author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM WEBB, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0714
    Opinion filed May 3, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Linda S. Halperin, Assistant State’s Attorneys, of counsel), for the People.
    Thomas C. Brandstrader, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

In this appeal the State seeks to overturn an order of the circuit court of Cook County which rescinded the statutory summary suspension of defendant's driving privileges. The rescission order was entered before the suspension took effect and was based on the court’s determination that defendant had been denied his due process right to a fair and prompt hearing when his petition for rescission was not heard within 30 days of its filing. The State now challenges the correctness of that determination.

The record shows that on January 1, 1988, Glenview police officer Mark Greene cited defendant for driving under the influence of liquor in violation of the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(2).) The breath test which followed his arrest disclosed an alcohol concentration of 0.12, and based on this result, Greene immediately notified defendant that his driving privileges would be suspended for a minimum of three months. On January 19, 1988, the office of the Secretary of State sent defendant a confirmation of this three-month suspension effective February 16, 1988.

In the meantime, defendant filed a petition to rescind the statutory summary suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1.) The record shows that defendant’s petition was filed on January 4, 1988, and was called before the court on February 5, 1988. This February date coincided exactly with the appearance date set forth on the traffic citation issued to defendant and was also reflected on defendant’s petition to rescind. When the case was called, defense counsel filed his appearance and advised the court of the pending petition to rescind. Counsel then requested leave to file a motion to dismiss the statutory summary suspension of defendant’s driving privileges based on the fact that a hearing had not been held on defendant’s rescission request within 30 days of its filing as mandated by statute.

The State informed the court that defendant’s notice to the State was postmarked January 29, 1988, but was not actually received in the State’s Attorney’s office until February 2, 1988. Thus, the prosecution argued, the State did not have sufficient time to advance defendant’s case to meet the 30-day statutory time provision, but that it was ready to proceed with the hearing on this date which, the State pointed out, coincided with the first appearance date on the traffic citation and thereby conformed with the second time provision set forth in the statute.

After considering the motion, the court ruled that defendant’s notice to the State was adequate since it conformed with the notice required in civil proceedings, then addressed the substantive issue raised by the defense. The court commented on the need for guidance regarding the proper interpretation to be given the time frames set forth in the statute, then rescinded the statutory summary suspension of defendant’s driving privileges based on the fact that defendant’s petition had not been heard within 30 days of its filing as provided in the statute and ruled mandatory in In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.

This appeal follows in which the State contests the propriety of that decision. The State first asserts that the statute provides for alternate hearing dates and that the latter provision was met in this case. Secondly, the State maintains that defendant was not subjected to any deprivation of due process in these proceedings because, unlike the situation in Trainor, defendant’s driving privileges had not been suspended before the rescission hearing was set to begin.

At issue is the proper interpretation to be given section 2— 118.1(b) of the Illinois Vehicle Code, which provides in relevant part as follows:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension.” (Ill. Rev. Stat. 1987, ch. 95½, par. 2-118.1(b).)

The Trainor court interpreted this 30-day time period as mandatory and held that the failure to hold a hearing within 30 days of the request, unless the delay was occasioned by defendant, violated defendant’s right to due process. (Trainor, 156 Ill. App. 3d at 922-23.) In so holding the Trainor court commented that the time frame specified in the statute reflected the legislature’s determination of what constitutes a prompt hearing for due process requirements, and that the only appropriate remedy for noncompliance with this rule was to require the rescission of the motorist’s suspension. 156 Ill. App. 3d at 922.

The operative facts in Trainor show that defendant was arrested and charged with driving under the influence on April 27, 1986, and received confirmation that his license would be suspended on June 12, 1986. On May 16, 1986, he requested a rescission hearing on the summary suspension and 11 days later moved for a substitution of judges. After this motion was granted, defendant advised the court of the filing date of his pending motion and requested that a hearing be held on it. One month later, when nothing came of his request, defendant filed a motion to rescind the suspension for lack of a timely hearing. This motion was denied on July 17, 1986, and his original motion met the same fate after a hearing one week later. Under these circumstances, where the record shows that the hearing on defendant’s petition was held well after 30 days had elapsed from the assignment of his case to the new judge, and after his driving privileges had already been rescinded, we agree with the Trainor court that defendant did not have the benefit of the prompt hearing contemplated in the statute to satisfy due process requirements. We also note, however, that the Trainor court did not address the correlative time provision set forth in the statute, nor would it have reason to where it appears certain that the first appearance date on the traffic ticket would also have elapsed. Consequently, we find Trainor factually distinguishable from the case at bar and the decision reached in that case not necessarily determinative of the outcome here.

Under the implied consent framework, a motorist’s driving privileges must be summarily suspended 46 days after his arrest if he refuses to take the tests requested by the arresting officer or if he submits to a test which discloses an alcohol concentration of 0.10 or more. (Ill. Rev. Stat. 1987, ch. 95½, pars. 11 — 501.1(c), (g).) Upon notification of the suspension, defendant may request a hearing to rescind the action of the Secretary of State, and according to the statute, such hearing must be held within 30 days of its filing or on the first appearance date set forth on the ticket. (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b).) In People v. Gerke (1988), 123 Ill. 2d 85, 91-92, 525 N.E.2d 68, the supreme court noted that the first appearance date on the traffic ticket must not be less than 14 days but within 49 days of the arrest whenever practicable (107 Ill. 2d R. 504), which means, in most cases, that the suspension hearing will be held not later than three days after the suspension is to become effective. Then, without deciding how long a post-suspension hearing could be delayed without violating due process, the Gerke court commented that a three-day delay is not nearly long enough to violate due process. (Gerke, 123 Ill. 2d at 92.) Applying that reasoning to the case at bar, and considering the intent of the legislation and the circumstances at the time the rescission order was entered in this case, we likewise conclude that the facts here do not support defendant’s due process claim based on the failure to conduct a timely hearing on his motion to rescind.

We bear in mind that due process is not a technical concept unrelated to time, place, and circumstances, but rather, a flexible concept which calls for such procedural protections as a particular situation demands (In re E.L. (1987), 152 Ill. App. 3d 25, 504 N.E.2d 157) in order to protect an individual from the arbitrary action of government. (People v. Beekler (1984), 121 Ill. App. 3d 436, 459 N.E.2d 672.) It has also been held that the most important criterion in the area of due process is “reasonableness” (In re Application of County Collec tor (1988), 166 Ill. App. 3d 11, 518 N.E.2d 1253), and similarly, that a statute should be given a reasonable interpretation in order that its true intent and meaning may be given effect. (Pickus v. Board of Education (1956), 9 Ill. 2d 599, 138 N.E.2d 532.) As applied to the facts of this case, we believe that the time provisions in the statute should not be read as exclusive, but as legislative alternatives designed to afford proper due process to a motorist facing the deprivation of his driving privileges.

It is clear that a driver’s license, once issued, is considered a property interest subject to the protection of the due process clause; however, it is also clear that this principle requires only that a prompt hearing be provided to the motorist after the suspension takes place. (See People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210 (and cases cited therein); People ex rel. Eppinga v. Edgar (1986), 112 Ill. 2d 101, 492 N.E.2d 187.) As noted above, defendant in this case filed his request for a hearing on January 4, 1988, and the matter was called before the court on February 5, 1988, 31 days after his request was filed. This February date coincided with the appearance date specified on the traffic citation which had been issued to him, and preceded the effective date of the statutory suspension of his driving privileges by 11 days. Under these circumstances we find no due process violation to support defendant’s claim of deprivation. In our judgment, to mechanically apply the 30-day rule in this case without considering the attendant circumstances would be to elevate form over substance and ignore the very reason for the legislation, i.e., to remove drunken drivers from the roadways and protect the citizens who travel upon them. Koss v. Slater (1987), 116 Ill. 2d 389, 507 N.E.2d 826.

