text:
    STELLA HOISETH, Plaintiff-Appellant, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, Defendant-Appellee (National Railroad Passenger Corporation, Third-Party Defendant).
    First District (6th Division)
    No. 1—89—2039
    Opinion filed October 12, 1990.
    Senechalle & Murray, P.C., of Arlington Heights (Robert E. Senechalle and Stephen R. Murray, of counsel), for appellant.
    Michael Schneiderman and Sue-Ann Rosen, both of Northeast Illinois Regional Commuter Railroad Corporation, of Chicago, for appellee Northeast Illinois Regional Commuter Railroad Corporation.

      Lord, Bissell & Brook, of Chicago (Mary Pat DeChant and Hugh G. Griffin, of counsel), for appellee National Railroad Passenger Corporation.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Stella Hoiseth, appeals from an order granting summary judgment to the defendant, Northeast Illinois Regional Commuter Railroad Corporation (Metra), in the plaintiff’s personal injury action. The plaintiff contends that the defendant’s motion failed to establish facts sufficient to entitle the defendant to judgment as a matter of law.

On November 28, 1983, the plaintiff was injured at a railroad platform while waiting to board a commuter train. In her complaint filed on November 26, 1985, she alleged that the defendant breached its duly of care to the plaintiff. Specifically she alleged in paragraph 5 of her complaint that the defendant committed the following negligent acts:

“(a) provided an unsafe waiting area for its passengers *** waiting to board commuter trains;
(b) allowed the far north end of its *** platform to slope in such a manner as to render the platform unsafe for passengers to stand when passed by a fast moving train;
(c) failed to warn its waiting passengers' of the unsafe condition ***;
(d) failed to properly maintain and supervise its tracks and the use thereof at or near the *** Station;
(e) failed to take necessary action to require other carriers using [its] tracks near the *** Station to exercise due care and caution so as to avoid injuring Defendant’s passengers waiting at the *** Station; [and]
(f) allowed the National Railroad Passenger Corporation *** to operate a passenger train on Defendant’s tracks and through the *** Station at an excessive rate of speed and without warning of its approach.”

Metra subsequently established that it did not own or maintain the tracks in question and that the tracks were owned and maintained by National Railroad Passenger Corporation (Amtrak) against whom Metra filed a third-party complaint. The plaintiff now agrees that summary judgment was properly entered for Metra on those allegations of the complaint that Metra owned and operated the railroad tracks involved. Thus, the entire basis of the plaintiff’s claim is reduced to the condition of the platform, that is, the fact that the platform sloped. The issue, therefore, is whether the evidence presented by both sides on the motion for summary judgment was such that if it were all the evidence introduced at trial, the judge would have been required to direct a verdict in favor of the defendant.

As a preliminary matter, it is necessary to ascertain what evidence is properly before us. The defendant attached portions of the plaintiff’s deposition to the motion for summary judgment. In her response, the plaintiff attached her affidavit, other portions of her deposition, a photograph of the defendant’s platform, a report made by paramedics of the Chicago fire department and a report by employees of the defendant. Both reports purported to establish statements made by the plaintiff shortly after the accident. The defendant moved to strike the photograph, the reports and the plaintiff’s affidavit. The defendant contended that the photograph and reports “were irrelevant, [there had] been no proper foundation presented, they [contained] hearsay, and [were otherwise] unreliable ‘evidence’.” The defendant also contended that the plaintiff’s affidavit directly contradicted judicial admissions which the plaintiff had allegedly made in her deposition. There is no order specifically passing on the motion to strike, but the judge’s order granting summary judgment recited that the “documents attached to plaintiff’s response are unauthenticated and not considered.” In summarizing the reasons for his ruling, the judge said that he would not consider the reports. We interpret the judge’s order and remarks to be a granting of the motion to strike the reports but a denial of the motion to strike the plaintiff’s affidavit. The affidavit established the foundation proof for the photograph which was also part of the plaintiff’s deposition which was relied on by both parties in the motion for summary judgment. Consequently, we judge that the record before us consists of the pleadings, the deposition of the plaintiff, the photograph and the plaintiff’s affidavit.

