author: JUSTICE MURRAY

text:
    JACQUELINE McSHANE, Adm’r of the Estate of Craig McShane, Deceased, et al., Plaintiffs-Appellees, v. CHICAGO INVESTMENT CORPORATION, Defendant-Appellant.—CONCETTA HITZ, Adm’r of the Estate of Joseph R. Hitz, Deceased, Plaintiff-Appellee, v. CHICAGO INVESTMENT CORPORATION et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—90—3249
    Opinion filed September 25, 1992.

      James B. Davidson, Roderick T. Dunne, and Ivan P. Jecklin, all of Peterson & Ross, of Chicago, for appellants.

      Michael W. Rathsack, of Chicago (Patricia C. Bobb, Marina Ammendola, and Michael W. Rathsack, of counsel), for appellees Jacqueline McShane, Louis Outlaw, and Gerald Cathcart.
    William J. Harte, Ltd., and Herbert F. Stride, Ltd., both of Chicago (Herbert F. Stride, William J. Harte, and Joan M. Mannix, of counsel), for appellee Concetta Hitz.
   JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal from a general verdict in favor of plaintiffs, Jacqueline McShane, administrator of the estate of Craig McShane, Louis Outlaw, Gerald Cathcart and Concetta Hitz, administrator of the estate of Joseph R. Hitz, in a negligence action brought against defendants, Chicago Investment Corporation and Madison Maintenance Corporation, for injuries sustained after responding to a fire alarm. The facts are as follows.

On the evening of September 22, 1981, several Chicago firefighters, including Craig McShane (McShane), Louis Outlaw (Outlaw), Gerald Cathcart (Cathcart) and Joseph Hitz (Hitz), responded to a fire alarm at 8 South Michigan Avenue, a 38-floor high-rise building in Chicago. McShane and Outlaw were part of Engine Company 42, Cathcart and Hitz were with Truck Company 1. Although McShane was a probationary fireman, Outlaw had three years’ experience, Cathcart had four years’ experience and Hitz had 17 years’ experience. During the course of the fire, McShane and Hitz died, and Outlaw and Cathcart received extensive burns and other injuries.

Jacqueline McShane, administrator of McShane’s estate, along with Outlaw and Cathcart, filed a negligence action against Chicago Investment Corporation (CIC), the sublessee of the building at 8 South Michigan, seeking compensation for the wrongful death of Mc-Shane and injuries suffered by Outlaw and Cathcart. Concetta Hitz, administrator of Hitz’s estate, filed a separate negligence action against both CIC and their agent, Madison Maintenance Corporation (MMC), which managed and maintained the premises for CIC, seeking to recover for the wrongful death of Hitz. The two actions were consolidated.

After a jury trial, substantial verdicts were rendered in favor of the above-named plaintiffs. The judgments for each of the plaintiffs were reduced by 50%, however, based on the plaintiffs’ contributory negligence. CIC and MMC then filed this timely appeal.

■ On appeal CIC and MMC argue that the verdicts rendered in favor of plaintiffs should be reversed and that this court should enter judgment in their favor because (1) the “fireman’s rule” precludes plaintiffs from any recovery, or (2) plaintiffs’ negligence was the su-perceding proximate cause (or their actions an unforeseeable, intervening cause) of their injuries and death. In the alternative, CIC and MMC ask this court to remand for a new trial because (1) the trial court erred in instructing the jury, (2) the trial court erred in making certain evidentiary rulings, or (3) the cumulative effect of various errors warrants the grant of a new trial.

For reasons that follow, we affirm the judgment of the trial court.

Perhaps the chief issue presented to this court is the application of the so-called “fireman’s rule.” The fireman’s rule is a doctrine which limits the extent to which firefighters or other public officers may be allowed to recover for injuries incurred when, in an emergency, they enter onto privately owned property in discharge of their duty.

Historically, under common law, a fireman was considered a “licensee” to whom a landowner owed no duty except to refrain from inflicting wilful or wanton injury. Over time, however, courts began to recognize many exceptions to this harsh rule, finding that various circumstances raised the status of the injured fireman to that of an “invitee” or “business invitee.” Finally, courts discarded these “legal fictions” altogether and merely held that landowners owed firemen and other public officials a duty of reasonable care to keep their premises safe. See Dini v. Naiditch (1960), 20 Ill. 2d 406, 413-15, 170 N.E.2d 881.

This more enlightened approach, giving firemen the right to bring suit for unreasonably unsafe conditions, was adopted by our Illinois Supreme Court in Dini. In Dini, one fireman was killed and another injured when the wooden staircase they were climbing inside a burning building unexpectedly collapsed. The record showed that the staircase, unaffected by the fire, had been defectively constructed. The court also noted that, unknown to the firemen, a storage room located near the stairwell contained highly flammable products, including paint and benzene. After reviewing the history and case law concerning the duty owed by landowners to firemen, the Dini court held that a cause of action could be brought against a landowner or occupier for failure to exercise reasonable care in the maintenance of its property resulting in injury or death to firemen rightfully on the premises, fighting a fire in a place where they might reasonably be expected to be. The Dini court also recognized, as an additional basis of liability, the alleged violations of certain fire safety ordinances.

Although Dini recognized that a duty was owed to firemen, Dini’s progeny defined the scope of that duty, giving greater clarity to the fireman’s rule. The cases that followed Dini interpreted the fireman’s rule as limiting recovery to those instances where the landowner or occupier breached his duty of care by failing to keep the premises safe so as to prevent injury to firemen resulting from causes independent of the fire. A landowner was deemed not liable, however, for any negligence giving rise to the fire or other emergency which brought the firefighter or public official onto the private property.

In other words, a fireman has no right of recovery for injuries arising out of the fire itself. See Court v. Grzelinski (1978), 72 Ill. 2d 141, 147-48, 379 N.E.2d 281 (and cases cited therein); Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App. 3d 167, 360 N.E.2d 978; Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 361 N.E.2d 282; Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, 315 N.E.2d 912.

As stated in Court v. Grzelinski:

“This distinction evolved for two mutually supportive reasons. First, since most fires occur because of the negligence of the landowner or occupier, it was believed that the imposition of a duty to prevent fires from occurring or spreading on a person’s premises would place an unreasonable burden upon the person who owned or occupied improved land. [Citations.] This public policy consideration, however, tended to undermine the general duty imposed upon landowners or occupiers to exercise reasonable care to keep their premises safe. A compromise was reached with regard to firemen, recognizing that the risk of harm from fire is inherent in a fireman’s occupation.” Court v. Grzelinski, 72 Ill. 2d at 148.

In light of the above-stated case law, the fireman’s rule has been refined to mean that when a fireman enters upon a person’s property to fight a fire, he assumes the risk of being injured by causes related to the fire. He does not assume, however, the risk of being injured by causes unrelated to the fire, i.e., causes that might be faced by an ordinary citizen entering upon the property. Hedberg v. Mendino (1991), 218 Ill. App. 3d 1087, 579 N.E.2d 398.

While at first blush this would seem to be a reasonably easy principle to apply, it has become apparent that there is often a fine line between those circumstances that are independent of the fire and those that are not. Consequently, the proposition is best illustrated by the cases interpreting it.

In Hedberg, cited above, the reviewing court reversed the dismissal of plaintiff’s complaint, finding that the plaintiff, a policeman, stated a cause of action when he alleged that while responding to a call about a prowler on the premises he was injured when he tripped on a depressed and defective portion of the sidewalk leading to the premises. The court found that a cause of action had been stated because the complaint alleged that the officer was injured by a cause independent of the emergency he was investigating.

So, too, was the recent decision in the case Harris v. Chicago Housing Authority (1992), 235 Ill. App. 3d 276. In Harris, firemen responding to a fire alarm hooked up their fire hoses to standpipes located within the burning building but found that there was no water pressure because the standpipes did not function. Without water to douse the fire, there was a buildup of heat and gases which precipitated an explosion and the plaintiff/fireman was injured as a result of that explosion. The trial court, relying on the fireman’s rule, dismissed the complaint but the dismissal was reversed on appeal. Noting that it would still be necessary to prove causation and damages, the reviewing court held that a cause of action had been stated and that to hold otherwise would invite flagrant violation of public safety ordinances.