In so holding we necessarily read the statute in the disjunctive and find due process afforded where the hearing takes place within either of the specified time frames. Contrary to defendant’s assertion in this court, we do not find that this interpretation conflicts with the decision reached in Trainor. Rather, we find Trainor limited to its facts and are not persuaded by defendant’s argument that the decision reached in that case dictates the outcome here because the legislature failed to amend this section after the Trainor decision had been rendered. In addition, we note that the Gerke court did not address the precise issue raised in this appeal, but in its discussion set forth the alternative time provisions of the statute without further comment. Gerke, 123 Ill. 2d at 91.

Accordingly, we conclude that defendant was not deprived of his due process right to a timely hearing when the hearing he requested would have taken place on the first appearance date specified on the traffic ticket. Although this date fell 31 days after his written request for a hearing, it conformed with the alternate time provision set forth in the statute, and since it was scheduled to take place 11 days before the effective date of the statutory summary suspension of his driving privileges, we conclude that due process was not violated.

The order of the circuit court of Cook County is therefore reversed and the cause is remanded for further proceedings.

Reversed and remanded.

FREEMAN, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    DENNIS KENNEDY, Plaintiff-Appellant, v. JOSEPH T. RYERSON AND SONS, INC., a Division of Inland Steel Corporation, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0778
    Opinion filed May 3, 1989.

      Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Fluxgold, of counsel), for appellant.
    Sweeney & Riman, Ltd., of Chicago (Edward F. McGinnis, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Dennis Kennedy (Kennedy), appeals from the trial court’s order granting summary judgment in favor of defendant, Joseph T. Ryerson & Sons, Inc. (Ryerson), in an action seeking recovery for personal injuries suffered when plaintiff fell from a loading dock owned by defendant. Plaintiff’s two-count complaint alleged a violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69) and negligence. The trial court granted summary judgment based on the pleadings, plaintiff’s deposition testimony, and an affidavit filed by defendant.

For the reasons stated below, we affirm the judgment of the circuit court.

Plaintiff stated in his deposition that he was a truck driver. On April 14, 1981, around 10 a.m., plaintiff pulled his flatbed trailer truck into the loading dock area of the Ryerson plant in Chicago in order to pick up a load of steel. Plaintiff stated that he normally assists in the loading of the truck by checking the weight distribution and directing where the steel pieces are to be put on the trailer for safety and load distribution purposes. On the date of the incident, a crane operator and a laborer were assisting plaintiff in loading the trailer. They began loading the trailer around 1 p.m. and finished shortly after 6 p.m. Plaintiff stated that the overhead crane used for loading was on a rail that could move from east to west and north to south.

After the loading of the steel was completed, plaintiff started to secure the load. Securing the load involved hooking chains to rails on each side of the trailer and then tightening the chains to take up the slack. Plaintiff would tighten the chains by use of binders, which are like clasps that close when a lever is moved from side to side until it is in as tight a position as possible. Plaintiff’s trailer was 42 feet long, and binders were spaced along the load every three to five feet from front to back. Before the accident occurred, plaintiff had tightened two or three binders, beginning from the part of the trailer closest to the cab. No one was assisting plaintiff in securing the binders.

Around 10 to 15 seconds prior to the accident, plaintiff saw the crane operator in his cab sweeping. Plaintiff also saw the “regular” pulleys hanging from the main hook on the crane. Plaintiff did not remember seeing, a chain. During “the last second” plaintiff recalls prior to the accident, he was straightening up after tightening a binder and then saw a shiny object come out of his peripheral vision to his right, from a westerly direction. Plaintiff did not know what the object was and stated that he could only assume it was a chain. Plaintiff stated that he did not have “clear visual contact” "with the object. Plaintiff then remembers staggering around in front of the truck. He believes that a security guard then helped him and he went to the hospital. Plaintiff does not recall falling off the truck or having any physical contact with anything between the time he saw the object in his peripheral vision and then staggering in front of the truck. Plaintiff’s answers to defendant’s written interrogatories indicate that, as a result of the incident, plaintiff sustained a skull fracture, contusions to his right shoulder and left thigh and an acute strain and sprain to his cervical spine.

Defendant filed an affidavit of Narcisco Contreras, who stated that he was working at the Ryerson warehouse on April 14, 1981, and was present when the operator of a trailer fell from his truck. Contreras stated that at the time the man fell, he (the man) was tightening the chains securing a load of steel to his trailer and was using a pipe to tighten the chains. Contreras stated that as the man was tightening the chains the pipe came loose and the man fell. Further, Contreras stated that “at no time immediately prior to the gentleman falling from his trailer did any chain or any portion of or attachment to a crane come in contact with the gentleman.”

On appeal plaintiff asserts that summary judgment was improperly granted since a question of fact exists as to whether plaintiff’s fall and injuries were proximately caused by the movement of the cable or hook hanging from the crane owned by defendant. Plaintiff contends that the trial court erroneously relied solely on the affidavit of Contreras, whose statements contradict those of plaintiff. For instance, Contreras stated that plaintiff was in the act of tightening the chain when he fell and that plaintiff was using a pipe to tighten the chain. In contrast, plaintiff stated in his deposition that he was simply standing on the bed of the truck and was using the binder clamp to tighten the slack on the chain. The accident did not occur until plaintiff was in the process of straightening up. Further, plaintiff asserts that Contreras’ statement that nothing struck plaintiff can be construed only as meaning that Contreras did not see anything strike plaintiff, in view of plaintiff’s testimony that he saw an object coming towards him from his right side.

Plaintiff contends that under a motion for summary judgment, plaintiff’s testimony must be taken as true. Plaintiff states that if his testimony is believed, then the incident could not have happened as described by Contreras. Plaintiff contends that the contradiction between his testimony and Contreras’ affidavit presents a fact question for a jury. In addition, plaintiff asserts that the inference that the crane and hook or cable of the crane was moved by the crane operator and struck plaintiff in the head is “obvious” from the circumstantial evidence.

Defendant responds that Contreras’ affidavit describes the accident itself, while plaintiff’s deposition testimony describes his last recollection before the accident. The only evidence regarding how plaintiff fell, defendant contends, is the affidavit of Contreras, which shows that the accident was not caused by any conduct of defendant. Defendant also contends that plaintiff’s attempt to challenge Contreras’ ability to see the accident is unavailing, since Contreras’ deposition was taken and his credibility was not impeached during the deposition or in any other manner by plaintiff.

Summary judgment is proper where the pleadings, depositions, admissions of record, and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) Where a defendant moves for summary judgment, the plaintiff has an affirmative duty to present facts and evidence to establish the existence of a cognizable cause of action. (McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 519 N.E.2d 469.) Summary judgment can be granted only where the right of the moving party is clear and free from doubt. However, where the pleadings, depositions, and other evidence before the court show that at trial a verdict would have to be directed, entry of summary judgment is proper. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.

Plaintiff’s action alleges negligence and violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69). The Structural Work Act count alleges that defendant erected and constructed the crane in an unsuitable and unsafe manner and otherwise failed to provide adequate protection to plaintiff, who was likely to come within close proximity to the crane. The negligence count alleges that defendant caused and allowed steel chains to be suspended from chains in an unsafe manner. Plaintiff has failed to show, however, under either theory asserted in his complaint, in what manner the conduct of defendant caused his injury. Accordingly, we find that the trial court properly entered summary judgment.

In a negligence case, no liability exists unless the alleged negligence of the defendant is the legal cause of the plaintiff’s injury. If the plaintiff fails to establish proximate cause, he has failed to establish a prima facie case and a directed verdict is proper. (Kimbrough, 92 Ill. App. 3d at 817.) Absent affirmative and positive proof of causation, a plaintiff fails to meet his burden of establishing the existence of a genuine issue of material fact. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619, 510 N.E.2d 1176, 1178.) Proximate cause may be established by circumstantial evidence where an inference may reasonably be drawn from it. (Waite, 157 Ill. App. 3d at 619-20.) Liability, however, cannot be established where the cause of the injury is shown by surmise or conjecture. A plaintiff must plead and prove more than mere conclusions to withstand a motion for summary judgment. (Waite, 157 Ill. App. 3d at 621.) Proximate cause can be shown only when there is a reasonable certainty that the defendant’s acts caused the injury. Kimbrough, 92 Ill. App. 3d at 817.

