author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DON AGEE, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1202
    Opinion filed October 5, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee G. Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendant was found guilty of two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12— 4(b)(1)). Defendant now appeals, and we address the following issues: (1) whether evidence of the victim’s character should have been admitted to support defendant’s claim of self-defense; (2) whether the State proved defendant intended to kill the victims to support the attempted murder convictions; and (3) whether defendant’s conviction for aggravated battery should be vacated because it was a lesser included offense of attempted murder. We affirm in part and vacate in part.

At trial, the State presented the testimony of three eyewitnesses, Sherron Sullivan, Stanley Miles, and Virginia Hall. Sullivan testified that on August 3, 1985, at approximately 9:30 p.m., she was walking across the street from her house with her two-year-old daughter. Defendant, who lived directly across the street from Sullivan, passed her on the sidewalk and entered the gangway next to his house. Sullivan crossed the street and walked up the steps to her house. Miles, who lived two houses away, was on the steps, and Hall, who was Sullivan’s tenant, was sitting on the porch. Sullivan heard a gunshot and saw a flash coming from the gangway across the street. She ran up the steps with her daughter and felt two shots hit in her legs. She saw defendant with a gun in his hands running across the street toward her house. He came up to the curb of her house, which was 15 to 20 feet from the porch. Sullivan heard a total of five shots. Defendant then turned and ran back to the gangway. Sullivan did not see a weapon in Miles’ hands. When defendant’s attorney asked Sullivan about Miles’ reputation in the neighborhood, the trial judge sustained the State’s objection.

Miles testified that he was on the steps of Sullivan’s porch when he saw defendant run from the gangway across the street toward the porch. Defendant fired five shots within a matter of seconds and Miles ran inside the house. Miles testified that he was not carrying a weapon at the time. On cross-examination, Miles admitted he and defendant had a fist fight the night before the shooting. Miles also saw defendant in the morning of the day of the shooting, but he testified he did not say anything to him.

Hall testified that she saw defendant in the gangway and told Miles to “watch out” because she knew they had had an argument the night before. Defendant then came out of the gangway, shooting a gun. Hall heard one shot and fell down on the porch. Defendant asked Hall whether she knew of Miles’ reputation in the neighborhood and the State objected. The objection was sustained.

The State rested its case against defendant.

William Thomas, who was married to defendant’s niece, testified that on August 2, 1985, the day before the shooting, he saw defendant attempt to stop a fight between Miles and Albert Brown, who was defendant’s nephew. Miles stabbed defendant in the chin with a knife. Thomas testified that he saw Miles with a gun “quite a few times” in the four years he had known Miles. On the State’s objection, the trial judge would not allow Thomas to testify as to Miles’ reputation in the neighborhood.

Defendant testified that the day before the shooting, at about 5:30 p.m., Miles offered to sell him cocaine. When defendant declined, Miles threatened to put a “death violation” on him, which is a gang term meaning Miles would either kill defendant himself or have someone kill defendant. Defendant walked away. An hour later, defendant saw Miles again and Miles asked whether he was ready to buy some cocaine. Defendant ignored him. At approximately 8:30 p.m., defendant saw Miles a third time and Miles again asked whether defendant was ready. Defendant refused, and Miles said he would “whip [defendant’s] ass” if he did not buy some cocaine. Defendant ignored Miles, and Miles slapped a can of soda pop from his hands. A struggle ensued, and Miles stabbed defendant in the chin. Miles ran away and said he would get defendant again. Defendant telephoned the police, but they did not come to his house. Defendant did not go to the hospital for his injuries.

The next evening, at approximately 8:30 p.m., defendant saw Miles with two other men. Miles pulled a gun from his jacket and defendant ran away. Miles chased defendant, but he was able to escape through a gangway. When defendant arrived home, he telephoned the police who again did not arrive. He received a response from Detective Harris, who told him that he should call again if he had any other problems.

The same evening, at approximately 9:15 p.m., defendant was sitting on his porch and heard voices in the gangway. He recognized Miles’ voice. Defendant testified that he heard Miles and another person say, “[G]et him, get him, he is right there. Shoot him. Shoot him.” Defendant went in his house to get a gun and came outside again. Defendant testified that the police would not respond to his calls and he was afraid for his life. He saw Miles and another man walking toward him on the same side of the street. Miles had his right hand in the waist band of his pants. When Miles crossed the street to the other side, defendant “fired a couple of shots in his direction to let [Miles] know that [defendant] had a pistol, too.” Defendant admitted he fired five shots. After the shooting, defendant threw the gun in a sewer. Defendant testified he did not intend to shoot anyone, rather, he intended to scare Miles away from him. Defendant stated he feared Miles.

The trial judge found defendant guilty of aggravated battery of Sullivan and attempted murder of both Sullivan and Miles. Defendant’s written post-trial motion was denied; however, that motion is not in the record. Defendant received concurrent sentences of five years’ imprisonment for aggravated battery and 12 years’ imprisonment for attempted murder. Defendant now appeals.

Opinion

Initially, we note that defendant’s written post-trial motion was not included in the record on appeal although the record indicates it was tendered to the trial judge. At oral argument for this appeal, defendant’s attorney stated that the motion was lost. Without the post-trial motion it cannot be determined whether defendant preserved each of the issues raised on appeal; however, the State does not contend that defendant failed to raise the issues in the trial court. We will, therefore, consider each of the issues defendant raises on appeal.

Defendant first argues that he should have been allowed to present evidence of Miles’ aggressive and violent character to support his claim of self-defense. At trial, defendant attempted to introduce evidence of Miles’ reputation in the neighborhood through the testimony of Sullivan, Hall, and Thomas. The trial judge sustained the State’s objection to such questioning.

Section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1) provides the factors for self-defense:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Evidence of the victim’s aggressive and violent character can be introduced to support defendant’s claim of self-defense if defendant presented “some evidence” that the victim was or appeared to be the aggressor. People v. Lynch (1984), 104 Ill. 2d 194, 204, 470 N.E.2d 1018, 1022.

Defendant contends he presented sufficient evidence to justify admitting evidence of Miles’ reputation, relying on testimony that prior to the shooting, he and Miles had certain altercations. The day before the shooting, Miles stabbed him in the chin during a fight. The next day, approximately an hour before the shooting, Miles pulled a gun from his jacket and chased defendant. Additionally, 15 minutes prior to the shooting, defendant overheard Miles and another person say “shoot him” from his gangway.

However, defendant did not present evidence that Miles was the aggressor at the time of the shooting. Defendant testified that he saw Miles walking down the street toward him with his hand in his waist band. When Miles crossed the street to the other side, defendant fired shots in his direction from across the street. Defendant fired at Miles as Miles was walking away from him. There was no testimony that Miles threatened defendant in any way as he walked across the street or that Miles displayed a weapon. Further, the testimony of the other eyewitnesses established that Miles was across the street from defendant at the time defendant started shooting. Accordingly, defendant did not present evidence that Miles was the aggressor and, therefore, the trial judge properly sustained objections to defendant’s attempts to admit evidence of Miles’ reputation.

Defendant next contends that the State did not prove he had the requisite intent to kill Sullivan and Miles to support the attempted murder convictions.

To establish attempted murder, the evidence must show that, beyond a reasonable doubt, defendant intended to kill. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) The specific intent to kill can be inferred from the circumstances, such as the character of the assault and the use of a deadly weapon. (People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929.) Intent to commit great bodily harm is insufficient to support a conviction for attempted murder. (Harris, 72 Ill. 2d 16, 377 N.E.2d 28.) When a defendant claims he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.

The testimony of the three eyewitnesses, Sullivan, Miles, and Hall, established that defendant fired five shots toward them and Sullivan’s daughter and that two of the shots struck Sullivan. Defendant admitted he fired from across the street, and other testimony established that defendant ran toward them and came within 15 to 20 feet of the porch. Defendant admitted that he fired the shots in Miles’ direction. Although defendant testified he did not intend to shoot anyone, viewing the evidence in a light most favorable to the prosecution, defendant’s actions of firing a gun five times in the direction of four people from a distance of 15 to 20 feet established that he intended to kill Sullivan and Miles. The State presented sufficient evidence to support defendant’s attempted murder convictions.

Lastly, defendant argues his conviction for aggravated battery should be vacated because it is a lesser included offense of attempted murder and the two convictions were carved from one act. The State contends that aggravated battery based on the use of a deadly weapon is not a lesser included offense of attempted murder. The State also contends that defendant committed multiple acts to support the convictions.

In considering the propriety of multiple convictions, the Illinois Supreme Court has held:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.)

Under King, multiple convictions are improper if they are based on the same physical act or if some of the convictions are lesser included offenses.

The Illinois Supreme Court has held that aggravated battery is a lesser included offense of attempted murder. (People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387.) Defendant relies on several appellate court cases which have also held that aggravated battery is a lesser included offense of attempted murder. (People v. Gvojic (1987), 160 Ill. App. 3d 1065, 513 N.E.2d 1083; People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285; People v. Camacho (1979), 71 Ill. App. 3d 943, 389 N.E.2d 1213.) From our research, the only case that arguably supports the State’s position is People v. Wieland (1984), 123 Ill. App. 3d 576, 462 N.E.2d 1256, where the court held that aggravated battery based on the victim’s age (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(b)(10)) was not a lesser included offense of murder. However, we must decline to follow Wieland based on the supreme court’s holding in Pate.