However, it was held that no cause of action was stated in Coglianese v. Mark Twain Ltd. Partnership (1988), 171 Ill. App. 3d 1, 524 N.E.2d 1031, or Luetje v. Corsini (1984), 126 Ill. App. 3d 74, 466 N.E.2d 1304. In Coglianese the reviewing court affirmed the dismissal of the complaint wherein the plaintiff, a firefighter, alleged that he was overcome by smoke, soot and noxious gases emitted by the burning building’s interior walls which were constructed with materials which were not fire retardant and, consequently, failed to meet city codes. Dismissal of the complaint was also affirmed in Luetje, where the plaintiff firefighter was injured when part of the chimney fell from the burning building because of the fire. In both cases the courts found that the injuries suffered were not caused by circumstances independent of the fire, but rather were part of the risk normally associated with the firefighting profession.

In two other cases, Horn v. Urban Investment & Development Co. (1988), 166 Ill. App. 3d 62, 519 N.E.2d 489, and Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 501 N.E.2d 821, summary judgment was granted in favor of the defendants. In each of these cases a firefighter was injured due to a fall. In Horn the fireman slipped on a wet floor while inspecting the sprinkler system to determine the cause for a leak which had triggered the fire alarm. In Briones, firefighters responded to an alarm at a building that was being demolished. The owner informed the firefighters that holes had been cut in the floors because of the demolition. Nevertheless, one firefighter, while inspecting the fire scene, fell into a hole in the floor. On appeal summary judgment was affirmed in both Horn and Briones. The reviewing courts found that a landowner’s liability should not extend to those situations where the injury-causing hazard is open and obvious or where the firefighters had been warned of the hazard, as in Briones.

Keeping in mind the basic premise of the fireman’s rule and the cases which have interpreted and applied it, we now turn to the facts of the present case to determine whether the fireman’s rule should have precluded recovery for plaintiffs.

In the present case, at about 7:40 p.m. on September 22, 1981, Engine Company 1 was notified over the firehouse public address system that there was a fire alarm at 8 South Michigan Avenue. Battalion Chief Higgins, along with an engine unit and a hook and ladder unit, responded to the alarm. Within minutes they arrived at the building, which was a 38-floor high-rise. Higgins and the hook and ladder personnel were directed to a freight elevator, which was manned by a maintenance person, and taken to the 23rd floor, the top floor serviced by that elevator. From there the firefighters proceeded to walk to the 25th floor, where the fire was reportedly located. At the 25th floor they encountered a locked stairwell door and were unable to access that floor. Since there was also no sign of fire at this location, the firefighters proceeded up to the 26th floor, where the stairwell door was not locked. Upon entering the 26th floor, Higgins noticed heavy smoke and a “glow” indicating the presence of fire. A hose was then hooked up to a standpipe located in the stairwell on the 25th floor and the firefighters attempted to attack the source of the fire. After directing water at the glow, the smoke diminished and Higgins was able to determine that the fire was in the shaft of elevator 8. Shortly thereafter Higgins heard a “whooshing sound” and realized that elevator 8 had dropped.

In the meantime, more firefighters appeared on the scene responding to the alarm. Lieutenant Matthew Thomas of Engine Company 42 and his personnel, Kestler, McShane and Outlaw, along with Hitz and Cathcart of Truck Company 1, entered the lobby of the building at 8 South Michigan. Thomas noticed a man standing just inside an elevator, holding it at the ground-floor level through the use of a key. As Thomas and the other firefighters approached this elevator (later identified as elevator 7), the man turned the key, taking it off manual and placing it on automatic. Although Thomas attempted to speak with the man, the man appeared to not understand, spoke in a foreign language and “ran off.” The six firefighters then entered elevator 7 and proceeded up to the 24th floor, one floor below the floor where the fire had been reported.

The elevator operated without any apparent difficulty and the firemen exited elevator 7 at the 24th floor. One man stayed behind, however, to hold the elevator at that floor since they did not have the key. The remaining firemen walked up to the 25th floor, where they encountered other firemen attempting to break down the locked stairwell door on that floor. Since there was no sign of fire at this location, the firefighters did not persist in their efforts to break down the door but, instead, decided to take other action. The firemen who had been attempting to force the door open proceeded up to the 26th floor, while Lieutenant Thomas and the men with him returned to the elevator to reach the 25th floor by that avenue.

The six firefighters, each possessing breathing apparatus and other equipment, reentered elevator 7 at the 24th floor. The button for the 25th floor was pushed and the elevator began to move. After that, however, the elevator did not operate properly. It lurched to a stop and the elevator doors would not open. The elevator remained stuck regardless of the buttons that were pressed by the firemen.

While the firemen attempted to get the elevator to operate or the doors to open, it was discovered that the emergency phone in the elevator did not work and the alarm bell did not ring. Shortly thereafter the lights in the elevator went out and smoke began to fill the elevator. The firemen put on their breathing apparatus and continued to attempt to escape the elevator. They used their equipment to try to break through the elevator access hatch at the top of the elevator, but found that it was securely fastened from outside the elevator and could not be forced open.

All at once and for no apparent reason, the doors to the elevator opened and the firemen were hit with a blast of intense heat and smoke. The smoke was so thick that visibility was reduced to a couple of inches at best. The men exited the elevator trying to locate a means of escape from the heat and smoke. By this time their airpacks were nearly empty and the men were being forced to breathe the hot, smoky air. As the men groped their way through the smoke-filled floor, two men fell down the open elevator shaft of elevator 8, which was located directly across the hall from elevator 7. The other four firemen were able to find their way to safety despite the fact that their route was obstructed by a glass partition and door which was locked shut. McShane and Hitz, who fell down the elevator shaft, died from the fall. Outlaw and Cathcart were injured as they sought safety after escaping elevator 7.

In their third-amended complaint plaintiffs alleged that they were injured as a proximate result of defects in the elevator and defects on the 25th floor which were unrelated to the fire. Specifically, plaintiffs contended that defendants were negligent (1) by maintaining the building so that the usual emergency and escape routes from the elevator lobby of the 25th floor were blocked by a glass partition, (2) by allowing the stairwell doors on the 25th floor to be locked, (3) by failing to repair elevators 7 and 8 when it was known that they were malfunctioning, (4) by bolting the access hatch of elevator 7, (5) by failing to provide a working telephone and/or alarm bell in elevator 7, (6) by failing to provide or maintain electrically illuminated signs to indicate the location of exits, stairwells, and fire escapes, and (7) by failing to warn of these latent and hidden defects.

After all the evidence was presented, a jury returned a general verdict in plaintiffs’ favor, reduced by 50%, due to plaintiffs’ own contributory negligence. Now on appeal defendants contend that they were not negligent because no duty was owed to the plaintiffs pursuant to the fireman’s rule. They concede that the fireman’s rule would not shield them from liability for injuries or deaths which resulted from conduct or conditions present at the fire scene which created undue risks of injury “ ‘beyond those inevitably involved in firefighting.’ ” (Defendants’ brief at p. 23, quoting Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, 315 N.E.2d 912.) They argue, however, that the allegedly negligent conditions asserted by plaintiffs in this case were not outside the realm of risks normally encountered by firefighters. Additionally, they argue that plaintiffs did not show (1) the existence of any hidden, unusual or unexpectedly dangerous conditions, (2) that defendants were aware of or should have been aware of any dangerous conditions, or (3) that the allegedly dangerous conditions proximately caused plaintiffs’ injuries. Finally, defendants argue that any possible negligence on their part was negated by the negligence of the plaintiffs’ conduct.

Thus, the issue for this court to determine on appeal is whether there was sufficient evidence presented at trial to show that circumstances existed at the fire scene which were independent of the fire and which caused or contributed to the deaths and injuries suffered by plaintiffs and their decedents.