The circumstantial evidence in the instant case, consisting of plaintiff’s close proximity to the crane, the mobility of the crane, the presence of the crane operator, and plaintiff’s testimony that he saw a shiny object come into his peripheral vision before the accident, supports the possibility that the crane may have struck plaintiff. The evidence fails, however, to establish a reasonable certainty, sufficient to support a prima facie case, that the crane struck plaintiff, causing him to fall.

Plaintiff stated in his deposition that he could not identify the object he saw through his peripheral vision. Further, plaintiff could not recall any physical contact with anything prior to the time he was staggering in front of the truck. Contreras’ affidavit, on the other hand, indicates that Contreras witnessed the accident and saw plaintiff fall from the truck without having been struck by any object. Plaintiff did not present any evidence in reply to counter the statements of Contreras. We find that plaintiff failed to present sufficient facts to support his assertions regarding the conduct of the defendant and the cause of the accident. The record fails to support a reasonable inference that any alleged conduct by defendant was a proximate cause of plaintiff’s injuries. Accordingly, we hold that defendant’s motion for summary judgment was properly granted. See Monaghan v. DePaulo Construction Co. (1986), 140 Ill. App. 3d 921, 489 N.E.2d 409.

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

Judgment affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ANNERINO, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—2015
    Opinion filed May 4, 1989.

      Ettinger & Pechter, Ltd., of Oak Lawn, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Anthony J. Carballo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant Michael Annerino was found guilty of intimidation and sentenced to two years in prison. Defendant appeals, contending that the State did not prove him guilty beyond a reasonable doubt, that he was denied a fair trial, that he had ineffective counsel, and that the court abused its discretion in sentencing him to two years in prison.

On November 21, 1985, the victim, Cheryl Logsdon, was visiting at the home of Phyllis and Linda Lane; the latter are sisters. The three women were in the kitchen while Logsdon was speaking on the telephone with her mother, Gertrude Richardson. A second call came in on the telephone which was equipped with a call waiting system. Logsdon took the call while placing her mother on “hold,” and determined the caller to be defendant. Defendant asked to speak to Linda Lane, who had been his girlfriend until the previous day, but Logsdon refused and switched the call back to her mother.

Logsdon had had defendant arrested on the previous day charging him with criminal sexual abuse. The police had advised her to call them if defendant attempted to contact her in the future.

Per Logsdon’s testimony at trial, she informed her mother that defendant was on the other line and her mother told her to call the police. She then told Linda and Phyllis that she was going to call the police, but was unable to do so because defendant was still on the line. At this point defendant began to threaten her, stating that he would kill her if she went to court against him. Logsdon called the police immediately after hanging up the telephone and then told Phyllis and Linda what had occurred.

Several weeks after the incident, Linda ended her friendship with Logsdon, choosing to side with defendant. Phyllis continued to be friendly and supportive of Logsdon until she had a disagreement with her four months later while staying at the Logsdon home. At that time Phyllis ceased supporting Logsdon in her case against defendant.

Both Linda and Phyllis testified that they had lied to the police in November 1985. Linda stated that she had told the police that she did not know anything at the time, but in fact she had known that Phyllis and Logsdon had invented the story against defendant to get him into trouble. Phyllis testified that although she had told the police and the assistant State’s Attorney that defendant had threatened the victim, she and the victim had actually invented the story.

During the trial, the victim and the deputy sheriff, who had been standing at her side during her testimony, testified in rebuttal that defendant threatened her while she was on the witness stand. Both stated that they saw defendant mouth the words, “I am going to kill you, mother [deleted].” The deputy also testified that the victim broke down as a result of defendant’s in-court threat.

Defendant was asked during the trial whether he had said anything to the victim while she was testifying, and he denied it and stated that he had only told his lawyer that the victim was lying.

Defendant contends that the State did not prove him guilty beyond a reasonable doubt, alleging that the court substantially based its decision on the rebuttal testimony regarding defendant’s in-court threat to the victim. However, the record does not uphold defendant’s argument.

A defendant is guilty of intimidation when he threatens to inflict physical harm on another with the intent to cause the latter to perform or omit the performance of a certain act. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 6(a)(1).

The credibility of the witnesses and the weight to be given their testimony is within the province of the trial court. (People v. Wallace (1980), 90 Ill. App. 3d 960, 964, 414 N.E.2d 99.) Unless the evidence is so improbable or unsatisfactory that it cannot uphold the court’s decision, a reviewing court will not substitute its judgment for that of the court below even though the evidence is conflicting and irreconcilable. 90 Ill. App. 3d at 964-65.

Here, the victim testified that during a telephone conversation, defendant threatened to kill her if she appeared in court against him. Her account of the incident remained consistent from the time of her initial statement to police through her testimony at trial. Her statements were corroborated by her mother’s account of the incident and also by the testimony of defendant who, although denying the making of a threat, admitted to some portion of the telephone conversation.

The testimony of Linda and Phyllis Lane was clouded by their recanting of the statements they had made originally to the police and the assistant State’s Attorney. Both changed their versions of the incident after each separately ended her respective friendship with the victim. It was not unreasonable for the court to determine that their testimony lacked credibility. We find that the State proved defendant guilty beyond a reasonable doubt.

Defendant next urges that he was denied a fair trial where the trial court admitted the rebuttal testimony of the victim and the deputy sheriff regarding defendant’s in-court threat to the victim. Defendant contends that the testimony was prejudicial, of no probative value and was in violation of the exclusionary rule prohibiting evidence of other crimes.

At trial defendant denied that he had ever threatened the victim. He further denied that he had threatened her in court during the trial. The State elicited rebuttal testimony that contradicted defendant’s statements.

In Illinois rebuttal evidence may be introduced to explain, repel, contradict or disprove evidence produced by the defendant as to a material issue, but not as to a collateral issue. (People v. Miller (1981), 101 Ill. App. 3d 1029, 1037, 428 N.E.2d 1029; People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.) The trial court determines the admissibility of rebuttal evidence and an appellate court will review the trial court’s determination only in cases of clear abuse. 96 Ill. App. 3d 958.

In People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, the court summarized the law regarding the admission of evidence of other crimes as follows:

“Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. [Citation.] Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive or absence of mistake. [Citations.] In fact, this court has held that evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime.”

In People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59, the court stated that “[e]vidence of another crime, however, may be used only when the other crime has some threshold similarity to the crime charged. It is this similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s crime propensities.”

Here, the subsequent crime committed by defendant had more than just a threshold similarity to the crime charged. It was exactly the same crime, that of threatening to kill the victim if she testified. Such a similarity in crimes may be used to establish the necessary criminal intent of the defendant and the original offense charged. People v. McKibbins (1983), 96 Ill. 2d 176, 187, 449 N.E.2d 821.

We do not find that the court abused its discretion in allowing the rebuttal testimony. Although the testimony presented evidence of a crime committed subsequent to the crime being tried, it clearly established defendant’s intent to intimidate the victim.

Defendant next maintains that his conviction must be reversed because counsel’s trial performance was deficient. Reviewing the record we find defendant’s contention to be without merit. During cross-examination defendant was asked if he had said anything to the victim while she was testifying and defendant responded that he had not, but that he had turned to his lawyer and said that the victim was lying. After the cross-examination and prior to the State presenting rebuttal testimony, Gary Stanton, attorney for defendant, advised the court that he would be testifying on behalf of his client with respect to statements made in court during the victim’s testimony. The court relieved attorney Stanton from duty on the case so that he could testify. However, at the end of the State’s rebuttal, cocounsel for defendant did not call attorney Stanton as a witness, and Stanton resumed his duties as defense counsel. Defendant contends that his cocounsel’s failure to call Stanton as a witness prejudiced his defense.

