author: JUSTICE CHAPMAN

text:
    K. JOE PAGE et al., Plaintiffs-Appellees, v. KENNETH BLOOM et al., Defendants-Appellants (Good Enterprises, Inc., Counterplaintiff-Appellant; K. Joe Page et al., Counterdefendants-Appellees).
    Fifth District
    No. 5 — 90—0448
    Opinion filed December 11, 1991.
    Rehearing denied January 21, 1992.

      Mark J. Ballard, of Campbell, Black, Carnine & Hedin, P.C., of Mt. Vernon, for appellants Mert Thayer, Kathleen Thayer, and Good Enterprises, Inc.
    John D. Drew, of Benton, for appellants Kenneth Bloom and Mary Bloom.
    Richard O. Hart, of Hart & Hart, of Benton, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs, K. Joe Page and Laura A. Page, brought suit requesting a declaratory judgment, a permanent injunction and damages against the defendants, Kenneth Bloom, Mary Bloom, Mert Thayer and Kathleen Thayer, whom they allege obstructed their use of a prescriptive easement over defendants’ property. Defendants denied the existence of the easement as well as any damages to plaintiffs as a result of the obstruction. Counterplaintiff, Good Enterprises, Inc., defendant Thayer’s corporation, intervened and sought damages for trespass to its real estate by plaintiffs and counterdefendant, George Spotanski. The trial court found that an easement by prescription did exist and that plaintiffs were entitled to a permanent injunction for said easement, and the court awarded damages to plaintiffs for crop losses suffered as a result of defendants’ obstruction of the easement. The trial court denied damages to counterplaintiff, Good Enterprises. We affirm.

Joe and Laura Page purchased a 120-acre tract of land in February 1989. This tract was landlocked with no viable means of ingress or egress other than the disputed easement. The alleged easement, in connecting plaintiffs’ land with the township road, passed over defendant Bloom’s and defendant Thayer’s properties respectively. The road had at one time been the main thoroughfare used by the public in traveling from Perry County to Sesser. Though the origin of the road was uncertain, there was testimony indicating it had existed as early as 1926.

Shortly after purchasing the land, Joe Page and his father-in-law, George Spotanski, called on defendant Mert Thayer to inform him that Joe had bought the land and of their intention to improve the roadway’s condition as a means of access to their acreage. At that time Thayer did not object, though at trial there was some dispute as to the extent to which he understood plaintiffs’ intended improvements. Page and Spotanski began working on the road April 26, 1989, and used two bulldozers over a period of five days to level and upgrade its condition. They continued their work on May 13, 15, and 17, 1989. Both Thayer and Bloom witnessed to some degree the efforts of Page and Spotanski. In May and June the plaintiffs traversed the road with various farming equipment to plant crops on their tract. On July 11, the two men returned to continue work on the roadway. On July 12, 1989, Mert Thayer filed criminal trespass charges. On July 14, 1989, Spotanksi and Page were again working on the roadway when the defendants notified the sheriff of plaintiffs’ presence on their property. Kathleen Thayer confronted Page and Spotanski at which time the two men left the property with their machinery. Sometime in July defendant Bloom constructed a barricade across the entrance to the disputed easement effectively blocking access to the Page property. Due to this obstruction, Joe Page was not able to harvest his crops on the 120 acres until October 28 and 29, 1989. According to the plaintiffs, this delay caused the soy bean crop to be very dry, resulting in losses due to dryness and shattering.

On October 30, 1989, the court granted plaintiffs’ motion for a preliminary injunction. After subsequent hearings on January 24, February 5, and March 5, 1990, the circuit court entered judgment for the plaintiffs declaring a 40-foot-wide easement by prescription across the defendants’ property in favor of the plaintiffs and awarding them $3,703.77 in damages due to crop loss. The court denied damages to the counterplaintiff, Good Enterprises, on its claim for alleged trespass by plaintiffs.

In order to establish an easement by prescription, a claimant must establish that the use of the land was adverse, exclusive, continuous and uninterrupted, and under a claim of right for a period of at least 20 years. (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 531, 173 N.E.2d 499, 502; Seiber v. Lee (1987), 158 Ill. App. 3d 361, 368, 511 N.E.2d 1296, 1301.) The circuit court found that the use of the road in question had been adverse from 1926 up to and including the present time. The court also found that the road had been used, from 1947 up to the present, across the property of defendant Thayer as a means of access to the 120 acres owned by the plaintiffs and from at least 1965 to the present across the property of the defendant Bloom. The court held that usage had been exclusive and uninterrupted as to each of the defendants for over 20 years. The court further found that the use diming the period of prescription had been open and notorious and with the knowledge of the present owners of the servient estates, but without their permission.

Numerous witnesses testified that the road in question had been used by the public at least since 1926 and by successive farmers since 1965 in order to farm the landlocked 120 acres. This use, according to various witnesses, was known to the owners of the land over which the “easement” passed. No barriers other than gates or gaps to contain livestock were ever erected, and frequent passage was without the landowner’s permission. To show adverse use, the use must be with the knowledge and acquiescence of the owner, but without his permission. (Light v. Steward (1984), 128 Ill. App. 3d 587, 591, 470 N.E.2d 1180, 1184.) Mr. Clarence Jones, 81 years old at the time of the hearing, testified that he had used the road all of his life and had never asked for permission. Jones’ testimony was corroborated by other witnesses as well. The only testimony to the contrary was from Mrs. Ruth Carson, whose husband had once owned the servient land. Mrs. Carson claimed that use of the road had been permissive; however, she conceded that she had never personally given her permission to use the road and that people did not get permission each time they used the alleged easement. Ruth Carson sold the servient land to defendant Thayer in 1967 and could not testify as to its use beyond that point. Mrs. Carson also testified the roadway had been used by successive farmers to obtain access to the landlocked 120 acres over the years.

Whether there was adverse use of a way under claim of right for a period of 20 years or whether the use of the way was permissive is almost wholly a question of fact. (Corrubia, 21 Ill. 2d at 532, 173 N.E.2d at 502.) As such, where the testimony is conflicting in a bench trial, the court’s findings of fact will not be disturbed unless they are against the manifest weight of the evidence. (In re Application of County Treasurer (1989), 131 Ill. 2d 541, 549, 546 N.E.2d 506, 510.) The bulk of the testimony tends to indicate that use of the roadway was with the knowledge and acquiescence of the servient owners, but without their permission, and as such was adverse. (Light, 128 Ill. App. 3d at 591, 470 N.E.2d at 1184.) The testimony also tends to show that use was exclusive. Exclusivity does not require a showing that only the claimant made use of the way, but that the claimant’s right to use the lane does not depend upon a like right in others. (Light, 128 Ill. App. 3d at 594, 470 N.E.2d at 1186.) The plaintiffs presented evidence that their use of the easement for farming was not dependent upon any other’s right to use the road in question. Their evidence also tended to establish that the use of the land was adverse, exclusive, continuous and uninterrupted, and under a claim of right for a period of at least 20 years. The finding of the trial court that the plaintiffs have a right to a prescriptive easement was not against the manifest weight of the evidence and thus will not be disturbed. Anderson v. Super (1963), 28 Ill. 2d 319, 192 N.E.2d 339.

Defendants allege that even if a prescriptive easement existed, it has ceased to exist due to nonuse. There was ample testimony to suggest that the road had been used regularly by the public since 1926 and by successive farmers to gain access to the landlocked 120 acres since at least 1965. The fact that usage may have been somewhat seasonal is not inconsistent with the primary purpose for the easement, that is, farming the benefited land. Defendants have failed to present any evidence demonstrating nonuse of the easement constituting abandonment. The determination of whether or not there has been abandonment is within the discretion of the trial court and will not be reversed on review unless it is against the manifest weight of the evidence. Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1039, 482 N.E.2d 682, 687.

Defendants also claim that the trial court abused its discretion in declaring the easement to be 50 feet wide. The record shows, however, that the court declared a 40-foot-wide easement and that the weight of the testimony indicated the roadway to have been between 40 and 43 feet wide generally. Defendants allege plaintiffs have inexcusably enlarged the easement in their efforts to improve its condition. An easement by prescription carries with it the right to do whatever is reasonably necessary for the reasonable use of it for the purpose for which it was acquired. The owner of the easement must be allowed to do such things in the way of repairs as to make the easement reasonably usable. (Sell v. Finke (1920), 295 Ill. 470, 479, 129 N.E. 90, 93.) By grading and improving the condition of the easement the plaintiffs were within their rights to do what was reasonably necessary to allow for the reasonable usage of the easement for the purpose for which it was acquired, namely the transportation of farming machinery and equipment to farm the landlocked acreage. The owner of an easement has not only the right but the duty to keep the easement in repair. (Flower, 135 Ill. App. 3d at 1039, 482 N.E.2d at 687.) We find the trial court’s declaration of a 40-foot-wide easement was not contrary to the manifest weight of the evidence and should not be disturbed. In re Application of County Treasurer, 131 Ill. 2d at 548, 546 N.E.2d at 510.