In this court, the defendant argues that we should not consider the plaintiff’s affidavit since it contradicts statements made by the plaintiff in her deposition. The defendant maintains that under the “judicial admission” rule the plaintiff is barred from contradicting statements she made in her deposition by any subsequent proof. See Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301.

The pertinent parts of the plaintiff’s deposition are as follows:

“Q. What were you standing on *** while you were waiting for your train?
***
A. I think it was a concrete floor. There was some gravel I think around but I think where I was standing it was cement.
***
Q. Was there a slope to this concrete platform?
A. No, it was flat.
* * *
Q. Do you know exactly what caused you to fall?
A. I have no idea except that there is vibration from the fast train because how would I go. I didn’t walk from that place waiting for the train to where I woke up.
Q. No. I’m just asking you from your recollection do you remember what caused you to fall?
A. I have no idea at all. I am sorry, I was completely out, I don’t know.
* * *
Q. Do you recall anything unsafe about the platform itself?
A. I don’t know. I can’t say, I don’t know.
***
Q. Do you recall any debris on the platform?
A. No, I don’t remember seeing that.
Q. Do you recall anything unusual about the platform?
A. No.
* * *
Q. Is there anything about the platform that caused your fall?
A. I couldn’t say. I don’t think it has anything to do with the platform. I just think the train was going too fast. That might be my own opinion but what else could blow me from
one place to another like that and knock me out.
* * *
Q. Well, you keep saying that you were blown and—
A. I said the vibration. But what I mean is I couldn’t tell you exactly because I was standing there feeling fine and then I woke up on another track and I don’t know how long after or anything.”

Those parts of her deposition were relied upon by the defendant in its motion for summary judgment. In response to the motion, the plaintiff submitted her own affidavit in which she admitted that she had testified at her deposition that the platform was concrete and flat but, based on her review of the photograph of the platform, she said the platform had a brick floor and sloped where she had been standing at the time of the accident. She also said that she was “standing on the platform behind the line when the fast moving train came through without warning *** [and she] felt the vibration of the train and the force created by the train knocked [her] off [her] feet and onto the tracks behind the platform.” She said that, despite her memory lapses she did know what happened and she “rememberfed] the force created by the train which knocked her off her feet.”

The plaintiff, it should be pointed out, was 80 years old at the time her deposition was taken. The deposition itself reflects confusion and an inability to remember on her part. We have doubts that the defendant has established the requirement of the “judicial-admission” rule in this case for a number of reasons. But we need not decide whether the plaintiff’s affidavit has run afoul of the rule because we have concluded that the order granting summary judgment should be affirmed despite acceptance of the plaintiff’s affidavit. As we have previously noted, the plaintiff’s entire claim rests on the allegation of her complaint that the defendant allowed the “platform to slope in such a manner as to render the platform unsafe for passengers to stand when passed by a fast moving train.” That allegation, of itself, is conclusional. The question then becomes whether the plaintiff has submitted proof to support the allegation that the platform sloped in such a manner as to make the platform unsafe. We conclude that she has not. We agree with the trial judge’s finding that the plaintiff’s characterization of the slope as “dangerous” was insufficient to raise a triable issue of fact.

A number of cases involve claims that the slope of a surface upon which the plaintiff was injured contributed to the injury. In Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 525 N.E.2d 1127, the plaintiff was injured when she slipped on ice and snow in a parking lot. The plaintiff’s expert stated in an affidavit that the parking lot was pitched toward the center of the lot and that if snow were plowed in the manner the defendant had plowed it, alternate periods of freezing and thawing would cause water run-off and result in flat sheets of ice forming in the area where the plaintiff had fallen. Thus, the plaintiff argued, the excessive slope of the parking lot resulting in an unnatural accumulation of ice was a cause of the injury. The appellate court affirmed summary judgment for the defendant, holding that the affidavit of the expert that the lot was pitched downward was insufficient. The court also held insufficient a subsequent affidavit of the expert that there was a 4.5-inch drop over a 65.3-foot length from one corner of the parking lot and a 3.5-inch drop over a 44.3-foot length from one of the entrances of the lot.

