdon had used succinylcholine daily for over 30 years. One year prior to the incident, he had read the package insert for Anectine. He had also read the history and content of medical literature regarding succinylcholine. He had used succinylcholine in the past with denervated patients. Even if the insert had absolutely contraindicated the use of succinylcholine in extensively denervated patients, Dr. Burdon would not have heeded the prohibition because he had failed to diagnose plaintiff as being extensively denervated. Under these circumstances, the package insert could not have proximately caused the injury to plaintiff.

We conclude that the trial court should have granted Burroughs’ motion for judgment n.o.v. because plaintiff failed to prove the product was unreasonably dangerous or that Burroughs’ failure to absolutely contraindicate use of the product in extensively denervated patients was the proximate cause of plaintiff’s injury.

Accordingly, the judgment of the trial court is vacated as to Burroughs. Based upon our findings, we enter judgment against defendants Associated Anesthesiologists, Inc., and John C. Burdon, M.D., for the entire amount of the jury verdict.

Reversed.

BARRY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACK L. SAXON, Defendant-Appellant.
    Third District
    No. 3—91—0389
    Opinion filed March 9, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

A jury found the defendant, Mack L. Saxon, guilty of robbery, resisting a peace officer, and two counts of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 18-1, 31-1, 12-4(b)(2), (b)(6)). The court thereafter sentenced him to concurrent prison terms of six years for robbery, five years for each of the aggravated battery convictions, and 364 days for resisting a peace officer. The defendant appeals.

At trial, James Davis testified that on the night in question he was approached by two black men outside his home. One, whom he could not identify, wore a ski mask. The other, whom he identified as the defendant, wore a Bulls jacket. Davis agreed to give the masked man a ride on his snowmobile, leaving the defendant behind. When they returned about five minutes later, the defendant and another snowmobile belonging to Davis were gone. Davis dropped off the masked man and chased the second snowmobile. When he caught up to it he hit it, causing the defendant to slide off. The defendant told Davis that a man at Davis’ house told him he could take the snowmobile. He then apologized for taking it.

As the defendant was trying to help Davis get the snowmobiles out of the ditch, two men pulled up in a car. The masked man got out, jumped on one of the snowmobiles and said he was taking it to Davis’ house. When Davis told him to get off and leave it there, the masked man stood up, walked behind Davis and grabbed his arms. The defendant then hit Davis in the face and the masked man threw him down. The defendant and the masked man then drove off on one of the, snowmobiles. Davis flagged down a car, returned home, and called the police.

Davis reviewed two statements he had given to the police on the night in question. In defendant’s exhibit 1, he stated that Odell Frazier was the person who hit him. Davis explained that the reason he said this was because the police had picked up Frazier wearing a Bulls jacket. It is not clear from the record whether Davis actually saw Frazier after the police brought him in and that was how he knew Frazier was wearing a Bulls jacket, or whether the police told Davis that the man they picked up who was wearing the Bulls jacket was named Frazier and Davis never saw him.

Davis also acknowledged that in his second statement to the police (People’s exhibit 9) he had said the masked man struck him in the face. However, at trial, Davis asserted that this statement was wrong. He testified that when he first saw the defendant at his house, his porch light was on and lit up the whole yard. He stood a foot from the defendant, who was wearing a Bulls jacket. They talked for about five minutes. Davis also stated that the car’s headlights were on at the scene where he was struck and his snowmobile was taken. The headlights gave him enough light to identify the defendant.

Police officer Steve Abrassart testified that after interviewing Davis, he was following a set of snowmobile tracks when he received a radio communication to meet with Officer Francis Monney, who had Frazier in custody. Frazier was wearing a Bulls jacket. Abrassart picked them up and subsequently stopped a car which Davis had described as the one involved in the incident. The car was driven by Gene Pickens. Abrassart then followed Pickens to his house trailer. A snowmobile was parked near the trailer. After obtaining the snowmobile keys from Pickens, Abrassart entered the trailer with Monney and Officer Harry Powell, who had arrived about the same time. Inside the trailer they encountered a woman, some children, and the defendant, who said his name was Al. The defendant’s gym shoes were sopping wet but his cheek was warm to the touch.

At Abrassart’s request, the defendant exited the trailer, but ran away when he was told he was under arrest. The police chased the defendant to another home. Abrassart entered the house along with Monney, Powell, Sergeant Aurelio Garcia, Detective Dave Williams, Officer Dave Zinanni, and a police dog. They eventually found the defendant hiding under a table in the basement. When the defendant refused to come out, Abrassart reached for him, but he pulled out a knife. Abrassart grabbed the knife, and Powell applied a stun gun to the defendant’s back. Monney also used a stun gun. The defendant immediately came out kicking and hitting. When Abrassart, Monney, and Powell wrestled with the defendant in an attempt to subdue him, Abrassart was struck in the eye. Abrassart believed the defendant hit him, but he did not actually see who did it. He did see the defendant strike Monney. After he was taken into custody, the defendant was taken to a hospital, where he was treated for a bleeding finger and cuts to his head.

Abrassart also testified that in the statement he took from Davis, Davis said he was hit by Frazier. The statement indicated that Davis was hit by the man who wore the ski mask. Davis also told Abrassart that he was hit by both men, but Abrassart did not include that point in the statement. Abrassart further stated that the police supplied Davis with Frazier’s name. Davis also told Abrassart that, at the scene of the snowmobile taking, the man in the Bulls jacket was the stocky, short, strong young man, and that was not Frazier.

Several other officers who were involved in the incident testified at trial. Pertinent portions of their testimony, which largely corroborated Abrassart’s, are summarized below.

Officer Harry Powell and Deputy Francis Todd Monney testified that they had been dispatched to Davis’ house on the night of the incident. They followed a set of snowmobile tracks past Pickens’ house, where they saw a snowmobile being ridden by two people. When the person on back fell off, Monney exited the car, chased, and caught him. Powell identified the man as Frazier. Monney stated that Frazier was wearing a black jacket which looked like People’s exhibit 6, the Bulls jacket.

Monney and Frazier were subsequently picked up by Abrassart. They and Powell later arrived at Pickens’ girl friend’s trailer by following the snowmobile tracks. Monney testified that a set of footprints led from the snowmobile to the trailer. Pickens answered when they knocked on the door. Three men were inside, including the defendant, although they all asserted that no one in the trailer was named Mack. Powell and Monney corroborated Abrassart’s testimony that the defendant ran from them when Monney told him he was under arrest.

Powell, Monney, Officer Garcia, Officer Dean Dandurand, Detective David Williams, and Deputy David Zinanni testified that they pursued the defendant to the house referred to in Abrassart’s testimony. Powell, Monney, Williams, and Zinanni entered the house with Abrassart, while the others waited outside.

Monney corroborated Abrassart’s testimony that the defendant refused to come out from under the table and pulled a knife. During the course of the struggle, Powell used a stun gun on the defendant three times and Monney used a stun gun once. According to Powell, a stun gun either immobilizes a person or makes him angrier and gives him added strength. It does not cause a person to flail his arms and legs with no control over what he is doing.

Garcia, Powell, and Monney testified that while they were wrestling with the defendant, he swung his arms and kicked at all of them. Garcia stated that the defendant punched Abrassart and kicked Monney. Powell stated that the defendant kicked his knee and struck his head. Williams stated that the defendant was not punching or kicking at the officers, but moving his hands and feet so the officers could not grab him. However, he also stated that he saw the contact between the officers and the defendant for only a couple of seconds as he had to direct his attention to another person who was coming down the basement stairs.

Darrin Hayes testified that he and five other people were present at his grandmother’s house when the defendant, whom Hayes had known for a couple of years, rang the doorbell. The defendant told them he had been jumped and needed a ride to his mother’s house. According to Hayes, the defendant’s hand was bleeding. Shortly thereafter, the police arrived. Hayes stated that he saw the police officers punching the defendant in the basement.