Defendants argue that plaintiffs are not entitled to the equitable remedy of a permanent injunction to enforce the prescriptive easement. A court may grant such relief as it deems equitable, and the granting or denying of injunctive relief is a discretionary ruling by a circuit court. Absent an abuse of discretion such a ruling will not be overturned upon review. (Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 974, 572 N.E.2d 1169, 1182.) Considering the evidence of the barricade constructed by defendant Bloom which prevented plaintiff from timely harvesting his crops, an injunction to prevent a repetition of such action was not an abuse of the circuit court’s discretion.

Finally, defendants contend that the circuit court erred by awarding damages to plaintiffs and denying them to counterplaintiff, Good Enterprises. A reviewing court will not disturb a trial court’s finding as to damages unless it is against the manifest weight of the evidence. (Dale v. Luhr Brothers, Inc. (1987), 158 Ill. App. 3d 402, 410, 511 N.E.2d 933, 937.) In the instant case, both Joe Page and Keith Morhet, a local farmer and seed salesman, testified as to the damages which were caused by the defendants’ obstruction of the easement. While defendants challenge the credibility of this evidence, no evidence to the contrary was offered. Counterclaimant’s, Good Enterprises’, claim for damages was primarily based on the assumption that no easement existed. The court found a prescriptive easement to exist and denied Good Enterprises’ claim. The findings of the trial court as to damages are not contrary to the manifest weight of the evidence and as such will not be disturbed.

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

Affirmed.

HOWERTON and HARRISON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH

license: Public Domain

text:
    ARCHVIEW INVESTMENTS, INC., Plaintiff-Appellant, v. THE CITY OF COLLINSVILLE et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0530
    Opinion filed December 12, 1991.
    Rehearing denied January 21, 1992.
    William A. Mueller, of Ripplinger & Dixon, of Belleville, for appellant.

      Thomas Lay Burroughs, of Draheim & Pranschke, and Kathleen L. Pine, of Shepherd, Phoenix & von Gontard, P.C., both of St. Louis, Missouri, for appellee Robert L. DesPain.
    G. Edward Moorman, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for other appellees.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Archview Investments, Inc., appeals from a judgment of the circuit court of Madison County in favor of defendants, City of Collinsville, Mayor Gene J. Brombolich, City Clerk Louis Jackstadt, Zoning Administrator Melvin Heinecke, and city council members Robert L. DesPain, William E Giglotto, Gary Klein, and Melvin P. Pamatot, entered after a bench trial, finding that plaintiff’s building permit application was properly denied.

In this appeal, plaintiff contends: (1) that defendants’ actions deprived it of constitutional rights in violation of section 1983 of the United States Code (42 U.S.C. §1983 (1988)), (2) that defendants, city council members, should not have been granted qualified immunity by the circuit court, (3) that the administrative decision of the city council is against the manifest weight of the evidence, and (4) that the trial court erred in not issuing a writ of mandamus to compel issuance of the building permit. We affirm.

On October 21, 1980, Dr. Bolivar Escobedo, an obstetrician/gynecologist licensed to practice in Missouri, filed an application for a permit to build an office building on a parcel of land he owned in Collins-ville. He filed the application with the proper authorities in the City of Collinsville (City). Although the application was completed by Dr. Escobedo’s architect, Thomas Hall, Dr. Escobedo was listed as the owner of the proposed building, described on the application as an “office building for doctor, with a rental space for more doctors.”

City Zoning Administrator Melvin Heinecke testified that upon receipt of the application, he presented it to Mayor Gene J. Brombolich (Mayor) for review, and the Mayor instructed Heinecke to “bury it.” Heinecke further testified that there was no discussion between himself and the Mayor at that time regarding any deficiencies in Dr. Escobedo’s application. Shortly thereafter, the Mayor, who also serves as police commissioner, requested a police investigation of Dr. Escobedo’s background. A memorandum dated November 6, 1980, to Police Commander Nick Mamino from Detective John Swindle revealed that Dr. Escobedo performed abortions as part of his medical practice in St. Louis County, Missouri. The memo further stated that Dr. Escobedo’s St. Louis County office had attracted antiabortion protesters and police intervention was occasionally necessary. Also included was the indication by a St. Louis police officer that neither Dr. Escobedo nor his associates had ever deliberately created any problems. No further action was taken on Dr. Escobedo’s application, and none was requested.

On January 28, 1981, articles of incorporation of the plaintiff corporation were filed with the Illinois Secretary of State. On March 10, 1981, the City received another application for a permit to build a “multi-tenant office building” at the same location indicated by Dr. Escobedo’s application of October 21, 1980. The March 10, 1981, application was also prepared by Thomas Hall, but plaintiff corporation was listed as the owner. The specifications and floor plans were similar to the documents submitted with the October 21, 1980, application, and Zoning Administrator Heinecke once again brought the application to the Mayor’s attention. The Mayor initiated a second investigation by Detective Swindle regarding the application submitted by plaintiff. The results of that investigation were sent in a memorandum dated March 13, 1981, from Detective Swindle directly to the Mayor. Based on the contents of the memo, it appears that the Mayor was attempting to ascertain whether Dr. Escobedo was associated with plaintiff. Detective Swindle reported that after contacting numerous individuals, he was unable to determine anything other than the identities of the incorporator and the registered agent, neither of whom was Dr. Escobedo. According to the report, Thomas Hall was contacted but refused to disclose Dr. Escobedo’s affiliation with plaintiff corporation, if any. Hall referred the detective to Buddy Cooper, an attorney for plaintiff, who claimed he could not divulge any information without conferring with his client. Only after numerous inquiries was the City able to determine that Dr. Escobedo was the sole shareholder of plaintiff.

On March 23, 1981, the Mayor sent Dr. Escobedo a letter denying the building permit. Cited as reasons for denial were the following: (1) the City was unable to discover pertinent information missing from the face of the application, and (2) that abortion clinics are contrary to the general health, safety and welfare of the public.

Fourteen days after receiving the Mayor’s letter, plaintiff filed an appeal of the Mayor’s decision with the Zoning Board of Appeals (Zoning Board). Plaintiff was then advised by the City’s corporation counsel, Dwight Taylor, that zoning was not at issue, whereby plaintiff transferred his appeal to the city council. According to the Collinsville Municipal Code (Code), article V, section 501.1, appeals to the Zoning Board must be filed within 15 days of the matter complained of. Conversely, chapter 16, section 16.20.010, of the Code requires that all appeals to the city council regarding building permit decisions must be filed within five days of the occurrence giving rise to the appeal. There is a dispute among the parties as to the timeliness of plaintiff’s appeal to the city council and whether defendants waived any time limitations. Plaintiff claims the City’s corporation counsel, Dwight Taylor, assured plaintiff’s attorney that the City would waive the five-day limitations period and allow plaintiff to transfer its appeal from the Zoning Board to the city council. Plaintiff entered into evidence a memorandum allegedly dictated by plaintiff’s counsel at the time of his conversation with Taylor, noting the waiver agreement. At trial, Taylor denied making such a statement on behalf of the City.

Nevertheless, the city council, comprised of the Mayor and Commissioners Pamatot, Giglotto, Klein and DesPain, did hear plaintiff’s appeal on July 20, 1981. The city council questioned Dr. Escobedo and Thomas Hall regarding the use of plaintiff’s proposed building, the building plans and the timeliness of plaintiff’s appeal, but a transcript of the hearing clearly reveals that the council’s paramount concern was whether Dr. Escobedo or any of his associates would be performing abortions in the City. Commissioners Pamatot and Giglotto made statements on the record reflecting their personal aversion to abortion. The hearing culminated in a motion by Commissioner Pamatot to uphold the Mayor’s decision to deny plaintiff’s building permit on the following grounds:

“1. Appeal was not filed in compliance with the requirements of Sec. 16.20.010 of the Collinsville Municipal Code,
2. It is contrary to the general health, safety and welfare of the public in the following respects:
(a) cause traffic problems
(b) cause parking problems
(c) cause crowd control problems
(d) create a public nuisance
(e) is contrary to public policy of this city
3. Applicant failed to comply with requirements of the BOCA Basic Building Code/1981, Sections 111.2; 111.3; 111.4; 111.5; 111.6; and 111.7.”