THE ELEVATORS

The elevators are a major issue in this case, and both plaintiffs and defendants raise several points concerning elevators and their use by firefighters. First, it is defendants’ contention that plaintiffs failed to show that any elevator-related defects asserted by plaintiffs were independent of the fire. Therefore, they contend that any injuries related to the use of the elevator are “related to the fire” for the purposes of applying the fireman’s rule. Secondly, defendants argue that plaintiffs should not be allowed to recover because it was plaintiffs’ own negligence in taking the elevator to the reported fire floor, in contravention of their own rules and regulations, which proximately caused their injuries and superseded any defects alleged by plaintiffs.

Initially, we note that the fireman’s rule has never been applied in Illinois in the context of a high-rise building and we are aware of only one Maryland case, Flowers v. Rock Creek Terrace Ltd. Partnership (1987), 308 Md. 432, 520 A.2d 361, where the fireman’s rule was applied in this context. The high-rise situation is somewhat unique because elevators must be utilized by firemen to reach the fire scene with their equipment despite the fact that elevators are inherently dangerous during a fire and ordinary citizens are usually directed to refrain from using elevators during a fire. Consequently, an elevator is a place where a firefighter might reasonably be expected to be while fighting a fire in a high-rise.

Nevertheless, a firefighter-plaintiff has a major hurdle to overcome when trying to impose liability upon a landowner/occupier for injuries related to his use of an elevator at a fire scene. First of all, in order to avoid the preclusive effects of the fireman’s rule, he must prove that any alleged defects in the elevator were unrelated to the fire. Even if a firefighter is injured because an elevator does not operate correctly, if the elevator’s failure to operate correctly is shown to be caused by the fire, then the fireman’s rule applies. This is because an elevator’s failure to operate correctly during a fire is one of the risks inevitably faced by a firefighter in a high-rise situation. Such was the decision in Flowers.

In Flowers the plaintiff-firefighter (Flowers) fell down an open elevator shaft from the lobby of the 12th floor as he was directing tenants being evacuated from the burning building. Flowers was unaware of the open shaft because it was obscured by smoke. Flowers alleged, among other things, that he was not warned of the open elevator shaft and that the elevator had malfunctioned because it was not sufficiently fireproof and, therefore, was defective. The trial court held, and the Maryland Court of-Appeals agreed, that Flowers was injured in the course of firefighting and that an open elevator shaft was not a hidden danger of which firemen must be warned. Rather, an elevator malfunction which caused the doors to remain open, and thereby exposed an open shaft, was deemed within the range of risks typically faced by firefighters. Therefore, the Maryland court concluded that the fireman’s rule precluded recovery.

In the present case plaintiffs presented evidence at trial in support of their allegations that their injuries were proximately caused by certain defects in elevator 7. Specifically, plaintiffs attempted to show that elevator 7 did not stop level with the floor and its doors failed to operate properly, that the alarm systems within the elevator did not conform with city codes and that the escape hatch was improperly fastened. Plaintiffs also attempted to show that these defects were unrelated to the fire. It is the sufficiency of this evidence that we must now consider.

With regard to the first point, there is no question that elevator 7 failed to operate properly. Several of the firemen testified about the way the elevator jerked to a stop, how it failed to stop level with the 25th floor and how the doors failed to open. The problem is whether plaintiffs presented sufficient evidence from which one could conclude that these malfunctions were not fire-related.

In support of their proposition that the malfunctions of elevator 7 were not fire-related, plaintiffs relied upon the testimony of one witness who claimed that elevator 8 had malfunctioned earlier in the day and that the buildings’ maintenance staff had been notified of the elevator’s performance. This witness indicated that the doors of elevator 8 had “bounced” and had not stopped level with the floor. Plaintiffs then postulated that because elevator 7 and elevator 8 shared the same machine room, evidence that elevator 8 exhibited problems prior to the fire was some evidence that both of the tower elevators (7 and 8) were malfunctioning prior to the fire so that a jury could have concluded that the problems experienced by the firefighters in elevator 7 during the fire were unrelated to the fire.

This evidence, which itself was rather speculative, was contradicted by a wealth of evidence that elevator 7’s doors malfunctioned due to an interruption of the electrical service to the elevator caused by the smoke, soot and high heat generated by the fire. For one thing, elevator 7 operated properly when the firefighters took it up to the 24th floor and it was only when it was used to go up to the 25th floor, where the fire was located in the shaft of elevator 8, only a few feet away from elevator 7, that it malfunctioned. In addition there was evidence that the elevator functioned properly after the fire. Therefore, we would have to agree that there was no real evidence that a preexisting condition caused elevator 7 to malfunction. We must conclude that plaintiffs’ evidence on this point, standing alone, would have been insufficient to have sustained the jury verdict in plaintiffs’ favor.

However, this was not the only evidence of negligence related to the elevators relied upon by plaintiffs. Plaintiffs also presented evidence that, once trapped in the elevator, they were thwarted in their efforts to escape or be rescued by (a) the inoperative alarm systems and (b) the tightly secured access hatch on top of the elevator.

At trial plaintiffs showed that although elevator 7 appeared to contain two means of emergency communication, i.e., an alarm bell and an emergency telephone, it was actually equipped with only one, an alarm bell, which failed to operate. The phone had been disconnected in 1979 so that it could not possibly have provided a means of communicating with the elevator and this was certainly unrelated to the fire. Plaintiffs contended that defendants were negligent for failing to provide two means of communication and in support of this argument showed that 1970 ANSI standards so required.

Defendants countered by arguing that the applicable Chicago Municipal Code required only one means of communication and that, because the elevator contained an alarm bell which had worked properly prior to the fire, the elevator conformed with the applicable code. Defendants further argued that if the alarm bell failed to operate (and there was conflicting evidence on this point), it was due to the fire and, therefore, outside the scope of their liability under the fireman’s rule.

In rebuttal to this plaintiffs contended that the alarm bell was an indicator of defendants’ negligence even if the alarm bell failed to operate because the fire had inactivated the electrical circuitry to the elevator. It was plaintiffs’ position that it was customary and more appropriate for the alarm bell to be on a separate circuit from the electrical circuit that operates the elevator. This, however, was apparently not done in this case.

While we agree that there was sufficient evidence that the alarm bell did not work, the pivotal point is, once again, whether there was sufficient evidence that the malfunction was not fire-related. We believe that there is little question that, if the alarm bell did not work, the bell’s malfunction was due to the interruption of electrical service to the elevator. Therefore, the failure of the alarm bell was, in fact, fire-related. The fact that plaintiffs presented evidence that it was customary and, of course, wiser to wire the alarm system so that it was on a separate circuit does not alter the result since there was no evidence that an alarm bell would have functioned if it had been independently wired. The fire apparently would have interrupted all electrical service running to the elevator.

Nevertheless, we believe that plaintiffs were entitled to argue that, although defendants were not required to provide two means of communication, their failure to provide a second emergency signaling device, coupled with the fact that the alarm bell was wired into the elevator’s circuitry, was evidence of defendants’ negligence, which made the building unreasonably unsafe.

The next alleged defect involves the access hatch on the top of elevator 7. Plaintiffs presented evidence that after elevator 7 malfunctioned and came to a halt, the firemen attempted to escape through the hatch on the top of the elevator, using their pike poles to try to force the hatch open. The hatch did not open and, for this reason, plaintiffs conclude that it was not properly fastened.

The parties agree that the intended use of the access hatch is for emergency personnel to access the elevator from the outside. Consequently, city codes required that the access cover be so attached that it could be opened only from the top of the car without a tool. Plaintiffs attempted to show that elevator 7 did not comply with this provision of the code through their expert’s testimony. However, a review of the testimony of their expert (Hurley) shows that he only testified that the bolt on the top of the elevator “appeared snug” and “possibly” would require a tool. The expert admitted that he never attempted to actually move the bolt on the top of the elevator. Therefore, plaintiffs failed to meet their burden of establishing a code violation with respect to the elevator access hatch.