Gene Pickens testified that he had borrowed the defendant’s car that morning. Pickens claimed that he drove around all day with Odell Frazier and Frazier’s cousin, Mike. Pickens did not know Mike’s last name. He stated that Frazier wore a hat and a stone-washed jacket, and Mike wore a Bulls jacket. According to Pickens, while driving they came upon some men standing by snowmobiles and asked them if they wanted to have a snowball fight. The men answered something “smart” and Mike continued driving. After they had gone about a block, Mike stopped the car and got out with Frazier. Without saying what they were going to do, Mike asked Pickens to pick them up on the same street. They then walked back toward the men with the snowmobiles. Shortly thereafter, Pickens began driving in the direction Mike and Frazier had gone. As he drove, he was passed by a snowmobile and he saw Frazier running. He picked up Frazier and subsequently came upon a snowmobile in a ditch. Mike and a third person were standing by it. When Frazier got out of the car, Mike pushed the third person in the ditch. Pickens then drove away by himself.

Pickens stated that he drove to his mother’s house, which was about 15 minutes away. About one-half to one hour later, Frazier and Mike drove up on a snowmobile, stayed for about 10 minutes, and left. Pickens then drove to his girl friend’s trailer, which took about 15 minutes. He saw a snowmobile parked across the street. His girl friend was not home but her three children and the defendant were there. His girl friend and the police arrived thereafter. After talking to the police, Pickens told the defendant they suspected him of stealing a snowmobile. The defendant denied it and said he was not going back to prison. He ran away when the police tried to arrest him.

Pickens admitted giving a statement to the police in which he had said the defendant was involved with Frazier in stealing a snowmobile. He testified that he substituted the defendant for Mike in his statement because Mike had threatened to burn his house down if he told the police about his involvement.

The defendant testified that about 12 p.m. on the day of the incident, he drove his car to Pickens’ house to be fixed. A friend gave him a ride back to his house. About 6 p.m., a friend drove him to Pickens’ house, but Pickens was not there. The defendant’s friend then took him to Pickens’ girl friend’s trailer. Pickens’ girl friend let him in, and he waited there for Pickens, who finally arrived. The police came shortly thereafter. When asked by the police, the defendant denied being on a snowmobile that day. He ran when he was told he was under arrest because he had previously been convicted of a felony and did not want to go to jail for something he did not do. He also claimed that he attempted to give himself up later at the Hayes’ house, but the police beat him, saying, “Oh you want to run? I am going to teach your ass about running.” He denied hitting any of the officers. He was later taken to the hospital, where he was treated for fractured ribs and cuts to the head.

Maggie Piper, the mother of three children by Gene Pickens, testified that about 6 p.m. on the day in question, the defendant came to her trailer. He was wearing a blue jean outfit.

Following the above-summarized testimony, certified copies of the defendant’s two prior felony convictions were introduced into evidence. The jury found the defendant guilty of the above-noted charges. Specifically, as to the aggravated batteries, he was found guilty of having caused Davis bodily harm by striking him in the face while masked and of causing bodily harm to Powell knowing him to be a peace officer engaged in the execution of his official duties. He was found not guilty of committing an aggravated battery against Officer Abrassart.

On appeal, the defendant first argues that his robbery conviction and his aggravated battery conviction with respect to Davis should be reversed because Davis’ in-court identification of the defendant was contradicted by his earlier statements to the police. Specifically, he notes that in one statement to the police, Davis identified “Frazier” as the one who struck him. In the other statement he identified “the man in the mask” as the one who struck him.

Upon review of a conviction, this court must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) This standard applies to identification of a defendant. (People v. Maloney (1990), 201 Ill. App. 3d 599, 558 N.E.2d 1277.) Variations between the trial testimony of a witness and pretrial statements present credibility questions to be decided by the trier of fact. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.

Initially we note, as we did in the recitation of facts above, and contrary to the defendant’s assertion on appeal, that it is unclear from the record whether in his original statement to police Davis identified Frazier as the one who struck him because he actually saw Frazier in the Bulls jacket after the police had apprehended him, or because the police told Davis that the man they brought in who was wearing the Bulls jacket was named Frazier. Therefore, it is far from certain that Davis’ first statement to the police actually contradicted his trial testimony that the defendant was wearing a Bulls jacket when he hit Davis. We note also that the defendant and Frazier could have switched jackets after taking the snowmobile. In any event, we find that Davis’ in-court identification of the defendant was strong and there was sufficient evidence which corroborated that identification.

First, Davis stated in court that the defendant looked just like the man who was wearing the Bulls jacket on the night in question. Davis asserted that he saw the defendant at close range on two occasions on the night he was attacked. The first time was at his home in a well-lit area where he stood close to the defendant and talked to him for five minutes before leaving to give the masked man a ride. The second time was when he was attacked in the area where the car’s headlights were shining, which gave him enough light to identify the defendant. Davis also testified that the statement that identified the man in the ski mask as the one who hit him was wrong because it had been written down wrong.

Additionally, Davis testified that both men attacked him. Officer Abrassart testified that Davis had told him this. Abrassart also testified that Davis told him that the man at the scene in the Bulls jacket was the short, stocky young man. People’s exhibits 10 and 11, photographs of the defendant and Frazier, were identified by Sergeant Garcia at trial. From his testimony, the jury heard that Frazier appeared to be 5 feet 8 inches in his picture while the defendant appeared to be 5 feet 6 inches.

We note also that defense counsel thoroughly cross-examined Davis concerning the apparent conflict between his prior statements and his trial testimony. Further, the jury was instructed that a prior inconsistent statement could be used to challenge the credibility of a witness. Thus, the issue was fully before the jurors and it was for them, as the triers of fact, to decide what weight to give Davis’ testimony.

Finally, we note that Davis was unequivocal in his testimony at trial that the defendant was present and fully participated in the robbery and aggravated battery. Therefore, the defendant was criminally responsible for his companion’s conduct under the principle of accountability (Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c)), which the jury was instructed about. Thus, after viewing the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence presented to the jurors from which they could properly infer that the defendant actively participated in both the robbery and aggravated battery of Davis.

The defendant next contends that his robbery conviction should be reduced to theft because the taking of Davis’ property was not accompanied by the use or threat of force.

The robbery statute requires that property be taken “from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1989, ch. 38, par. 18—1(a).) The forcible taking of property is thus the gravamen of the offense and serves to distinguish robbery from theft. Ill. Rev. Stat. 1989, ch. 38, par. 16—1; see People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.

The defendant argues that Davis’ snowmobile was taken while Davis was giving the masked man a ride and, therefore, the taking was not accompanied by the use or threat of force as required for the offense of robbery. We disagree.

Although initially the defendant took Davis’ snowmobile when Davis was giving the masked man a ride, Davis returned within five minutes and shortly thereafter caught up with the defendant. The defendant claimed that a man at Davis’ house had given him permission to take the snowmobile. He then apologized to Davis. At that point, the defendant would have had an arguable case that he had not committed theft because he had not knowingly obtained or exerted unauthorized control over the snowmobile. The defendant could have walked away or asked to return the snowmobile to Davis. Instead, the masked man came, jumped on Davis’ snowmobile, and when Davis told him to get off, he arose and approached Davis from behind. The defendant did not move to help Davis, or remain uninvolved, but rather assisted in assaulting Davis after the masked man had grabbed Davis’ arms.

In our view, the robbery was completé when the defendant and the masked man faced the lone victim, Davis, and obviously threatened the imminent use of force. Given the entire context of what happened here, we conclude that the taking of Davis’ snowmobile was accomplished by the threat of the imminent use of force.

The defendant argues in the alternative that if his robbery conviction is affirmed, his aggravated battery conviction (against Davis) should be vacated because the act forming the basis for that conviction constituted the force which transformed the taking of the snowmobile into robbery. He also asserts that the aggravated battery was a lesser included offense of the robbery.

We note that the aggravated battery which the defendant was charged with, and on which the jury was instructed, was committing a battery while hooded or masked in such a manner as to conceal his identity. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(2).) The burden of proof instruction the jury received stated that the State had to prove that the defendant, or one for whose conduct he was legally responsible, was hooded or masked so as to conceal his identity. The jury was also instructed on accountability. (Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c).) The evidence showed that the defendant’s masked companion grabbed Davis’ arms and threw him down. The defendant was not charged with, nor found guilty of, aggravated battery by reason of having struck Davis in the face himself. He was held accountable for his masked companion’s aggravated battery of Davis. Thus, this aggravated battery did not form the basis for the robbery conviction.

We note that the defendant has cited no authority for his proposition that aggravated battery is a lesser included offense of robbery. A lesser offense is one whose elements are all included within the greater offense. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) In the instant case, the aggravated battery of Davis required proof that the perpetrator’s identity was concealed. The robbery did not. Therefore, the aggravated battery was not a lesser included offense of robbery.