The motion was seconded and unanimously passed by the City Council. Building Officials Conference of America Code (BOCA) provisions 111.2 through 111.7 as adopted by the City are as follows:

“111.2 Form of application: The application for a permit shall be submitted in such form as the building official may prescribe and shall be accompanied by the required fee as prescribed in Section 114.0.
111.3 By whom application is made: Application for a permit shall be made by the owner or lessee of the building or structure, or agent of either, or by the licensed engineer or architect employed in connection with the proposed work. If the application is made by a person other than the owner in fee, it shall be accompanied by a duly verified affidavit of the owner or the qualified person making the application that the proposed work is authorized by the owner in fee and that the applicant is authorized to make such application. The full names and addresses of the owner, lessee, applicant, and of the responsible officers, if the owner or lessee is a corporate body, shall be stated in the application.
111.4 Description of work: The application shall contain a general description of the proposed work, its location, the use and occupancy of all parts of the building or structure and of all portions of the site or lot not covered by the building or structure, and such additional information as may be required by the building official.
111.5 Plans and specifications: The application for the permit shall be accompanied by not less than two copies of specifications and of plans drawn to scale, with sufficient clarity and detail dimensions to show the nature and character of the work to be performed. When quality of materials is essential for conformity to this code, specific information shall be given to establish such quality; and this code shall not be cited, or the term 'legal’ or its equivalent be used, as a substitute for specific information. The building official may waive the requirement for filing plans when the work involved is of a minor nature.
111.6 Site plan: There shall also be a site plan showing to scale the size and location of all the new construction and all existing structures on the site, distances from lot lines, the established street grades and the proposed finished grades; and it shall be drawn in accordance with an accurate boundary line survey. In the case of demolition, the plot plan shall show all construction to be demolished and the location and size of all existing structures and construction that are to remain on the site or plot.
111.7 Engineering details: The building official may require adequate details of structural, mechanical and electrical work to be filed, including computations, stress diagrams and other essential technical data. All engineering plans and computations shall bear the signature of the engineer or architect responsible for the design. Plans for buildings more than two stories in height shall indicate where penetrations will be made for electrical, mechanical, plumbing and communications conduits, pipes and systems and the materials and methods for maintaining the required structural integrity, fire resistance rating and firestopping.”

We first turn to plaintiff’s contention that the administrative decision of the city council denying plaintiff’s building permit is against the manifest weight of the evidence. It is undisputed that findings and conclusions of an administrative body on questions of fact are held to be prima facie true and correct. Only if the findings are against the manifest weight of the evidence can they be set aside. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1026, 506 N.E.2d 640, 642.) A finding cannot be adjudged against the manifest weight of the evidence unless an opposite conclusion is clearly evidenced from the record. Rolando v. School Directors of District No. 125 (1976), 44 Ill. App. 3d 658, 661, 358 N.E.2d 945, 947.

Upon an examination of the record, we cannot determine that the city council’s decision to deny plaintiff’s building permit for lack of information was against the manifest weight of the evidence. In fact, plaintiff does not deny that its application failed to comply with BOCA provisions 111.2 through 111.7. The trial court held, and we agree, that plaintiff’s application failed to meet the requirements of the BOCA provisions as follows: (1) it failed to include a filing fee as required by section 111.2; (2) it failed to include the names and addresses of the officers of plaintiff corporation as required under section 111.3; (3) it failed to contain an adequate description of the use and occupancy of all parts of the building, as required by section 111.4; (4) it failed to include specifications and plans with sufficient clarity and detailed dimensions to show the nature and character of work to be performed, as required by section 111.5; (5) it failed to include a site plan scaled to show boundary lines and distances from lot lines, in violation of section 111.6; and (6) it failed to contain adequate plans for electrical, ventilation and plumbing systems in violation of section 111.7.

These violations, in addition to Dr. Escobedo’s repeated refusals to supply defendants with the missing information, were adequate reasons for defendants to decline issuance of the permit. Plaintiff claims that its noncompliance with the provisions was not the true reason its permit was denied and that defendants refused to issue the permit solely or primarily because of an aversion to abortion. We have no doubt that several or perhaps all city council members considered the abortion issue in deciding to deny plaintiff’s application, and had plaintiff’s application complied with all city ordinances, we would now be compelled to address the constitutional implications of defendants’ actions. Plaintiff’s application did not comply, however, so we need not address defendants’ consideration of the abortion issue in their decision-making. As stated by our supreme court on numerous occasions, constitutional questions will not be considered unless necessary to the disposition of the case. (Davis v. City of Chicago (1974), 59 Ill. 2d 439, 322 N.E.2d 29; People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872; see Ashwander v. Tennessee Valley Authority (1936), 297 U.S. 288, 80 L. Ed. 688, 56 S. Ct. 466 (Brandeis, J., concurring).) The constitutional issue in this instance is presented under section 1983 of the United States Code (42 U.S.C. §1983 (1988)). Questions specifically based on section 1983 need not be addressed unless necessary to the disposition of the case. (Cochenour v. Cochenour (8th Cir. 1989), 888 F.2d 1244; Espino v. Besteiro (5th Cir. 1983), 708 F.2d 1002.) As we have determined that the evidence supports defendants’ action of denying plaintiff’s permit based on ordinance violations, we find it unnecessary to address the constitutional issues plaintiff presents. We also need not address defendants’ argument that plaintiff’s appeal to the city council was untimely, but instead we hold that defendants waived any time limitations by conducting the appeals hearing of July 20, 1981. Since the evidence supports defendants’ decision to deny the permit based on BOCA violations, we affirm the trial court’s decision in favor of all defendants based on this issue.

Finally, we uphold the trial court’s decision not to issue a writ of mandamus to compel issuance of the building permit. In order to be entitled to a writ of mandamus, plaintiff must show a clear, unambiguous right to what is requested and that official action refusing what is requested is devoid of support. Anything less than strict and complete compliance with all necessary and applicable provisions for building permits must result in a denial of a writ of mandamus. (People ex rel. Wordell v. City of Chicago (1978), 67 Ill. App. 3d 321, 326, 384 N.E.2d 894, 898.) In this case, as we stated earlier, plaintiff’s application was not in strict and complete compliance with all applicable provisions, in that it failed to comply with BOCA provisions 111.2 through 111.7. Therefore, the trial court properly denied plaintiff’s request for a writ of mandamus to compel issuance of the building permit.

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

Affirmed.

LEWIS and HOWERTON, JJ., concur.


text:
    RICHARD WAKEFORD, Plaintiff-Appellant, v. RODEHOUSE RESTAURANTS OF MISSOURI, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 90—0461
    Opinion filed December 26, 1991.
    Rehearing denied January 31, 1992.

      Richard Shaikewitz and Samuel A. Mormino, Jr., both of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellant.
    James E. Gorman and Curtis L. Blood, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Rodehouse Restaurants of Missouri, Inc. (hereinafter referred to as Ramada Inn), is a corporation doing business in Alton, Illinois, under the name of Ramada Inn. Richard Wakeford and his wife Dawn went to the Ramada Inn in Alton at approximately 8:30 p.m. on November 2, 1984. The couple met with friends, ate and had a few drinks. Near midnight Richard and Dawn left the Ramada Inn through the main dining room doors and walked to their car, which was parked next to the exit. As Richard Wakeford unlocked the passenger door he heard footsteps, looked up and saw someone coming toward him with a gun. The man shot twice, Wakeford swung at him, and he fired a third shot. The gunman ran away and has never been identified.

Wakeford discovered that he had been shot in the temple, ear, chest, and left hand. He was taken to Alton Memorial Hospital, where he remained for three days while he was treated for the gunshot wound to his chest. Wakeford was then transferred to DePaul Hospital in St. Louis, Missouri, where he was treated by a specialist in hand surgery.

Wakeford filed suit against the Ramada Inn alleging negligent and willful and wanton misconduct in that the defendant failed to provide sufficient lighting at the exit of the restaurant and the parking area for the security of the patrons, and failed to provide security guards or any means for protecting the security of the patrons. The jury returned a verdict for the defendant, and plaintiff appealed, claiming error in four areas: (1) a violation of Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220); (2) the injection of insurance into the case; (3) ex parte communication with a witness; and (4) granting of defendant’s motion in limine which barred testimony of a witness.

The first issue concerns the admissibility of the testimony of police officer Lahlien. During opening statements, counsel for Ramada Inn stated that he intended to call to the stand certain Alton policemen who would testify as to whether or not Ramada Inn should have had a security guard. Wakeford’s attorney objected and moved for a mistrial because the policemen whom defendant referred to had not been disclosed as experts. Defense counsel advised the court that one of the witnesses he intended to call was an investigating officer of the shooting. The trial court denied Wakeford’s motion for a mistrial and refused to limit the witnesses’ testimony.

Defendant took the evidence deposition of Officer Lahlien during trial. The court and counsel reviewed the deposition outside the presence of the jury. Wakeford renewed his earlier objection that Lahlien’s testimony concerning whether or not the area surrounding Ramada Inn was a “high-crime” area and whether or not the Ramada Inn needed a security guard was expert testimony and subject to the disclosure requirements of Illinois Supreme Court Rule 220. (134 Ill. 2d R. 220.) Over Wakeford’s objection the deposition was read to the jury.