In Davis v. City of Chicago (1972), 8 Ill. App. 3d 94, 289 N.E.2d 250, the plaintiff was injured when she slipped on a sidewalk upon which snow had fallen. The sidewalk sloped 5.7 degrees. The appellate court reversed judgment for the plaintiff, holding as follows:

“Frequently, sidewalks are constructed with a slight grade to permit drainage and to allow the area to remain in a safe condition for pedestrian traffic. There is no mathematically precise formula which can be used to determine a reasonable slope from one that may be hazardous under certain conditions. To attempt to impose such a standard would be unwise, since each case must be determined on its particular facts. However, it is our conclusion that the incline of the sidewalk in the present case was not inherently hazardous and was so slight as not to impose a duty upon the City to have corrected it.” 8 111. App. 3d at 97.

Other cases holding that the evidence of the slope of the surface upon which the plaintiff was injured was legally insufficient include Greenwood v. Leu’s IGA Food Liner (1973), 14 Ill. App. 3d 11, 302 N.E.2d 359, Schwartz v. City of Chicago (1965), 63 Ill. App. 2d 416, 211 N.E.2d 477, and Cogdill v. City of Marion (1959), 22 Ill. App. 2d 99, 159 N.E.2d 28.

For comparison purposes we refer to McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16. In McCann, the appellate court reversed summary judgment in behalf of the defendant and distinguished the cases cited by the defendant, which included Greenwood v. Leu, Davis v. City of Chicago and Schwartz v. City of Chicago, because the plaintiff presented the affidavit of a licensed architect who concluded that the incline of the parking lot was excessive and would have caused an unnatural accumulation of ice at the site were the plaintiff fell. In this case, the plaintiff offered no evidence as to the grade of the slope, let alone expert testimony that the slope was unreasonable and dangerous. The photograph of the platform was introduced to establish that the plaintiff was standing on a slope of the platform at the time the train passed. It is not clear to us that the spot in the photograph marked by the plaintiff to indicate where she was standing is, in fact, on the sloped area of the platform. If it is, it is at the top of the slope. The slope appears slight and was obviously designed for drainage purposes. We conclude that the plaintiff, as a matter of law, has failed to establish that the slope of the platform was unreasonable and dangerous.

In order to support a judgment for a plaintiff based on the design of a sloping surface, a plaintiff must present evidence of the dangerous nature of the slope, that the slope was the proximate cause of the plaintiff’s injuries and that the land owner had notice of the defect. (McCann, 80 Ill. App. 3d at 549.) Since we conclude that the plaintiff has failed to present any evidence establishing the dangerous nature of the slope of the platform, it is unnecessary for us to consider the other contentions of the defendant, including the argument that the plaintiff failed to prove that the slope was the proximate cause of the plaintiff’s injury.

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DiVITO

license: Public Domain

text:
    SERVICE ADJUSTMENT COMPANY, INC., Plaintiff-Appellant, v. UNDERWRITERS AT LLOYD’S, LONDON, et al., Defendants-Appellees (Josephine L. Washington, Defendant).
    First District (2nd Division)
    No. 1—88—0586
    Opinion filed October 16, 1990.

      Michael J. Dudek, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Kathryn G. Montgomery, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff-appellant Service Adjustment Company appeals from an order granting summary judgment in favor of defendants Underwriters at Lloyd’s, London (Underwriters) and GAB Business Services, Inc. (GAB), in an action to recover $9,561.85 under the terms of a written assignment of fire insurance proceeds. The issues raised are (1) whether summary judgment in favor of Underwriters should be affirmed because plaintiff’s notice of appeal omitted Underwriters as an appellee; (2) whether summary judgment in favor of GAB should be affirmed because GAB is a disclosed agent of Underwriters; (3) whether summary judgment in favor of defendants was properly granted on the ground that the purported assignment was an unenforceable contract to make a future assignment; (4) whether summary judgment was properly granted on the ground that the purported assignment was an unenforceable partial assignment; (5) whether summary judgment was properly granted under the probate bar statute because plaintiff never filed a claim against John Washington’s estate; (6) whether summary judgment was properly granted on the ground that defendants settled the insurance claim with John Washington’s estate pursuant to court order; (7) whether summary judgment was properly granted on the ground that plaintiff waived any claim against defendants by failing to file a claim in the probate proceedings and failing to intervene in the circuit court action brought by the administrator of John Washington’s estate against defendants; and (8) whether summary judgment was properly granted on the ground that the purported assignment failed to comply with the fire adjusters statute. We reverse and remand.