The defendant next argues that his aggravated battery conviction against police officer Harry Powell should be reversed because the State failed to prove beyond a reasonable doubt that he struck Powell knowingly or with the intent to do him harm.

We note again that upon review of a conviction, we must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

We find ample evidence to support the defendant’s conviction for the aggravated battery of Powell. Powell specifically testified that the defendant kicked him in the knee and struck his head. He said the defendant was fighting with the officers and would not obey their commands or allow them to cuff him. Powell also testified that the application of a stun gun does not cause a person to uncontrollably flail his arms or legs, but may increase his anger. We also note that before any use of the stun gun by the officers, the defendant pulled out a knife and refused to drop it.

Additionally, to the extent that Officer Williams’ testimony appeared to conflict with Powell’s, that conflict was for the jury to decide. It is noteworthy that Williams stated that he was only able to observe the confrontation between the defendant and the other police officers for a few seconds, as he was busy with the man who came down the stairs. Finally, the testimony of Officers Abrassart, Monney, Garcia, and Zinanni all supported the characterization of the defendant as knowingly striking out at them in an attempt to avoid being taken into custody. Thus, after viewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence presented to the jurors from which they could properly determine that the defendant knowingly struck Powell while Powell was engaged in the execution of his official duties.

The defendant also argues that the prosecution’s closing argument denied him a fair trial. He contends the prosecutor read verbatim to the jury Gene Pickens’ written statement that he gave to the police in which he stated that the defendant was involved in taking Davis’ snowmobile, thus improperly overemphasizing Pickens’ pretrial statement over his trial testimony. Additionally, the defendant claims that the prosecutor misstated Pickens’ trial testimony during her closing argument and improperly stated that Pickens had lied on the stand and she would not vouch for his testimony.

It is well established that a prosecutor has great latitude in making closing arguments, and absent a clear abuse of discretion, the trial court’s determination as to the propriety of the comments will not be disturbed. (People v. Barkauskas (1986), 147 Ill. App. 3d 360, 497 N.E.2d 1183.) A prosecutor can argue any logical inference which can be drawn from the evidence. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) It is within the sound discretion of the trial court to permit counsel to read from the trial transcript during closing arguments. People v. Davies (1977), 50 Ill. App. 3d 506, 365 N.E.2d 628.

In the instant case, the prosecutor read to the jury the majority, not all, of Pickens’ statement. This portion of the prosecutor’s argument took less than one page of the transcript and was interspersed with her comments on the statement. As in Davies cited above, we find that the excerpts were relatively brief and accurately quoted. The readings were not so extensive as to improperly emphasize that particular evidence to the defendant’s prejudice.

The defendant also complains that the prosecutor misstated Pick-ens’ trial testimony when she claimed there was a “15 minute gap” or “time lapse” in his testimony.

We note that defense counsel objected to the prosecutor’s remarks as a mischaracterization of Pickens’ testimony. In overruling the objection, the judge said, “[Tjhe jury heard the evidence. They have taken notes. I have instructed them that if their memory of the testimony doesn’t agree theirs is what counts.” The jury was also instructed that closing arguments were not evidence and any argument not based on the evidence should be disregarded. Therefore, we find that if there was any error in the prosecutor’s remarks, it was harmless since the jury was properly instructed.

The defendant finally argues that the prosecutor improperly stated that Pickens took the stand and lied and improperly stated that she could not vouch for Pickens’ credibility.

We note that following these remarks, defense counsel objected and the trial court sustained the objection. The court told the prosecutor in front of the jury that she could not argue personal beliefs or inject herself into the case and although she could argue credibility, she could not vouch or not vouch for a witness. When a judge sustains objections defense counsel makes to an argument, that is generally enough to cure error in the argument. (People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241.) Improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) Here, the evidence of guilt was so overwhelming that any error resulting from prosecutorial indiscretion was harmless. Her actions therefore did not constitute reversible error.

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

Affirmed.

McCUSKEYand SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    DANIEL A. O’NEIL, Indiv. and as Adm’r of the Estate of James D. O’Neil, Deceased, Plaintiff-Appellant, v. IRENE B. KRUPP et al., Defendants-Appellees.
    Third District
    No. 3—91—0449
    Opinion filed March 12, 1992.
    Anthony C. Raccuglia & Associates, of Peru (Anthony C. Raccuglia, of counsel), for appellant.
    Hupp, Lanuti, Irion & Martin, of Ottawa (Raymond P. Fabricius, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Daniel O’Neil, appeals the dismissal of four counts of his amended complaint which alleged that defendants Jerry and Barbara Schultz breached their statutory duty of care to plaintiff’s decedent by violating two city ordinances. We reverse and remand.

On August 7, 1989, plaintiff’s 14-year-old son, James O’Neil, was riding his bike through the intersection of 15th Street and Gilman Avenue in Mendota, Illinois, when he was struck and killed by a car driven by codefendant Irene Krupp. Krupp’s vision was allegedly impaired by a line of shrubs and foliage growing on a corner lot at the intersection which was owned by defendants Jerry and Barbara Schultz.

Plaintiff, as administrator of the decedent’s estate, brought a wrongful death action against Krupp alleging that Krupp negligently caused the collision. Plaintiff was granted leave to amend his complaint to name the Schultzes as additional defendants. In his amended complaint, plaintiff added four counts which alleged that the Schultzes had failed to maintain their property to allow for clear vision at the intersection in violation of two Mendota city ordinances. The Schultzes filed a motion to dismiss claiming that a possessor of land owes no duty to others who suffer injury outside the land by a natural condition of the land. The trial court granted the Schultzes’ motion to dismiss and made an express written finding that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff appeals the dismissal of his cause of action against the Schultzes, the only defendants involved in this appeal.

To state a cause of action for negligence, a complaint must allege facts sufficient to show the existence of a duty, a breach of that duty, and an injury to the plaintiff which was proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96.) In his amended complaint, plaintiff alleged that the following two Mendota city ordinances were in effect at the time of the accident:

“VISION CLEARANCE FOR CORNER LOTS On comer lots within that part of a yard located within a radius of 25 feet from the point of intersection of the two street right-of-way lines forming the lot comer, no structures or shrubs as herein permitted as obstructions in front yards or side yards adjoining a street, shall be erected altered or planted, which have a height more than 30 inches above the ground grade in this area, and trees planted in such areas shall be maintained in a manner that the trees shall not have branches lower than eight feet above the ground grade elevation in this area.” Mendota, Ill., Zoning Ordinance ch. 5, par. F (1972).
“TREES ON PRIVATE PROPERTY OVERHANGING HIGHWAY Every owner of any tree, shrub or plant growing on private property overhanging a public highway within the city of Mendota, shall trim the branches so that they shall not obstruct the light of any street lamp or obstruct the view of any street intersection, and so that there shall be a clear space of ten feet above the surface of the street or sidewalk. The owner shall remove all dead, diseased or dangerous trees growing on private property and overhanging the public highway within the City and shall remove broken or decayed limbs from such trees which may be considered a menace to the safety of the public.” (Mendota, Ill., Municipal Code ch. 6, par. 6.27 (1969).)

Plaintiff alleged that these ordinances imposed a duty on the defendants which they breached by maintaining shrubs and other foliage having a height of more than 30 inches within a 25-foot radius from the intersection in violation of the ordinances. Plaintiff also alleged that he was injured as a proximate result of the breach of duty by the defendants.

Upon review of a trial court’s decision to dismiss a cause of action under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action upon which relief may be granted. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657.) In making this determination, we must accept all well-pleaded facts in the challenged pleading as true. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 286, 499 N.E.2d 1319, 1322.

The question presented by this appeal is whether a city ordinance can establish a duty owed by a landowner to a plaintiff to whom no duty is owed at common law. We find that a city ordinance can impose such a duty under certain circumstances.

Initially, we note the opinion of Dean Prosser on this issue:

“The standard of conduct required of a reasonable man may be prescribed by legislative enactment. When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate. Within the limits of municipal authority, the same may be true of ordinances.” W. Prosser, Torts §36, at 190 (4th ed. 1971).