Furthermore, even if there had been proof of a code violation with regard to the access hatch, there would still be the issue of proximate cause. It is not clear to this court how the fact that the access hatch was tightly secured caused plaintiffs’ injuries. Plaintiffs merely speculate that, had the hatch been opened by the firemen, they would have safely escaped or been rescued. There was no evidence presented to support the notion that the firemen could have reached safety via the hatch and, in fact, no rescue operation was hampered due to the condition of the bolt on the access hatch. Therefore, plaintiffs failed to show how the condition of the hatch, even if defective, proximately caused the injuries. (See Coglianese v. Mark Twain Ltd. Partnership, 171 Ill. App. 3d at 6.) Without this necessary link, we would be unable to impose liability upon the defendants based upon this alleged defect.

THE BUILDING

Apart from the elevator, there were other conditions of the premises at 8 South Michigan Avenue which, plaintiffs argued, were indicative of defendants’ negligence and which proximately caused or contributed to the plaintiffs’ injuries. First, plaintiffs argued that the locked stairwell door on the 25th floor was a safety hazard and that because the door was locked the firefighters were forced to seek other means of investigating the fire. Therefore, the locked stairwell door put all of the subsequent events into motion, thereby causing the injuries to occur.

Second, plaintiffs attributed negligence to the physical configuration of the 25th floor. Specifically, plaintiffs argued that because a locked glass door and partition separated the lobby from the stairwell door there was no means of egress from the lobby (except the elevator) and that this situation was unsafe as well as a violation of city codes. Furthermore, because of the configuration of the 25th-floor lobby, the firefighters who had been trapped in the elevator essentially became trapped again in the 25th-floor lobby and were forced to break the glass partition in order to escape.

Third, plaintiffs complained that the elevator lobby was devoid of any emergency signage to indicate the location of exits or stairwells. Because of this omission, which was shown to be another violation of city codes, the firefighters were given no direction to follow upon exiting the elevator.

Plaintiffs argued that, due to the lack of signage, the firefighters expended precious time and were forced to breathe in hot gases and smoke as well as remain in the extreme heat generated by the fire for a longer period of time while they aimlessly searched for an exit.

According to certain physical evidence presented at trial, it appeared that McShane and Hitz turned right upon leaving elevator 7, where they encountered locked steel doors of a machine room, which made up one side of the lobby. As they proceeded along in their search for an exit, they came upon elevator 8, where they fell down the open shaft. The remaining firefighters apparently exited the elevator and turned left, where they were blocked by the locked glass door and partition.

After reviewing the record and considering all of the arguments on these issues, this court has concluded that these conditions did indeed make the building unreasonably unsafe and that the cited defects form a proper basis for finding the defendants negligent. There is no question that the above-cited conditions of the premises were not caused by the fire and, therefore, are not fire-related so as to be dismissed under the fireman’s rule. Therefore, we believe that it was for the jury to determine whether the self-contained lobby and the lack of signage were evidence of defendants’ negligence which caused, contributed to or exacerbated the injuries suffered by plaintiffs and their decedents. The jury having determined that defendants were negligent, we find no reason to overrule their judgment. Furthermore, as stated in Harris v. Chicago Housing Authority (1992), 235 Ill. App. 3d 276, to ignore city code violations which were adopted to promote public safety would encourage their continued violation.

CONTRIBUTORY NEGLIGENCE OF THE FIREMEN

Defendants argue that any negligence attributable to them should be negated by the overriding or superceding negligence of the firemen in taking elevator 7 to the 25th floor.

As stated earlier, firefighters must utilize elevators to reach the fire scene in high-rise situations. Consequently, if a firefighter is injured and his injury is related to his use of an elevator, the mere fact that an elevator was used should not be indicative of the firefighter’s negligence and should not preclude recovery.

Nevertheless, it is obvious, even to a lay person, that elevators, being electrically operated, mechanical conveyances, carry certain inherent risks, especially in fire situations. Furthermore, as defendants so aptly presented at trial, a cardinal rule of firemen, taught to them during their training and reinforced through department rules and regulations, is “never to take an elevator to the fire floor.” For this reason we believe that when applying the fireman’s rule in a situation where a firefighter is injured in conjunction with the use of an elevator in a high-rise situation, it is appropriate to consider whether the firefighter’s use of the elevator was proper under the circumstances.

Certainly, if a fireman’s use of an elevator is deemed the sole cause of his injury, no recovery would be available. If, however, the use of the elevator, although deemed improper, is not found to be the sole cause of the injury, then it may be used to limit the recovery that might be due because of defendants’ negligence. Such was the case here.

In the present case the jury apparently found that the firefighters’ own negligence in utilizing the elevator under the attendant circumstances made them contributorily negligent and, accordingly, the jury reduced plaintiffs’ recovery by 50%. Derendants would like this court to overrule the jury and find that the firemen’s use of the elevator was the sole cause of their injury. We cannot agree.

Proximate cause is a fact question for the jury to resolve. There can be more than one proximate cause of an injury, and in such cases, each party may be held responsible for his own negligent conduct, whether it contributed in whole or in part to the injury, as long as it was one of the proximate causes. (See Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.) Additionally, the comparison of the parties’ negligence and the allocation of charge-ability is another matter peculiarly within the province of the jury which should not be disturbed unless it is against the manifest weight of the evidence. (Junker v. Ziegler (1986), 113 Ill. 2d 332, 498 N.E.2d 1135.) We see no reason to upset the jury’s apportionment of liability between the parties in this case.

We now consider the remaining issues presented by the defendants, i.e., whether the trial court erred in instructing the jury or in making certain evidentiary rulings and whether any errors, if found, warrant the granting of a new trial.

OTHER ISSUES

Defendants contend that the trial court erred in allowing the jury to be instructed on Chicago Municipal Code sections relating to signs, access to egress, elevator access openings and locked doors even though there was insufficient evidence to prove that the codes had been violated or that the purported violations proximately caused the plaintiffs’ injuries. We find no error by the trial court.

A party is entitled to instruction upon each theory of the case for which some evidence has been presented. (Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128, 568 N.E.2d 46.) In this case the plaintiffs did produce some evidence that the stated code violations occurred and, as stated earlier, whether the violations were a proximate cause of the injuries was a question to be resolved by the jury. If the trial court had instructed the jury as defendants suggested, informing the jury that firemen assume all risks associated with firefighting, the court would have been expanding the fireman’s rule beyond its normal parameters in contravention with our Illinois Supreme Court’s pronouncements in Court v. Grzelinski.

The defendants next argue that the trial court abused its discretion when it barred the testimony of David Schuman, an expert who was tendered by defendants as a rebuttal witness, as a sanction under Rule 220 of the Illinois Supreme Court rules (134 Ill. 2d R. 220) for their failure to timely disclose this witness. First, it appears that defendants have waived this issue due to the fact that they failed to include this issue in their post-trial motion and their notice of appeal.

Furthermore, a trial court is imbued with broad discretion when it decides to exclude an expert’s testimony as a sanction and the decision will not be interfered with unless it appears that the trial court abused that discretion. (Appelgren v. Walsh (1985), 136 Ill. App. 3d 700, 483 N.E.2d 686.) Here the trial court ordered that Schuman’s deposition be taken and then ruled that his proffered testimony would have been duplicative of the testimony given by defendants’ other expert, Hazard. Since defendants have not disclosed what testimony of Schuman’s was pertinent to their position, we are unable to determine what prejudice, if any, defendants have suffered as a result of the trial court’s ruling. Therefore, we find no basis for finding that the trial court abused its discretion and the ruling need not be reversed.

Defendants next complain that the trial court erred in certain evidentiary rulings, i.e., permitting plaintiffs’ expert, McGinley, to testify to opinions not disclosed in discovery and permitting McGinley to testify to inapplicable standards.

The testimony that defendants find offensive is McGinley’s opinion testimony that the absence of directional signs violated the Chicago Municipal Code. First of all, we note that, once again, defendants fail to state exactly how they were prejudiced by the allegedly improper testimony of McGinley. Secondly, the ordinance itself was submitted to the jury. In light of these facts, we believe that any error in the court’s exercise of its discretion in allowing McGinley to testify would be harmless error. (See Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 375 N.E.2d 456.) In any event, our review of the evidence convinces us that the trial court properly ruled that McGinley’s testimony was within the subject matter of his opinions already disclosed during discovery.