The standard for determining the validity of an ineffective assistance claim is whether the counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Defendant must prove both that his attorney’s performance fell below an objective standard of reasonableness and that this performance resulted in prejudice which adversely affected his case.

Here, defendant was found guilty beyond a reasonable doubt on evidence that did not include the rebuttal testimony, and it is highly improbable that attorney Stanton’s testimony would have gone to the heart of the case in chief. Yet, even if the rebuttal testimony did play a part in influencing the court’s decision, it is doubtful that Stanton could have significantly detracted from the testimony of the impartial deputy sheriff who had been facing the defendant as he mouthed, not spoke, the threat to victim. We find that counsel’s decision not to call attorney Stanton was simply a matter of trial strategy and does not support his claim of ineffective counsel. See People v, Wright (1986 ), 111 Ill. 2d 18, 488 N.E.2d 973.

Defendant contends that the trial court abused its discretion by sentencing him to two years’ imprisonment. In Illinois a trial court’s decision regarding the sentencing of a defendant is entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) A sentence must be based on the particular circumstance of each individual case and depends on many factors, including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (See 68 Ill. 2d at 153.) Here, the record indicates that prior to sentencing the court clearly considered all of the necessary factors. We do not find that there was an abuse of discretion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


text:
    KENNETH W. ZIEKERT, Plaintiff-Appellee, v. DAVID COX, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2313
    Opinion filed May 3, 1989.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo and Christine L. Olson, of counsel), for appellant.

      Lane & Munday, of Chicago (Kathleen Reynolds and John J. Munday, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Kenneth Ziekert, sued defendant, David Cox, for personal injuries sustained when defendant’s automobile rear-ended plaintiff’s automobile on the Kennedy expressway. At the close of all the evidence, the trial court granted plaintiff directed verdicts finding that he had not been contributorily negligent and that defendant had been negligent, as a matter of law. Thereafter, the jury awarded plaintiff $96,500 in damages. Defendant appeals.

At trial, plaintiff testified that he left his office in downtown Chicago at approximately 5:30 p.m. on December 2, 1977, a weekday, and drove to the Kennedy expressway, which he normally travelled on his way home. When plaintiff exited the westbound express lanes, traffic came to a stop at the intersection of the Kennedy and Edens expressways. Plaintiff “came to a stop because of traffic stopping up ahead.” Plaintiff described his stop as “gradual” and “complete.” After stopping his vehicle, plaintiff reached to turn the volume on his radio down. While so doing, plaintiff’s vehicle was struck from behind. Plaintiff was “violently thrown backwards” in his seat, felt as if he “was going backward over the *** front seat” and “was immediately disoriented” for about a minute or two. After the collision, defendant told plaintiff that he had been “looking over his shoulder to learn if traffic was clear so he could pass” plaintiff’s stopped vehicle.

Plaintiff’s expert witness, Dr. John Shea, a neurosurgeon, testified through an evidence deposition. Dr. Shea reviewed the records of plaintiff’s treatment for health problems he experienced after the accident. Those records consisted of plaintiff’s treatment at the emergency room of Sherman Hospital in Elgin, Illinois, and records of Drs. Lea, Mansfield and Campbell, the latter of the Mayo Clinic in Rochester, Minnesota. He also reviewed the records of plaintiff’s examination by Dr. William Grimm, a neuropsychologist to whom Dr. Shea referred plaintiff, and the records of plaintiff’s ophthalmological examination. Dr. Shea stated that these are the types of records normally relied upon by experts in the field. Dr. Shea also examined plaintiff in October 1987. Dr. Shea testified extensively regarding, inter alia, the causes and symptoms of traumatic brain injury in general and pseudotumor cerebri in particular, as well as the methods of diagnosis of the latter. After reviewing the plaintiff’s medical records, Dr. Shea stated his opinion, based on a reasonable degree of medical and neurological certainty, that plaintiff had a pseudotumor cerebri which was caused by a traumatic occlusion or blockage of the right sinus. Finally, Dr. Shea testified that after examining plaintiff and reviewing the report of Dr. Grimm, it was his opinion that plaintiff’s pseudotumor cerebri was proximately caused by the accident with defendant.

Over defendant’s objection based on plaintiff’s failure to disclose his identity until the day before the trial started, the trial court allowed Dr. Grimm to testify for plaintiff. Dr. Grimm conducted a mental status examination of plaintiff to determine his orientation and performed a series of tests on plaintiff to determine whether he had any cognitive difficulties. As a result of his examination and tests, Dr. Grimm determined that plaintiff exhibited mild difficulties in concentration and spatial perception. He also concluded that plaintiff was experiencing an enhanced sense of stress and anxiety since his accident. At the end of his examination, Dr. Grimm recommended to plaintiff “learning a new set of skills” to help him deal with daily stresses more effectively.

Defendant testified that the accident with plaintiff occurred on the Kennedy expressway beyond both the merger of the express and local lanes and the separation of the Kennedy and Edens expressways. It occurred at about 8 p.m. when it was dark and the traffic was heavy but was the “usual rush hour traffic.” At that time, defendant “went to change lanes.” In so doing, he turned on his turn signal, looked into his rearview mirror and turned his head over his right shoulder to check his blind spot. By the time he looked forward again, defendant saw two brakelights on, realized that traffic was stopped ahead of him, and collided into the rear of plaintiff’s car.

For defendant, Dr. James Mansfield, a neurosurgeon who treated plaintiff in 1981 and the first to diagnose plaintiff’s condition as a pseudotumor cerebri, testified that the collision did not cause plaintiff’s condition. Defendant’s expert, Dr. Marshall Matz, also a neurosurgeon, agreed with Dr. Campbell’s conclusion that the cause of plaintiff’s sinus occlusion, which, in turn, caused the pseudotumor, was unknown. However, Dr. Matz did state that the collision with defendant did not cause plaintiff to develop the sinus occlusion.

Opinion

On appeal, defendant first contends the trial court erred in denying him a judgment n.o.v. because plaintiff failed to prove that defendant proximately caused his injuries. Defendant asserts that Dr. Shea’s testimony that plaintiff’s pseudotumor cerebri was caused by the collision was outweighed by that of Drs. Mansfield and Matz.

A judgment n.o.v. is proper only where all the evidence, when viewed in its aspect most favorable to the nonmovant, 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, 299 N.E.2d 504.

Contrary to defendant’s assertion, Dr. Shea’s testimony was sufficient to sustain the verdict for plaintiff. An expert opinion, held to a reasonable degree of medical certainty, provides an adequate basis for a jury finding that causation was proved by a preponderance of the evidence. Witherell v. Weimer (1987), 118 Ill. 2d 321, 337, 515 N.E.2d 68; Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 714, 522 N.E.2d 1267.

In this regard, the weight to be given Dr. Shea’s testimony was not lessened by his statement that the most common cause of sinus occlusion was a mastoid infection. The fact that plaintiff did not have a mastoid infection supported, rather than negated, the conclusion that the collision with defendant was the cause of plaintiff’s condition. Dr. Shea also testified that 90% to 95% of all pseudotumors cerebri were nontraumatic spontaneous events, that most cases of pseudotumor had nothing to do with sinus occlusion and that plaintiff had gone the longest he had seen between a traumatic event and onset of pseudotumor cerebri. These concessions by Dr. Shea did not require the jury to discount his testimony that, to a reasonable degree of medical certainty, plaintiff’s condition was caused by the collision with defendant. The relative weight and sufficiency of expert testimony is peculiarly within the province of the jury. Fuery v. Rego Co. (1979), 71 Ill. App. 3d 739, 745, 390 N.E.2d 97.

In this same vein, the conflict between Dr. Shea and Drs. Mansfield and Matz as to the ultimate cause of plaintiff’s condition did not require the jury to give more weight to the testimony of the latter. A disagreement among medical authorities as to cause and effect does not preclude a verdict for the plaintiff. (Witherell, 118 Ill. 2d 321, 515 N.E.2d 68.) In other words, the jury was free to believe Dr. Shea’s testimony over that of defendant’s witnesses. (See Trower v. Jones (1986), 149 Ill. App. 3d 705, 721, 500 N.E.2d 1134, rev’d on other grounds (1988), 121 Ill. 2d 211, 520 N.E.2d 297.) After reviewing the record, we cannot say that the evidence in this case satisfies the Pedrick standard.