Lahlien testified that he has lived in Alton all his life and is familiar with the Ramada Inn area because he patrolled the area as a police officer and has been in the Ramada Inn “on a few occasions.” Lahlien assisted in the investigation of the Wakeford incident and was present when a detective interviewed Richard Wakeford. During his examination by defense counsel, Lahlien was asked, “[D]o you consider the Ramada Inn to be in a high crime area as of 1984 [sic]?” Lahlien responded, “I don’t consider it a high crime area.” On further inquiry Lahlien stated that in his opinion the Ramada Inn did not need a security officer at the time of the incident. Lahlien testified as to the bases for his opinion:

“I have perused the three-by-five index card system whereby we list crimes attributed to geographic areas in Alton. The Ramada Inn does not have a background of high level incidence of crimes against persons. Personal recollection, general feel of Ramada Inn is not that of what I would say would be negativism.”

Wakeford argues that the trial court erred in allowing the testimony of police officer Lahlien as an expert without prior disclosure.

Illinois Supreme Court Rule 220 provides in pertinent part:

“An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, a party, or an independent contractor.
* * *
In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.” (134 Ill. 2d R. 220.)

Wakeford agrees that Lahlien was an investigating officer in this case and could testify concerning his investigation of the crime and the facts surrounding this case. Wakeford argues, however, that because Lahlien’s testimony went far beyond the scope of his investigation and involved matters based on specialized knowledge, he should have been disclosed as an expert under Rule 220. Ramada Inn concedes that Lahlien testified as an expert in this case but argues that disclosure of Lahlien was not required.

In the case of Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, the supreme court held that a treating physician is not an expert within the meaning of Illinois Supreme Court Rule 220:

“Although the defendants argue that ‘retained’ in Rules 220(b)(1) and (c) refers broadly to witnesses who are ‘requested’ to give an opinion within their field of expertise, we consider it obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial. It may be said that the connection between a medical expert who is ‘retained to render [a medical] opinion at trial’ and the party to the suit may be litigation-related, rather than treatment-related. Treating physicians, on the other hand, typically are not ‘retained to render an opinion at trial’ but are consulted, whether or not litigation is pending or contemplated, to treat a patient’s physical or mental problem. While treating physicians may give opinions at trial, those opinions are developed in the course of treating the patient and are completely apart from the litigation. Such an opinion is not formed in anticipation of a trial, but is simply the product of a physician’s observations while treating the patient, which coincidentally may have value as evidence at a trial. In this respect, the opinions of treating physicians are similar to those of occurrence witnesses who testify, not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.” (Tzystuck, 124 Ill. 2d at 234-35, 529 N.E.2d at 528-29.)

The background of Tzystuck may be of some significance. Tzystuck actually involved the consolidated cases of Tzystuck v. Chicago Transport Authority and Diminskis v. Chicago Transit Authority, and the supreme court had two Rule 220 questions before it. First, from Tzystuck:

“Whether the plaintiff is responsible for the payment of fees to the plaintiff’s treating physician pursuant to Supreme Court Rule 220 when a physician is subpoenaed by the defendant for the taking of his discovery deposition and the plaintiff intends to call this physician to testify at trial.” (124 Ill. 2d at 232, 529 N.E.2d at 527.)

Procedurally, the trial court had ruled that the plaintiff was responsible; the appellate court denied plaintiff’s petition for leave to appeal, but the supreme court allowed it.

The second question, from Diminskis:

“[W]hether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Rule 220(b)(1).” (124 Ill. 2d at 232, 529 N.E.2d at 528.)

The record in Diminskis revealed that, while plaintiff had not specifically named Dr. Von Roenn as an expert who would testify at trial, he had (1) named him as a treating physician, (2) indicated that treating physicians would testify at trial, and (3) provided defendant with Dr. Von Roenn’s records. In addition, defendant had deposed Dr. Von Roenn.

The supreme court addressed the question from Diminskis first and decided that treating doctors did not have to be disclosed under Rule 220 because they were not experts under the rule. The court’s disposition of the question from Diminskis allowed it to dispose of the question from Tzystuck in a one-page statement that the plaintiff need not pay the deposition costs of a treating doctor.

The answer to the question of whether the supreme court chose the order in which it would address the issues in order to ease its way into the answer in Tzystuck is as unknowable as the answer to the question of whether Shakespeare was truly the author of all the sonnets credited to him. While there can be no doubt that the order in which matters are viewed can have an effect:

“It was not so much that His Birth cast a shadow on His Life, and thus led to His Death; it was rather that the Cross was first, and cast its shadow backward to His Birth.” (F. Sheen, The Life of Christ 25 (1954).)

The answer to the importance of the chosen order need not unduly concern us. Wfiiat must concern us, however, are the bases for the supreme court’s answer to the Diminskis question, and it may well be that the cost factor decided in Tzystuck was one of the unstated concerns involved in Diminskis.

Turning, however, from what may have been left unstated to what was stated, we find that there are both factual and policy bases for the decision. On the factual front we note that the defendant was well aware of the likelihood of Dr. Von Roenn testifying, and that it had been furnished his records a year before trial. While the supreme court did not hold that these facts influenced its result, it may be worthy of note that they were mentioned twice in the relatively brief opinion. A fact that was mentioned only once, but was noted as an observation in the appellate court opinion as well, is that Dr. Von Roenn’s testimony was based upon his observations and experiences with the plaintiff “rather than on outside materials.” (Tzystuck, 124 Ill. 2d at 238, 529 N.E.2d at 530.) We emphasize the foregoing language for two reasons: First, it is a factor that is singularly absent in this case; second, and more importantly, it is indicative of what we would call the transition basis of the court’s holding that knowledge of the incident was gained through nonlitigation-oriented means. We view this as a transition basis because it is actually an evidentiary point in establishing the first true policy basis of Diminskis’ holding, which is that the treating doctor is not under the control of the preferring party in the same way that a retained expert is deemed to be. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 541 N.E.2d 643; Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007.) To state the obvious, the result in Diminskis was reached not because Dr. Von Roenn did not possess all the attributes of an expert set forth in Rule 220(a) (or any other definition of the term) but because the supreme court had other reasons for not placing him into that category.

The first of those stated, as we have just indicated, was the lack of control over a treating doctor. The lack-of-control policy basis was premised on the practical concern that:

“To construe Rule 220 to include treating physicians would unrealistically and unfairly oblige litigants to ensure that witnesses beyond their control comply with the extensive discovery obligations of subsection (c) at the risk of having a witness disqualified for failure to comply.” Tzystuck, 124 Ill. 2d at 237, 529 N.E.2d at 530.

The second policy basis articulated in Diminskis was that parties could adequately discern the possibility of a treating doctor testifying by using other discovery tools, specifically Illinois Supreme Court Rule 201(b)(1) (134 Ill. 2d R. 201(b)(1)). The danger of a surprise expert would be minimized because the identity of treating doctors would be routinely disclosed under that rule.

The court’s analysis of its second policy basis is accurate as far as it goes; clearly the identity of treating doctors will become known during the ordinary course of discovery, and their opinions can be discovered through depositions. The difficulty is that they are then free to develop new and undisclosed opinions near the eve of, or even during trial. (See Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894.) This ability to formulate and reveal surprise opinions is not limited to plaintiffs; any defendant doctor in a medical malpractice case is obviously a treating physician and may therefore be perfectly capable of disclosing a new opinion formed during the course of the trial. Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 546 N.E.2d 558; see also Moore v. Roberts (1991), 217 Ill. App. 3d 446, 577 N.E.2d 538; cf. Karr v. Noel (1991), 212 Ill. App. 3d 575, 571 N.E.2d 271.

The final reason given by the court was the fact that Rule 220 was based in part upon Federal Rule of Civil Procedure 26(b)(4) (Fed. R. Civ. P. 26(b)(4)) and its conclusion that Rule 26(b)(4) did not apply to treating doctors.

Of the three policy reasons given by the court, we feel that the first, the inability to control the nonretained expert so as to obtain compliance with Rule 220(c), is the most significant. There is by no means complete agreement on this point. (See Cochran v. Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 561 N.E.2d 229.) Other districts of the appellate court have also stressed different bases from Tzystuck in their analyses.

The first post-Tzystuck case was Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51. Smith was a Structural Work Act case in which the defendant architect firm’s project manager, an engineer, was allowed to give his opinion that a gallery system was designed in the safest manner and complied with all professional standards. The engineer, Mr. Loftus, had been deposed by the plaintiff, but the plaintiff argued that since Loftus had not been disclosed as an expert, he had not been examined in the area of his expertise. The court likened the situation in Smith to the treating-doctor situation in Tzystuck and held that Loftus was intimately involved in the subject matter of the litigation and need not have been disclosed as an expert witness pursuant to Rule 220(b)(1). 176 Ill. App. 3d at 494-95, 531 N.E.2d at 59.

Smith focused on two of the bases contained in Tzystuck, the information was gained through nonlitigation-oriented means (the expert was the project engineer) and there should have been no surprise about his opinion since his name was known and his deposition had been taken. In our judgment the Smith analysis ignored the most significant basis of Tzystuck, the control aspect; the expert was an employee of one of the defendants and could have easily been required to comply with the strictures of Rule 220(c).