Defendants’ next point is that McGinley’s testimony concerning the 1971 American National Standards Institute (ANSI) standards in relation to elevators was improper because the tower elevators were renovated in 1967 or 1968, at a time when the 1960 ANSI standards were applicable. Again we must disagree. In Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93, the court held that it was proper to allow testimony on regulations even though they were inapplicable because they were adopted at a later date. This was because the regulations were used, not to prove a violation, but as evidence of general negligence and disregard for public safety. We find the same rationale applies in the present case. McGinley was able to express the opinion that the failure to make certain improvements, although not a violation of existing codes, was indicative of defendants’ negligent disregard for the safety of the public.

Furthermore, the jury was well advised that the 1960 ANSI standards, and not the 1971 ANSI standards, were applicable to the elevators. Therefore, any possible error in allowing the testimony concerning 1971 ANSI standards was harmless at best.

In their next issue, defendants argue that the trial court improperly excluded expert testimony which allegedly would have explained how an exhibit photograph was misleading. Defendants contended that, because of the angle that the photograph was taken, the exhibit failed to show a fire exit sign over the stairwell door. The trial court concluded, however, that the expert was unnecessary.

As stated earlier, the trial court has broad discretion when deciding whether to permit or exclude expert testimony. An expert need testify only- if he has some special knowledge that -will aid the jury in its understanding of the evidence. (Binge v. J.J. Borders Construction Co. (1981), 95 Ill. App. 3d 238, 419 N.E.2d 1237.) We do not feel that the trial court erred in excluding the proffered expert testimony since defendants were free to argue that the angle of the photograph eliminated the sign and we agree that jurors would not need any specialized assistance in understanding such an argument.

Lastly, defendants argue that it was error for the trial court to have allowed the jury to hear testimony concerning the origin of the fire. They contend that this evidence improperly suggested that defendants were liable for the fire.

It is true that, according to the fireman’s rule, defendants are not liable for any negligence pertaining to the manner in which the fire occurred. In this case, however, one witness testified briefly that he first learned of the fire when he observed some trash burning on elevator 8 after he pressed the elevator button and elevator 8 arrived on the 25th floor. This evidence merely formed the foundation or background for his other testimony. It was not presented to show the defendants’ negligence. We believe that any error that might be associated with the admission of this evidence was harmless in light of all of the other evidence and because defendants have not demonstrated that they were prejudiced in any way by its admission.

As a final argument defendants contend that they are entitled to a new trial based upon the accumulation of the errors, as outlined above. As we already indicated, none of the alleged errors were prejudicial to the defendants. Neither is their cumulative effect. Parties are entitled to a fair trial, not a perfect one. Technical errors or misrulings which are not found to be prejudicial provide no basis for upsetting a jury’s verdict. (Roberts v. Sisters of Saint Francis Health Services, Inc. (1990), 198 Ill. App. 3d 891, 556 N.E.2d 662.) We believe that the parties received a fair trial, ably presided over by a conscientious judge, resulting in a jury verdict which was not favorable to either party. We see nothing to suggest that a new trial would change the result.

For all of the reasons stated above, we affirm the judgment and verdict rendered in the trial court.

Affirmed.

McNULTY, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    ILLINOIS STATE POLICE, Plaintiff-Appellee, v. ILLINOIS STATE POLICE MERIT BOARD, Defendant-Appellee (Darylann Baron, Defendant-Appellant and Cross-Plaintiff-Appellant; Illinois State Police et al., Cross-Defendants-Appellees).
    First District (6th Division)
    No. 1—91—1415
    Opinion filed September 4, 1992.

      John M. Hosteny, of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Appellant Darylann Baron appeals the decisions of the circuit court which: (1) upheld an Illinois State Police Merit Board (Merit Board) decision which found that she had violated a rule of conduct, but remanded the decision for the imposition of a sanction, which the Merit Board did not initially impose; and (2) upheld the Merit Board’s subsequent imposition of the sanction of discharge. We affirm as to the decision that appellant violated the rule of conduct, but reverse the reversal of the Merit Board’s original decision not to impose sanctions.

The pertinent facts are as follows. Appellant was employed as a State trooper with the Illinois State Police (Department) from 1981 to 1991. She was terminated for unsatisfactory performance, to wit, inability to drive a squad car competently. On April 13, 1988, the Department filed a complaint with the Merit Board, charging appellant with violating rules of conduct 1 — 11 (unsatisfactory performance) (count I), 1 — 32 (use of department equipment) (count II), and 1 — 33 (operating vehicles) (count III). Appellant filed a motion to dismiss based upon the fact that she had already received discipline for a number of preventable automobile accidents which the Department included in its complaint. This motion was granted in part, and the allegations involving previous accidents for which she had been disciplined were stricken from the complaint.

The Department filed an amended complaint, count I of which alleged that Department training, testing and evaluations demonstrated appellant’s inability to adequately operate a motor vehicle (unsatisfactory performance), and count III alleged violation of the operating vehicles rule of conduct. (There was no count II to the amended complaint, as count II of the original complaint had been dismissed on the Department’s own motion.) A hearing officer heard testimony and took evidence on October 3 through 5, 1989. That testimony and evidence included the following.

After graduating from the Illinois State Police Academy (Academy) and completing her training with field training officers, appellant was assigned to solo patrol. During her time assigned to solo patrol, she was involved in numerous automobile accidents. In June of 1985, she was sent back to the Academy for remedial driver training, and following this, she was transferred in August of 1987 to a second stint with field training officers. Based upon her performance, and upon an evaluation conducted in December of 1987, appellant was suspended from employment on April 15,1988.

Appellant testified that she had one preventable accident for which she received a written reprimand, while on solo patrol for District 19. During the years 1983-1986, she was involved in some half dozen accidents which were deemed preventable, and the disciplines she received for the accidents involved suspensions from work ranging from 2 to 10 days. Following an automobile accident in March of 1986, she was transferred to desk work. She testified that she did not wish to do desk work and repeatedly requested to be reassigned to a squad car. She wanted to go to District 17, where she felt that she could better deal with lower volume traffic. Once transferred to District 17, she was involved in one accident when she struck a deer en route to a State Police retirement party.

Appellant acknowledged that she did not do well in her driving course at the Academy, and she herself requested an additional driving course, which the State paid for. She felt that she would be happier in a division of the Department which did not involve as much patrol driving. Appellant did not find police work stressful, except when it involved automobile chases. She acknowledged that she needs further instruction in driving and wishes to improve her driving ability.

Sgt. Steven Yenchko, an Academy instructor who worked with appellant, testified at the hearing. He found her driving skills below average, based upon her problems with “perception and judgment” and “slow reflexes.” Appellant did not respond quickly enough and did not properly maneuver lane changes. She tended to brake an automobile either too soon or too late, and had trouble determining the distance required to sufficiently slow her vehicle when making left-hand turns. When he was riding with her, her performance as a driver was adequate, but when he did not cue her and give her supervision, she had problems correlating multiple tasks at the wheel.

A December 4, 1986, office memorandum documenting appellant’s driving profile revealed that she had received a “satisfactory” rating while at the Academy. During the 1981 field training officer program, there were numerous weeks when her performance was rated as “unacceptable,” as she was nervous and committed various driving violations. The memorandum indicated that during her week of remedial training she demonstrated below average driving skills.

Sgt. William Hanna, the coordinator for District 17, testified that appellant did her field training officer training at District 17 in 1981 and 1987. In 1987, after appellant had finished 14 weeks in the program, he and other training officers recommended that she be held for further training due to her problems stopping at stop signs and slowness in pursuit and answering radio calls. After 27 weeks in the program, she was released to drive on her own if she passed the defensive driving course.