Under King, multiple convictions are improper if they include lesser included offenses. Because defendant was convicted of both attempted murder and the lesser included offense of aggravated battery, the aggravated battery conviction and sentence must be vacated.

Defendant requested a new sentencing hearing if his aggravated battery conviction was vacated relying on People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48. In Alejos, the supreme court remanded a case for resentencing because it found that the trial judge was influenced by improper factors when sentencing defendant. In this case, however, remandment for resentencing is not necessary because there is no indication in the record that the trial judge was improperly influenced. People v. Baity (1984), 125 Ill. App. 3d 50, 465 N.E.2d 622.

Affirmed in part and vacated in part.

MURRAY and GORDON, JJ., concur.

      The transcript of the sentencing hearing, however, indicates that the trial judge said he sentenced defendant to five years’ imprisonment on count II, which was the attempted murder of Sullivan, and 12 years on count III, which was the attempted murder of Miles, to run concurrently. However, the order of sentencing states that defendant received concurrent sentences of five years’ imprisonment for aggravated battery and 12 years’ imprisonment for the two counts of attempted murder. Neither party on appeal cited the discrepancy or claimed that the order of sentencing is incorrect.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY SMITH, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2768
    Opinion filed October 5, 1990.
    Rehearing denied November 19, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Lynn R. Flanagan and Richard Cade, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Jannis Eisbart, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Larry Smith (Smith), appeals from a burglary conviction and sentence of four years. Smith was sentenced on August 3, 1987. He had served 83 days in the Cook County jail prior to his sentence. If Smith is still incarcerated, as of the date of the writing of this opinion, he will have served three years and 130 days of his four-year sentence.

Smith raises two issues on appeal: (1) that the trial judge erred in not allowing defense counsel to complete her closing argument; and (2) that he was not proved guilty beyond a reasonable doubt. For the reasons hereafter set forth, we reverse Smith’s conviction.

The following facts appear from the trial record.

Police officer Jose Cartagena testified that about 5 a.m. on August 22, 1986, he and his partner, Officer Kofron, received a radio call concerning a possible theft from some railroad boxcars at 1341 South Taiman in Chicago. When the officer arrived at that location he observed a four-foot hole in the chain link fence which surrounded a portion of railroad property. The officer crawled through the hole and walked up to some railroad tracks where he observed about 15 men taking boxes out of the car in “assembly line” fashion and stacking them on a nearby road. After observing the men for a few minutes, he approached the group and the men began to run.

Officer Cartagena returned to the squad car, called for assistance and then returned to the railroad tracks and began gathering boxes. Officers Calderon and Jaques started walking up the embankment toward the tracks when Officer Cartagena heard Officer Jaques “holler for somebody to get up.” As Officer Cartagena approached the two officers, he saw them pull defendant from some bushes. Officer Cartagena testified that he had observed defendant in the “assembly line,” moving boxes from the railroad car and stacking them on the road. Defendant was arrested, and Officer Cartagena then returned to the railroad tracks and resumed picking up boxes.

Later, Officer Rodriguez approached Officer Cartagena and he then accompanied Officer Rodriguez to a squad car, where he saw co-defendants, Anthony Weeks and Michael Triplett. Officer Cartagena then returned to the tracks, where he observed that about 10 of the boxes he had just gathered were missing. He and Officer Rodriguez started walking through nearby bushes in search of the boxes when they found codefendant Richard Washington hiding in the bushes with the missing boxes. The boxes were subsequently inventoried and claimed by a representative of the Chicago and Northwestern Railroad Company. Officer Cartagena testified that at the time he observed the “assembly line” the sky “was getting daylight,” that there was one light on the opposite side of the railroad car and one light farther down from the car and that “light was coming over the boxcar and on to where all these people were.” On cross-examination the officer stated that he first observed the line from a distance of 20 to 25 yards. He testified that as he started walking toward the group he turned on his flashlight, stating “I didn’t want to trip over anything.” The officer testified that when he called for assistance the only description he provided was that the offenders were approximately 15 black men who were about 16 to 20 years old. At one point, the officer testified that he did not see any of the faces when the boxes were being unloaded, but he later testified that at some point he saw the faces of some of the people in the assembly line and that some of those people he had identified in court. The officer provided in-court identifications of defendant and codefendants.

Officer Calderon testified that he found defendant “crouched down in the bushes” inside the fence and that Officer Cartagena identified defendant as one of the offenders. Officer Kofron testified that she first observed defendant as he was being brought down from an embankment that led up to the railroad tracks. At the conclusion of the State’s case in chief, defense counsel requested a directed finding and argued extensively about defendant’s identification by police. The motion was denied.

Thomas Carroll, a law clerk from the Cook County public defender’s office, then testified that about one year after the incident he examined the area where the burglary occurred and observed no lights on the railroad’s property, but did see lights in an adjacent junkyard.

After only a single sentence of closing argument by defense counsel, the following colloquy took place between her and the court:

“MS. HERIGODT: Judge, if I may continue to argue.
THE COURT: Well, you can’t.
MS. HERIGODT: It may present — It may be that he was present at the scene of the crime, Judge —
THE COURT: May very well be. And I find that he’s part and parcel of this.
As long as arguments are not evidence, and anything you say should not be taken by me as evidence, I don’t think I’m required to listen to your arguments. And especially when the evidence is so overwhelming as to prove beyond a reasonable doubt.
You [sic] trying to tell me that this man just incidentally happened to be on a railroad property and incidentally the very same time in fact a burglary is going on? I think that is ludicrous and I, you know, I support you for your adversary proceedings, but I think you’re wasting my time and everyone else’s time by attempting to argue that when in fact nothing that has been presented here has impeached anything that the officer said in any material way other than to say that it was kind of hard for me to identify everyone but that guy found immediately after this burglary close enough to that boxcar hiding corroborates that identification sufficiently enough for me to make my determination that there’s not a chance in the world that I’m sending an innocent man or finding an innocent man guilty of the charge of that burglary.
And for those reasons I find your client, Larry Smith, guilty as charged in the Indictment.”

Defendant first argues that the trial court improperly curtailed defense counsel’s closing argument, thereby denying him the full benefit of his constitutional right to effective assistance of counsel. Defendant is correct. The cases of Herring v. New York (1975), 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550, United States v. Spears (7th Cir. 1982), 671 F.2d 991, and People v. Diaz (1971), 1 Ill. App. 3d 988, 275 N.E.2d 210, compel reversal. As the court stated in People v. Diaz:

“In a criminal case, our statutes and constitution contemplate that the trial include an opportunity for the defendant to argue his cause by counsel.” 1 Ill. App. 3d at 992.

We are aware of the fact that this cause originates in an area where the trial judge has a crowded docket, but that fact does not relieve a judge of his duty to be attentive, patient and impartial. A defendant who waives a jury and submits his or her rights and liberty to a trial judge is entitled to the same fair, patient and impartial consideration he would be entitled to by a jury of fair, impartial, careful and considerate peers. (People v. Diaz, 1 Ill. App. 3d 988, 275 N.E.2d 210.) In many a criminal trial and/or appeal, argument or brief of defense counsel or prosecutor has changed the initial impression of the court.

There appears to be adequate evidence to support the verdict of guilty in this case. Normally, we would merely reverse and remand the cause for a new trial. However, in light of the amount of time the defendant has already served under the sentence imposed, remandment for a new trial would be an exercise in judicial futility.

Accordingly, we reverse the defendant’s conviction based on the constitutional defect occurring at his trial without remandment.

Reversed.

COCCIA, P.J., and GORDON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELIX OCASIO, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0349
    Opinion filed October 5, 1990.
    Rehearing denied November 8, 1990.

      Jack I. Rodgon, of Chicago (George S. Pfeifer, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Gunta Z. Hadac, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, Felix Ocasio was convicted in absentia of delivery of a controlled substance containing cocaine (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and was sentenced to 15 years’ imprisonment.

We affirm.

Initially, we note the record indicates that, at the commencement of trial proceedings, defendant was present in the courtroom and was introduced by the trial judge to the prospective jurors. Defendant remained present in court throughout voir dire. After the jury was selected and sworn to duty, defendant’s counsel requested a conference with counsel for the State before the trial judge. The State then offered that, in return for defendant’s guilty plea, the State would recommend a six-year prison sentence. The trial judge deemed the proposal acceptable in light of defendant’s background and the facts of the case. Defendant was apprised of that information. Defendant was also admonished by the trial judge that the trial could be conducted in his absence. Thereafter, proceedings were recessed for lunch. When court reconvened approximately one hour later, defendant was not present.

The trial proceeded in absentia.

At trial, Illinois State Police Sergeant Daniel Callahan testified that in May 1987 he was an undercover agent assigned to investigate illegal narcotics activities. Callahan testified that on the evening of May 20, 1987, in conjunction with such an investigation, he travelled to the building in which defendant lived with his girl friend, Sylvia Zamora. Special Agents Curtis, Brzinski, and Clemente were assisting in a surveillance function. Callahan stated he met with defendant, asked to then buy an eighth of an ounce of cocaine from him, and inquired whether he could purchase an ounce of cocaine at a later date. Defendant agreed to sell Callahan cocaine, advised him that the price for an ounce of cocaine would be $1,400, and told him to leave and return in 20 minutes.