Smith was followed in Hill v. Ben Franklin Savings & Loan Association (1988), 177 Ill. App. 3d 51, 531 N.E.2d 1089, which involved an opinion given by a party, again a person who could have been required to comply with Rule 220(c), and in Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 539 N.E.2d 801, in which the expert was a former employee. There are several other cases which comment upon Tzystuck and extend it beyond the treating-doctor area. See First National Bank v. Village of Mount Prospect (1990), 197 Ill. App. 3d 855, 557 N.E.2d 1257; Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 550 N.E.2d 587; Forest Preserve District v. Brookwood Land Venture (1990), 199 Ill. App. 3d 973, 557 N.E.2d 980; Department of Transportation ex rel. People v. Central Stone Co. (1990), 200 Ill. App. 3d 841, 558 N.E.2d 742; Coleman v. Central Illinois Public Service Co. (1990), 207 Ill. App. 3d 96, 565 N.E.2d 274; McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 548 N.E.2d 461; DeYoung v. Alpha Construction Co. (1989), 186 Ill. App. 3d 758, 542 N.E.2d 859.

The questions which need to be asked: what is gained by these extensions and/or are they really necessary? We submit that there is little, if anything, to be gained because it is unnecessary to extend the treating-doctor exception as fully as has been done. It may well be that the supreme court’s concern about parties’ inability to comply with Rule 220(c) requirements with nonretained experts can be alleviated while still requiring the disclosure of the identity of those experts.

We conclude that the preferable solution, one that keeps faith with both the holding and the primary basis of Tzystuck and also provides for the policy of disclosure that the supreme court implemented with its adoption of Supreme Court Rule 220, is to require disclosure of the identity of all experts.

If all parties are required to disclose the identity of all experts that they may call, whether they be treating doctors, fire marshals, former employees or the like, then the opposing party is alerted to the fact that these witnesses may be giving expert opinions in the case. (See Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492 (court held that the better practice is to disclose all potential experts since the decision to bar them rests with the judge).) It takes little effort to disclose the expert, and the potential impact on the opposing party of an unknown expert can be devastating. While Smith said “the fact that he testified is not a surprise; rather that he gave an expert opinion surprised plaintiff” (Smith, 176 Ill. App. 3d at 494-95, 531 N.E.2d at 59), the fact is that Rule 220 was promulgated to prevent surprise opinions. Experts who do not give opinions are like Santas that do not give gifts; impressive in the finery of their qualifications, but useless in their ability to persuade.

The next step is obviously the discovery of the expert’s opinion. If Rule 220 were followed, the party disclosing the identity would be required to furnish a report or to provide answers to interrogatories. This could be a practical problem when the expert is not retained. The retained expert is presumably much more willing to cooperate in the preparation of the reports that are a part of the litigation process. It has been held that retained experts are sufficiently under the control of the retaining party to warrant giving Illinois Pattern Jury Instruction, Civil No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971)) (IPI) when they fail to appear. (Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007; Schaffner, 129 Ill. 2d 1, 541 N.E.2d 643.) We note, parenthetically, that the fear of an IPI Civil 2d No. 5.01 instruction may be one of the reasons for the reluctance to disclose experts’ names, but that issue is not before us. Nevertheless, while a retained expert may be perfectly willing (for an appropriate fee) to prepare a report, a nonretained expert such as the fire marshal (Deyoung, 186 Ill. App. 3d 758, 542 N.E.2d 859), the former employee (Voyles, 183 Ill. App. 3d 833, 539 N.E.2d 801), or the treating doctor (Tzystuck, 124 Ill. 2d 226, 529 N.E.2d 525) may be much less willing to do so. Therefore, the appropriate way to proceed with nonretained experts is to allow the opposing party to proceed with whatever discovery it deems appropriate once disclosure is made.

What is the effect of requiring this procedure? First, it achieves the early disclosure of all those (both retained and nonretained) who are to be called to render an expert opinion at trial. Second, because only those disclosed as retained experts under Rule 220 could call for a future IPI Civil 2d No. 5.01 instruction, a possible source of the reluctance to disclose would be eliminated. Third, the supreme court’s concern over the incurring of costs would be alleviated because the opposing party need only conduct discovery of the experts disclosed and then only to the extent it deemed necessary.

One problem that is not covered by this procedure, but which is an important one, is the possible change in an expert’s opinion after initial discovery. Supreme Court Rule 220(c) requires automatic supplementation of expert opinions, but the supreme court has ruled that it does not cover the treating doctor (Tzystuck, 124 Ill. 2d at 237, 529 N.E.2d at 529-30), and presumably it would not cover the other non-retained experts either. The only feasible solution at this time is the use of supplementary discovery near the time of trial. While this is not as efficient as the automatic supplementation requirement of Rule 220(c), it must be remembered that the class of experts covered by this procedure is not the same as the retained expert covered by Rule 220. Therefore, the diligent use of supplementary discovery (coupled with an awareness by trial courts of the significance of a late change in an expert’s opinion) will hopefully reduce the possibility of surprise in this area.

With regard to the facts in the instant case, we begin with the premise espoused in Tzystuck that treating physicians acquire their facts and opinions, not in anticipation of trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation. (Tzystuck, 124 Ill. 2d at 234-35, 529 N.E.2d at 528.) Officer Lahlien was an investigating officer, and he first testified about his investigation of the incident itself which was done in the course of his duties as a police officer. Next, he testified that he formed an opinion as to the security of the Ramada Inn area based on the police department’s records. Wakeford does not claim surprise concerning any of the information Lahlien used in his investigation of the Ramada Inn incident, but he does claim surprise as to the information contained in the crime-incident summaries, index cards or police records upon which Lahlien relied in giving his opinion as to security. Wakeford claims that the information had nothing to do with Lahlien’s investigation, and that he was surprised when those materials were provided to Officer Lahlien to enable him to form an opinion about security.

Lahlien’s connection with this case arose when he was called upon to investigate the criminal attack. The scope of his professional involvement with the case prior to being approached by defense counsel encompassed interviewing witnesses and investigating the crime. Although Lahlien, by the very nature of his job, had access to the police records and crime-incident summaries, but for the desire of defense counsel that Lahlien express an opinion at trial as to whether the Ramada Inn was in a high-crime area and needed a security guard, Lahlien would not have been required to form an opinion as to such. Lahlien was not a viewer or actor with regard to the questions concerning incidents of crime in the area and whether or not the Ramada Inn should have had a security guard. The questions posed of Lahlien clearly called for an opinion based on Lahlien’s expertise rather than his observation and involvement of a specific incident. (See Jenkins v. Whittaker Corp. (9th Cir. 1986), 785 F.2d 720.) Because Lahlien’s involvement in this case was more than that of an actor or viewer with respect to the occurrences that are part of the subject matter of the lawsuit (see 134 Ill. 2d R. 220(c)(4); Baran v. Presbyterian University Hospital (W.D. Pa. 1984), 102 F.R.D. 272, 39 Fed. R. Serv. 2d 582; Keith v. VanDorn Plastic Machinery Co. (E.D. Pa. 1980), 86 F.R.D. 458, 29 Fed. R. Serv. 2d 671), he was an expert witness within the meaning of Rule 220.

Supreme Court Rule 220 specifically provides that the failure to disclose an expert will result in the expert’s testimony being barred. (134 Ill. 2d R. 220(b)(1).) The trial court erred in not barring the testimony of Officer Lahlien as to his opinion regarding the incidence of crime in the area and security at the Ramada Inn. Such testimony was expert testimony as contemplated by Rule 220, and defendant should have disclosed the witness pursuant to that rule.

Moving on to the second issue in this case, plaintiff contends that the trial court erred in allowing the defendant to cross-examine Wakeford as to whether Wakeford’s medical bills had been paid by his own medical insurance. The defendant replies that it was plaintiff who initially injected insurance into the case during the direct examination of Dawn Wakeford, the plaintiff’s spouse:

“Q. When your husband worked for Sawyer, do you know how much he made on a yearly basis?
A. He averaged between $22,000.00 and $23,000.00 a year salary plus fringes that included a vehicle, license, title, insurance, repairs for work, and he also was able to use that for personal use, as well as all supplies, ladders, tools, dropcloths, sandpaper, paint.” (Emphasis added.)

Similarly, during the direct examination of Richard Wakeford the following colloquy occurred:

“Q. [H]ow much were you making in the last two or three years before you were hurt?
A. Roughly $22,000.00 to $23,000.00 was my average wage. I had a fringe package. Sawyer’s [sic] gave me a vehicle to drive for work and for home, and personal use. They furnished all of my tools. I estimated that fringe package between $5,000.00 and $10,000.00.”

On cross-examination Wakeford was asked and answered:

“Q. Whether [sic] you talked about losing the fringes, part of that was your insurance you had with Sawyer. You figured that in, did you not?
A. That’s correct.
Q. Isn’t it a fact that when this occurred, you were also covered by your wife’s insurance at her place of work, and it in fact was a better insurance coverage than Sawyer?
A. That’s correct. But as they insured me, they were the primary carrier.
Q. And then after that was dropped, you’re now covered by your wife’s policy?
A. Yes, sir. At a considerable fee for me.”