On January 17, 1982, a building owned by John Washington was damaged by fire. The building was insured by Underwriters, and GAB was retained by Underwriters to investigate and adjust the loss.

Sometime after the fire, John Washington entered into a written agreement with plaintiff, which provided as follows:

“Service Adjustment Company, Inc. is authorized to repair and replace the fire damage to my building at 6433-35 S. Chappel, Chicago, after my approval of the repair plans and specifications. It is understood when these repairs are completed the building is to be in as good condition as before the fire.
There is to be no charge whatever for adjusting the claim against the insurance companies, and the repairs are to be made for an amount equal to the whole loss and damage agreed upon by the Insurance Companies.
In the event that Service Adjustment Company, Inc. does not repair the building, I hereby assign and set over unto Service Adjustment Company, Inc. ten (10) per cent of the amount of the adjusted claim, plus any emergency work ordered for the adjustment, preparation and negotiation of my claim. A copy of Ill. Act. P.A. 77 — 1725 has been provided and understood and I hereby acknowledge receipt of notice.”

John Washington’s signature and plaintiff’s name and address appear on the agreement.

John Washington subsequently died, and Josephine Washington, as administrator of his estate, sued a number of parties, including Underwriters, to recover the insurance proceeds. That suit was settled and releases were executed on January 9, 1984. On February 7, 1984, pursuant to a court order, a settlement check for $66,158.50 was issued to Taiman Home Federal Savings and Loan, Josephine Washington, and her attorney.

Plaintiff commenced the present action on March 6, 1987, alleging that it had performed emergency work on the building, but performed no other repair work; that on or about February 8, 1982, it furnished GAB with a copy of the agreement signed by John Washington; and that notwithstanding GAB’s knowledge of the agreement, GAB failed to honor it and wrongfully tendered the full amount of the settlement to John Washington’s estate. Plaintiff sought to recover 10% of the settlement amount plus other costs, totaling $9,561.85.

Defendants moved for summary judgment on several grounds and the trial court granted the motion with respect to both Underwriters and GAB in an order dated January 6, 1988, without stating its reasons or findings of fact. Plaintiff filed a notice of appeal, which described the order appealed from as “[t]he Order of January 6, 1988, which granted Summary Judgment for Defendant, GAB BUSINESS SERVICES, INC, and dismissed GAB as a defendant.” The notice of appeal did not specify that the order also granted summary judgment in favor of Underwriters and that plaintiff was appealing from that portion of the order as well.

I

Defendants maintain first that summary judgment in favor of Underwriters must be affirmed under Illinois Supreme Court Rule 303(c)(2) (107 Ill. 2d R. 303(c)(2)), because plaintiff’s notice of appeal specified an appeal only from the portion of the order granting summary judgment in favor of GAB. We disagree.

Omission of one appellee in a notice of appeal is de minimis error cured by the missing appellee’s acknowledged actual receipt of the notice of appeal. (Skees v. Growmark, Inc. (1987), 158 Ill. App. 3d 842, 511 N.E.2d 982.) Also, if the correct date is specified, the notice of appeal is defective only if it describes an order other than the order entered on the date specified. (See Place v. Improvement Federal Savings & Loan Association (1962), 24 Ill. 2d 245, 181 N.E.2d 94.) Accordingly, defendants’ argument fails because Underwriters was served with a copy of the notice of appeal which specified the correct date of the order appealed from and did not describe an order other than the order entered on the date specified.

II

Defendants maintain next that summary judgment in favor of GAB must be affirmed because plaintiff did not preserve its appeal with respect to Underwriters, GAB’s disclosed principal, and cannot sue GAB as Underwriters’ agent. Defendants’ argument fails, however, because of our conclusion above that plaintiff preserved its appeal with respect to Underwriters.

Ill

Defendants maintain next that the written agreement between plaintiff and John Washington is an unenforceable contract to make a future assignment. Defendants argue that the agreement is a contract to make a future assignment because the agreement makes the assignment contingent on the occurrence of a future event, namely plaintiff not repairing the damaged building.