In their motion to dismiss, defendants claimed that they did not owe a duty to plaintiff’s decedent and therefore the complaint failed to state a cause of action against them. Defendants point out, and the plaintiff concedes, that there is no common law duty in lilinois on a landowner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. (Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 520 N.E.2d 1044; Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 512 N.E.2d 993, aff'd (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) However, the case law makes it clear that this rule applies in the absence of a statutory directive to the contrary. (Esworthy, 166 Ill. App. 3d at 879, 520 N.E.2d at 1046; Pyne, 159 Ill. App. 3d at 262, 512 N.E.2d at 997.) It is well established in Illinois that a violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 417, 170 N.E.2d 881, 886; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) A party injured by such a violation may only recover by showing that the violation proximately caused his injury and that the statute or ordinance was intended to protect a class of persons to which he belongs from the kind of injury that he suffered. Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 219-20, 384 N.E.2d 323, 326.

This rule was recently followed by our supreme court in Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 581 N.E.2d 656, where the plaintiff was injured when he slipped on a patch of ice and fell down a flight of stairs at a building owned by the defendant. Plaintiff alleged that the defendant negligently failed to provide a handrail on both sides of the stairway in violation of the Chicago Municipal Code. Defendant argued, inter alia, that it had no duty to protect the plaintiff from the natural accumulation of ice and snow and that plaintiff failed to prove that the defendant was negligent in not providing handrails on both sides of the stairwell. After citing the general rule that violation of a safety statute or ordinance is prima facie evidence of negligence, the court held as follows:

“We find that the ordinance is a public safety measure. Section 67 — 10.3(aXl) [of the Chicago Municipal Code] sets forth requirements for stairways generally that handrails be provided on each side ***. It is reasonable to conclude that a purpose of the ordinance is to prevent injuries as a result of falls down a stairway, such as Kalata’s fall in the instant case. [Citations.] Further, plaintiff, a regular user of the stairway, comes within the class of persons which the ordinance is designed to protect.” (Kalata, 144 Ill. 2d at 435, 581 N.E.2d at 661.)

In determining whether the violation of the ordinance proximately caused the plaintiff’s injuries, the court found that the plaintiff could have used the missing handrail to avoid injury and that the accumulation of snow and ice on the stairs was foreseeable. The court held the defendant liable, finding that “the presence of ice and snow [did] not break the causal connection between the violation of the ordinance and plaintiff’s injuries.” Kalata, 144 Ill. 2d at 439, 581 N.E.2d at 663.

In First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326, the plaintiff brought a negligence action against the City of Aurora to recover for injuries sustained in an automobile accident at an intersection. Plaintiff alleged that the city negligently allowed trees and shrubs on city property at the intersection to obscure the vision of motorists approaching the intersection in violation of State law and city ordinances. Two of the city ordinances cited by the plaintiff as having been violated provided as follows:

“ ‘No person owning or occupying any land or premises within the corporate limits of the city shall plant, construct or maintain upon said premises any hedges or board fences or other structure which will obstruct the view of any person driving along the streets of the city and approaching the intersections thereof, which is of a height greater than four (4) feet above the crown of the street, nor plant or maintain any plant, shrub, bush or other vegetation tending to obstruct such view, and which is of a height greater than four (4) feet above the crown of the street, on any lot abutting on intersecting streets nearer the point of intersection of the lot lines than five (5) feet plus the width of the building line setback established for said lot by the city.’ (Emphasis added.) [Citation.]
‘The streets and alleys in the city shall be kept free and clear of all obstructions, encumbrances and encroachments, for the use of the public, and shall not be used or occupied in any other way than as herein provided.’ [Citation.]” First National Bank, 71 Ill. 2d at 9-10, 373 N.E.2d at 1330.

The trial court dismissed the complaint against the City of Aurora, and the dismissal was affirmed on appeal. Our supreme court reversed, finding that the plaintiff’s complaint stated a cause of action. The court held that the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence and that “ ‘the party injured thereby has a cause of action, provided he comes within the purview of the particular ordinance or statute, and the injury has a direct and proximate connection with the violation.’ ” (First National Bank, 71 Ill. 2d at 9, 373 N.E.2d at 1330, quoting Dini, 20 Ill. 2d at 417-18, 170 N.E.2d at 886.) Upon reviewing the two ordinances involved, the court held that the plaintiff came within the purview of the ordinances, stating that “[t]here should be little doubt about the intent of the two provisions to provide protection for those traveling the streets.” First National Bank, 71 Ill. 2d at 10, 373 N.E.2d at 1330.

Similarly in this case, the clear intention of the ordinance entitled “Vision Clearance for Comer Lots” is to protect people traveling on the streets of Mendota, such as plaintiff’s decedent, from injury resulting from accidents at intersections caused by obstmcted vision. We find that plaintiff’s amended complaint sufficiently sets forth a cause of action against the defendants. Whether the death of the plaintiff’s decedent was proximately caused by the defendants’ violation of the ordinance is a question of fact for the jury. Davis, 64 Ill. 2d at 395.

The cases relied on by the defendants do not support their position. In Nichols v. Sitko (1987), 157 Ill. App. 3d 950, 510 N.E.2d 971, the plaintiff was struck and injured by a car while riding his minibike through an intersection. The driver’s visibility was allegedly impaired by five-foot-tall weeds and foliage growing at the intersection. Plaintiff brought a negligence action against the owner of the corner lot at the intersection alleging that the landowner had failed to trim his weeds to a reasonable height in violation of a city ordinance. The court first stated the general rule that a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land. However, after citing the rule concerning violation of a safety statute or ordinance, the court went on to discuss whether the city ordinance imposed a statutory duty on the defendant.

“The Willow Springs ordinance that Nichols attempts to impose liability under essentially provides that the growth of weeds in excess of six inches in height is to be considered a public nuisance. Applying the above-stated principles to this ordinance, it is our view that the ordinance cannot properly be interpreted either generally, as a public safety measure intended to protect human life or property of a particular class of individuals, or specifically, as a measure to protect Nichols from the type of harm he suffered.” Nichols, 157 Ill. App. 3d at 954, 510 N.E.2d at 974.

Defendants’ reliance on Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365, and Cross v. Moehring (1989), 188 Ill. App. 3d 830, 544 N.E.2d 1259, is also misplaced. Both of those cases stand for the general proposition that a landowner has no common law duty to maintain his property to provide clear vision for persons traveling on an adjacent roadway. In neither case did the plaintiff allege that violation of a statute or ordinance gave rise to a statutory duty.

Defendants contend that a violation of a safety statute or ordinance is prima facie evidence of a breach of duty, but that a statute or ordinance cannot serve to extend a duty where none exists at common law. An analysis of the cases discussed above indicates that this is not the state of the law in Illinois. Kalata, First National Bank, Pyne, and others all deal with the imposition of a statutory duty where no duty existed at common law. See also Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738; Abernathy v. Dynell Springs Co. (1989), 179 Ill. App. 3d 138, 534 N.E.2d 486.

In his well-reasoned special concurrence in Lemings v. Collinsville School District Number Ten (1983), 118 Ill. App. 3d 363, 454 N.E.2d 1139, Justice Jones gives an in-depth analysis of the concepts of duty and proximate cause. Concerning duties imposed by statute, he states as follows:

“Some Illinois courts have recognized in express terms the function of the scope or range of protection of duty in a number of cases. The cases that follow are illustrative.
* * *
First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326, *** and Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, state that the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence and that an injured party has a cause of action if he was intended to come within the scope of the protection afforded by the statute or ordinance. *** [TJhose cases involved duties that were created by statute or ordinance ***.
* * *
In Ney v. Yellow Cab Company (1954), 2 Ill. 2d 74, 117 N.E.2d 74, *** [a] provision of a statute regulating traffic on highways required persons who leave motor vehicles unattended to lock the ignition and remove the key. Thus, a duty was imposed by statute." (Emphasis added.) Lemings, 118 Ill. App. 3d at 370-71, 374, 454 N.E.2d at 1143-44, 1146.

Finally, defendants contend that the imposition of a duty on landowners based on a city ordinance will have the effect of varying liability throughout the State. In light of Kalata and First National Bank, that is already the case.