Several other State troopers testified regarding appellant’s driving skills, rating them poor and below average in numerous respects, and relating specific instances of poor driving on her part. Other troopers, some of whom had not actually driven with appellant, testified that her driving skills were adequate. Trooper Kenneth Hall testified that he evaluated appellant in 1987 for a period of two days. According to Hall, appellant had some difficulties breaking and steering properly, although her judgments were proper. While she improved in certain respects when he worked with her, she was “reflexively a little slower than average,” and Hall thought she was not “comfortable driving in the kind of driving that may be necessary” for a State trooper. One trooper, Sgt. Hamilton, who had driven with appellant, testified that she was as good or better in her abilities as a trooper than other people on his team, and Hamilton thought it was a “travesty” that appellant was not currently performing her job.

Following the hearing, the Merit Board officer issued an order which found that the Department had proved by a preponderance of the evidence that appellant violated the unsatisfactory performance rule of conduct (count I). The officer further found, however, that the Department had not established the allegations of count III of the amended complaint, the operating vehicles rule of conduct. On January 19, 1990, the Merit Board itself adopted the conclusions of the officer. The Merit Board found that no sanctions were warranted, but did recommend remedial training for appellant. The Department filed a complaint for administrative review seeking reversal of the Merit Board’s decision with respect to the nonimposition of sanctions. Appellant filed a cross-complaint seeking review of the underlying determination of violation of the unsatisfactory performance rule of conduct.

On October 29, 1990, the circuit court upheld the Merit Board’s determination as to the violation of the rule of conduct, but reversed and remanded the Merit Board’s decision with respect to sanctions, holding that this determination was arbitrary, unreasonable and unrelated to the requirements of service. Upon remand, the Merit Board requested new evidence of the parties in the form of any professional opinion concerning appellant’s inability to perform her tasks, and information as to other available positions that do not require driving of a State trooper.

The Department submitted evidence to the effect that all State troopers must have the ability to assume an assignment requiring use of an automobile. Appellant submitted expert testimony to the effect that while appellant lacked certain abilities to be an effective patrol trooper, she had numerous other skills which would benefit the Department in nonpatrol capacities. The Merit Board ruled that respondent should be discharged from her employment with the Department, and the circuit court affirmed this decision on March 18,1991.

The first issue we address is whether the Merit Board’s determination that appellant had violated the unsatisfactory performance rule of conduct was error because it was either against the manifest weight of the evidence or was irreconcilably inconsistent with the finding that claimant had not violated the operating vehicles rule of conduct.

In arguing that the Merit Board’s finding of guilt is against the manifest weight of the evidence, appellant contends that the Department failed to establish a minimum level of driving ability from which it could be concluded that her own ability was less than satisfactory. Further, according to appellant, the evidence established that she was as competent a driver as the next trooper, and the evidence established that appellant was under a lot of stress during her retraining and evaluation, which must be taken into account in determining whether she performed satisfactorily.

The Department argues that the evidence appellant relies upon, at best, establishes that some members of the Department, who had not personally observed her poor driving, thought that she was a competent driver. Further, repeated evaluations and testing established her driving deficiencies, and she had previously received written reprimands and other disciplines for incidents occurring while at the wheel. The Department contends that it had no obligation to establish an objective level of satisfactory driving.

The law applied to proceedings on administrative review is well settled. In Martin v. Thompson (1990), 195 Ill. App. 3d 43, 49, 551 N.E.2d 1082, the court observed:

“Upon judicial review of an administrative decision, a reviewing court is limited to determining whether the decision is against the manifest weight of the evidence. [Citation.] Evaluating the credibility of witnesses and resolving conflicting evidence is within the province of the administrative body [citation], and its findings are deemed prima facie true and correct. [Citation.] A reviewing court is not permitted to reweigh the evidence or reassess the credibility of witnesses. [Citation.] That an opposite result is reasonable or that a court might have reached a different conclusion is insufficient grounds for disturbing an administrative determination. [Citation.] To reverse a decision of an administrative body, a reviewing court must ‘conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident.’ [Citation.]”

Applying these principles to the present case, it is clear the Merit Board’s determination that appellant had violated the unsatisfactory rule of conduct was not against the manifest weight of the evidence. That rule requires the Department to establish that appellant failed to maintain “sufficient competency to properly perform [her] duties and assume the responsibility of [her] position.” Inability to perform assigned tasks is one way in which the rule of conduct is violated. The testimony at the hearing was replete with opinions, based upon personal experience, that appellant was a below average driver, who had difficulty performing numerous maneuvers necessary for her position as a State trooper. Particularly critical of appellant’s driving skills were Sgts. Yenchko and Hall. While some witnesses, as appellant points out, did not criticize her driving skills, it is the administrative body’s function to determine conflicting evidence.

Nor does appellant’s contention that the Department failed to establish a standard from which she could be judged unsatisfactory in her performance have force. She cites no authority for this proposition, and the existence of the satisfactory standard is implicit in the testimony criticizing her driving abilities. Here, as the opposite conclusion is not clearly evident, we hold that the Merit Board’s finding that appellant violated the unsatisfactory performance rule of conduct is not against the manifest weight of the evidence.

Appellant next contends that the Merit Board’s finding that she violated the unsatisfactory performance rule of conduct may not stand because the Merit Board found that the Department had failed to establish that she violated the operating vehicles rule of conduct. According to appellant, the finding on the unsatisfactory performance count (count I) of the amended complaint cannot stand as the Merit Board found that the Department had failed to establish appellant’s violation of count III, and both counts were predicated on her alleged preventable accidents at the wheel. Appellant cites a number of criminal cases involving inconsistent verdicts in support of this argument.

The Department responds that the rulings on counts I and III are not inconsistent because count I was a general rule of conduct, while count III required proof of specific incidents. The hearing officer, in fact, prevented the Department from introducing evidence to establish the specific incidents for the reason that appellant had already been disciplined for the accidents.

The record supports the conclusion that the hearing officer did not hear evidence on the allegedly preventable accidents for the purpose of ruling on count III. Appellant had filed a motion to dismiss the initial complaint based upon the fact that she had already been disciplined for the allegedly preventable accidents, and those allegations were stricken. With respect to the amended complaint, the hearing officer’s decision states: “The hearing officer notes that paragraph 5 of Count I and Count III contain the same allegations regarding the eight preventable accidents of the Respondent that were dismissed by the previous Hearing Officer. As a result, those paragraphs of the Second Amended Complaint are hereby dismissed and evidence regarding those allegations is not considered here.”

Thus, the underlying premise of appellant’s argument is false, namely: that the Merit Board actually determined that she had not violated the operating vehicles rule of conduct due to the Department’s failure to establish her record of poor driving based upon the allegedly preventable accidents. Moreover, the unsatisfactory performance rule of conduct specifically took into account factors such as evaluations and written records of infractions on the part of a respondent, factors not at issue in the operating vehicles rule of conduct, which suggests that the two findings on the counts would not have been inconsistent had they, in fact, been litigated.

We next address whether the circuit court erred in reversing and remanding the Merit Board’s initial decision based upon the Merit Board’s decision not to impose sanctions upon appellant.

The Department contends that the Merit Board’s initial decision not to impose sanctions on appellant was arbitrary and unreasonable and thus the circuit court was correct to reverse on this ground. The Department argues, without any supporting explanation, that if no sanctions were imposed, appellant would have been permitted to drive. However, the Department ignores the fact that the Board recommended remedial training to appellant in its decision. The Department also contends that the initial Merit Board decision allowed claimant to continue in a job she could not perform. This argument also ignores the recommendation of remedial training. Finally, the Department contends that if appellant received no discipline, she would have no incentive to perform in a satisfactory manner.

Appellant contends that the Merit Board’s determination should have been accorded appropriate deference and was not improper under the facts of this case, which involve no charge of intentional misconduct, some supportive testimony of other troopers, and appellant’s willingness to continue her efforts to improve her performance.

The Department has cited no authority to suggest that in a given case, the Merit Board must impose a sanction after there has been a charge established against a respondent. The Department has cited no authority which is analogous to the case at bar. The authority the trial court relied upon does not establish that the Merit Board must impose discipline upon a respondent; rather, it involves review of whether the sanction of discharge was arbitrary or unreasonable.