Plaintiff maintains that the agreement is not a contract to make a future assignment, but rather a valid assignment of a present right to future insurance proceeds. Plaintiff argues that to construe the agreement as a contract to make a future assignment is not consistent with the plain intention of the parties to ensure plaintiffs compensation from the insurance proceeds for its efforts in adjusting, preparing, and negotiating the claim.

An insured’s claim under a policy may be assigned after the loss. (Ginsburg v. Bull Dog Auto Fire Insurance Association (1928), 328 Ill. 571, 574, 160 N.E.2d 145; Brown v. State Farm Fire & Casualty Corp. (1975), 33 Ill. App. 3d 889, 894, 338 N.E.2d 427.) The creation and existence of an assignment is determined according to the intention of the parties and that intention is a question of fact derived from the instruments executed as well as the surrounding circumstances. (Rivan Die Mold Corp. v. Stewart-Warner Corp. (1975), 26 Ill. App. 3d 637, 642, 325 N.E.2d 357.) Although we have found no Illinois cases directly on point, there is authority for the proposition that an obligee’s promise to make an assignment in the future is not an assignment creating a right in the promisee against the obligor. See Restatement (Second) of Contracts §330(1) (1981); 4 Corbin on Contracts §877 (1951).

In this case, the language of the document supports defendants’ position that the document was not an assignment, but rather a promise to make an assignment in the future if and when plaintiff did not repair the building. The “surrounding circumstances,” however, in particular plaintiff’s entirely reasonable expectation that it would be compensated for services performed and receive, at a minimum, 10% of the insurance proceeds, support plaintiff’s position that the document manifests an intent to make a present assignment of insurance proceeds. Because different interpretations are possible, we believe that a material question of fact exists concerning the intent of the parties to the agreement and that this issue was not properly resolved on defendants’ motion for summary judgment.

IV

Defendants maintain next that the agreement is unenforceable because it was a partial assignment to which Underwriters did not consent. Plaintiff maintains that the rule, that partial assignments are not valid absent the third party’s consent, is not the law in Illinois and, in any event, Underwriters consented to the assignment through its acquiescence upon receipt of notice of the assignment.

A partial assignment of an instrument is not binding on the obligor absent the obligor’s consent. (Standard Discount Co. v. Metropolitan Life Insurance Co. (1944), 321 Ill. App. 220, 224, 53 N.E.2d 27.) The reason for this rule, however, that the obligor “might not be vexed twice by the same action,” is no longer compelling because of the civil practice rules requiring joinder of necessary parties. (See Bain v. Financial Security Life Insurance Co. (1977), 53 Ill. App. 3d 702, 706, 368 N.E.2d 1023.) Although the rule against partial assignments has been questioned, it has never been squarely rejected and still appears to be the law in Illinois.

In this case, application of the rule does not require entry of summary judgment in favor of defendants because a question of fact exists as to whether defendants consented to the partial assignment. It is not disputed that defendants received notice of the assignment. Whether defendants consented to the assignment might be inferred from their silence and, in any event, is a question for the trier of fact.

V

Defendants maintain that plaintiff is barred from recovering against defendants under the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110½, par. 18 — 12), because it never filed a claim in the probate proceeding. Defendants argue that the insurance proceeds were assets of the estate subject to the jurisdiction of the probate court and plaintiff’s failure to file a claim in the probate proceeding bars this action.

Defendants’ argument, however, is plainly without merit. The statutory probate bar does not apply here because the present suit is not against John Washington’s estate, but rather against defendants for their wrongful failure to honor the assignment. We know of no authority barring plaintiff from suing defendants on the ground that it is barred from recovering against the estate. It does not follow, as defendants suggested during oral arguments in this case, that failure to apply the statutory probate bar will result in a payment to plaintiff that has already been made to the estate. Plaintiff was not a party to the settlement agreement and it is possible that defendants settled with the estate for a lesser amount in anticipation of plaintiff’s assertion of its rights under the assignment. It is entirely speculative for us to assume that a double payment by the insurer would result if this action is not barred.

VI

Defendants maintain next that this suit is an impermissible attack on the manner of distribution of the settlement money in the suit by Josephine Washington against Underwriters made pursuant to court order.