Both of the Wakefords’ references to insurance dealt with a fringe benefit that they claimed Richard had lost as a result of his inability to work. Under the circumstances, the defendant was entitled to inquire about any inconsistencies in their testimony about the loss of the fringe benefit of insurance. It was improper, however, for the defendant to elicit the collateral-source matter of Dawn’s insurance coverage through her employer (Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 444, 333 N.E.2d 716, 723), and this should be avoided upon retrial.

The next issue on appeal is whether the trial court erred in refusing to bar the testimony of James Kincaide after defense counsel had an ex parte communication with him. Kincaide works for the Illinois Department of Vocational Rehabilitation. The Department was created “to provide for rehabilitation *** and other services to persons with one or more disabilities, their families and the community.” (Ill. Rev. Stat. 1989, ch. 23, par. 3430.) “An Act in relation to rehabilitation of disabled persons” provides:

“The Department shall have *** the authority:
* * *
(g) to assure that the case and clinical records of patients in Department supervised facilities and persons receiving other services of the institutions of the Department shall not be open to the general public. Such case and clinical records and reports or the information contained therein shall be disclosed by the Director only to proper law enforcement officials, individuals authorized by court, the Illinois General Assembly or any committee or commission thereof, and to such other persons and for such reasons as the Director shall designate by rule or regulation.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 23, par. 3444.

Kincaide testified that he is a rehabilitation counselor, with a master’s degree in Guidance and Counseling. He works in the Department of Rehabilitation Services, which works with the disabled to help them obtain gainful employment. Services provided by the Department include surgery, physical restoration, and speech therapy. Persons must demonstrate financial need before they are eligible to obtain the services of the Department. Kincaide testified that he was assigned Richard Wakeford’s case file but soon thereafter closed the file after speaking with the Wakefords and determining that their income exceeded the income of those determined to be in financial need.

Outside the presence of the jury, plaintiff objected to the defendant calling James Kincaide to testify. An examination of Kincaide was conducted outside the jurors’ presence whereupon it was disclosed that defense counsel contacted the witness a week prior to trial. When asked whether defense counsel inquired as to Wakeford’s ability to work, Kincaide testified, “I believe he did.” Defense counsel admits that he discussed the closure of Wakeford’s file with Kincaide, and that he may have discussed Wakeford’s ability to work. Kincaide testified that defense counsel asked “what our financial criteria was ***. [W]e discussed case closure.” The trial court overruled plaintiff’s objection to Kincaide testifying.

Plaintiff argues that Kincaide is akin to the treating physician in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952. He contends that it was improper for defendant to contact Kincaide, and that the court erred in not barring him from testifying. Petrillo v. Syntex Laboratories, Inc. held that defense counsel cannot confer with plaintiff’s treating physician other than by court-authorized discovery methods. The Petrillo court held that such ex parte contact is not authorized by the rules, noting that the structure and supervision authority inherent in the discovery rules serve to protect various societal interests such as the confidentiality and fiduciary nature of the physician-patient relationship. Where an ex parte communication has taken place between defense counsel and a plaintiff’s treating physician, sanctions may be imposed upon the defendant, including barring the testimony of the plaintiff’s treating physician. (Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1376.) Petrillo has been extended to nurses who assist doctors in treating a patient because such a rule advances the public policies of confidentiality in the doctor-patient relationship. Roberson v. Liu (1990), 198 Ill. App. 3d 332, 555 N.E.2d 999.

Defendant argues that assuming Kincaide is a health care professional, the record does not demonstrate that defendant used confidential information which Kincaide divulged and, therefore, no prejudice was shown. Although there may be no evidence that Kincaide actually disclosed any of the plaintiff’s confidences, there can be no question that he breached his fiduciary duty to the plaintiff. What matters is the threat or potential harm to the treating physician-patient relationship. (Karsten, 157 Ill. App. 3d at 14, 509 N.E.2d at 1384; Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 554 N.E.2d 266.)

“[The] situation *** is a one that plaintiffs’ lawyers face all too frequently. The plaintiff’s doctor has huddled with defense counsel, but it [is unknown] whether privileged information was disclosed. The doctor has thrown his or her allegiance to the defense, but it cannot be known whether improper influences were at work. The testimony itself violates no rule of evidence or privilege, and yet, the prejudice to the plaintiff’s case is devastating. ***
Confidentiality, once breached, cannot be restored.” (Corboy, Ex Parte Contacts Between Plaintiffs Physician & Defense Attorneys: Protecting the Patient-Litigant’s Right to a Fair Trial, 21 Loy. U. Chi. L.J. 1001, 1011 (1990).)

As stated in a recent article discussing prohibited ex parte contacts:

“The Petrillo doctrine attempts to preserve the physician-patient relationship during the litigation process by regulating the method, not the substance, of what is discoverable. The policies underlying the rule encompass and extend beyond the credited purposes of the privilege.
In order to give the doctrine its due, therefore, mere contact must be the standard against which a Petrillo violation is measured. The bright-line test is a natural extension and consistent interpretation of Petrillo’s intent and provides certainty that any litigant could appreciate. Exceptions, if any exist, should be limited.” Redden & Bower, Qualifications to the Bar of Ex Parte Contacts with Physicians, 79 Ill. B.J. 442, 448 (Sept. 1991).

The question we are confronted with is whether public policy so favors the confidential relationship between a patient and his therapist that ex parte communications with a person having access to those confidences are prohibited. Before we answer this question, however, defendant argues that we must determine if in fact Kincaide is a therapist.

Kincaide holds a master’s degree in guidance and counseling and refers to himself as a rehabilitation counselor. Defendant argues that Kincaide is not a therapist and is not a health care professional in any sense. Kincaide testified that he has worked for the Department of Rehabilitation Services for 15 years. During direct examination Kincaide was asked and answered the following questions:

“Q. Would you tell the jury the type of services that are offered by that department and the type person they’re offered to?
A. Well, basically we work with the disabled and try to provide services to help them get back into some type of gainful employment.
Q. How would you break down the services that are offered?
A. Really, we can justify most any service if it is justifiable that it will enhance somebody’s employability.
Q. What are some of those things then you would do?
A. Surgery, physical restoration, speech therapy. I’m trying to think of all of them. There is [sic] quite a few.
Q. Do you offer placement services?
A. Yes.”

While Kincaide described the services offered by the Department, he was not specifically asked nor did he describe what his particular role with the Department is. Kincaide testified that he worked with Wake-ford’s file, but it is unclear from the record just what services Kincaide provided Wakeford. Without more we cannot determine if Kincaide is a therapist or is otherwise employed as a recognized health care professional. Nonetheless, it is clear that in his employment Kincaide has access to Wakeford’s medical file and hence to confidential information regarding Wakeford’s treatment.

Kincaide describes himself as a rehabilitation counselor; he is employed in an office that provides health care, including surgery, physical therapy, and speech therapy; pursuant to his employment Kincaide works directly with the patient’s files. Regardless of Kincaide’s job title and whether he is himself a health care professional, we find that Petrillo applies in this case to Kincaide because he possesses and has access to the confidences of the patient and his treating physician. If we were not to apply Petrillo, we would do an injustice to the public policies of confidentiality and fiduciary duty in the physician-patient relationship.

Wakeford argues that the trial court erred in not barring Kincaide from testifying. The imposition of sanctions for failure to comply with discovery rules and orders is within the discretion of the trial court and should not be disturbed absent an abuse of discretion. (Ritter v. Rush-Presbyterian-St. Luke’s Medical Center (1988), 177 Ill. App. 3d 313, 322, 532 N.E.2d 327, 332-33.) We hold that defense counsel’s conduct with Kincaide was not in keeping with the policy of Petrillo. However, as this cause is reversed and remanded, we need not reach the issue of what sanction is appropriate in this circumstance. Such determination is left to the discretion of the trial court.

Finally, we are asked whether the trial court erred in refusing to allow the plaintiff’s expert, David Whipple, to testify as to the number of crimes and incidents committed in the area surrounding the Ramada Inn.

David Whipple, a former Alton police officer, worked for the Alton police department from 1970 through 1984. Throughout the years he has worked as a patrol officer, a narcotics agent, a detective, and as a teacher in the area of security and law enforcement. After leaving the Alton police department, Whipple and a fellow police officer established a private security guard agency.