Defendant next contends the trial court erred in denying him a new trial based on several alleged errors.

Defendant first asserts that the trial court erred in failing to ex-elude Dr. Grimm as an expert witness under Supreme Court Rule 220 (107 Ill. 2d R. 220). Plaintiff defends the trial court’s decision on the grounds, inter alia, that his trial counsel did not know that he had been examined by Dr. Grimm until the week before the trial started and that she immediately turned over his report to defense counsel.

Rule 220 requires the pretrial disclosure of expert witnesses, i.e., persons who, because of education, training or experience, possess knowledge of a specialized nature beyond that of the average person on a material factual matter and who are retained to render an opinion at trial. (107 Ill. 2d R. 220.) Contrary to defendant’s assertion, there is nothing in the record to indicate that plaintiff retained Dr. Grimm to testify as an expert witness at trial. Moreover, he did not, as an expert typically does, render any opinions regarding any matters in issue. For that reason, defendant’s reliance on Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974, holding that the testimony of an undisputed expert witness should have been barred due to the plaintiff’s violation of Rule 220, is misplaced.

Moreover, we need not determine that Dr. Grimm was excluded from the disclosure requirements of Rule 220 by virtue of being a treating physician in order to find that there was no violation of that rule. Rule 220 applies only to expert witnesses. The pretrial disclosure of all other witnesses, whether treating physicians or not, is governed by Supreme Court Rule 219. (107 Ill. 2d R. 219.) That rule vests a court with discretion to determine both whether to impose sanctions for a party’s noncompliance with discovery rules and orders and, if it determines to do so, the appropriate sanction therefor. Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 531, 504 N.E.2d 772.

However, defendant also contends that the trial court erred in failing to exclude Dr. Grimm’s testimony under Supreme Court Rule 219. Defendant notes that plaintiff did not disclose Grimm’s report to Dr. Shea in his answer to defendant’s discovery request for all data on plaintiff’s condition although plaintiff had seen Grimm and Grimm’s report was dated prior to that answer.

We find no abuse of the trial court’s discretion under Rule 219 in its allowing Dr. Grimm to testify without imposing any sanction upon plaintiff. There is nothing in the record to refute plaintiff’s trial counsel’s contentions that she was unaware that plaintiff had seen Dr. Grimm and that he had made a report to Dr. Shea until the week before trial and that she immediately disclosed the report to defense counsel. Moreover, the trial court offered defense counsel the opportunity to depose Dr. Grimm before he testified for the express purpose of determining whether there would be anything in his testimony which would be a “disqualifying factor,” but defense counsel declined.

In Frozen Food Express v. Modern Truck Lines, Inc. (1967), 79 Ill. App. 2d 84, 223 N.E.2d 275, the defendants contended the trial court erred in allowing the testimony of one of plaintiff’s witnesses. Plaintiff disclosed the witness to defendant the Saturday preceding the first day of trial. In rejecting the contention, the court stated:

“The defendants knew on the Saturday preceding trial, that Herod might be called as a witness. Admittedly, little could be done on that day, or on Easter Sunday, in the way of interrogation of Herod, or any investigation of his connection with the case. The record shows that defendants announced “Ready for trial” on Monday morning. They made no request for continuance, and did not advise the court of what had transpired. Had the court been informed that defendants desired to take Herod’s discovery deposition, and would then require some additional time to investigate the matters about which he was deposed, a refusal to continue the case for a reasonable time for these purposes would have presented for review, an entirely different question, than is presently before us. *** A party, in these circumstances, should ascertain the nature of the testimony which the witness will give, and may not, safely, answer ready for trial, and gamble on the trial court’s excluding the witness.” Frozen Food Express, 79 Ill. App. 2d at 92.

We believe that defendant here, like the defendants in Frozen Food Express, could not merely decline an opportunity to depose Dr. Grimm, gamble that the court would exclude his testimony and, when that gamble failed, appeal on the grounds that the trial court abused its discretion. In this regard, we find the Phelps court’s disapproval of the procedure of adjourning the trial, while an undisclosed expert was deposed, not to be a consideration here.

Dempski v. Dempski (1963), 27 Ill. 2d 69, 187 N.E.2d 734, and Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578, cited by defendant, do not require a contrary conclusion. In Dempski, the defendants offered the testimony of three witnesses at trial not previously disclosed to the plaintiff. The court stated that the determination whether there was a wrongful or inexcusable noncompliance with discovery was, in the first instance, the trial court’s responsibility and that, from the record before it, it did not appear that it had abused its discretion. (Dempski, 27 Ill. 2d at 77.) In Jensen, the court noted that surprise to the opponent, whether the omission was intentional or inadvertent, the nature of the witness’ testimony, timeliness of an objection, the opponent’s opportunity to depose the witness before trial and prejudice to the opponent by virtue of the testimony were factors in determining whether an appropriate sanction had been invoked for failure to disclose a witness. Similarly to Dempski, however, the Jensen court merely concluded that the trial court had not abused its discretion in excluding the testimony of six defense witnesses not previously disclosed to the plaintiff. Jensen, 94 Ill. App. 3d at 928-29.

This case is in keeping with Dempski and Jensen. That is, we cannot say, in view of defendant’s failure to seek some relief other than exclusion of his testimony, that the trial court abused its discretion in not imposing any sanction upon plaintiff for violating Rule 219 by failing to disclose Dr. Grimm prior to trial.

Defendant also asserts that the trial court erred in directing a verdict for plaintiff finding defendant negligent as a matter of law. Defendant notes that a rear-end collision does not automatically give rise to an inference that the driver of the trailing car was negligent as a matter of law. Burgdorff v. IBM, Inc. (1979), 74 Ill. App. 3d 158, 392 N.E.2d 183.

The rule articulated in Burgdorff did not preclude the trial court from concluding that the evidence before the jury, when viewed in the light most favorable to defendant, so overwhelmingly revealed his negligence as a matter of law that no contrary verdict could ever stand and, therefore, directing a verdict for plaintiff on that issue. Pedrick, 37 Ill. 2d 494, 299 N.E.2d 504.

A driver, such as defendant, has a duty to maintain a sufficient distance from the vehicle in front in order to stop or slow down (Hickox v. Erwin (1981), 101 Ill. App. 3d 585, 428 N.E.2d 520), to maintain a safe lookout for traffic ahead (Hickox, 101 Ill. App. 3d 585, 428 N.E.2d 520; Joseph v. Schwartz (1981), 96 Ill. App. 3d 749, 422 N.E.2d 35; Snedden v. Lavenka (1981), 92 Ill. App. 3d 979, 416 N.E.2d 1097) in order to avoid colliding with it (Droese v. Fleming (1981), 93 Ill. App. 3d 781, 417 N.E.2d 855), and to take into account the prospect of having to suddenly stop (Droese, 93 Ill. App. 3d 781, 417 N.E.2d 855; Snedden, 92 Ill. App. 3d 979, 416 N.E.2d 1097) or slow his vehicle (Gullberg v. Blue (1980), 85 Ill. App. 3d 389, 406 N.E.2d 927). Thus, while a trial court cannot hold a driver, such as defendant, negligent as a matter of law by virtue of a rear-end collision alone, nothing prohibits it from taking the issue of his negligence away from the jury where the evidence overwhelmingly reveals his breach of the foregoing duties. See, e.g., Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 449 N.E.2d 211.