At approximately 7:40 p.m., Callahan returned to the building. When he knocked on the door, Zamora appeared and told him defendant was not present. Callahan told Zamora he wanted an eighth of an ounce of cocaine. Zamora directed him to a back door where she gave him a clear plastic bag of white powder in return for $200. Callahan stated he then left and met with the surveillance unit.

In the afternoon of the following day, Callahan telephoned defendant. Defendant told Callahan that he had the ounce of cocaine they had talked about earlier and repeated that the price was $1,400. Callahan explained, in general terms, the procedure for obtaining funds to purchase the cocaine. He thereafter met with Agents Brzinski and Clemente to discuss surveillance plans for his meeting with defendant.

At approximately 6:22 p.m., Callahan returned to the building where defendant lived and met defendant at a side entrance. Defendant told Callahan to drive his car around to the alley behind the building. As Callahan drove through the alley, defendant motioned for him to stop, opened the passenger door, and reached inside the car, handing Callahan a clear plastic bag of white powder. Callahan handed the $1,400 to defendant and left the area. Later, he performed a preliminary “field” test on the white powder and determined the substance contained cocaine.

On July 24, 1987, Callahan, accompanied by two other agents, arrested defendant at his residence.

Special Agent Leonard Brzinski testified to providing surveillance assistance for Callahan on the above dates. Regarding the evening of May 21, 1987, Brzinski testified he saw Callahan exit his car, approach defendant’s building, return to the car, and drive into the alley. In his own car, Brzinski proceeded to the mouth of the alley. He was not, however, able to observe any exchange. Brzinski stated that when Callahan rejoined the surveillance unit, he produced a clear plastic bag containing a white powder.

Nancy Hall, a State Police forensic scientist, testifying as an expert witness, stated that tests performed on the white powder showed the substance to be 27.4 grams of cocaine.

Over defendant’s counsel’s objection, Assistant State’s Attorney Richard Sikes was permitted to testify for the State. Sikes testified he saw a copy of defendant’s answer to the State’s motion for pretrial discovery which had been filed on the first day of trial. The answer listed Sylvia Zamora as a potential defense witness. Sikes stated he walked outside of the courtroom into the hallway and called out Zamora’s name. He stated a woman approached him and identified herself as Zamora, but refused to talk with him.

No testimony was presented on defendant’s behalf.

The record indicates that, subsequent to his conviction, defendant was taken into custody.

Opinion

At the outset, we observe that trial judges may continue, without delay, proceedings where defendants voluntarily absent themselves after commencement of trial in their presence, notwithstanding language in the Code of Criminal Procedure of 1963 (see Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1) indicating the court must wait two days, because such provision has been held by our supreme court to be permissive, not mandatory. (People v. Flores (1984), 104 Ill. 2d 40, 470 N.E.2d 307.) Accordingly, we note that immediate continuation of the trial in the instant case, after defendant absented himself, was proper.

Defendant’s first argument on appeal is that the trial judge improperly permitted the State to comment upon defendant’s absence at trial and to state defendant’s flight constituted evidence of guilt. Specifically, defendant directs attention to remarks made during the State’s opening statement:

“Felix Ocasio is out on bond. We broke for lunch and we haven’t seen him since that time when we broke for lunch.”

And the following comments made during closing argument:

“He [defendant] got caught selling cocaine to an undercover police officer and now he’s attempting to avoid taking the responsibility for his criminal acts. He is doing that in a number of ways. One way he has done that is flight. [The jury] may properly consider flight as evidence of a person’s guilt.”

Because the record indicates defendant was properly orally admonished by the trial judge that a trial could be held in his absence if he failed to appear in court, we conclude defendant knowingly waived his right to be present at trial after failing to appear following the luncheon recess. (Ill. Rev. Stat. 1985, ch. 38, par. 113 — 4(e); People v. Lester (1988), 165 Ill. App. 3d 1056, 519 N.E.2d 1127.) Additionally, although the State may not proceed in a defendant’s absence without making a substantial showing that the absence was voluntary (People v. Brown (1988), 172 Ill. App. 3d 1044, 527 N.E.2d 629), further evidence to show defendant’s voluntary absence was unnecessary here. Defendant was present in the courtroom for jury selection, he was told by his attorney to return after the lunch recess, and he failed to appear that afternoon or on the following day. Defendant’s own counsel admitted that he assumed defendant was in flight.

The tendency of jurors to speculate as to the reasons for a defendant’s absence inherently arises from the absence of the defendant. If the absence of a defendant was voluntary, that defendant created the tendency to speculate and any prejudice that might have resulted to him. (See People v. Brown (1988), 172 Ill. App. 3d 1044, 527 N.E.2d 629.) Further, flight is a circumstance which can be considered as bearing upon guilt. (See People v. Zielinski (1979), 77 Ill. App. 3d 157, 395 N.E.2d 1020; People v. Gary (1976), 42 Ill. App. 3d 357, 356 N.E.2d 135.) Thus, we cannot conclude that the above comments to the jury regarding defendant’s absence during the trial or in reference to defendant’s flight constitute reversible error.

Defendant next argues that the trial judge erred in allowing the State to present the testimony of Assistant State’s Attorney Sikes because the purpose of such testimony was only to introduce evidence of Sylvia Zamora’s bias before she testified.

The record indicates defendant’s counsel did not file an answer to the State’s motion for discovery until the day the trial was to commence. The State was made aware of Zamora as a potential defense witness at that time because her name was listed in defendant’s answer. Until then, it was unclear that any witnesses would be testifying on defendant’s behalf. Further, during his opening statement, defendant’s counsel indicated to the jury that Zamora, not defendant, had actually sold the drugs to Callahan and that Zamora’s name would be mentioned “quite often” at trial. Counsel also commented that it was unclear why Zamora was not present at trial or charged in the case.

If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) Here, defendant created the necessity for offering the testimony of Assistant State’s Attorney Sikes by raising Zamora’s name in his opening statement. The purpose of his testimony, rather than indicating Zamora’s bias, was to show that defense counsel had knowledge of Zamora’s whereabouts. We therefore cannot conclude it was error for the trial judge to permit Sikes’ testimony.

Finally, defendant contends he was denied the right to a fair trial because no other witnesses except Callahan could testify that he was the individual charged.

We find no merit in that argument. A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. (People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.) In a bench trial, it is for the trial judge to determine the credibility of witnesses, to weigh the evidence, draw reasonable inferences therefrom, and to resolve conflicts in that evidence. Slim, 127 Ill. 2d 302, 537 N.E.2d 317.

It is apparent the jury found Callahan to be a credible witness and considered his testimony was worthy of belief. He identified defendant as the individual who sold cocaine to him, he was present during defendant’s arrest, and the record indicates he confirmed defendant’s identity in court. Therefore, his identification of defendant as the offender was sufficient to sustain defendant’s conviction.

For the above reasons, we affirm the judgment of the circuit court. As part of the judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


author: JUSTICE McNAMARA

text:
    JAE BOON LEE, Adm’x of the Estate of Sang Yeul Lee, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0088
    Opinion filed October 5, 1990.
    Rehearing denied November 20, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark and Stanley V. Boy chuck, of counsel), for appellant.
    William J. Harte, Ltd., and Fishman & Fishman & Saltzberg, EC., both of Chicago (Michael Maloney and Erik Gruber, of counsel), for appellee.
    Phelan, Pope & John, Ltd., of Chicago (Peter C. John and Mary Patricia Benz, of counsel), for amicus curiae Commonwealth Edison Co.
    George M. Elsener and Todd A. Smith, of Corboy & Demetrio, P.C., of Chicago, for amicus curiae Illinois Trial Lawyer’s Association.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Jae Boon Lee, administratrix of the estate of Sang Yeul Lee, brought a wrongful death action to recover damages for the death of- her husband which occurred while he was on land owned by defendant, Chicago Transit Authority (CTA). Plaintiff’s complaint alleged that the CTA’s conduct in maintaining its third rail was either negligent or wilful and wanton, and caused decedent’s death. The jury returned a verdict for plaintiff on the negligence count in the amount of $3 million, but reduced its award by 50% based on the decedent’s own negligence. In response to a special interrogatory, the jury found that the CTA’s conduct was not wilful and wanton. The court entered judgment on the verdict for $1,500,000. The CTA appeals from that judgment, contending that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict; that improper and insufficient evidence and trial error compel a new trial; and that the jury’s apportionment of fault and award of damages are not supported by the evidence.

Both the Illinois Trial Lawyer’s Association and Commonwealth Edison Company have filed briefs as amicus curiae in this case. The Association urges this court to affirm the trial court’s decision, while Commonwealth Edison urges us to reverse the decision.

At trial, the following information was adduced. Plaintiff testified that she and the decedent immigrated to the United States from a rural area outside of Seoul, Korea. They had two sons, Chong Yoon Lee and Jae Lee. At the time of his death, the decedent was employed at Thayer & Chandler, a manufacturer of air brushes. The decedent had a limited understanding of English, but was able to get to and from work by riding the Ravenswood “L.”

On October 21, 1977, the morning preceding the accident, the decedent informed plaintiff that he planned to attend a party in the evening. Decedent apparently left the party after dark. He proceeded up Kedzie Avenue, a north/south street which intersected with the northwest-bound Ravenswood rapid transit line. At this point, he apparently proceeded into the CTA’s right-of-way in order to urinate. In the process of doing so, he came into contact with the third rail, and suffered fatal injuries.