Whipple was hired by the plaintiff to examine Madison County police and sheriff’s records to determine how much crime or police activity had taken place in the vicinity of Ramada Inn for a three-year period prior to the incident at bar. Plaintiff argues that Whipple was hired to provide evidence of prior crimes and incidents that occurred at or near the premises, thereby establishing that the defendant breached its duty to exercise reasonable care in failing to provide adequate security. Prior to trial defendant filed a motion in limine to prevent Whipple from testifying about prior police activity. The court granted defendant’s motion in limine, finding:

“He can’t give the number, but he can give the percentages, if he has them.
* * *
If he wants to talk about police activity and twelve percent of this police activity consists of felonies, that’s fine. And then so many of the felonies reported, percentages consists of forcible felonies, that is like-wise fine. He’s not going to say there is [sic] a thousand crimes there when there is [sic] just a thousand items of police activity.
* * *
You’re going to have to show some serious crimes, and then you could establish some kind of pattern of something maybe related to crimes against a person like automobile thefts and that type of thing. *** I don’t think police activity in and of itself is sufficient to establish any type of crime pattern.”

During direct examination Whipple testified that from 1979 through 1984, there were approximately 60 incidents at the Ramada Inn that were reported to the Alton police department. Of these 60 incidents, approximately one-third were felonies. Whipple identified several Alton “high-crime” areas, including Lincoln Gardens, a housing project, which is roughly 500 feet from the Ramada Inn. Whipple concluded that the Ramada Inn could have had a uniformed security guard on duty the night of the incident to prevent the shooting.

Defense counsel extensively cross-examined Whipple about the types of activities included in his report. Whipple testified that criminal activity included incidents involving thefts of hubcaps, fights, flat tires, and someone in the dining room throwing glasses. On redirect, in an attempt to rehabilitate the witness, plaintiff asked, “What numbers did you get for what years when you counted those crimes?” Defense counsel objected, and plaintiff made an offer of proof that Whipple would testify as to the amount of police activity that occurred in the area in 1982, 1983, and 1984, and that his reason for seeking that testimony was because of defendant’s extensive cross-examination of Whipple concerning the nature of the incidents. The trial court sustained defendant’s objection.

Plaintiff argues that Whipple should have been permitted to testify as to the amount of police activity in the area because it formed the basis for his opinion that Ramada Inn is in a high-crime area and that the Wakeford incident was reasonably foreseeable. We find that the trial court did not err in prohibiting Whipple from testifying as to the number of crimes and incidents in the area. The trial court has discretion to prohibit admission of evidence which is otherwise admissible but whose probative value is outweighed by the danger of prejudice or confusion. (Deerhake v. DuQuoin State Fair Association, Inc. (1989), 185 Ill. App. 3d 374, 380, 541 N.E.2d 719, 722.) It is clear from the record that Whipple was not precluded from testifying as to the percentages of certain types of crimes. The court merely precluded plaintiff from mischaracterizing police activities as crimes. We do not find that the trial court erred in refusing to allow Whipple to testify as to the amount of police activity in the area.

Finally, plaintiff argues that the trial court erred in prohibiting Whipple from testifying that (1) an hour prior to the shooting a man was seen by a hotel employee trying to enter the window of room 150; (2) a guest tried to check in to room 150 but it was occupied; and (3) Whipple believed that whoever broke into room 150 was Wake-ford’s attacker. Plaintiff argues that the incident involving room 150 is relevant to the issue of notice and foreseeability.

A review of the record shows that Whipple testified that approximately one hour prior to the shooting a hotel employee observed a man trying to enter or push on a window to room 150. Whipple further testified that a patron of the hotel tried to check in to room 150 but found that it was occupied. Defendant objected to this line of questioning, and plaintiff made the following offer of proof:

“[I]f permitted to go on, I would ask the witness whether he has an opinion as to that person [sic] might have been the perpetrator. His answer would have been yes. I would ask him the reason why. He would say that [that person] *** could have been leaving and attempting to rob Wakeford and take his car.”

The trial court sustained the defendant’s objection to the testimony respecting the assignment of room 150 to a hotel patron and occupation of the room. The court also prohibited Whipple from testifying as to his opinion that the person lurking was Wakeford’s attacker. The court stated, “The incident about somebody lurking around is all right. But the room incident is so conjectural and speculative that it is stricken.”

There must be some basis in the record to justify relying upon the testimony of a witness who possesses special skill or knowledge, so that it cannot be said that the testimony is merely guess or conjecture. (Continental Illinois National Bank & Trust Co. v. Eastern Illinois Water Co. (1975), 31 Ill. App. 3d 148, 160, 334 N.E.2d 96, 106.) Where an expert’s testimony is incompetent and inadmissible because of its speculative nature, the trial court is correct in striking it. (See In re Union Drainage District Number One (1976), 39 Ill. App. 3d 862, 350 N.E.2d 865.) In the instant case, the trial court did not err in striking Whipple’s testimony.

For the foregoing reasons, this court reverses and remands this cause to the circuit court of Madison County.

Reversed and remanded.

RARICK and WELCH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. HUTSON, JR., Defendant-Appellant.
    Fifth District
    No. 5 — 89—0868
    Opinion filed December 27, 1991.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Charles E. Hutson, was found guilty of cruelty to a child (111. Rev. Stat. 1989, ch. 23, par. 2368) and battery (111. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)). In this appeal, defendant raises the following contentions: (1) that defendant was denied the right to confront the sole eye-witness to the incident; (2) that the trial court improperly instructed the jury as to the necessary elements for the offense of cruelty to a child; (3) that defendant was denied a fair trial due to improper and prejudicial remarks by the State’s Attorney during the State’s opening statement and closing argument; and (4) that the battery conviction should be vacated as a lesser-included offense of cruelty to a child. We affirm in part and vacate in part.

A.H. was born on August 25, 1988. In January 1989, defendant moved into an apartment at 217 South 16th Street, Herrin, where Teri H. and her infant daughter, A.H., resided. Defendant, who was not A.H.’s natural father, began sharing the responsibility for the child’s daily care with Teri H. In January and February of that year, defendant bathed, fed and diapered the child regularly. In March, he began his role of sole caretaker of A.H., after which Teri H. rarely performed any duties necessary for her daughter’s care.

On April 9, 1989, Teri H.’s mother, Rose, came to the 16th Street apartment to pick up Teri and A.H. for a visit at Rose’s home. Upon returning home, Rose noticed bruising on A.H.’s bottom and suspected defendant to be the source of those bruises. Teri confirmed her mother’s suspicions. That same day, Rose and Teri H. took A.H. to the Herrin police station to file a report accusing defendant of abusing the child repeatedly. Defendant was charged with two counts of aggravated battery to a child and one count of cruelty to a child. The charges stated that on April 7, 1989, defendant “stuffed a rag into A.H.’s mouth, and hit her with his hand on the chest,” and that on April 9, 1989, defendant “stuffed a rag in [A.H.’s] mouth, picked her up by the head with his hand and then hit her with his hand on the buttocks.” The case was tried to a jury, which found defendant guilty of cruelty to a child and battery for the April 9, 1989, incident and not guilty for the charges relating to the April 7, 1989, incident. Evidence presented at trial will be addressed as necessary to resolve each issue on appeal.

The first issue on appeal is whether the trial court denied defendant his right to confront Teri H., the sole complaining witness, by refusing to allow defendant to present witnesses who would testify that Teri H. had abandoned A.H. and had attempted to give the child away. During cross-examination of Teri H., defense counsel had the opportunity to question her as to whether she had previously tried to give A.H. away, and whether she had been investigated by the Department of Children and Family Services (the Department) for neglect. Teri H. testified that she had not tried to give the baby away. Additionally, she stated that although a Department report indicated she neglected A.H., the report was untrue. Subsequently, defendant attempted to present extrinsic evidence in the form of testimony by three witnesses that Teri H. had, in fact, offered to give A.H. away on at least two separate occasions, that Teri H. had repeatedly left the child unattended before defendant moved in, and that defendant was the sole caretaker of A.H. after he moved in because Teri H. took no interest in her.

The trial court granted the State’s motion in limine to exclude such testimony by Karen Weigand, Jesse Burton and Judy Jurcy, holding that testimony regarding specific acts of neglect by Teri H. was irrelevant and thus improper for impeachment purposes. The trial court suggested a different ruling might have been in order had defendant been able to produce evidence of prior physical abuse of A.H. by Teri H. The trial court reasoned that evidence of prior abuse by Teri H. would further defendant’s theory that Teri H. had abused the child on the instances in question and thus could be allowed. But the trial court concluded that there was an insufficient nexus between prior neglect and present abuse, and that evidence of prior neglectful acts was improper to attack Teri H.’s veracity.

Defendant argues that the trial court violated his right to confront the sole eyewitness to the incidents by not allowing the jury to hear evidence of specific acts of neglect by Teri H. In support of his argument, defendant cites Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, which held the sixth amendment right to confront witnesses includes the right of cross-examination:

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., [to] discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. *** A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” 415 U.S. at 316, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1110.

Defendant’s reliance on Davis is misplaced. Davis stands for the right of an accused to confront witnesses by cross-examination. Defendant contends that his sixth amendment right to confront Teri H. was violated, not by any improper limitations imposed by the trial court on the questions posed to the witness during cross-examination, but by the court’s refusal to allow defendant to present extrinsic evidence to contradict the witness’ testimony on cross-examination. We find defendant’s contention is not controlled by Davis. His contention is, in actuality, a dispute as to how the common law rules of evidence were applied. Davis stops short of including extrinsic evidence in its definition of cross-examination and confrontation of witnesses; therefore, Davis does not apply to the facts of this case. The issue before us is evidentiary: whether the trial court erred by precluding defendant from introducing extrinsic evidence of neglect by Teri H.