We agree with the trial court that there was no evidence that plaintiff had been contributorily negligent. More importantly, we agree with the trial court that the evidence was such that no other conclusion could stand other than that defendant breached the duties of a following driver and was, therefore, negligent as a matter of law. “Unlike the situation in Burgdorff, there was no evidence presented tending to show that defendant was in a helpless or an unavoidable situation.” (Korpalski, 114 Ill. App. 3d at 566.) As otherwise stated, “[t]he evidence fails to disclose any intervening parties, events or factors which would support a finding that *** defendant was not the proximate cause of the collision.” (Gullberg v. Blue (1980), 85 Ill. App. 3d 389, 392, 406 N.E.2d 927.) As such, the court did not err in directing a verdict for plaintiff on the issue of defendant’s negligence.

Defendant next asserts the trial court erred in allowing Dr. Shea to read into evidence the medical reports on which he based his opinions at his deposition. In support, defendant cites the rule that it is impermissible for an expert to read from medical records prepared by other physicians who do not authenticate the records at trial because, under such circumstances, the records constitute hearsay.

Preliminarily, we note that the cases cited by defendant do not involve an expert’s reading into evidence the contents of medical records and, therefore, do not stand for the rule upon which defendant relies. More importantly, it is well settled that, not only may experts consider medical records commonly relied upon by members of the medical profession in forming their opinions, but that they may testify as to the contents of those records as well. (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485, cert. denied (1986), 479 U.S. 1012, 93 L. Ed. 2d 713, 107 S. Ct. 658; Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 523 N.E.2d 1335; In re Scruggs (1986), 151 Ill. App. 3d 260, 502 N.E.2d 1108; Mayer v. Baisier (1986), 147 Ill. App. 3d 150, 497 N.E.2d 827; Henry v. Brenner (1985), 138 Ill. App. 3d 609, 486 N.E.2d 934.) This rule recognizes that the records from which an expert reads are admitted, not to prove the truth of the matter asserted therein, but for the limited purpose of explaining the expert’s testimony. (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485; Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 523 N.E.2d 1335.) The only limitations on the testimony allowed under this rule are that the expert must reasonably rely on the records and that its probative value must outweigh any prejudicial impact or tendency to create confusion. (Anderson, 113 Ill. 2d 1, 495 N.E.2d 485; Lovelace, 170 Ill. App. 3d 378, 523 N.E.2d 1335.) As defendant does not contend that these limitations were violated here, the trial court did not err in allowing Dr. Shea to read from the medical records of plaintiff’s treating physicians.

Defendant next contends that he is also entitled to a new trial because the jury verdict is against the manifest weight of the evidence, plaintiff having failed to prove that any negligence on defendant’s part proximately caused his injuries. The standard to obtain a new trial is less demanding than that to obtain a judgment n.o.v. Nonetheless, our prior rejection of defendant’s argument that plaintiff failed to prove proximate cause, in connection with defendant’s request for a judgment n.o.v., also defeats defendant’s right to a new trial on that ground.

Defendant lastly contends that he is entitled to a new trial on the issue of damages or a remittitur because the plaintiff’s evidence does not support the jury award of $96,500. In so arguing, defendant focuses on the limited medical expenses which plaintiff incurred. He also focuses on the fact that before 1981, plaintiff complained only of neck and back pain and only thereafter complained of other health problems.

The trial court instructed the jury that, in deciding the amount of the award to plaintiff, it was to consider the nature and extent of his injury, including: (1) the resulting disability; (2) the resulting pain and suffering; and (3) the reasonable expense of necessary medical care, treatment and services received.

Contrary to defendant’s implication in focusing upon plaintiff’s medical expenses, the amount of compensation for plaintiff’s disability and pain and suffering was not necessarily related to the amount of medical expenses incurred and plaintiff’s medical bills were not conclusive as to the size of the jury’s award. Ludgin v. John Hancock Mutual Life Insurance Co. (1986), 145 El. App. 3d 703, 710, 495 N.E.2d 1287; Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 735, 512 N.E.2d 1244.

In view of plaintiff’s evidence regarding the effects of pseudotumor cerebri and the indeterminate length of time which those effects could last and the elements of damages the jury was allowed to consider, an award of $96,500 is not so large that it indicates passion or prejudice on the part of the jury (Jones v. Karraker (1983), 98 Ill. 2d 487, 492, 457 N.E.2d 23) or falls outside the limits of fair and reasonable compensation or shocks the judicial conscience (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1030, 343 N.E.2d 65). As such, defendant is entitled to neither a new trial on damages alone nor a remittitur.

For all of the foregoing reasons, the judgment appealed from is affirmed in its entirety.

Affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE JOHNSON

text:
    GLORIA BARRERA, as Widow of Frank Barrera, as Mother and Next Friend of Rudolfo Barrera, et al., Minors, and as Special Adm’r of the Estate of Frank Barrera, Deceased, Plaintiff-Appellant, v. WINDY CITY EXTERIORS, INC., Defendant-Appellee (Commonwealth Edison Company, Defendant).
    First District (4th Division)
    No. 1—87—1703
    Opinion filed May 4, 1989.

      Mark S. Smith, of Engelman & Smith, of Skokie, for'appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Charles H. Cole, and Kathryn A. Spalding, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Gloria Barrera, as widow of Frank Barrera and mother and next of kin to his dependant children, brought an action against defendant, Windy City Exteriors, Inc., for willful violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) (hereinafter the Act). The trial court dismissed plaintiff’s amended complaint and count I of plaintiff’s second amended complaint for failure to state a cause of action under the Act. Commonwealth Edison Company, also named as a defendant, is not a party in this appeal. The sole issue presented for review is whether the trial court erred in dismissing plaintiff’s amended complaint and count I of plaintiff’s second amended complaint for failure to state a cause of action trader the Act.

We affirm.

Defendant, a home improvement contractor, contracted with the owner of a three-story residence for the installation of new exterior siding. Defendant engaged Frank Barrera, now deceased, to install the siding on the structure. A scaffold was erected and work commenced on August 29, 1985. While on the scaffold, Barrera picked up a section of aluminum siding. The distal end of the siding came into contact with the overhead high voltage electrical power lines. Barrera received severe electrical shock and subsequently died.

On March 19, 1986, plaintiff filed a complaint against defendants for the wrongful death of her husband. The complaint consisted of eight counts, but only count I was directed toward Windy City Exteriors. Count I alleged that defendant willfully violated the Act.

On November 17, 1986, the trial court granted defendants’ motions to strike and dismiss plaintiff’s complaint. In dismissing count I, the trial court found that there was no cause of action for loss of consortium under the Act.

Plaintiff then filed an amended complaint. Count I was directed toward defendant Windy City Exteriors. Plaintiff alleged willful violation of the Act in placing the scaffold dangerously close to the live overhead power lines. The trial court again dismissed count I for failure to state a cause of action. The court found that pursuant to Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, and Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, plaintiff failed to state a cause of action under the Act based on the stated facts.

Plaintiff subsequently filed a second amended complaint. Substantively, the allegations in count I remained the same. Plaintiff did, however, add a count IA against Windy City Exteriors sounding in negligence. Count I was again dismissed for failure to state a cause of action under Smyrniotis and Kochan.

Further, plaintiff’s counsel admitted that he could not name a specific defect in the scaffold until discovery was completed, and, therefore, until further facts could be gathered, alleged that the placement of the scaffold constituted a violation of the Act. The court then informed plaintiff’s counsel that the ruling could not be based on what might come out in discovery but would be based on the pleadings as filed and presented to the court. Plaintiff appeals from dismissal of count I of her amended and second amended complaints.

To withstand a motion to dismiss, a complaint must contain sufficient averments of facts to state a cause of action. (Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 524.) Motions to dismiss admit all well-pleaded facts but not conclusions of law or of facts unsupported by allegations of specific facts upon which such conclusions rest. Washington v. Courtesy Motor Sales, Inc. (1964), 48 Ill. App. 2d 380, 382.

Section 1 of the Act provides, in pertinent part, as follows:

“All scaffolds *** erected or constructed by any person, firm or corporation *** for the use in the erection, repairing, alteration, removal or painting of any house, building *** or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon *** and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1985, ch. 48, par. 60.