Defendants’ argument, however, must fail. Payment by the obligor to the assignor is valid as against the assignee only in the absence of notice to the obligor. (Wain v. Kravitz (1944), 324 Ill. App. 488, 496, 58 N.E.2d 626.) Once the obligor is on notice of the assignment, a settlement and release with the assignor will not defeat the assigned right. (See McHenry Hospital v. Metropolitan Life Insurance Co. (N.D. Ill. 1983), 578 E Supp. 122.) We do not find these principles distinguishable in the present case on the ground that the settlement agreement was approved by court order.

VII

Defendant maintains next that plaintiff waived its right to assert the present claim by failing to file a claim in the probate proceeding and failing to intervene in Josephine Washington’s circuit court case. We disagree.

There is no authority supporting defendants’ position that an assignee waives its rights against the obligor by failing to make a claim against the assignor’s estate. In re Estate of Trahey (1975), 25 Ill. App. 3d 727, 323 N.E.2d 813, relied on by defendants, is inapposite. In that case, the plaintiff waived her right against the deceased’s estate to funds in an account held jointly with the deceased. There is no suggestion in the opinion that she waived any rights with respect to a third party. Furthermore, ah assignee’s claim to a valid inter vivos assignment of a debt due decedent is not a claim against the estate. Taylor v. Continental Illinois National Bank & Trust Co. (1975), 26 111. App. 3d 610, 325 N.E.2d 444.

VIII

Finally, defendants maintain that summary judgment in their favor was properly granted because plaintiff failed to comply with “An Act relating to certain agreements in connection with fire insurance claims” (Ill. Rev. Stat. 1977, ch. 29, par. 81) (the Act). Defendants argue that the agreement with John Washington was unenforceable under the Act because plaintiff did not provide Washington with a copy of the Act, did not provide him with an address to which notice of cancellation could be sent, and did not date the agreement.

Contrary to defendants’ assertion, however, the agreement contains John Washington’s acknowledgement that he received a copy of the Act and clearly indicates plaintiff’s address, the obvious place to which notice of cancellation should be sent. Moreover, as plaintiff correctly notes, the agreement is not invalid because it was not dated. Where a copy of the Act and an address have been provided, as in this case, the date of the agreement is irrelevant because the 10-day cancellation period commences from the date of the fire.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LANDON SPRAWLS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2205
    Opinion filed October 17, 1990.
    Rehearing denied November 26, 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 (Inge Fryklund, James E. Fitzgerald, and Patrick M. Brady, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Landon Sprawls and codefendant Michael Johnson were each charged with murder, armed robbery and unlawful restraint. Prior to Sprawls’ trial, Johnson pled guilty and was sentenced to 60 years’ imprisonment. Following a jury trial, Sprawls was found guilty and sentenced to a term of natural life for murder, a 60-year extended term for armed robbery and three years for unlawful restraint, with all sentences to run concurrently. Johnson is not a party to this appeal. On appeal, defendant Sprawls argues that (1) the trial court abused its discretion in sentencing him to a term of natural life imprisonment for murder; (2) the trial court erred in restricting the scope of cross-examination; and (3) the State improperly used peremptory challenges to strike African-American jurors because of their race. We reverse and remand for a Batson hearing.

The following evidence was adduced at trial. On November 22, 1983, Derrick Tillman spent the evening with the victim Lewis Brown at his Oak Park apartment. At approximately midnight, defendant and Michael Johnson came to the apartment. Defendant and Michael Johnson visited with the victim and Tillman for about IV2 hours before they departed. Tillman spent the night at Brown’s apartment and left the following day at approximately 11 a.m. Tillman tried unsuccessfully to reach Brown by telephone for the next several days. When Tillman was unable to reach Brown the following Monday, he and Kathy Brown went to his apartment. When they arrived at Brown’s apartment they discovered that, although the interior rear door to the apartment was open, the exterior burglar bars were locked. Tillman contacted the police.