For the reasons stated above, the order of the circuit court of La Salle County is reversed and this matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE McCUSKEY JUSTICE HAASE,

text:
      In re MARRIAGE OF MARIA I. ESCATEL, Petitioner-Appellee, and JOSE M. ESCATEL, Respondent-Appellant.
    Third District
    No. 3—91—0184
    Opinion filed March 20, 1992.
    HAASE, J., specially concurring.
    Kenneth A. Kozel, of Petz & Kozel, of La Salle (Kevin Kelly, of counsel), for appellant.
    Olivero & Olivero, of Peru (Lisa Olivero, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioner, Jose M. Escatel, appeals portions of the judgment dissolving his marriage to respondent, Maria I. Escatel.

Jose raises three issues on appeal: (1) whether the trial court properly entered the judgment dissolving the marriage; (2) whether the trial court abused its discretion in classifying and dividing the marital property; and (3) whether the trial court’s order granting Maria custody of the minor children was against the manifest weight of the evidence. For reasons which follow, we reverse and remand.

Jose and Maria Escatel were married in 1975. Three minor children were born of the marriage. On January 23, 1990, Maria filed a petition for dissolution of marriage, alleging mental cruelty. On February 13, 1990, Jose counterpetitioned for dissolution of marriage, also alleging mental cruelty. Jose denied the allegations contained in Maria’s petition. A hearing on temporary custody was held on April 9, 1990. The trial court awarded Maria temporary custody of the minor children. The issue of child support was reserved by the trial court.

On December 4, 1990, a contested trial was held on the grounds for dissolution of marriage. Both parties presented conflicting testimony. Maria testified that Jose repeatedly was drunk and threatened to hurt her. Jose testified that Maria went out regularly during the evening and returned early in the morning after drinking. Jose alleged that Maria frequently engaged in extramarital relationships and publicly bragged about these relationships. Each party had numerous witnesses corroborate his or her testimony.

The trial court found Maria and Jose had each established separate grounds for dissolution of marriage and that both were entitled to a divorce. The trial court made the following findings in the judgment for dissolution of marriage:

“7. Without cause or provocation by the Petitioner, the Respondent has been guilty of extreme and repeated mental cruelty towards the Petitioner.
8. Without cause or provocation by the Respondent, the Petitioner has been guilty of extreme and repeated mental cruelty towards the Respondent.”

Jose contends the trial court erred in finding both parties guilty of extreme and repeated mental cruelty without cause or provocation by the other. We agree.

Our supreme court has previously addressed this very issue in the case of In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 440 N.E.2d 840. In Eltrevoog, the trial court made the following findings:

“5. That without cause or provocation by the Petitioner, the Respondent has been guilty of extreme and repeated mental cruelty toward the Petitioner as charged in her Petition for Separate Maintenance and the Petitioner has proved the material allegations of her Petition for Separate Maintenance.
6. That without cause or provocation by the Respondent, the Petitioner has been guilty of extreme and repeated mental cruelty toward the Respondent as charged in his Counter-Petition for Dissolution of Marriage and the Respondent has proven the material allegations of his Counter-Petition for Dissolution of Marriage by substantial, competent and relevant evidence, and that a Judgment for Dissolution of Marriage should be entered herein.” Eltrevoog, 92 Ill. 2d at 69-70, 440 N.E.2d at 842.

The supreme court in Eltrevoog held “[t]hose separate findings by the trial court are totally inconsistent and wholly irreconcilable.” (Emphasis added.) (Eltrevoog, 92 Ill. 2d at 70, 440 N.E.2d at 842.) The supreme court also stated:

“Had the trial court judge found solely in favor of either spouse’s petition, we could not say that it would be against the manifest weight of the evidence. But the trial court’s findings that Alice Eltrevoog was without fault and Ebert was guilty of extreme and repeated mental cruelty towards her, while simultaneously finding that Ebert Eltrevoog was without fault and Alice was guilty of extreme and repeated mental cruelty towards him, simply contradict one another. Such findings cannot stand together.” (Emphasis added.) Eltrevoog, 92 Ill. 2d at 71, 440 N.E.2d at 842-43.

We find no distinction between the trial court’s findings in this appeal and the trial court’s findings in Eltrevoog. In both appeals, the trial court’s findings are inconsistent.

While Eltrevoog dealt with a petition for separate maintenance and a counterpetition for dissolution of marriage, and this appeal deals with a petition and counterpetition for dissolution of marriage, we find no actual distinction between the two cases. The court in Eltrevoog noted that the same statutory grounds were required to be proven for either petition. (Eltrevoog, 92 Ill. 2d at 70, 440 N.E.2d at 842.) Likewise, we find the same situation in this appeal. Accordingly, we find the trial court’s inconsistent and contradictory findings are against the manifest weight of the evidence and must be reversed.

In summary, we vacate the judgment for dissolution of marriage and remand for a new trial. All temporary orders of the trial court entered prior to the now-vacated judgment for dissolution of marriage shall remain in full force and effect pending further proceedings. In light of our findings, we decline, at this point, to address the other issues raised by Jose in this appeal.

The judgment of the circuit court of Bureau County is vacated, and the cause is remanded for further proceedings consistent with the findings expressed in this opinion.

Reversed and remanded.

BARRY, RJ., concurs.

JUSTICE HAASE,

specially concurring:

While I agree that the law in Illinois is correctly stated in the court’s opinion and I concur in that opinion, I write specially because of a perceived problem with the grounds portion of the Illinois Marriage and Dissolution of Marriage Act. Illinois has always been a “grounds” State. The closest that the Illinois legislature has come to establishing no fault divorce is contained in the provision for no fault divorce based on irreconcilable difference (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(2)) after the parties have lived separate and apart for a period of two years. In the case at bar, I agree that the trial judge’s findings were error under the law and must be reversed. However, if these parties are still separated as they were at the time of the trial, they are entitled to have a no fault divorce based on irreconcilable difference after two years of separation.

The requirement for grounds in Illinois is largely ignored by the litigants, the attorneys and the trial judges of this State. One can go to almost any courthouse in the State and find divorce grounds prove ups which last less than five minutes. Trial judges throughout the State have approved grounds portions of prove ups where the grounds are so thin as to not being grounds at all. However, the parties, the lawyers and the judges all recognize that once the marriage is truly over, it is over and no amount of legislation about grounds is going to fix it.

For years the judiciary has corrected the problem for the litigants where the grounds are very slim but the parties nevertheless decide to be divorced. Whether it is preferable to have a dissolution of marriage act which provides for strict grounds, or whether it is preferable to have a no fault dissolution of marriage act is not for the court to say. Those are questions which the people represented by their representatives in the General Assembly are to decide. However, the current practice in this State is 180 degrees out from the law as stated in the statute and cases such as Eltrevoog cited in the court’s opinion. Those judges who have presided in family court cases for years know that in many cases each of the parties has grounds against the other. In many cases these grounds are not provoked on either side. There are people in marriage who both treat each other shabbily. The present Illinois Marriage and Dissolution of Marriage Act flies in the face of reality and human practice when it calls for one party to prove grounds without any fault on his or her part.

It is the opinion of this humble writer that it is time for the legislature of this State to take another look at the Illinois Marriage and Dissolution of Marriage Act. The legislature should either make clear that this is a strict grounds State and you will not be able to get divorced absent a showing of strict grounds, or should do away with the grounds requirement altogether and make this a no fault divorce State.

The present practice creates a giant fiction out of the grounds requirement. That fiction tends, in this writer’s opinion, to bring the entire process into disrepute. It also allows one party or another to use the grounds requirement as a lever or bargaining chip in the negotiating process. If the legislature feels that the grounds requirement is somehow saving the marriages in this State, then it is sadly mistaken. Recent statistics show us that close to 50% of marriages end in divorce in any event. And the requirement for grounds saves very few, if any, marriages.

In the instant case, the court’s order will require the parties to go through another trial to deal with some of the most difficult issues there are in jurisprudence. Contested child custody proceedings are very difficult on all the parties and especially on the children involved.