Section 9 allows the accrual of a right of action for willful violation of the Act or willful failure to comply with its provisions. Ill. Rev. Stat. 1985, ch. 48, par. 69.

The Act is designed to protect workers, engaged in extrahazardous activities, from risks inherent in their employment. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090.) The Act is not, however, intended to cover all injuries sustained at or near the construction site. Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 422.

The elements of a cause of action under the Act are: (1) the device involved must be covered by the Act; (2) the device must be used in the construction of a structure as defined by the Act; (3) the device must be unsafe, or not safely placed or operated; (4) defendants must have willfully violated the Act; (5) plaintiff’s injury must be proximately caused by defendants’ violation. (Smith v. Excello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1091.) “It is only when an injury has some connection with the hazardous nature of one of the devices named in section 1 of the Act that a cause of action may be maintained under that section of the Act.” Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371.

The trial court found that no cause of action existed based on Rochan and Smyrniotis. We agree. In Rochan, a recent decision by this court, the plaintiff while standing on a ladder came into contact with live overhead high voltage wires. The ladder on which plaintiff was standing admittedly had no defects. The plaintiff alleged that the placement of the ladder in proximity to the wires constituted willful violation of the Act. We found that summary judgment was properly granted to the defendant by the trial court because “no defect in the construction or use of the ladder caused [plaintiff’s] injuries.” Rochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 848.

In Smyrniotis, the plaintiff, while standing on a roof as support, came into contact with some high voltage overhead wires. The Smyrniotis plaintiff alleged willful violation of the Act by defendant in direeling plaintiff to work atop certain supports, i.e., the roof, which were in proximity to high voltage wires.

In denying plaintiff’s appeal, the appellate court found that “the hazards of high-voltage wire *** are distinct from the hazards that fall within the terms of the Structural Work Act.” (Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 345.) The court noted that plaintiff’s injuries were the result of coming into contact with the power lines. The stanchion was found as not operating as a support, nor did it function to prevent the falling of construction material which would bring it within the purview of the Act. Smyrniotis, 142 Ill. App. 3d at 346.

In the instant case, there is no dispute that the device in question was a scaffold and as such was covered by the Act. Nor are there any allegations that the scaffold itself was defective. The deceased’s injury had no connection with the hazardous nature of the scaffold. Plaintiff alleges that her husband’s injury was the result of the placement of the ladder in proximity to the live overhead wires. Although positioning of a ladder in a place which jeopardizes a party’s life can be a violation of the Act (Rochan, 123 Ill. App. 3d at 847), the hazards of high voltage wire were not intended to fall within the terms of the Act. Smyrniotis, 142 Ill. App. 3d at 345.

We agree with the Smyrniotis court that the legislature did not intend to extend coverage under the Act to the hazards associated with high voltage wires under these circumstances.

“[T]he [Structural Work] Act should not be interpreted so that it is extended unnecessarily to cover neoteric theories of liability where the existing workmen's compensation and tort remedies protect and give reasonable and satisfactory relief to construction workers.” Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 622-23.

Similarly, plaintiff in the instant case has alternative means of recovery that she can pursue.

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE JOHNSON PRESIDING JUSTICE JIGANTI,

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Plaintiff-Appellee, v. THE COUNTY OF COOK et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—0070
    Opinion filed May 4, 1989.
    JIGANTI, P.J., dissenting.

      Richard M. Daley, State’s Attorney, of Chicago (Joan S. Cherry and Susan Condon, Assistant State’s Attorneys, of counsel), for appellants.
    Melissa J. Auerbach, of Cornfield & Feldman, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from the circuit court of Cook County denying the motion for judgment on the pleadings of defendants, the County of Cook and George W. Dunne as president of the board of commissioners of the County of Cook, and granting the motion for summary judgment of plaintiff, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO. The sole issue presented for review is whether a government agency may elect, pursuant to its administrative authority under the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) (hereinafter the Act), to furnish requested information on a computer printout rather than on computer tape.

We reverse.

In October and November 1986, plaintiff requested the name, job title, position code, and rate of pay for employees in certain county departments. Defendants provided the requested information in a printed report, receipt of which was acknowledged by an agent of plaintiff.

In a letter dated November 2, 1986, plaintiff requested that the same information be provided on a computer tape or diskette. Defendants denied the request by letter dated December 1, 1986, because this information had previously been supplied.

On December 17 plaintiff’s counsel wrote another letter to defendants, again requesting that the information be provided on computer tape. Plaintiff also requested that the information be sorted by job title within certain specified departments and to indicate whether the employees were covered by collective bargaining agreements. On December 31, defendants again denied the request and advised plaintiff that its payroll records were not maintained by job title within the requested specified departments nor do these records indicate which employees are covered by collective bargaining agreements. Defendants also stated that it was the requester’s responsibility to re-sort the provided information.

On January 5, 1987, plaintiff appealed defendants’ denial pursuant to the Act. (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) Plaintiff, however, only appealed from defendants’ denial of the request that the information be provided on computer tape or diskette. Defendants denied plaintiff’s appeal by letter on February 11, 1987. Defendants maintain the Act does not require that the requested information also be provided on computer tape.

On March 5, 1987, plaintiff filed a suit for injunctive relief to require defendants to turn over the requested material on computer tape. During the pendency of the suit, plaintiff continued to ask for the information on computer tape and defendants continued to provide the information in a printed form. Defendants provided such information on four separate occasions after plaintiff had filed suit.

Plaintiff filed a motion for summary judgment on September 9, 1987. A supporting affidavit was filed with plaintiff’s motion. The affidavit, from a part-time data processor, stated that the cost to plaintiff to convert the printed records onto disk would be $900, plus $100 for tape to disk conversion and for computer time. It was further stated that most of the cost could be avoided if the data were supplied in magnetic tape form.

In response to plaintiff’s motion, defendants stated that it was the present practice to respond to such requests by providing a printed report; this was to ensure accuracy and consistency of material, and because the printout method was the most generally accessible format.

Defendants’ response was supported by an affidavit from the director of the department of data processing, Joseph M. Yaeger. Mr. Yaeger stated that the requested information could be generated in either a printout or on computer tape. According to Yaeger, the choice of either would not affect the substance, type, or amount of information that could be made available.

Defendants then filed a motion for judgment on the pleadings. On December 7, 1987, the trial court, after hearing oral arguments from both parties, granted plaintiff’s motion for summary judgment and denied defendants’ motions for judgment on the pleadings.

The trial court’s decision was based on a balancing test of convenience to the parties. The court found that providing the information on tape posed no great burden on defendants, whereas receipt of the information on tape was more convenient and less costly for plaintiff. It is from this order that defendants appeal.

It is well settled that decisions of the United States district courts and the circuit courts are not binding on Illinois courts. (City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 118.) However, such decisions may be adopted to the extent that we find the reasoning and rationale persuasive. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1057.) The question raised by defendants is one of first impression in Illinois. We view the district court’s decision in Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, as dispositive of this issue.

In Dismukes, the plaintiff brought suit pursuant to the Federal Freedom of Information Act (5 U.S.C. §552 (1977)). The action was brought to obtain a copy of a computer tape which listed the names and addresses of participants in Federal bimonthly gas and oil lease lotteries. The defendant advised plaintiff that the requested information was available to the public on microfiche cards.

In Dismukes, defendant sought dismissal of the action on the grounds that its obligation had been discharged ■ under the Act when the information was offered to plaintiff on microfiche. In plaintiff’s cross-motion for summary judgment, he contended that his specific request pursuant to the Act had not been satisfied. The issue presented to the court was whether a Freedom of Information Act requester may specify the format of the data that he seeks from the agency. Dismukes, 60S F. Supp. at 760.

The court held that the agency had no obligation under the Act to accommodate plaintiff’s preference. “The agency need only provide responsive, nonexempt information in a reasonably accessible form, and its offer to plaintiff satisfies that obligation.” (Dismukes, 603 F. Supp. at 763.) The fact that the computer tape offered the least expensive and most convenient means of access to the lottery information did not obligate the agency to provide the plaintiff with a computer tape under the Act. Dismukes, 603 F. Supp. at 763.