The decedent’s body was found on the elevated (“L”) tracks located on the CTA’s Ravenswood line at or near 4700 North Kedzie Avenue. John Costantini, a Chicago Fire Department paramedic field officer, testified that the decedent lay perpendicular to the northwest-bound CTA tracks, his head pointing north. The decedent’s feet were near the third rail, pointing in its direction. (The third rail carries 600 volts of electricity and provides power to the train cars as they traverse grade crossings.) The decedent’s pants zipper was open, and his penis was exposed. The pathology report listed the immediate cause of death as electrocution. At the time of his death, the decedent had a 0.341 percent blood-alcohol concentration which placed him in the stupor classification of intoxication.

Thomas Wolgemuth, the CTA’s director of plant maintenance and later its manager of engineering, testified that the decedent was neither permitted nor invited to be on the Kedzie “L” tracks on October 22, 1977. (Plaintiff introduced no evidence that the presence of decedent inside the Kedzie right-of-way was known to the CTA.) In order to prevent pedestrians from entering the right-of-way at grade crossings such as the one at Kedzie, the CTA developed a “pedestrian access barrier system.” This system was in place in July 1976 and consisted of warning signs, right-of-way fencing, access barriers and chain link fences, and trespass barriers, also known as “jaws.”

Prior to installing the “jaws” trespass barrier system, the CTA considered three alternative protective systems: gates which would remain closed except when a train was traveling through the crossing, cover boards which would cover the third rail, and catenary lines which would carry the electric current overhead.

Charles Heilman, a safety expert, testified for plaintiff that each of the above systems would have been preferable to the system employed by the CTA. Heilman concluded that the “jaws” were intrinsically unsafe and that the warning signs were insufficient. Heilman gave detailed reasons for his conclusion, but because of our view of the proceedings, it is not necessary to set forth his reasoning.

Plaintiff introduced evidence of 10 prior accidents involving injuries caused by the third rail at CTA grade-level crossings. Of those, one occurred at the Ravenswood crossing at Kedzie in 1974. The 10 accidents spanned the period from 1948 through 1975. None of the accidents occurred after the CTA placed its “jaws” trespass barrier system at grade-level crossings on the Ravenswood line.

Following the presentation of all testimony, the parties tendered instructions to the court. Plaintiff tendered an instruction based on her theory that the CTA was engaged in the activity of conducting electricity. The CTA objected to plaintiff’s instruction and tendered its own instruction based on the position that the third rail was a condition, not an activity. The court found that the CTA was engaged in the activity of conducting electricity and gave the jury plaintiff’s instruction charging the CTA with the duty of ordinary care. The court refused to give the CTA’s instruction.

Following deliberations, the jury returned a verdict in the sum of $3 million which it reduced by 50% to account for the decedent’s own negligence. The CTA’s motion for directed verdict as well as its motion for judgment notwithstanding the verdict were denied.

The CTA first contends that the trial court erred in denying its motions for a directed verdict on the negligence count and for judgment notwithstanding the verdict. In support of this contention, the CTA argues that railroads owe no duty of ordinary care to trespassers and that only an intentional and affirmative activity by a landowner gives rise to a duty of ordinary care owed to trespassers whose presence can be anticipated.

Although plaintiff argues that it was not proved that decedent was a trespasser at the time of his death, we find that the evidence establishes that he was a trespasser. A trespasser is one who enters the premises of another for his own purposes without permission, invitation or other right. (Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881, 522 N.E.2d 343; Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 343 N.E.2d 261.) At trial, it was established that the decedent entered the CTA’s right-of-way in order to urinate. The CTA presented evidence to establish that the decedent was neither invited nor permitted to be on the right-of-way on October 22, 1977. Plaintiff presented no contrary evidence. The question of status may be decided as a matter of law if there are no factual questions present. (Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 495 N.E.2d 679.) In view of the unrebutted testimony presented by the CTA with regard to this issue, we conclude as a matter of law that, at the time of his death, the decedent was a trespasser.

Generally, a railroad company owes no duty to a trespasser except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril. (Rowe v. Taylorville Electric Co. (1904), 213 Ill. 318, 72 N.E. 711; Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556, 67 N.E. 376; Knyal v. Illinois Power Co. (1988), 169 Ill. App. 3d 440, 523 N.E .2d 639; Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920; Fosbury v. Aurora, Elgin & Chicago Ry. Co. (1908), 141 Ill. App. 98.) This limited duty is based on the concept that the law does not require an owner or occupier of land to anticipate the presence of persons wrongfully or unexpectedly on his land. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) There are, however, three exceptions to this general rule of limited duty. The first is for young children who the owner knows habitually frequent the vicinity of a defective structure or dangerous agency existing on the land and who by reason of their immaturity cannot appreciate the risk involved. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E .2d 836.) The second exception applies to trespassers using permissive paths. (Morgan v. New York Central R.R. Co. (1927), 327 Ill. 339, 158 N.E. 724.) The third exception is for discovered trespassers. Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E .2d 866; Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556, 67 N.E. 376.

It is obvious that neither the first exception, dealing with small children, nor the third exception, dealing with discovered trespassers, is applicable to the situation before us. At the time of his death, decedent was 46 years old. Thus, the exception for children does not apply. Nor was there any testimony which would permit a finding that the decedent had been discovered by the CTA. Thus, the discovered trespasser exception does not apply.

Moreover, we find that the permissive use exception and its derivatives are not applicable. Under the permissive use exception, a landowner may owe a duty of care to trespassers, other than to refrain from wilful and wanton conduct, when the landowner permits regular use of his land for travel. (See, e.g., Morgan v. New York Central R.R. Co. (1927), 327 Ill. 339, 158 N.E. 724 (when railroad company permitted use of its right-of-way over a period of years, the company had a duty to use reasonable care to discover persons passing along the path in question); McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 23 N.E .2d 785 (when railroad company knew that a pathway over its right-of-way had been used by the general public for as many as 20 years, the company owed a duty to watch out for members of the public who might be using the pathway).) Here, the CTA did not acquiesce in the use of its right-of-way as a path. Rather, it posted warnings, erected right-of-way fencing, installed wooden access barriers and chain link fences, and designed and implemented “jaws” to prevent unauthorized persons from entering that right-of-way. Thus, plaintiff may not use the permissive use exception to impose a duty upon the CTA to have discovered the decedent and to have taken reasonable precautions to protect him from harm.

Having so determined, we nonetheless must inquire further to verify that additional, less clearly defined exceptions to the general rule of limited duty to trespassers do not apply. A review of our jurisprudence in this area reveals that the exceptions to this general rule have evolved over the years to incorporate certain aspects of what formerly was known as the active negligence doctrine. Plaintiff’s theory in this regard is set forth in section 334 of the Restatement (Second) of Torts, which provides as follows:

“A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.” (Restatement (Second) of Torts §334 (1965).)

This Restatement section has been incorporated into an Illinois jury instruction specifically designed to apply in those situations in which an activity on the landowner’s premises causes injury to a known or anticipated trespasser. (See Illinois Pattern Jury Instructions, Civil, No. 120.03, Notes on Use (2d ed. 1971) (hereafter IPI Civil 2d) (stating that this instruction instead of IPI Civil 2d No. 120.02 is to be used when the activities of the owner or occupant, as distinguished from the condition of the premises, caused the injury).) The trial court here determined that this instruction obtained and, over the CTA’s objection, gave it to the jury.

The CTA contends that the trial court erred in instructing the jury on the standard of care owing to a trespasser who is injured by an activity occurring on its premises. As the basis of this contention, the CTA argues that the trial court improperly determined that the decedent’s death resulted from an “activity” on the CTA’s right-of-way. The CTA maintains that the third rail is a condition, not an activity. The CTA concludes that the trial court’s errors in this regard improperly permitted the imposition of a duty of ordinary care.

During the course of the trial, plaintiff amended her complaint four times. In her fourth amended complaint, plaintiff alleged that the CTA was negligent in that it used and transmitted electricity without proper safety measures. At the conclusion of all evidence, plaintiff moved to file an amendment to that complaint in order to conform it to the evidence as presented. The amendment contained an allegation that the CTA used and transmitted electricity without safety measures. Over objection, the court allowed the amendment, noting that there was evidence that the CTA was placing its electricity in the third rail for various stations throughout the City of Chicago.

Based on the amended complaint, plaintiff tendered an instruction based on IPI Civil 2d No. 120.03, which sets forth the duty owed by an owner to a trespasser for an injury caused by the owner’s activities. The CTA offered IPI Civil 2d No. 120.02, which sets forth the duty owed by an owner to a trespasser for an injury caused by a condition of the premises. That instruction provided that the CTA was not under a duty to use ordinary care to see that its premises were reasonably safe for Sang Yeul Lee. The court ruled that the CTA was engaged in the activity of conducting electricity, and, over the CTA’s objection, gave the instruction tendered by plaintiff. The court also instructed the jury that the CTA had a duty, “before and at the time of the occurrence, to use ordinary care for the safety of the decedent.”

We find that the trial court improperly determined that the CTA’s use of a rail charged with electricity was an “activity” giving rise to a basis for instructing the jury on the duty owed to a trespasser caused by the CTA’s activities.