Officer Brian Slowiak of the Oak Park police department responded to the call. After another officer was summoned to remove the burglar bars, Slowiak entered the apartment. Slowiak testified that a search of the apartment revealed bundles of articles, including stereo equipment, stacked in the hallway. When Slowiak entered the bedroom, he found Brown lying facedown on the bed with his hands and feet tied behind him with tape and a cord wrapped around his neck. Brown was dead. The victim had two stab wounds in the middle of his back, and a large kitchen knife found on the bedroom floor was retrieved and inventoried.

Detective Ron Zielke testified that pursuant to his investigation of the case he received an anonymous tip from the Chicago Crime Commission which indicated that Michael Johnson and Landon Sprawls were Brown’s assailants. Zielke subsequently showed Tillman a photo array which contained the pictures of Michael Johnson and defendant’s brother. Tillman positively identified Johnson as one of the persons that he met in Brown’s apartment. Tillman also told the police that the photo of defendant’s brother resembled the other person who visited the apartment with Johnson that evening.

Zielke testified that later that evening, he talked with Rosedell Chester at the Oak Park police department. Chester informed Zielke and later testified at trial that on the Sunday prior to the discovery of Brown’s body, he talked with Melvin and Michael Johnson and defendant, who asked to borrow his car. Defendant told Chester that he needed the car to get more equipment from a burglary. Chester testified that he bought a camera from defendant, but refused to loan him his car and told him that it sounded like a home invasion/murder to him. Defendant and Michael Johnson were subsequently arrested.

Defendant later gave oral and court-reported statements in which he admitted his participation in Brown’s murder and named Johnson as his accomplice. In his statement, defendant related that he and Johnson originally went to the victim’s apartment on November 22, 1983, to rob him, but they left because someone else was present in the apartment. Defendant stated that when they returned on November 26, the victim was alone. Defendant and Johnson watched television with the victim until approximately 3 a.m. After the movie, defendant and the victim went into the bedroom to have sex. However, before they began, defendant pulled a gun on the victim and stated that he was going to rob him. When the victim cried for help, Johnson entered the room and told the victim to “be cool.” Defendant and Johnson bound the victim’s hands and feet and taped his mouth shut. Finally, they placed a towel over his head and searched the apartment for items to steal. When Johnson and defendant had completed their search of the apartment, they decided that since the victim knew them, he would have to be killed. Johnson retrieved a heavy duty extension cord from the next room, and he and defendant pulled it around the victim’s neck until he lost consciousness. When defendant heard the victim making gurgling noises, he got a knife and stabbed him several times.

Melvin Johnson testified that defendant and his brother Michael Johnson told him that they had killed a man named Lewis in Oak Park. Defendant also showed Melvin a pair of boots and a camera which he had taken from the victim’s apartment. Melvin further testifled that defendant later tried to convince him and other family members that he did not commit the murder and burglary, but he did not believe his denials. Defendant’s girl friend testified that he gave her a radio, which was later identified as the victim’s property, but he did not tell her where he had gotten it.

Dr. Robert Krischner of the Cook County medical examiner’s office testified that the victim had a stab wound in the right rear portion of his neck about seven inches from his head. He further testified that there were also two stab wounds on the left side of the neck as well as neck wounds consistent with strangulation by an electrical cord. Dr. Krischner opined that the victim was still alive when stabbed and that he died as a result of ligature strangulation in association with multiple stab wounds of the neck and back.

Defendant testified on his own behalf. Defendant recanted his prior inculpatory statement and testified that on November 27, 1983, he was visited by Michael and Melvin Johnson and Rosedell Chester. When Rosedell arrived at defendant’s house, he was carrying a bag in his hand. There were boots in the bag which defendant purchased for $5. Defendant also testified that he bought a radio from Michael Johnson which he gave to Kathy Maddox. Defendant stated that he did not ask either man where they got the items.

Following argument and instructions, the jury returned verdicts of guilty of murder, unlawful restraint and armed robbery. Defendant waived the jury for the death penalty hearing. The court found defendant eligible for the death penalty and held a hearing to determine whether it should be imposed. Following the hearing, the court sentenced defendant to a term of natural life for murder, an extended-term sentence of 60 years for armed robbery and three years for unlawful restraint. This appeal followed.