Similarly, we find that the information provided to plaintiff in the instant case satisfies defendants’ obligation under the Illinois Act. Here, there was no refusal to provide the requested information. The only question was the format in which the information was to be furnished.

The legislative intent of the Act is to provide the public with access to nonexempt information. (Ill. Rev. Stat. 1985, ch. 116, par. 201.) The only obligation that the Act imposes with respect to form is that “public records stored by means of electronic data processing may be obtained in a form comprehensible to persons lacking knowledge of computer language or printout format.” Ill. Rev. Stat. 1985, ch. 116, par. 205.

We find the standard announced in Dismukes is more in accordance with the purposes of the Act than the balancing test adopted by the trial court. Accessibility of information, not convenience of format to the parties, is the focal point of the Act. Under the Dismukes standard, the agency need only provide responsive, nonexempt information in a reasonably accessible form.

It is not disputed that defendants in the instant case provided plaintiff with the requested nonexempt information. A printout is a reasonably accessible form that is comprehensible to the public. The requester does not have a right under the Act to designate the format as well as the content. (Dismukes, 603 F. Supp. at 763.) The agency, however, does not have unfettered discretion to choose the format. We find that the information must be presented in a format within the guidelines as set forth in Dismukes.

Plaintiff maintains that Dismukes is contrary to the weight of authority under Federal and State freedom of information acts mandating disclosure of documents. Plaintiff cites three out-of-State cases in which, he contends, the requester could designate the format. We do not find that these cases support plaintiff’s proposition.

The first case plaintiff cites is Lorain County Title Co. v. Essex (1976), 53 Ohio App. 2d 274, 373 N.E.2d 1261. In Lorain, the court of appeals of Ohio held that where information contained in a public record is placed on microfilm, the microfilm becomes a public record to which the public has reasonable access. (Lorain, 53 Ohio App. 2d at 276-77, 373 N.E.2d at 1263.) However, the court also pointed out that the format by which the agency makes the information available is within the agency’s discretion. Lorain, 53 Ohio App. 2d at 277, 373 N.E.2d at 1263.

Similarly, in the instant case, defendants are not preventing plaintiff from access to the requested information. Defendants are merely exercising their discretion in choosing the format by which the information is to be provided to plaintiff. Plaintiff’s case actually supports defendants’ position.

Plaintiff next cites Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116. In this 1973 case, the supreme court of New Hampshire held that real estate assessments were public records pursuant to the State’s “right to know” laws. The court found that, in view of the ease of obtaining the information from computerized tapes as opposed to 35,000 field cards, plaintiff was entitled to a copy of the tape. Menge, 113 N.H. at 538, 311 A.2d at 119.

In 1986, however, New Hampshire’s “right to know” law was amended to give public bodies the right to choose to provide the requester a printout of computer records as opposed to the original documents. (N.H. Rev. Stat. Ann. §91 — A:4(V) (1986).) In effect, the amended law gives the agency the right to choose the format.

The last case plaintiff cites is Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500. In Ortiz, the supreme court of New Mexico held that the county chairman of a political party was entitled to a copy of a magnetic tape of voter registration affidavits of the entire county as opposed to requiring the official to personally inspect the affidavits.

The court found that, although the right to inspect public records includes the right to make copies thereof, these rights are subject to reasonable restrictions. (Ortiz, 82 N.M. at 446, 483 P.2d at 501.) Ortiz does not stand for the proposition that the requester has the absolute right to choose whichever format is most convenient to his individual needs. Reasonable regulations may be imposed so long as there is reasonable access to the nonexempt information. We do not find the holding in Ortiz contrary to the holding in Dismukes.

We will not address defendants’ contention that a de novo review was inappropriate pursuant to section 11(e) of the Act (Ill. Rev. Stat. 1985, ch. 116, par. 211(e)), as plaintiff was not denied access to the information. Defendants only denied plaintiff’s request to provide the information on computer tape.

We find that the Dismukes test is more in accordance with the purposes of the Act as opposed to the balancing test adopted by the trial court. We further find that there was not an abuse of discretion by defendants in providing the plaintiff with a printout of the requested information rather than a computer tape. Defendants were within the guidelines as set forth in Dismukes.

For the foregoing reasons, the orders of the circuit court of Cook County are reversed.

Reversed.

LINN, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent from the opinion of the majority because I believe that the trial court acted properly in balancing the convenience of the plaintiff against the burden imposed upon the agency in determining whether the agency was required to furnish the requested information in the form of computer tape rather than computer printout.

The agency maintains the requested information on computer tape. The information can be reproduced in two ways — either by making a copy of the computer tape or by making a computer printout of the information contained on the tape. The plaintiff requested a copy of the tape because the copy could be used directly in the plaintiff’s computer, thereby making the information more accessible in that form. By contrast, it would cost the plaintiff approximately $900 to transfer the information from the computer printout into the plaintiff’s computer.

, The agency maintains that it may choose the format, regardless of any inconvenience to the plaintiff, as long as the information is in a readily accessible form. It cites Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, as support for this contention. The Dismukes case does state that in order to comply with the Freedom of Information Act (FOIA), the agency need only provide responsive, nonexempt information in a reasonably accessible form. However, a close reading of the case reveals that the court did in fact consider the cost differential between microfiche and computer tape in determining whether the agency was erecting unreasonable barriers to the plaintiff’s access to the information. The court found the differential minimal and concluded that the agency was not erecting an unreasonable barrier to the plaintiff’s access.

The plaintiff has cited two cases from other jurisdictions and an Illinois Attorney General opinion which support its position. In Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500, the court held that the plaintiff had a right to copy a magnetic tape containing voter registration affidavits rather than having to inspect the individual affidavits. In so concluding, the court stated that “[w]e are unable to understand why the right to inspect public records should not carry with it the benefits arising from improved methods and techniques of recording and utilizing the information contained in these records, so long as proper safeguards are exercised as to their use, inspection and safety.” (Jaramillo, 82 N.M. at 446, 483 P.2d at 501.) In Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116, the court held that the plaintiff was entitled to a copy of computer tapes of certain real estate assessments rather than having to gather the information directly from the field cards. The court stated that “[t]he ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common sense argument in favor of the former.” (Menge, 113 N.H. at 538, 311 A.2d at 119.) In Attorney General opinion No. S — 1323, dealing with computer tapes containing voter registration records, the Attorney General stated that “[w]hen the county clerk keeps the voter registration records on computer tapes, it makes no sense and accomplishes no legitimate purpose to force individuals and organizations to copy the information from the registration cards rather than from the tape. *** Therefore, as a general rule, interested individuals and organizations may copy computer tapes containing voter registration records.” 1977 Ill. Att’y Gen. Op. 219, 221-22 (No. S — 1323).

The majority attempts to distinguish these authorities on the basis that the format chosen by the agency in each of those cases was “clearly” unreasonable because it imposed a great inconvenience upon the party requesting the information. I believe that a determination as to what constitutes reasonable access should involve a consideration of all of the factors present in the case, including the factor of whether the agency would be burdened in any manner by granting the plaintiff’s request as to format.

In the case at bar, the agency advanced two reasons for furnishing the information in the form of a computer printout rather than a copy of the computer tape. First, it claimed that a computer printout would better ensure accuracy. However, at a hearing on the plaintiff’s motion for summary judgment, it was established that the computer printout would be no more accurate than a copy of the tape from which the printout was produced. Second, the agency maintained that a computer printout would be more accessible to the general public. However, no explanation was given as to why the information could not be released in different formats to different requesters. Finding that the agency had no reason whatsoever to choose one format over the other, the court determined that the agency’s choice of format was entirely arbitrary. Balancing the agency’s complete lack of interest in choosing one format over the other against the considerable cost differential faced by the plaintiff, the court determined that the plaintiff was entitled to a copy of the computer tape. I believe that the court’s decision was compatible with the purpose of the Freedom of Information Act to ensure full and complete access to public records.