The State argues that the trial court correctly granted the State’s motion in limine barring testimony by Karen Weigand, Jesse Burton and Judy Jurcy regarding Teri H.’s neglect of A.H. The State further contends that defendant’s sole purpose in presenting such testimony was to rebut Teri H.’s testimony on a collateral matter which was not proper for impeachment purposes. Defendant, in his reply brief, argues that the matter of Teri H.’s neglect is noncollateral, and that the witness’ testimony was crucial to show Teri H.’s motive to testify falsely.

The latitude allowed counsel on cross-examination and rebuttal is a matter within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267, 281.) Generally speaking, any permissible kind of impeaching matter may be developed on cross-examination, since one of the purposes of cross-examination is to test the credibility of the witness. (106 Ill. 2d at 269, 478 N.E.2d at 281.) However, the cross-examiner may not impeach a witness on a collateral matter. (106 Ill. 2d at 269, 478 N.E.2d at 281.) Collateral matters are generally considered to include facts irrelevant to the substantive issues in the case and facts which are not independently provable by extrinsic evidence, apart from impeachment purposes. (People v. McGhee (1974), 20 Ill. App. 3d 915, 922, 314 N.E.2d 313, 319; McCormick, Evidence §47, at 101-02 (1954).) The test which determines if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. (Collins, 106 Ill. 2d at 269, 478 N.E.2d at 281.) We reiterate that defendant does not contend that the trial court erred in limiting the cross-examination of Teri H. Instead, defendant argues that the trial court erred by not allowing three witnesses to contradict her testimony elicited under cross-examination. Whether Teri H. neglected her child was not the issue in this case, and such evidence could not be introduced for any purpose other than to contradict. Therefore, evidence that Teri H. left her child alone or tried to give her child away on prior occasions is collateral to this case, and extrinsic evidence was properly barred by the trial court. We find no abuse of the trial court’s discretion.

We next address defendant’s contention that he was denied a fair trial because the jury was erroneously instructed. At issue are the following instructions with regard to the cruelty to a child charges:

“A person commits the offense of cruelty to children when he
* * *
knowingly injures the health or limb of a child.” Illinois Pattern Jury Instructions, Criminal, No. 11.23(2) (2d ed. 1981).
“To sustain [a] charge of cruelty to children, the State must prove the following proposition:
* * *
That the defendant knowingly injured the health of a child.” (Illinois Pattern Jury Instructions, Criminal, No. 11.24 (2d ed. 1981).)

Defendant argues that in order to convict him of cruelty to a child, the jury must find he knowingly and “unnecessarily” injured the child. Defendant finds fault with the trial court for not including the word “unnecessarily” in its instruction. Defendant asserts that the jury, as instructed, was required to convict defendant for spanking the child, even if a spanking was necessary for disciplinary purposes. We decline to adopt defendant’s position.

Defendant failed to object to the jury instructions at trial or in his post-trial motion. A fundamental concept of our adversarial system is that counsel should object to errors in trial. Counsel may waive the right to raise certain errors in later proceedings by failure to object to those errors at trial. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335.) Our supreme court has consistently held that failure to object at trial to an asserted error in jury instructions waives the issue. (People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 743; People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027, 1029; Roberts, 75 Ill. 2d at 14, 387 N.E.2d at 335.) It is also well established that a party may not raise, on appeal, the failure to give an instruction unless it was tendered at trial. (Berry, 99 Ill. 2d at 503, 460 N.E.2d at 743; Huckstead, 91 Ill. 2d at 543, 440 N.E.2d at 1251; Tannenbaum, 82 Ill. 2d at 180, 415 N.E.2d at 1029; People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513, 515.) Additionally, objections not raised in a post-trial motion are deemed waived for appellate review. Berry, 99 Ill. 2d at 503, 460 N.E.2d at 744; Huckstead, 91 Ill. 2d at 543, 440 N.E.2d at 1251; Tannenbaum, 82 Ill. 2d at 181, 415 N.E.2d at 1029.

The reason for the waiver rule is that timely objections to defective instructions permit the court to correct the defects before the instructions are given and also prevent a party from gaining an advantage based upon its own failure to act. (Roberts, 75 Ill. 2d at 11, 387 N.E.2d at 336.) The waiver rule is not absolute, however. Supreme Court Rule 451(c) provides that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (134 Ill. 2d R. 451(c).) Both our supreme court and the United States Supreme Court have expressed reluctance to read exceptions to the waiver rule broadly as applied to jury instructions. In People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532, our supreme court stated that where there are “such grave errors in instructions so as to affect that very important consideration, justice, Rule 451(c) provides for a relaxation of [the waiver doctrine].” (69 Ill. 2d at 66, 370 N.E.2d at 534.) In Henderson v. Kibbe (1977), 431 U.S. 145, 52 L. Ed. 2d 203, 97 S. Ct. 1730, the Court held that it was not reversible error to omit the element of causation from jury instructions in a trial for second-degree murder. Justice Stevens wrote: “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” 431 U.S. at 154, 52 L. Ed. 2d at 212, 97 S. Ct. at 1736.

The statute under which defendant in the present case was convicted states:

“Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice or other person under his legal control, shall be guilty of a Class 4 felony.” (Ill. Rev. Stat. 1989, ch. 23, par. 2368.)

Defendant in the present case seeks reversal of his conviction because the word “unnecessarily” was omitted from the jury instruction regarding the elements of cruelty to a child. In support of his argument, defendant cites People v. Miller (1983), 116 Ill. App. 3d 361, 452 N.E.2d 391, in which the court analyzed the state of mind requirement for conviction under section 53 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1981, ch. 23, par. 2368). The defendant in that case was charged under the same statute for placing his stepson in a tub of hot water, causing severe burns to the child’s body. The defendant in Miller tendered instructions at trial which would have required the jury to find he acted wilfully in causing injury to his stepson. The court refused those instructions, accepting instead the State’s instructions which required it prove the defendant acted recklessly. The defendant made timely objections to the instructions both at trial and in his post-trial motion. He argued that “wilfully and unnecessarily” should apply to the entire statute and not just the phrase “exposed to the inclemency of the weather.” Miller agreed with the defendant’s interpretation of section 53 insofar as defendant’s acts had to be adjudged wilful rather than merely reckless. The court did not address the significance of the word “unnecessarily,” however, as it was not at issue in that case. Defendant in the present case interprets Miller as indicating that in order to sustain a conviction for cruelty to a child, the prosecution must prove that defendant unnecessarily injured the child. We do not agree. The failure to give the instruction with “unnecessarily” is not a substantial defect which deprived defendant of a fair trial. Furthermore, the Miller court did not have to address the waiver rule, as the defendant timely objected to the instruction defect both at trial and in his post-trial motion. We find that defendant in the instant case waived his objection to jury instructions by not objecting either at trial or in the post-trial motion, and the interests of justice do not require that we make an exception to the waiver rule in this case.

We next turn to defendant’s contention that he was denied a fair trial because the prosecutor made improper and prejudicial remarks during the State’s opening statement and closing argument. Defendant challenges the propriety of several comments made by the State’s Attorney, but defendant failed to object to any of these comments at trial or in his post-trial motion. Our supreme court has repeatedly held that error can be waived if no objection to purportedly prejudicial prosecutorial comments was raised. (People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684; People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291; People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) Defendant argues that we should “consider this issue as plain error affecting the substantial rights of the defendant,” thereby making an exception to the waiver rule. An exception to waiver exists when a prosecutorial statement is so prejudicial that it abrogates the defendant’s right to a fair trial. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) After examining the record, including the State’s opening statement and closing argument taken as a whole, we find it unnecessary to make an exception to the waiver rule in this case. We find no evidence of an abrogation of defendant’s substantial rights and decline to invoke the plain error rule.

Defendant argues, in the alternative, that defense counsel was ineffective for failing to preserve this issue for appeal. In order to establish a claim of ineffective assistance of counsel, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive defendant of a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Defendant in this case fails to meet the burden of proof as required by Strickland and Albanese.

Finally, defendant contends that his battery conviction must be vacated because it is a lesser-included offense of cruelty to a child. The State agrees with defendant on this point. Both parties cite People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, which held that when two convictions are based on the same act, the lesser offense should be vacated. Here, the cruelty to a child conviction and the battery conviction were both based on the April 9, 1989, incident. As we affirm the cruelty to a child conviction, we must vacate the battery conviction.

For the foregoing reasons, the judgment of the circuit court of Williamson County finding defendant guilty of cruelty to a child is affirmed, and the judgment finding defendant guilty of battery is vacated.

Affirmed in part; vacated in part.

CHAPMAN and RARICK, JJ., concur.