The Illinois Supreme Court Committee Comments to the instructions distinguish situations in which a condition of the premises gave rise to the injury and those in which the owner or occupant of the premises actively did something which injured the plaintiff. (See generally Illinois Pattern Jury Instructions, Civil, Nos. 120.02, 120.03, Notes on Use (2d ed. 1971).) Moreover, the instructions provide different prerequisites to liability and a different standard of care in each situation. (See Illinois Pattern Jury Instructions, Civil, Nos. 120.02, 120.03 (2d ed. 1971).) Our decisions in this area confirm that this distinction is appropriate. (See, e.g., Marcovitz v. Hergenrether (1922), 302 Ill. 162, 134 N.E. 85 (elevator shaft on defendant’s premises was a condition on the land); Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 392 N.E.2d 768 (submerged barge on defendant’s premises was a condition on the land); Phillips v. J.F. Martin Cartage Co. (1976), 42 Ill. App. 3d 890, 356 N.E.2d 1237 (refuse container on defendant’s premises was a condition on the land); Shine v. Wabash R.R. Co. (1956), 8 Ill. App. 2d 521, 132 N.E.2d 41 (operating train on defendant’s premises was an activity on the land); McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 23 N.E.2d 785 (lumber thrown by defendant’s employees on its premises was an activity on the land).) Thus, as outlined in the instructions, the situations in which courts have found that an owner’s activity gave rise to a duty of reasonable care to trespassers are those in which two factors existed: a positive act of wrongdoing and knowledge, constructive or actual, of the trespassers’ presence. (See, e.g., McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 23 N.E.2d 785. Compare Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866 (court refused to impose a standard of ordinary care upon the landowner when a child was struck by a trairnwhen the railroad did not know nor should it have anticipated the child’s attempt to jump on a moving train).) In contrast, in situations in which courts have found that a condition of the premises caused the plaintiff’s injury, no duty of ordinary care existed even when the landowner had knowledge of the likelihood of a trespasser’s presence. See, e.g., Hessler v. Cole (1972), 7 Ill. App. 3d 902, 289 N.E.2d 204; Dent v. Great Atlantic & Pacific Tea Co. (1955), 4 Ill. App. 2d 500, 124 N.E.2d 360.

Thus, the determination of whether an injury was caused by an activity or a condition is crucial, and we believe that a review of the relevant case law will be instructive. In the Comment to IPI Civil 2d No. 120.03, the authors cite McDaniels v. Terminal R.R. Association as an example of a situation in which the plaintiff was injured by an activity, and thus one in which that instruction would have been appropriate. There, the plaintiff, a trespasser on defendant’s property, was injured when he was struck by pieces of lumber thrown by defendant’s employees. The court found that defendant had constructive knowledge of plaintiff’s presence on a path which had been used by the public for as many as 20 years. In view of this knowledge, the court found that defendant had an obligation to keep a lookout for persons on its premises and to conduct its activities in a manner which reasonably would safeguard those persons.

The court reached a similar result in Shine v. Wabash R.R. Co., where a child was struck and injured by defendant’s train when the child wandered onto the tracks. The court noted that defendant’s employees had actual knowledge of the child’s presence and concluded that, in view of this knowledge, the reasonable care standard of ordinary negligence applied.

Finally, in Votava v. Material Service Corp., the court found that a submerged barge which was used for storing the defendant’s equipment and supplies was a condition rather than an activity. The plaintiff was injured when his boat ran into the submerged barge. Citing McDaniels and Shine, the court emphasized that in those situations in which an activity was found, there was a positive act of wrongdoing, rather than a mere condition of the land or property. The Votava court concluded that even though the defendant had knowledge of trespassers to the premises, it nonetheless owed such trespassers only a duty to refrain from wilful and wanton misconduct.

In light of these decisions, we find that the CTA was not conducting an affirmative activity when the decedent sustained his fatal injuries and that the trial court erred in so concluding. The use of electric energy is not akin to the operation of a train, or to the hurling of lumber, endeavors which have been labelled “activities.” (McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 23 N.E .2d 785; Shine v. Wabash R.R. Co. (1956), 8 Ill. App. 2d 521, 132 N.E.2d 41.) It is not an affirmative activity, but rather, is a passive, although dangerous, condition comparable to the submerged barge in Votava v. Material Service Corp. Compare Walker v. Texas Electric Service Co. (Tx. Ct. App. 1973), 499 S.W.2d 20 (labelling electricity transmission wires a condition).

Significantly, we hold that, contrary to the trial court’s conclusion, the CTA is not in the business of distributing electricity despite the fact that it owns and operates transformers. Rather, the CTA is a consumer of electricity. More specifically, the CTA purchases electricity in order to charge its third rail. This purchase is not unlike a homeowner’s purchase of electricity in order to charge an appliance such as an electric outdoor grill. In such an instance the consumer purchases the use of electric energy and ultimately may use that electricity to undertake an activity which may result in injury. (See, e.g., Prater v. Veach (1962), 35 Ill. App. 2d 61, 181 N.E.2d 739 (child electrocuted when she came in contact with an air conditioning unit located on a concrete patio behind the defendant’s house).) Nonetheless, a landowner does not become a utility simply because it uses or redistributes electricity. Moreover, even a utility has a duty of ordinary care to insulate its power lines only to the extent that those lines are in a place where persons have a right to be. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665; Rowe v. Taylorville Electric Co. (1904), 213 Ill. 318, 72 N.E. 711; Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 519 N.E .2d 10; German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 451 N.E.2d 903.) That is, a utility, like any other owner or occupier of land, has a duty of ordinary care when engaged in an affirmative activity and when it knows or should have known of the presence of the trespasser. As the CTA was not engaged in an affirmative activity, we find that the trial court erroneously gave the IPI instruction relating to the duty owed to a trespasser when he is injured by an activity conducted upon the landowner’s premises.

In view of our conclusion that the third rail is a condition rather than an activity, we further find that the trial court erroneously denied the CTA’s request to instruct the jury that it was not under a duty of ordinary care to a trespasser for conditions on the premises. Illinois Pattern Jury Instructions, Civil, No. 120.02 (2d ed. 1971).

We find that IPI Civil 2d No. 120.02 properly sets forth the law with respect to a condition on the land (see Hansen v. Goodyear Tire & Rubber Co. (1990), 194 Ill. App. 3d 351, 551 N.E.2d 253; Dent v. Great Atlantic & Pacific Tea Co. (1955), 4 Ill. App. 2d 500, 124 N.E.2d 360), and we note that our finding with respect to this instruction applies with equal force when the landowner has notice that persons are likely to come into the area. Our courts have consistently found that insofar as a condition on the land is concerned, a landowner owes only a duty to refrain from wilful and wanton misconduct. For example, in Hessler v. Cole (1972), 7 Ill. App. 3d 902, 289 N.E.2d 204, the plaintiff was injured when she fell into a hole between the boards of a pier on the defendant’s property. The trial court entered summary judgment in favor of the defendant, finding that even though there was evidence the pier had been frequented by trespassers over the past five years, the owner had no duty to keep the premises in any particular state or condition to promote the safety of trespassers. (Hessler v. Cole (1972), 7 Ill. App. 3d 902, 289 N.E.2d 204.) As noted above, a similar result obtained in Votava v. Material Service Corp. See also Dent v. Great Atlantic & Pacific Tea Co. (1955), 4 Ill. App. 2d 500, 124 N.E.2d 360 (holding that the duty owed to a licensee who sustained injuries when he fell into a sunken driveway while travelling on a permitted path was the same as that owed a trespasser, to refrain from .wilful and wanton misconduct).

Significantly, this principle was found to apply in a situation analogous to the case before us. In Fosbury v. Aurora, Elgin & Chicago Ry. Co. (1908), 141 Ill. App. 98, the plaintiff was injured.on a third rail while trespassing on the defendant’s right-of-way. At the time of the injury, the plaintiff was on a path which was used by a considerable number of people. The court nonetheless held that the plaintiff was a trespasser and that the defendant had owed him no duty except to refrain from wilfully or wantonly injuring him. The Fosbury case is indistinguishable from the present case. In both cases, the landowner owed the trespasser no duty except to refrain from wilfully or wantonly injuring him.

We note, however, that the failure of a landowner to disclose certain dangers to trespassers may constitute wilful and wanton misconduct. (Hessler v. Cole (1972), 7 Ill. App. 3d 902, 289 N.E.2d 204; Schoen v. Harris (1969), 108 Ill. App. 2d 186, 246 N.E.2d 849.) As noted earlier, however, the jury here found that the CTA had not engaged in wilful and wanton misconduct.

In sum, we hold that the trial court improperly gave to the jury IPI Civil 2d No. 120.03, outlining the standard of care owed by a landowner to a known or anticipated trespasser when that trespasser is injured by an activity on the land. Thus, the trial court improperly instructed the jury that the CTA owed the decedent a duty of ordinary care. When a case is tried under an incorrect theory of law, the appropriate action is to reverse the judgment and to remand for a new trial. (Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 322 N.E.2d 5.) The need for a new trial here, however, is obviated because the jury was properly instructed that the CTA could be liable for wilful and wanton conduct and specifically found that the CTA’s conduct was not wilful and wanton. Thus, even with proper instructions, the result could not change and there is no need to remand for further proceedings and we therefore reverse the trial court judgment. Accordingly, we need not consider the CTA’s remaining contentions regarding various alleged trial errors.