Therefore, while I agree with the court’s opinion as a statement of current Illinois law, I think the result reached is unfortunate. To remand this case for retrial in a marriage that is over is a shame. No purpose will be served other than to satisfy a requirement of Illinois that is largely ignored in most cases.


author: JUSTICE HAASE

text:
    THE COUNTY OF WILL, Plaintiff-Appellant, v. THE VILLAGE OF ROCKDALE, Defendant-Appellee.
    Third District
    No. 3—91—0433
    Opinion filed March 20, 1992.
    Edward A. Burmila, Jr., State’s Attorney, of Joliet (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    James E. Babcock, of Wright & Babcock, Ltd., of Joliet (William G. Troka, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, County of Will (the County), brought this action against the defendant, Village of Rockdale (the Village), seeking a declaratory judgment that the county treasurer was not required by law to bill and collect the Village’s special service area tax. The special tax was based upon the amount of front footage of property in a special service area pursuant to section 10 of “An Act to provide the manner of levying or imposing taxes for the provision of special services within the boundaries of *** municipalities and counties” (Ill. Rev. Stat. 1989, ch. 120, par. 1301 et seq.) (hereinafter the Special Services Area Tax Act). The trial court ruled that the county clerk has the responsibility of extending the tax and the county treasurer has the duty to bill and collect it. The County appeals from that decision.

The record shows that the Village passed three ordinances providing for: (1) a special service area for the construction of water mains and incidental improvements; (2) the borrowing of money to finance the project; (3) a tax levy and the issuance of bonds; and (4) a special tax roll of real property owners in the service area. The special tax was not based on assessed values of the real property. Rather, it was based on the percentage of front footage of each parcel to the total front footage of the streets in the special service area. Since the tax provided a rational relationship between the amount of the tax levied against each parcel and the special service benefit rendered, it was proper under section 10 of the Special Services Area Tax Act. Ill. Rev. Stat. 1989, ch. 120, par. 1310.

Thereafter, the county clerk extended the taxes, but the Village refused to bill and collect them. The County subsequently filed a complaint seeking a declaratory judgment that the county treasurer was not required by law to bill and collect the taxes.

At a hearing on the County’s complaint, Deputy County Clerk Tim Reading testified that the county clerk extended the special service area tax at issue here. Reading stated that a problem was created in this case because the tax levy was based upon front footage and the county’s property tax billing system was based solely on assessed values of property. He further stated that this was the first time that a special service area tax was calculated on a basis other than assessed value.

Reading noted that special assessment taxes under the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1—1—1 et seq.) are billed and collected by the municipality, whereas special service area taxes based on assessed value are billed and collected by the county treasurer. He further noted that when special assessment taxes or special service area taxes by assessed value are delinquent, the county treasurer proceeds with the sale of the delinquent property.

County Treasurer Jack Weber testified that his office’s computer program was not set up to handle billing based on front footage, his office had never billed for a special service area based on front footage, and to do so would require a separate tax bill. He noted, however, that the County would not be required to set up a separate tax system for delinquent tax sales. Weber further testified that the County contained a total of 191 taxing districts.

George Dolak, a data processor for the County, testified that it would take 120 hours to create a new billing program based on front footage. He later clarified that in this case it would only take a few hours to type the necessary information about the properties into the computer and then print out a bill. Dolak also stated that the collecting aspect would be the most difficult.

The sole issue presented on appeal is whether the county treasurer is required to bill and collect a special service area tax based on front footage.

Section 10 of the Special Services Area Tax Act provides in part:

“If a property tax is levied the tax shall be extended by the county clerk in the special service area in the manner provided by the Revenue Act of 1939 based on assessed values as established pursuant to the Revenue Act of 1939. ***
In lieu of or in addition to such property tax, a special tax may be levied and extended within the special service area on such other basis as provides a rational relationship between the amount of such tax levied against each lot, block, tract and parcel of land in the special service area and the special service benefit rendered; a special tax roll shall be prepared ***. Said special tax roll shall be included in the ordinance establishing the special service area *** and shall be filed with the county clerk for use in extending the tax. The lien and foreclosure remedies provided in Article 9 of the Illinois Municipal Code, as amended, shall apply upon non-payment of such special tax.” Ill. Rev. Stat. 1989, ch. 120, par. 1310.

In construing the above-quoted statute, we note that taxing statutes are to be strictly construed, and the language is not to be extended or enlarged by implication beyond its clear import. (First National Bank v. Department of Revenue (1981), 85 Ill. 2d 84, 421 N.E.2d 175.) Furthermore, statutes in pari materia should be construed together so that they may be given harmonious effect. (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1983), 119 Ill. App. 3d 1085, 457 N.E.2d 1291.) This is especially true where one act makes a cross-reference to another act. Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 508 N.E.2d 1058.

In the instant case, the language of section 10 of the Act does not provide that the county treasurer collect a special service area tax which is calculated on a basis other than assessed value. The first paragraph of section 10 describes a “property” tax based on assessed value in accordance with the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 482 et seq.). However, the second paragraph of that same section describes “a special tax” which is “[i]n lieu of or in addition to such property tax.” The second paragraph does not mention the Revenue Act. Instead, it specifically refers to the applicability of the lien and foreclosure remedies of article 9 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 9—1—1 et seq.).

Since section 10 makes a cross-reference to the Illinois Municipal Code, we will construe the statutes together so as to give them harmonious effect. In so doing, we find that a special service area tax based on front footage more closely resembles a special tax or a special assessment under the Illinois Municipal Code. (See Ill. Rev. Stat. 1989, ch. 24, pars. 9—2—41, 9—2—42.) Such taxes under the Code are the responsibility of the municipality to bill and collect. Accordingly, we find that absent a clear mandate from the legislature, the County should not be burdened with billing and collecting this special service area tax based on front footage.

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

Reversed.

GORMAN and McCUSKEY, JJ., concur.


text:
    ABDUL MAJID, Plaintiff-Appellee, v. ROBERT STUBBLEFIELD, Defendant-Appellant (Jean Stubblefield, Defendant).
    Third District
    No. 3-91-0487
    Opinion filed March 20, 1992.

      Charles L. Bretz and E. Kent Ayers, both of Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellant.
    Robert Steele, of Aplington, Kaufman, McClintock, Steele & Barry, Ltd., of La Salle (Raymond R. Nolasco, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant, Robert Stubblefield, appeals a judgment in the amount of $250 entered in favor of the plaintiff, Dr. Abdul Majid. For reasons which follow, we affirm in part, reverse in part, and modify the judgment.

Dr. Majid filed a small claims complaint against Robert and Jean Stubblefield seeking $250 in unpaid medical fees. Dr. Majid charged $100 for an office consultation and $750 for surgery performed on February 7, 1989, which involved kidney stone manipulation and removal (the surgery). Robert Stubblefield and Dr. Majid had no agreement concerning the amount of doctor’s fees. Stubblefield paid only $75 toward the office consultation and only $525 for the surgery. Stubblefield refused to pay $250 of the medical fees which he claimed were excessive and unreasonable.

At the beginning of the bench trial, the trial court stated:

“I indicated before we began and Mr. Steele made a motion that Rule 286(b) applies; therefore, the only objections that I will entertain would be as to relevancy. Everything is admissible that’s relevant.”

We note “Rule 286(b)” referred to by the trial court is Supreme Court Rule 286(b) (134 Ill. 2d R. 286(b)). Also, Stubblefield’s counsel did not object to this procedure.

Patty Harvey, Dr. Majid’s secretary and office manager, was the plaintiff’s only witness. The gist of Harvey’s testimony was that Dr. Majid’s charges of $100 for Stubblefield’s office consultation and $750 for his surgery were the usual and customary charges in La Salle, Bureau, and Grundy Counties for this type of urological procedure. Harvey based her opinion upon telephone calls she made to the office secretaries of Dr. Levisay in Spring Valley and Dr. Baxi in Streator. These are the only other urologists in La Salle, Bureau, and Grundy Counties. Dr. Levisay’s office said he would charge $1,800 for the surgery. Dr. Baxi’s office said he would charge $1,078.56. Harvey did not talk personally to either doctor.

Following Harvey’s testimony, the defendant moved for a directed finding in his favor. The trial court responded by saying:

“Motion is denied. If the case were not tried under 286(b), the result might be different as far as the proof of reasonable and customary charges. But the witness checked with all others in the area, and granted an increase over a two-year period, the charge in this case is substantially less than the others charge in the area.”

The defense called Dr. Robert Hertenstein, the medical director of group insurance for Caterpillar, Inc. Dr. Hertenstein collects, analyzes, and compares data from medical claims throughout the United States. He testified that he is familiar with the fees charged by doctors for various medical procedures in different geographic regions. Dr. Hertenstein said he found a uniformity in medical fees charged throughout Central Illinois.