A reviewing court’s role is not, as appellant points out, “that of a supercommission, which may substitute its judgment as to the more fitting sanction.” (Launius v. Board of Fire & Police Commissioners (1991), 211 Ill. App. 3d 545, 556, 570 N.E.2d 532.) In fact, 80 Ill. Adm. Code §150.680 (1991) provides that the Merit Board, when entering an order finding a law enforcement officer guilty of an accusation, “may order the officer’s discharge, demotion, or a suspension for a period of time ***, or recommend participation in a rehabilitative program ***, whichever in the opinion of the Board is most applicable.” (Emphasis added.) Such discretionary language is authority for the proposition that the Merit Board had the authority to enter a finding of guilty, but not impose a sanction.

The trial court’s reasoning, in reversing the matter for imposition of a sanction, appears to have been that it was arbitrary and unreasonable to not impose a sanction against this trooper, because she cannot do her job well. Thus, it would appear, the trial court can only have intended that appellant be discharged, as if appellant simply cannot do her job, no other sanction, such as demotion or suspension, would cure the perceived anomaly of a trooper who cannot drive. In fact, at oral argument, the Department contended that even if appellant had been suspended, that determination would have been against the manifest weight of the evidence.

The Merit Board, however, the expert body in such cases, determined that discharge was not appropriate, but rather recommended remedial training, which would fit within a broad definition of “rehabilitative program” under the Administrative Code. Given that the Department does not argue that the Board has no authority to not discharge an employee found guilty of unsatisfactory performance, and that the only cases which tend to disturb administrative sanction against employees lessen, rather than increase, imposed sanctions (including Walsh v. Board of Police & Fire Commissioners (1983), 96 Ill. 2d 101, 449 N.E.2d 115, which the trial court relied upon), we hold that the initial Merit Board decision should not have been remanded for imposition of sanction.

Given our disposition on the issue of the initial Merit Board determination, we need not address the new evidence put forth upon remand, or whether the subsequent sanction of discharge was not warranted. In holding as we do, moreover, we do not suspect that an unsafe driver will be released upon this State’s highways, as the Department implied at oral argument. No testimony to this effect has been cited in the record, and should the Department feel that public safety is threatened, it may well bring new charges against appellant. Our result is bottomed upon proper deference to the Merit Board. Indeed, had the Merit Board’s original sanction been discharge we may well have left it undisturbed, based upon a duly deferential attitude to the Merit Board’s decision.

Accordingly, the judgment of the circuit court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD VOLKMAN, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2806
    Opinion filed September 21, 1992.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Judith M. Pietrucha, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial, defendant was convicted of reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)) and driving while under the influence of alcohol. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501(a)(2).) He was sentenced to 3½ years’ imprisonment for the reckless homicide conviction and a concurrent term of 364 days for the remaining conviction.

On appeal, defendant contends that: (1) the trial court’s questioning of the venire denied his right to a fair and impartial trial; (2) his sixth amendment right to choice of counsel and effective assistance of counsel was violated; and (3) his constitutional right to the presence of counsel during the proceedings was violated when the jury verdict was rendered in his absence.

On July 14, 1987, several cars were proceeding eastbound on Touhy Avenue just east of Lehigh Road when a red convertible Chevrolet driven by defendant moved across the double yellow line and struck an oncoming car, a red Oldsmobile 98 Regency, which was being driven by the decedent, Herbert Knechtel. The left front fender of defendant’s Chevrolet hit the left front fender of the 98 Regency and caused the 190-degree spin of the Regency. After the Regency had turned clockwise 190 degrees, it was hit broadside on the front end of the driver’s side by a blue Oldsmobile 88 driven by Mrs. Palmlund.

Mrs. Palmlund and her husband, who was a passenger in their car, were taken to Skokie Valley Hospital for medical treatment. One of the investigating officers who found Mr. Knechtel motionless directed a paramedic unit to transport him to the hospital. Mr. Knechtel remained in critical condition until his death a week later. The trauma surgeon testified that the cause of death was multisystem failure secondary to trauma.

Defendant first contends that the trial court’s questioning of the venire was insufficient to insure him the selection of a fair and impartial jury. He maintains that the judge in this case made the identical error which the judge made in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, where the Illinois Supreme Court held that the trial judge’s failure to ask three voir dire questions by the defense constituted reversible error. These three Zehr questions are:

“(1) If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?
(2) If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?
(3) Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State?” 103 Ill. 2d at 476.

We have reviewed the trial court’s questioning of the venire and find that the court substantially complied with the dictates of Zehr when it addressed the venire as a whole. The court is not required to question each and every juror individually as long as the “subject matter of the questions” is “covered in the course of interrogation on voir dire.” Zehr, 103 Ill. 2d at 477.

Although admonitions and instructions are no substitute for interrogation (People v. Starks (1988), 169 Ill. App. 3d 588, 523 N.E.2d 983), and although the court here did not question each prospective juror individually, it addressed the venire en masse and invited each of them to respond individually when questioned about the broad principles of law applicable to all criminal cases. The court then explained the nature of the indictment, the presumption of innocence, the burden of proof and the fact that defendant’s failure to testify must not be held against him. The court also told the jurors they would receive instructions on the law at the conclusion of the case.

Defendant urges that the court appeared to have a lack of regard of its obligation to pose the Zehr questions when it stated that such questions “were optional.” While the court seemed to have a lax attitude and failed to specifically pose the Zehr questions, we believe that the purpose as expressed in Zehr was satisfied here by the trial court’s broad admonitions, coupled with its subsequent discussion of the presumption of innocence and burden of proof. (People v. Emerson (1987), 122 Ill. 2d 411, 426-27, 522 N.E.2d 1109.) In the instant case, the judge first addressed the venire en masse. He next addressed an array of 12, and then reduced that group to a panel of four which was to be accepted or rejected by the State, and then if applicable, accepted or rejected by the defense. The remaining persons, if any, were then impanelled as jurors. Before a new panel was passed on to the parties, the court selected another array by reshuffling the cards and starting the process anew. Mr. Jacobs, one of the defense attorneys, objected to the court’s method of selecting the jurors and expressed that he had never seen such a process in 37 years of trial work. The other defense attorney, Mr. Novelle, also expressed some confusion about the manner in which the jurors were entering the courtroom.

Although the procedure used by the court was somewhat unusual, we do not believe the overall method deprived defendant of his right to a fair and impartial jury. First, the court asked general questions of the entire group to ascertain their understanding of the broad principles of law inherent in all criminal cases. He told the jurors that “[t]he defendant under the law is presumed to be innocent of the charge” and that the jurors must be “satisfied beyond all reasonable doubt that the evidence presented in court is sufficient for you to find the defendant guilty.” He also explained that the “State has the burden of proving beyond all reasonable doubt that the defendant is guilty of the charge.” The court further stated that “[t]he law does not require the defendant to do or say anything to prove his or her innocence, and I might add the law is very clear the failure of the defendant to testify may not be taken into consideration in arriving at a verdict.” The court then, still questioning the venire en masse, asked any member who felt that he or she could not be impartial because of the nature of the charges to step forward for further questioning.

Voir dire continued over a period of three days during which time the court extensively questioned the venire. Once the smaller arrays of 12 were selected at random, the court asked more specific questions to ascertain any bias of a prospective juror, his or her ability or lack thereof to try a case involving a reckless homicide committed by a drunken driver, and his or her knowledge of the particular case or persons involved in it. Following the selection of 12 jurors and 2 alternates, as previously stated, the court again reminded them of their obligation as jurors and that at the conclusion of the case, they would be instructed on the law applicable to this case.

Accordingly, we find no error in the trial court’s questioning of the venire. We conclude that defendant was not deprived of his right to a fair and impartial jury.

Second, defendant asserts that his constitutional right to counsel of choice was violated where the court improperly interfered with his right to choose to retain one attorney and replace another during the trial. He also contends that the court’s denial of new counsel’s request for a 30-day continuance violated his right to counsel of choice and his right to effective assistance of counsel.