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

Judgment reversed.

BILANDIC and RAKOWSKI, JJ., concur.


author: JUSTICE LINN

text:
    INDUSTRIAL INDEMNITY COMPANY, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. PETER VUKMARKOVIC et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 1—89—2706
    Opinion filed October 18, 1990.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Thomas M. Grisham, Stephen R. Swofford, and Janet R. Davis, of counsel), for appellant.
    Corboy & Demetrio and Baker & McKenzie, both of Chicago (Thomas A. Demetrio, Philip H. Corboy, Jr., Francis D. Morrissey, and Edward J. Zulkey, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Industrial Indemnity Company, filed this declaratory judgment action to determine the existence of coverage under a comprehensive business insurance policy that Industrial had issued to the owner of a limousine that collided with a pedestrian. The pertinent provisions of the policy are found within the “personal umbrella liability extension,” which in essence provides coverage for the personal activities of the individual insureds. This personal umbrella extension does not cover “any ‘business’ activities of any individual Named Insured” and specifically excludes from coverage “any business or business pursuits of an Insured or to property on which a business is conducted by an Insured.”

Defendants are Peter Vukmarkovic, the driver of the limousine at the time of the occurrence, and the injured party, Taide Corral, by his co-guardians, Alberto Ruiz Corral and the Northern Trust Company (collectively referred to as Corral). In the underlying personal injury suit, Corral had sued Vukmarkovic, obtaining a jury verdict in an amount in excess of $16 million. Corral collected a portion of his judgment from another insurance company, which had provided Vukmarkovic with a defense in the personal injury lawsuit. Thereafter, Corral instituted a garnishment action against Industrial for payment under its personal umbrella extension. Industrial, which had declined to tender a defense to Vukmarkovic for the personal injury lawsuit, filed the pending action for a declaration of noncoverage under its policy. Vukmarkovic and Corral counterclaimed, seeking a declaration that the Industrial policy covered Vukmarkovic and his activities, on the grounds that Vukmarkovic used the limousine with the permission of Latimer, an individual named insured, and therefore was himself an additional insured under Industrial’s policy.

The parties filed cross-motions for summary judgment. The trial court held that the policy did provide coverage for the occurrence and therefore entered judgment in favor of Corral and Vukmarkovic on the issue of coverage. The trial court further entered a money judgment of $5 million, the policy limits, plus prejudgment interest.

On appeal, Industrial challenges the trial court’s construction of the policy as well as its calculation of the time period for which prejudgment interest should be awarded. Corral and Vukmarkovic cross-appeal from the calculation of interest, contending that the trial court improperly denied their request for the higher, post-judgment rate of interest, which they classify as representing their proper “consequential damages.”

We affirm.

Background

Industrial issued an automobile dealers’ insurance policy to certain named insureds, including Woodfield Ford Sales, Inc., Charles Latimer, and Ray Martin. Latimer and Martin together owned Woodfield Ford. The policy also provided coverage under a personal umbrella liability extension, which provides:

“Coverage. If properly noted in the General Declarations, and in consideration of the premium paid, it is agreed that, except as respects such coverage as is afforded by this Section, this policy does not cover any ‘business’ activities of any individual Named Insured. It is further agreed that the word ‘business’ includes trade, profession, or occupation.”

Paragraph 3(c) of the umbrella extension, section B, defines “Individual Named Insured” as meaning:

“the individual named in the General Declarations and also includes the spouse thereof if a resident of the same household. The unqualified word ‘insured’ includes the individual Named Insured and also:
* * *
(2) any person while using an automobile or watercraft owned by *** the individual Named Insured *** with the individual Named Insured’s permission.”

Paragraph 4 of section B provides:

“4. Exclusions. This Coverage Part V, Section B shall not apply:
* * *
g. to any business or business pursuits of an Insured or to property on which a business is conducted by an Insured ***.”

Charles Latimer, one of the individual named insureds on the Industrial policy, purchased a Mercedes limousine in 1984 as a business investment. He entered into an agreement with Lisle Livery, Inc., under which he relinquished complete control and maintenance of the vehicle to Lisle. In exchange, Latimer was to receive 30% of the proceeds from Lisle’s use of the limousine in its livery service. Lisle’s sole shareholder added the limousine to its “Business Auto Policy” that was issued by National Union Fire Insurance.

Peter Vukmarkovic was assigned Latimer’s limousine to drive. He was responsible for the automobile’s maintenance and care and he parked it at his hoipe, because Lisle had no garage facilities. He was permitted to use the car for his own errands when he was not working as a driver for Lisle.

On Saturday, April 27, 1985, Vukmarkovic took passengers to O’Hare airport for his first job. After another trip to the airport he went home for awhile. Later he took some people to a wedding in the afternoon. In the evening, he picked up some passengers from the airport and took them to Naperville, dropping them off between 11:30 and 11:45 p.m. He went to dinner at 1 a.m. with some friends at a restaurant/night club. When the establishment closed at about 4:30 a.m., he left in the limousine to return to his house. While driving along Ashland Avenue in Chicago, he struck and severely injured Taide Corral, who was standing in a safety zone on the street.

In the ensuing personal injury lawsuit, Corral named as defendants Vukmarkovic, Lisle, and Latimer. Before trial, however, he dismissed the complaint as against Lisle and Latimer, leaving Vukmarkovic as sole defendant. National Union Fire Insurance, Lisle’s insurer, defended the lawsuit. That company later paid the limits of its policy toward the judgment that was entered upon the jury’s verdict. Corral then attempted to collect on his judgment against Vukmarkovic, instituting a garnishment action to recover proceeds from the Industrial policy. His theory for recovery was based on Vukmarkovic’s status as an insured under the personal umbrella liability extension coverage.

Industrial then filed the instant declaratory judgment action seeking a judicial determination that no coverage applied. Corral and Vukmarkovic counterclaimed, seeking the opposite determination. As part of their counterclaim, Corral and Vukmarkovic sought damages in excess of the policy limits of $5 million, based on Industrial’s alleged bad faith in failing to acknowledge coverage and pay the claim. That portion of the lawsuit is not before this court on this appeal, which is brought pursuant to Supreme Court Rule 304(a) (107 111. 2d R. 304(a)).

After a hearing on the parties’ cross-motions for summary judgment on the coverage issues, the court determined that the personal umbrella extension did provide coverage and, to the extent the language was ambiguous, such ambiguity would be construed against Industrial. Accordingly, the trial court entered summary judgment in favor of the insured, Vukmarkovic, and the injured party, Corral, holding that Industrial must pay the $5 million limits of its policy toward the personal injury award. In addition, the court resolved an issue concerning prejudgment interest, awarding 5% interest beginning on the date the insurance claim was considered “due and payable” under the terms of the policy. The court found the date of judgment in the underlying personal injury lawsuit, November 23, 1988, as the date the “loss payable” under the policy could be declared with certainty, and in conformance with the requisites of other policy language, found that “prejudgment interest” in the amount of 5% would accrue beginning 30 days thereafter, or December 23, 1988. The judgment in the pending declaratory action was entered on September 27, 1989, and, accordingly, the trial court calculated the amount of accrued interest due from December 23,1988, through September 27,1989.

Opinion

I

Industrial’s challenge to the trial court’s construction of its policy is twofold. First, Industrial argues that because Latimer, the named insured, was engaged in a business activity with respect to his leasing the limousine to Lisle for use in its livery service, the general coverage provisions of the personal umbrella liability extension never were triggered. Second, even assuming that Latimer’s leasing of the automobile was not considered a business activity, Vukmarkovic’s conduct on the night of the accident was part of Vukmarkovic’s “business pursuits” and, therefore, the express exclusion under section 4g of the policy applied to preclude any recovery of insurance proceeds.

A

Industrial relies heavily on Insurance Co. v. Markogiannakis (1989), 188 Ill. App. 3d 643, 544 N.E.2d 1082, a case in which the court construed a “business pursuits” exclusion as applicable in the context of a business-related altercation that occurred between the insured and another, who was injured as a result. The court looked to the nature of the activity that the insured was engaged in at the time of the other party’s injuries before concluding that the incident arose in a business-related context, rather than incidental to a personal matter. Part of the court’s analysis centered on the definition of a business pursuit, which it called

“a continuous or regular activity, done for the purpose of earning a profit. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 252, 430 N.E.2d 641, 643 ***.) This includes even part-time or supplemental income activities. (Moore, 103 111. App. 3d at 252 (paid baby-sitting in one’s home on a regular, continuous basis) ***.) Under this definition, recognized in the majority of jurisdictions, including Illinois, [the insured] engaged in a business pursuit by renting an investment property over a continuous three-year period for the purpose of obtaining profit.” Markogiannakis, 188 Ill. App. 3d at 655-56, 544 N.E.2d at 1090.

The definitional discussion in that case does suggest that an investment such as rental of property may be viewed as a “business pursuit.” Markogiannakis noted, however, that no other Illinois decision had construed the identical insurance policy language at issue, which defined business pursuit as “including] trade, profession, or occupation.” (188 Ill. App. 3d at 656, 544 N.E.2d at 1090.) Under the circumstances of that case, moreover, it is evident that the court’s ruling was based on the fact that the named insured was conducting business on the premises at the time of the occurrence. In contrast to that situation, in the pending case the trial court decided that Vukmarkovic, permissive driver of the named insured’s vehicle, was driving the limousine for purely personal reasons at the time of the accident. We therefore find that the situation addressed in Markogiannakis is distinguishable from that in the pending case.