Dr. Hertenstein reviewed Dr. Majid’s medical records pertaining to Robert Stubblefield’s surgery. He determined that Stubblefield’s surgery was not complicated. He stated the surgical procedure involved about 10 minutes. He then compared 19 area doctors’ claims for the same type surgery. The surgical charges he reviewed ranged from $480 to $525. Dr. Hertenstein also testified that two urologists in Aurora, Illinois, charged $545 for the same surgery. He stated that in his opinion $525 would be the usual and customary fee in Dr. Majid’s geographical area for performing this surgery. Dr. Hertenstein concluded that Dr. Majid’s $750 surgical fee was excessive.

Dr. Hertenstein also determined that Dr. Majid’s office consultation with Stubblefield was an intermediate type consultation as opposed to either a brief or complex consultation. Dr. Hertenstein testified that he reviewed 299 claims in Dr. Majid’s general area to analyze the cost of similar intermediate office consultations. He determined that the usual and customary fee for an intermediate office consultation in Dr. Majid’s area was $75. He concluded that Dr. Majid’s $100 consultation fee was excessive.

Dr. Hertenstein admitted on cross-examination: (1) he had not reviewed any surgery claims from Dr. Levisay or Dr. Baxi; (2) he based his opinion solely upon information received from doctors based in Peoria, Canton, Bloomington, and Pontiac; and (3) the 19 claims for surgery he analyzed were not from Bureau, La Salle, or Grundy County.

Following the bench trial, the trial court entered a $250 judgment against Stubblefield. The trial court in the judgment order noted “that a different result would have occurred without the use of Supreme Court Rule 286(b).”

Stubblefield claims on appeal the trial court made the following errors: (1) it improperly applied Supreme Court Rule 286(b); (2) it abused its discretion by allowing into evidence certain portions of Patty Harvey’s testimony; (3) it erred in denying his motion for a directed finding; (4) it erred in determining what area or community should be considered for the purpose of calculating the usual and customary medical fees; and (5) its findings were contrary to law and against the manifest weight of the evidence.

First, we will review whether the trial court improperly applied Supreme Court Rule 286(b), which provides in part:

“In any small claims case where the amount claimed by any party does not exceed $1,000, the court may, on its own motion or on motion of any party, adjudicate the dispute at an informal hearing. At the informal hearing all relevant evidence shall be admissible and the court may relax the rules of procedure and the rules of evidence.” (134 Ill. 2d R. 286(b).)

Stubblefield has cited no case which would preclude the use of Supreme Court Rule 286(b) in a small claims case where the amount claimed does not exceed $1,000. Stubblefield argues this rule should most appropriately be applied only in cases involving pro se litigants. Again, he offers no law to support this position. We reject this argument as having no merit. The rule is unambiguous and does not state any distinction between any class of litigants involved in small claims cases not exceeding $1,000. We have already noted that Stubblefield did not object at trial to the trial court’s use of this procedure. Therefore, we find Stubblefield acquiesced in the informal trial procedure which relaxed the rules of evidence. Our review of the record indicates that Patty Harvey’s testimony, while otherwise inadmissible hearsay, is relevant evidence admissible under the relaxed rules of evidence allowed by Supreme Court Rule 286(b). Therefore, we do not find the trial court abused its discretion either by invoking the use of Supreme Court Rule 286(b) or by allowing into evidence otherwise inadmissible hearsay.

Next, we review whether the trial court erred in denying Stubblefield’s motion for a directed verdict. The standard on review for determining whether a verdict should have been directed is found in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, wherein the supreme court stated:

“[YJerdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

In ruling on a motion for directed verdict at the close of the plaintiff’s case in a bench trial, the trial court is to weigh the evidence, pass on the credibility of the witness, and further consider the weight and quality of all the evidence including that which is favorable to the defendant. (Hemken v. First National Bank (1979), 76 Ill. App. 3d 23, 25, 394 N.E.2d 868, 871.) The trial court’s decision is to be reversed only when it is contrary to the manifest weight of the evidence. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 58, 349 N.E.2d 399, 408.) We find Patty Harvey’s testimony was sufficient to support the trial court’s decision to deny Stubblefield’s motion for directed verdict. The trial court clearly noted for the record that its decision would have been different were it not for Supreme Court Rule 286(b). We agree. We find no abuse of the trial court’s discretion.

Additionally, Stubblefield argues the trial court erred in determining what area or community should have been considered for the purpose of calculating Dr. Majid’s usual and customary fees. Stubblefield cites Victory Memorial Hospital v. Rice (1986), 143 Ill. App. 3d 621, 493 N.E.2d 117, as the leading case establishing what a medical provider must prove in order to recover payment for its bills under an implied contract theory. We agree. Victory Memorial Hospital held that when a hospital seeks to establish its charges are reasonable, the hospital must prove its charges are the usual and customary charges for that particular hospital and they are comparable to the charges of other area hospitals. (Victory, 143 Ill. App. 3d at 624-25, 493 N.E.2d at 119-20.) While Victory Memorial Hospital dealt solely with hospital charges, we find that its holding also extends to doctors’ fees.

In the instant appeal, the trial court determined that the only area it would consider when calculating the reasonableness of Dr. Majid’s fees was the area which included Spring Valley, Morris, and Streator. The trial court announced its reasoning when it denied Stubblefield’s motion to reconsider. The trial court explained its determination as follows:

“With respect to the area in question, it is conceded that there are no cases on this subject with respect to medical bills so we rely on the area in question in medical malpractice cases. And being somewhat familiar with that I submit that Peoria is not included, that the area would be that area covered by the three prices that were considered by the Trial Court — -the Court at trial being Spring Valley, Morris, and Streator.
*** So I find that the area in question is that of the Illinois Valley and does not include any communities of 50,000 or more such as Bloomington, Aurora, or Peoria.”

Based upon our review of the record, we find that the trial court based its decision upon Patty Harvey’s testimony when it determined the appropriate geographical area to be used in calculating the reasonableness of Dr. Majid’s fee. Harvey testified that the three urologists located in Streator, Spring Valley, and Morris were the only urologists in La Salle, Bureau, and Grundy Counties. Her testimony was uncontradicted. Stubblefield alleges the trial court erred when it did not expand the geographical area to include the larger urban areas of Peoria, Bloomington, and Aurora. We note these urban areas are many miles away from Dr. Majid’s general area of practice, which is located in La Salle, Bureau, and Grundy Counties. Stubblefield has cited no cases which would compel this court to find the trial court abused its discretion when making its determination. Based on the evidence, we find no abuse of discretion. Furthermore, we find the trial court’s determination of the appropriate geographical area to be supported by the manifest weight of the evidence.

Finally, Stubblefield argues the trial court’s findings were against the manifest weight of the evidence and contrary to law. A court of review should not disturb a trial court’s findings and substitute its own opinion unless the findings are against the manifest weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, 1210.) For a judgment to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evident. (In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 805, 482 N.E.2d 161, 167.) Stubblefield alleges the record is barren of any evidence which would support the finding that Dr. Majid’s $750 surgical charge was reasonable. We disagree. A brief review of the evidence shows that Dr. Majid’s office manager, Patty Harvey, testified the surgical fees charged by Dr. Levisay and Dr. Baxi exceeded those of Dr. Majid. The record is uncontradicted that these three doctors are the only urologists practicing in La Salle, Grundy, and Bureau Counties. While Dr. Hertenstein found Dr. Majid’s surgery fee to be excessive, we note he not not review the surgical fees of Dr. Levisay or Dr. Baxi. Nor did Dr. Hertenstein analyze any other medical data from La Salle, Bureau, and Grundy Counties. All of the medical information reviewed by Dr. Hertenstein came from Peoria, Bloomington, Canton, Pontiac, and Aurora. The trial judge as fact finder occupies a better position than a reviewing court to weigh the evidence and observe the manner and demeanor of the witnesses. Our review of the record indicates there is sufficient evidence to support the trial court’s finding that Dr. Majid’s $750 surgical fee was reasonable and not excessive.

However, we cannot find any evidence to support the trial court’s determination that Dr. Majid’s $100 office consultation fee was reasonable. Our review of the record indicates that Patty Harvey made no inquiry of Dr. Levisay and Dr. Baxi concerning their office consultation fees. Accordingly, the trial court is reversed on this finding.