The record reflects that defendant’s initial attorney, Mr. Novelle, filed a motion to withdraw as counsel two weeks before trial and that his associate set the time for hearing on the motion one week prior to trial. Purportedly, the attorney-client relationship deteriorated beyond repair when defendant refused to pay additional money for an expert witness. When defendant learned of Mr. Novelle’s desire to withdraw, he expressed his own desire to fire Mr. Novelle and substitute Mr. Jacobs as new counsel.

After the hearing on the motion to withdraw, the judge denied Mr. Novelle’s request, but informed defendant that he would reconsider the motion if defendant secured substitute counsel who would be ready for trial the following week. However, on the day scheduled for the trial to begin, Mr. Jacobs appeared with defendant and requested a 30-day continuance to prepare for trial. The court denied Mr. Jacobs’ motion for a continuance and also denied Mr. Novelle’s motion to withdraw, the effect of which provided defendant with two separate trial counsel. The court did, however, allow Mr. Jacobs until the next day to review the file. Mr. Novelle objected to remaining on the case each day of the trial and also renewed his motion to withdraw as counsel, which was in turn repeatedly denied by the trial court. On or about the fifth day of the trial, Mr. Novelle refused to remain on the case and left the courtroom at which time the court noted for the record that Mr. Novelle had participated as defense counsel during the trial.

The right to be represented by counsel of one’s choice must be balanced against the equally desirable public need for the efficient and effective administration of criminal justice. (People v. Myles (1981), 86 Ill. 2d 260, 268, 427 N.E.2d 59.) However, it is well settled that a criminal defendant’s right to the counsel of his choice is not absolute. (United States v. O’Malley (7th Cir. 1986), 786 F.2d 786.) Rather, the determination of whether defendant’s right to select counsel of his choice unreasonably interferes with the orderly process of judicial administration depends upon the particular facts and circumstances surrounding each case and lies within the sound discretion of the trial court. People v. Holmes (1987), 155 Ill. App. 3d 562, 508 N.E.2d 405.

In the present case, the facts indicate that the trial court effected a proper balance where it required Mr. Novelle to remain on a case which had been pending for two years and which the court had determined was proceeding to trial on the scheduled date. The trial court had already remarked during pretrial proceedings that this matter had gone on too long and that the September 1989 trial date was firm.

Accordingly, we conclude that the defendant was not denied his right to counsel of his own choosing. When the defendant expressed to the court a week before the trial that he desired to replace Mr. Jacobs as new trial counsel since Mr. Novelle desired to withdraw from the case, the court informed him that he would entertain the motion to withdraw as long as new counsel came to trial prepared to proceed. This ruling by the trial court made it clear that if counsel of defendant’s choice was not available for trial at the scheduled time, the defendant could either proceed with Mr. Novelle, who had been associated with the case from its inception, or proceed with a new attorney, purportedly, Mr. Jacobs. Contrary to defendant’s argument in the brief, several of the many continuances were either requested by the defendant, acquiesced in by him or could be attributed to his filing of several pretrial motions.

Moreover, we do not believe the defendant received ineffective assistance of counsel because of the trial court’s denial of his motion for a continuance. The test of incompetency is based upon a showing that the attorney’s performance fell below an objective standard of reasonableness and was prejudicial to defendant. In order to show prejudice, defendant must establish there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694-96, 80 L. Ed. 2d 674, 697-99, 104 S. Ct. 2052, 2068-69.) In the present case, although it may be said that the trial judge’s ruling which required two attorneys to remain on the case was not the norm, it cannot be said that any impropriety in the ruling rose to the level of error requiring a new trial. The record unequivocally shows that the alleged errors asserted by the defendant fail to support his claim of ineffective assistance of counsel.

Here, there are no allegations of unprofessional errors committed by either attorney. To the contrary, both the original and substitute counsel were experienced trial attorneys. Although Mr. Novelle had made it clear he did not want to go to trial on this case, he was in court each day prior to the day he walked out. He assisted Mr. Jacobs through the jury selection and argued a motion in limine. Mr. Jacobs proceeded and assumed full representation of the defendant by participating in the jury selection, cross-examining all witnesses, presenting jury instructions, and arguing during closing argument. The fact that both attorneys remained on the case during the first week did not amount to an interdependent conflict of interest between counsel and the defendant. There is nothing in the record to suggest that Mr. Novelle was forced into a conflict of interest by assisting Mr. Jacobs in the trial or that Mr. Novelle’s presence caused defendant to participate in the type of defense he had previously disagreed with.

Taking into consideration the fact that this case had already been prepared by Mr. Novelle, and that the case itself was not so complex that Mr. Jacobs required a great amount of time or expert assistance to understand the issues, we find that denial of the continuance to prepare for trial was not error. (See United States v. Rodgers (7th Cir. 1985), 755 F.2d 533.) There is nothing here to show neglect of the case or the trial because of the presence of both counsel or because of the trial court’s denial of the motion for a 30-day continuance.

Moreover, defendant suffered no prejudice since the result of the proceeding would have been no different, given the overwhelming evidence that defendant committed the crimes as charged. Accordingly, even assuming the trial court made an error in denying the motion to withdraw and the motion for a continuance, we conclude that defendant has failed to show that the outcome of the trial would have been different.

Finally, we consider defendant’s contention that his constitutional right to be present at all critical stages of the proceedings (see People v. Nelson (1960), 18 Ill. 2d 313, 164 N.E.2d 16) was violated because he was absent when the jury returned its guilty verdict. Under the United States Constitution, criminal defendants have a general right to be present at their trials (People v. Bean (1990), 137 Ill. 2d 65, 82, 560 N.E.2d 258) and at every critical stage of the criminal proceedings, including the imposition of sentencing. See Waldon v. United States (E.D. Ill. 1949), 84 F. Supp. 449.

In the instant case, the record demonstrates defense counsel had advised the court in chambers that because of a late evening meeting he might be unavailable when the jury returned its verdict. If this occurred, he requested the court to seal the verdict and wait to open it until the following morning. However, defense counsel was available at the time the jury finished its deliberations. He returned to court and when asked by the judge if the defendant was present, counsel replied that he did not have a chance to contact the defendant. The court then advised counsel to reach the defendant. Counsel stated when he called the defendant’s home he received a recorded message. The judge then allowed the jury to render its verdict in defendant’s absence and defense counsel waived the polling of the jury.

The cases we reviewed in which the defendant was discharged or granted a new trial for violation of his right to be present during the proceedings all involved situations where the defendant was involuntarily absent from the proceedings. However, it has been held that a defendant who voluntarily absents himself from the trial or some stage thereof waives his right to be present during the critical stages of the proceeding. (See People v. Partee (1988), 125 Ill. 2d 24, 530 N.E.2d 460; People v. Castro (1983), 114 Ill. App. 3d 984, 449 N.E.2d 886.) We believe that defendant waived his right to be present by leaving the courtroom without being excused and that his absence was voluntary and wilful. Defendant was aware of the fact that the jury had retired for deliberations. Yet, there is no explanation for his absence from the courtroom. Neither were there circumstances present here to show that defendant was imprisoned or prevented by an improper means from being present when the verdict was rendered. He failed to leave a message as to his whereabouts or inform counsel or the court where he would be in the event the jury returned a verdict that evening. Moreover, defendant did not make an objection to the court regarding the return of the verdict in his absence when he appeared in court the following morning. See People v. Smith (1955), 6 Ill. 2d 414, 129 N.E.2d 164.

Assuming arguendo the trial court’s allowance of the jury’s return under these circumstances constitutes error, it is no more than harmless error. It cannot be said that such action contributed to the verdict. Moreover, this is not a close case; the evidence at trial was overwhelming, and defendant has not raised sufficiency of the evidence to prove him guilty beyond a reasonable doubt as an issue on appeal.

Accordingly, the judgment of the circuit court of Cook County finding defendant guilty of reckless homicide and driving while under the influence of alcohol is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.