Industrial nevertheless would have us classify Latimer’s purchase and transfer of the limousine to Lisle as a business activity or pursuit that would fall per se outside of the insured risks under the policy, thereby cutting off coverage for Vukmarkovic’s permissive use of the automobile as well. In other words, under this view, Vukmarkovic’s coverage is derivative of Latimer’s and if Latimer is not covered, Vukmarkovic is not either.

Although we do not imply that Industrial’s position is without some logical merit, we must reject its interpretation of the policy under the principles of construction that prevail under the law of insurance contract. Vukmarkovic’s status as an insured under the policy arises from his status as a permissive driver of the named insured’s automobile. Paragraph 3(c)(2) of the personal umbrella extension provides that “any person while using an automobile owned by [the named insured with his permission]” is an insured. A “severability

clause” in the policy further provides that each insured is considered to have his or her own separate coverage under the policy. (See United States Fidelity & Guaranty Co. v. Globe Indemnity Co. (1975), 60 Ill. 2d 295, 297, 327 N.E.2d 321, 323.) Industrial does not dispute that Vukmarkovic was a permissive driver of Latimer’s automobile, nor does it challenge the fact that all “additional” insureds are considered to have their own, separate coverage under the policy. Instead, as noted, Industrial challenges the existence of coverage in the first instance, on the grounds that Latimer’s arrangement with Lisle Livery fell within the definition of “trade, profession, or occupation” under the general coverage language.

Whether Latimer, a named insured, would be excluded from coverage in all instances because of his business investment does not conclusively decide the issue of whether Vukmarkovic is considered an insured by his permissive use of the limousine while on a personal pursuit. The trial court did not view Vukmarkovic’s use of the automobile at the time of the occurrence as a business pursuit on the part of anyone. We agree with the trial court that the dispositive question in this case is not whether Latimer had a business motive in purchasing the limousine for use in Lisle Livery’s business. In deciding whether a particular automobile accident is covered under a specific policy, courts generally focus on the use of the vehicle at the time of the occurrence. E.g., State Farm Mutual Auto Insurance Co. v. Mohan (1967), 85 Ill. App. 2d 10, 228 N.E.2d 283 (body shop partner who was to pick up dealership’s car for servicing but who first took girl friend on a tour of nightclubs in the insured car was held to be covered under two policies that contained business use exclusions); Kravis v. Smith-Marine, Inc. (1974), 20 Ill. App. 3d 483, 314 N.E.2d 577 (boat owner’s policy provided coverage for injuries of third parties in collision when the boat was being transported to marina for repairs; the boat was not being used for a business purpose at the time of the accident and the driver of the boat was an additional insured because he had the owner’s permission to drive the boat).

Vukmarkovic’s activities at the time of the accident, therefore, must be classified as being either (1) in furtherance of his personal pursuits, or (2) in furtherance of his business pursuits (and, by extension, those of Lisle and Latimer). As Industrial concedes, Vukmarkovic fits the policy definition of an insured. Therefore, we believe that the severability clause entitles him to coverage for his permissive use of the vehicle owned by the named insured, as long as his use of the limousine at the time of the occurrence was a personal one. We conclude that Vukmarkovic did not lose his status as an insured merely because the vehicle he was driving on a personal mission was made available to him through Latimer’s decision to “invest” in the limousine service.

Section VB 1, the general “coverage” provision of the personal umbrella liability extension, provides additional support for this conclusion, to the extent it contains an ambiguity as to what precise circumstances are covered within the personal liability extension. This provision states:

“[E]xcept as respects such coverage as is afforded by this Section, this policy does not cover any ‘business’ activity of any individual Named Insured. It is further agreed that the word ‘business’ includes trade, profession, or occupation.” (Emphasis added.)

The italicized language suggests that while the named insured’s business activities are not covered by the personal umbrella extension, there are some circumstances in which coverage is available, depending upon the facts. Since Vukmarkovic’s personal use of the “investment” vehicle appears to fit within this language, we cannot say that the policy as written clearly cuts off coverage. To the extent this language is ambiguous, it must be construed against the drafter, Industrial. E.g., State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 255, 430 N.E.2d 641; see also Insurance Co. v. Markogiannakis (1989), 188 Ill. App. 3d 643, 662, 544 N.E.2d 1082 (if insurer declines to defend under a policy exclusion, application of such exclusion must be clear and free from doubt because questions of coverage will be resolved in the insured’s favor).

We conclude that since Vukmarkovic was a permissive driver of the limousine, separately covered under this personal umbrella, his personal use of the vehicle at the time of the accident was a risk that falls within the coverage of the policy. If, in contrast, Vukmarkovic’s use of the car had been in furtherance of any business pursuit, the specific exclusion of section 4g would have operated to preclude coverage. See State Farm Mutual Auto Insurance Co. v. Mohan (1967), 85 Ill. App. 2d 10, 228 N.E.2d 283.

Rusk Aviation, Inc. v. Northcott (1986), 151 Ill. App. 3d 126, 502 N.E.2d 1309, does not aid Industrial’s argument. There, a student pilot crashed during a solo flight, causing damage to other aircraft on the ground. The aircraft’s owner had an aviation liability insurance policy that insured “any person while using or riding in the aircraft *** provided the actual use is with the permission of the Named Insured.” (151 Ill. App. 3d at 127, 502 N.E.2d at 1310.) In holding that the insurance policy did not provide coverage to the student pilot despite his permissive use of the aircraft, the court relied on a distinct, specific provision in the policy that excluded any person operating the aircraft “under the terms of any rental agreement or training program which provides any remuneration to the Named Insured for the use of said aircraft.” (151 Ill. App. 3d at 127-28, 502 N.E.2d at 1311.) Since the student pilot in question was in fact involved in a training program that provided payment to the named insured, his activity was one of the risks specifically excluded under the policy. The court concluded that the status of the pilot pursuant to the rental or training exclusion determined whether the pilot was an insured under the policy, not the “omnibus” provision granting coverage to permissive users in general.

We do not believe that our analysis conflicts with that of the court in Rusk. Like the policy in that case, Industrial’s policy contains a specific exclusion that would cut off from coverage the “omnibus” or permissive user of the vehicle (Vukmarkovic), if that user was engaged in a noninsured activity. In Rusk, the pilot, who may have been eligible for coverage under other circumstances, was engaged in the noninsured activity of flying pursuant to a training program that involved remuneration to the owner of the aircraft. In the pending case, Vukmarkovic was engaged in an activity that the trial court deemed to be personal, rather than in furtherance of a business pursuit. Hence, the express exclusion of section 4g did not operate to exclude coverage.

We conclude that Industrial’s first challenge to coverage, based on the characterization of Latimer’s purchase and transfer of the limousine, must fail. He was not the person whose conduct caused the occurrence. Rather, Vukmarkovic, as the person driving the automobile, is the insured whose coverage is in issue.

B

In that regard, Industrial next contends that the business pursuits exclusion of section 4g of the policy bars Vukmarkovic’s claim for coverage under the facts of the case. In support, Industrial cites several cases in which the courts denied coverage under similar exclusions, finding that business concerns, rather than personal ones, were the primary motivators of the conduct leading to the particular injuries. Markogiannakis, 188 Ill. App. 3d 643, 544 N.E.2d 1082; Bruns v. Foremost Insurance Co. (1975), 27 Ill. App. 3d 50, 325 N.E.2d 815; Auto-Owners Insurance Co. v. Corrie (1981), 102 Ill. App. 3d 93, 429 N.E.2d 883; State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 389 N.E.2d 668.

In Markogiannakis, the owner/lessor of a condominium unit who had come to the building to collect rent from his tenant was held not to be covered under his homeowner’s policy because of a business pursuits exclusion. The insured had gotten into an altercation with an officer of the condominium association over his failure to pay his share of the assessments, and during the course of the argument, he either pushed her or negligently caused her to be injured. The court determined that the incident happened while the insured was engaged in the business pursuit of collecting his rents. Bruns, like Markogiannakis, involved the application of a business pursuits exclusion to an altercation between the insured and another person, his business partner. Because the court determined that the dispute between the partners involved business, the policy was held not to provide coverage.

Similarly, in Corrie, the business pursuits exclusion under the insureds’ homeowner’s policy was held to apply under the particular circumstances. The insureds managed a laundromat that was located in the same building as their apartment. The owner of the laundromat paid the insureds to remove snow and ice from the sidewalk in front of the building. A patron of the laundromat slipped on the snow-covered sidewalk and sued for her injuries. The court held that the primary reasoning for the insured’s snow-removal activity was related to the laundromat business and therefore the business pursuits exception applied, even though there may have been an “incidental,” personal reason for the snow removal, to allow the insureds access to their own apartment.

Stinnett involved the application of a homeowner’s policy to an insured’s activities in cutting weeds on farm property that he rented on a profit-sharing basis. While the tractor was stopped near the road, a person driving by in a car struck the mower attachment and sustained injuries. The court held that the business exclusion applied because the main purpose for the insured’s cutting of the weeds was to prevent their spread into the planted fields. The incidental, cosmetic purpose served by mowing did not affect the operation of the exclusion.