Where there is a contract, be it express or implied, the law in Illinois implies that there is an agreement to pay only a reasonable price for the goods and services where there is no provision setting out the amount the supplier is to be compensated. (Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 1031, 424 N.E.2d 1302, 1305.) Dr. Majid failed to carry his burden of proof when he presented no evidence concerning the reasonableness of his office consultation fee. The record shows that prior to this litigation, Stubblefield paid $75 toward Dr. Majid’s office consultation bill. We also find that Dr. Hertenstein determined $75 would be the usual and customary fee for Dr. Majid’s office consultation.

Therefore, pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we hereby modify the judgment order to reflect our finding in. this case that $75 is the usual and customary fee for Dr. Majid’s office consultation.

Accordingly, we enter judgment in favor of Dr. Majid in the amount of $225. The judgment of the circuit court of La Salle County is affirmed in part, reversed in part, and modified.

Affirmed in part; reversed in part and modified.

GORMAN and HAASE, JJ., concur.


text:
    DAN ILOH, Plaintiff-Appellant, v. ELEANOR STEIN, Defendant-Appellee.
    Third District
    No. 3-91-0097
    Opinion filed March 20, 1992.

      Diane Greanias, of Warren E. Danz, P.C., of Peoria, for appellant.
    Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (Bradley W. Dunham, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff appeals the dismissal of his complaint and the denial of his motion to reconsider. The issue presented is whether language on the face of a check issued on behalf of defendant and accepted by plaintiff operates as a release to bar plaintiff’s present cause of action. We conclude that the trial court erred in determining that the check operated as a release of plaintiff’s claim. Therefore, we reverse the dismissal of plaintiff’s complaint.

Plaintiff, Dan Iloh, filed suit against defendant, Eleanor Stein, for injuries allegedly sustained in an automobile accident. Defendant served plaintiff with a request for admissions pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216). Defendant requested that plaintiff admit that an exhibit attached to the request was an accurate copy of a check issued to plaintiff by defendant’s insurance carrier for bodily injury claims arising from the accident. The request further alleged that plaintiff endorsed and deposited the check, retaining the proceeds thereof, and that no portion of the monies was returned.

Defendant also filed a motion for dismissal of the action pursuant to section 2 — 619(a)(6) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(6)) based upon plaintiff’s acceptance of the purported settlement check. Defendant alleged that the release and satisfaction of plaintiff’s bodily injury claims barred the instant suit.

Plaintiff responded to the request to admit well past the 28 days required in Rule 216(c). (134 Ill. 2d R. 216(c).) Plaintiff’s response included a number of affidavits concerning the circumstances surrounding the negotiation of his claim and his acceptance of the check.

The trial court granted defendant’s motion to strike the late-filed response. Also stricken were plaintiff’s memoranda and additional affidavits filed in opposition to defendant’s motion to strike. Without any specific findings, the court granted defendant’s motion to dismiss. Plaintiff’s motion for reconsideration was denied, and he appeals.

We note that plaintiff concedes that by failing to timely respond, he admitted the matters set forth in the request. Our court has consistently held that a litigant’s failure to file a timely response under Rule 216(c) results in automatic admission of the facts as stated in the request. (Johannsen v. General Foods Corp. (1986), 146 Ill. App. 3d 296, 496 N.E.2d 544.) As a result of the trial court’s action striking plaintiff’s response, as well as plaintiff’s supplemental affidavits and memoranda, our review of the record does not include plaintiff’s statements concerning the circumstances surrounding the purported settlement of his claim.

In support of her motion to dismiss, defendant filed two affidavits from Lisa Sipp, a claims representative with Allstate Insurance Company, defendant’s insurance carrier. Ms. Sipp stated that she met with plaintiff three days after the accident and received a telephone call from him three weeks after the accident. On both occasions he refused her offer of $75 as “final settlement” for his bodily injury claim. At their last meeting five weeks after the accident, Ms. Sipp stated that she and plaintiff discussed his bodily injury claim. She asked plaintiff if he had visited a doctor, and he replied “no.” Ms. Sipp stated that she then offered $160, representing $85 in lost wages and $75 to cover any other claimed losses for bodily injury. Plaintiff accepted. She stated that she issued a check to plaintiff for $160. On the face of the check, Ms. Sipp wrote the following notation on three middle lines next to the preprinted words “IN PAYMENT OF”:

“Settlement of claim under Bodily Injury coverage arising from accident on 6/5/9 [sic].”

Ms. Sipp stated that she tendered the check with the explanation that it represented full and final settlement of plaintiff’s bodily injury claim. She further stated that plaintiff accepted the check without qualification. In a supplemental affidavit, Ms. Sipp attached a copy of a traffic accident report, which reported “no indication of injury” by plaintiff. Ms. Sipp stated that she relied upon this report in her “settlement negotiations” with plaintiff. Ms. Sipp stated that Allstate does not require execution of a “formal” written release for “claims of this size ($160).” Ms. Sipp stated that she issued the check with the intention of making full and final settlement of any and all of plaintiff’s bodily injury claims.

Plaintiff maintained in his motion for reconsideration that he sustained injuries to his back from the impact of the accident and that he has incurred chiropractic bills exceeding $1,000 for treatment of his injuries. He states that he was unaware of the nature, extent, severity and permanence of his injuries at the time he accepted the $160 check from defendant’s insurance carrier. He argues on appeal that a mutual mistake of fact requires rescission of the check’s operation as a release.

Plaintiff has the burden of establishing that a mutual mistake of fact occurred and that the settlement of $160 was unconscionable. (Antal v. Taylor (1986), 146 Ill. App. 3d 863, 867, 497 N.E.2d 305, 307.) All the facts, including those which become known after the release has been executed, must be considered in determining whether there was a mutual mistake of fact and whether or not the settlement was unconscionable. Newborn v. Hood (1980), 86 Ill. App. 3d 784, 786, 408 N.E.2d 474, 476.

Neither party to this appeal recognizes, however, that application of the rules regarding the setting aside of releases of personal injury claims presumes the existence of a valid release.

This court was presented with the identical issue on similar facts in Gutierrez v. Schultz (1982), 109 Ill. App. 3d 372, 440 N.E.2d 451. The plaintiff in Gutierrez cashed a $6,000 check from Allstate Insurance Company, the defendant’s insurance carrier, after filing an action against defendant for injuries sustained when he was struck by a truck driven by defendant. On the face of the check, next to the words “In payment of,” were the typewritten words “Any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, Ill.” (Gutierrez, 109 Ill. App. 3d at 377, 379, 440 N.E.2d at 455, 456.) The court concluded that a genuine issue of fact existed as to whether the plaintiff intended his endorsement to be a release of all claims. (Gutierrez, 109 Ill. App. 3d at 378, 440 N.E.2d at 455.) Following a discussion of cases involving words of release on the back of an endorsed check, the court in Gutierrez reasoned:

“In those cases the language with respect to release, while general, was clear and direct, and it was on the reverse side of the check, where an endorser would be sure to notice it, before endorsing. In the instant case, the language on the check did not use the words release, discharge, settle, or even payment in full. Furthermore, the language of release *** herein was in regular size print in the middle of the front of the check. We are not dealing in this case with a document entitled release and settlement, but rather with a document whose primary stated purpose and whose outward formal characteristics indicate that it is merely a check. *** This document, except for the sentence with respect to what the payment was being made for, was in all other respects a check.” (Emphasis in original.) Gutierrez, 109 Ill. App. 3d at 377, 440 N.E.2d at 455.

In the instant case, as in Gutierrez, the language of release was in the middle of the front of a check. The words “release,” “discharge,” or “payment in full” were not used. Although the word “[settlement” was included, it is used in conjunction with language referring to a claim made under the insured’s “Bodily Injury coverage.” This language could conceivably be disregarded by plaintiff as a company memorandum referencing the source of funds to pay the claim. Also, no words of completeness, such as “any and all claims” were present. Finally, the purported release, while not completely illegible, was nonetheless handwritten, in contrast to the typed language appearing on the check in Gutierrez. Cf. Schultheis v. McWilliams Electric Co. (1991), 219 Ill. App. 3d 571, 579 N.E.2d 1100 (plaintiff’s endorsement and cashing of check with knowledge of contents of accompanying letter demonstrated intent to release defendant from claim).

We find the language on the check endorsed by plaintiff was insufficient to operate as a release of his bodily injury claims against defendant. We conclude that the check is not a bar to plaintiff’s present cause of action. Accordingly, we reverse the dismissal of plaintiff’s complaint and remand for further proceedings.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.