The similar strand of reasoning running through these cases is the notion that the court must look to the purpose the insured was pursuing, or the nature of his activities, at the time of the incident that gives rise to a claim for insurance. Like a personal umbrella liability extension, a homeowner’s policy generally is intended to insure against non-business-related risks. Accordingly, we find the above cases factually distinguishable from court’s finding that Vukmarkovic’s conduct at the time of the accident was not primarily related to a business pursuit.

The record establishes, without dispute, that Vukmarkovic was allowed to use the car for personal reasons as well as business ones. That he was “on call” 24 hours a day for the livery service does not mean that whenever he was driving the limousine he was necessarily engaged in a business pursuit. We cannot agree with Industrial that Vukmarkovic had merely stopped for dinner as a minor interruption of his business pursuit of returning the car to his garage following his last fare. Such a conclusion would be possible if the accident had occurred while Vukmarkovic was driving from one job to another, from a lunch break to another job, or on his return home directly after dropping off his last fare. In contrast to that scenario, the particular facts in the record reveal that Vukmarkovic was “off duty” and had finished his livery jobs for the day when he went to the restaurant/lounge to meet his friends at 1 a.m. He had dropped off his last fare before midnight. Presumably, he could have gone back home and garaged the limousine, taking his own car. Instead, he drove the limousine to meet friends, eat dinner, dance, and otherwise socialize with them until 4:30 a.m. It was during his subsequent drive home, on the wrong side of Addison Street at 5 á.m., that he struck and injured Corral.

We do not agree that such facts fit into the “business pursuits” exclusion. Accordingly, we find that the trial court’s decision that section 4g did not bar coverage was proper. Because of our conclusion we need not consider the cases Industrial cites regarding the “dual purpose trip” in workers’ compensation cases or the tort doctrine of respondeat superior. Neither of those doctrines is premised on contract principles or policies. The interpretation and application of insurance contract language is not aided by considering tort and workers’ compensation law.

II

Industrial’s remaining issue on appeal requires us to determine whether the trial court properly awarded prejudgment interest in the amount of 5% on the $5 million judgment and whether the court’s calculation of when the interest began to accrue is appropriate. That prejudgment interest may be recovered under an insurance policy from the time money becomes due thereunder is not disputed. Ervin v. Sears, Roebuck & Co. (1984), 127 Ill. App. 3d 982, 469 N.E.2d 243.

Industrial’s position is that any award made pursuant to the prejudgment interest statute (Ill. Rev. Stat. 1987, ch. 17, par. 6402) could not have begun to accrue until Industrial’s liability under its policy was “fixed or readily ascertainable.” According to Industrial, its policy limits could be diminished by any of a number of expenses incurred on behalf of an insured because it is an “ultimate net loss” policy. “Ultimate net loss” is defined in the policy to include the total sum which an insured becomes obligated to pay to another because of personal injury or property damages, and includes legal expenses, interest, and other such costs of litigating or settling claims and suits. The policy limits of $5 million thus are in the aggregate, subject to diminution by any other claims paid under the policy. Industrial therefore argues it was “impossible” for it to fix an amount under the policy until September 7, 1989, the date on which “the trial court entered an order prohibiting Industrial from paying any amounts which might otherwise become due under the policy.” Since the final judgment in the pending case was entered on September 27, 1989, this would allow for only 20 days of prejudgment interest.

Industrial’s argument makes little sense. The prejudgment interest statute does require that the amount claimed be readily determined or ascertainable. It does not follow, however, that because there may have been other, potential claims under the policy, such theoretical claims rendered the policy limits unascertainable. If such claims had been made or paid, Industrial certainly would have had that information available to it and would have taken the claims into account. In the pending case there is no suggestion that any such claims existed or that the $5 million policy limits had been diminished thereby. Accordingly, we reject Industrial’s contention that the ultimate net loss provision of the policy rendered the claim “unfixed” or uncertain until the September 7, 1987, court order that enjoined the company from paying any claims in diminution of the policy limits.

Alternatively, Industrial argues that the operative date for the assessment of prejudgment interest must be the later of three occurrences that are set out in the “loss payable” provision of its policy. This section provides:

“Liability under this policy with respect to any occurrence shall not attach unless and until the Assured, or the Assured’s underlying insurer shall have paid the amount of the underlying limits on account of such occurrence. The Assured shall make a definite claim for any loss for which the Underwriters may be liable under the policy within twelve (12) months after the insured shall have paid an amount of ultimate net loss in excess of the amount borne by the Assured or after the Assured’s liability shall have been fixed and rendered certain either by final judgment against the Assured after actual trial or by written agreement of the Assured, the claimant, and Underwriters. If any subsequent payments shall be made by the Assured on account of the same occurrence, additional claims shall be made similarly from time to time. Such losses shall be due and payable within thirty (30) days after they are respectively claimed and proven in conformity with this policy.” (Emphasis added.)

Industrial interprets this section of its policy to mean that it is entitled to choose the latest of three different events: (1) the date that the underlying personal judgment became final; (2) the date that a definite claim was made; or (3) the date that the underlying insurer, National Union Fire Insurance, paid the limits of its $1 million auto insurance policy on behalf of its insured, the owner of Lisle Livery Services. The latest of these events presumably is the date National Union tendered its policy limits toward Corral’s personal injury award, January 18, 1989. In reliance on the last sentence of the provision, Industrial concludes that prejudgment interest should not have begun accruing until February 17,1989.

Industrial does not further explain its interpretation of the loss payable language. Nor does it cite case law to support this construction. We initially note that nothing in the provision refers to an election of various contingencies or to a preference for the latest occurring event, and since the provision itself has disjunctive phrasing, we reject Industrial’s implausible construction of that language.

The trial court decided that the operative loss payable date, for purposes of determining the application of the prejudgment interest statute, was the date that the underlying personal injury lawsuit was reduced to judgment, plus 30 days. We believe that unless the trial court’s reliance on the date of the underlying personal injury judgment was an abuse of its discretion or against the manifest weight of the evidence of record, it should be affirmed. (See Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 849, 512 N.E.2d 1286, 1295.) We note that neither side to this controversy offers a completely satisfactory argument as to when the prejudgment interest should accrue. Industrial had been on notice of the claim since its consideration and rejection of Vukmarkovic's request for a defense to the personal injury lawsuit. Industrial did not seek declaratory relief at that time. When the jury returned a verdict to Corral in the amount of $16 million and judgment was entered thereon in November 1988, the fact that another insurer was liable for a portion of that amount did not affect Industrial’s separate obligation for the excess, assuming that Industrial's coverage liability was adjudicated in favor of Vukmarkovic and Corral. In view of these facts, and in the absence of any compelling reasons to disturb the trial court’s calculation of when the interest should begin to accrue, we affirm the court’s finding that interest at the rate of 5% should be awarded from December 23, 1988 (one month after the entry of judgment on the jury’s verdict), through September 27, 1989. In so holding we acknowledge that it is not clear to us that the last sentence of the loss payable provision required the court to add 30 days to the date of the personal injury judgment before beginning the accrual of interest. The last sentence of that provision appears to modify the preceding sentence, which says that if the insured makes “subsequent payments” to injured parties, “additional claims” for those losses shall be made from time to time. In that context, “such losses” are to be deemed due and payable within 30 days after they are claimed with respect to the policy. Notwithstanding our different reading of the 30-day provision, however, we affirm the trial court’s calculation.

Ill

Vukmarkovic and Corral cross-appeal from the trial court’s rejection of their claim for consequential damages in the amount of 9%, to accrue from the date that the personal injury judgment was entered, November 23, 1988. While they justify this higher interest rate as necessary to make them “whole,” their attempt to collect the higher, post-judgment rate of interest is flawed in several respects. Section 2 — 1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1303) permits interest at the rate of 9% to accrue on a final judgment from the date of its entry until the date of its payment, to compensate the judgment creditor for delays during which he is denied use of the judgment amount. (See Carswell v. Rosewell (1986), 150 Ill. App. 3d 168, 501 N.E.2d 695.) In the pending case, the final judgment referred to is the one entered on behalf of the injured party, Corral. Industrial was not the party-defendant in that lawsuit and therefore cannot be held liable for post-judgment interest on the $16 million judgment. As a judgment-debtor in the pending lawsuit, Industrial’s liability for post-judgment interest would not commence until September 27, 1989, the date on which the trial court entered final judgment.

We conclude that the post-judgment interest statute should not be expanded to require Industrial, a “stranger” to the personal injury judgment, to indemnify Vukmarkovic, the judgment-debtor, on the theory that its insured may become liable for post-judgment interest on the personal injury judgment.

For the foregoing reasons, we affirm the trial court’s rulings in all respects.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.

       Undoubtedly, as an investment, Latimer hoped to realize some economic benefit from the arrangement. Nevertheless, it is not as clear to us that Latimer’s arrangement with Lisle was part of his “trade, profession, or occupation.” His purchase of the vehicle is analogous to an investment of capital as a passive investment. His receipt of a percentage of the proceeds that Lisle realized upon the use of the limousine is his return on the investment. While we do not necessarily imply that a distinction should be made between “passive investments” and “business activities,” at least where it is the activity of the insured that is in issue, we nevertheless believe that the burden is on the insurance company to clearly delineate what types of risks are excluded from coverage.