Defendant argues that the trial court abused its discretion in sentencing him to a term of natural life imprisonment for murder. Defendant specifically argues that the trial court (1) failed to consider his potential for rehabilitation and factors in mitigation; (2) erroneously considered facts which evidenced an element of the offense in aggravation; and (3) improperly considered his alleged lack of remorse as a factor in aggravation. We disagree.

Section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections allows for a term of natural life imprisonment in a murder case “if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(b).) When a trial court imposes a sentence that is within statutory limits, it may not be altered upon review absent an abuse of judicial discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 348.) At sentencing, a court may consider the force employed and the manner in which the victim’s death was brought about. (People v. Fenderson (1987), 157 Ill. App. 3d 537, 548, 510 N.E.2d 479, 486.) In addition, the court may consider the lack of a penitent spirit in determining the appropriate sentence to be imposed upon a defendant, since this is a factor which may have a bearing on the defendant’s potential for rehabilitation. People v. Speed (1984), 129 Ill. App. 3d 348, 349, 472 N.E.2d 572, 573.

In the present case, the record reveals that during sentencing, the trial court heard and considered both the State’s and defense counsel’s arguments in aggravation and mitigation. The court found that during the three years that defendant’s case had been before him and following the jury’s finding of guilty, defendant failed to show any remorse. The court further found that the victim’s death was accomplished when he was stabbed after being strangled and that defendant administered the stab wounds. Under these circumstances, we do not believe that the trial judge can be said to have abused his discretion in sentencing defendant to natural life imprisonment without parole. See People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 352.

Defendant also argues that the trial court erred in restricting the scope of his cross-examination of the State’s witness, Officer James Leahy. We disagree. The decision to limit the scope of cross-examination is within the discretion of the trial court, and on review, this decision is not reversible unless it involved a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Trolia (1982), 107 Ill. App. 3d 487, 500-01, 437 N.E.2d 804, 814.) Further, even if a trial judge commits error by restricting cross-examination of a witness, such error will not warrant reversal unless there remains a reasonable doubt whether defendant has been prejudiced thereby or the outcome of the trial would have been different had the error not been made. People v. Langston (1981), 96 Ill. App. 3d 48, 51, 420 N.E.2d 1090, 1092.

In the present case, the trial court did not err in restricting the cross-examination of Officer Leahy. Defendant sought to reveal through Officer Leahy’s testimony that a bag containing 113 grams of white powder was found in the victim’s apartment and that the police did not analyze this substance to determine its content. According to defense counsel, this testimony would have furthered defendant’s theory of defense in that it helped to establish that (1) the victim may have been a drug dealer whom others may have wanted to rob and kill and (2) the failure to test the substance is indicative of a poor police investigation. However, the court properly found that in the absence of other evidence to support defendant’s speculative theory that the victim was a drug dealer, the prejudicial nature of the evidence outweighed its probative value. In addition, defendant was not precluded from introducing evidence via other witnesses regarding the quality of police investigation of the crime. We therefore conclude that the trial court did not abuse its discretion in limiting the scope of defendant’s cross-examination of Officer Leahy.

Defendant filed a pro se brief in which he alleged additional trial errors, including ineffective assistance of counsel, lack of probable cause to arrest, as well as failure of the State to prove him guilty beyond a reasonable doubt. These alleged errors were not preserved for review either at trial or by post-trial motion. As a result, review of these issues is waived. However, assuming, arguendo, that defendant did not waive review of these issues, upon review we find that they are without merit and fail to rise to the level of plain error. People v. Enoch (1988), 122 Ill. 2d 176,186-87, 522 N.E.2d 1124, 1131-32.

The final contention we address is defendant’s claim that, during the voir dire, the State used its peremptory challenges to exclude African-Americans from the jury solely because of their race. (Batson v. Kentucky (1986), 476 U.S. 79, 90, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719.) Although defense counsel objected to the State’s peremptory challenges of African-Americans during the voir dire and the court ruled on the objections, we believe the record reflects that the “hearing” in regards to the issue of alleged racial discrimination by the State does not pass constitutional muster. The trial court must consider all relevant circumstances in deciding whether a defendant has established a prima facie case of racial discrimination in the selection of the jury when the issue arises. People v. McNeal (1987), 160 Ill. App. 3d 796, 806, 513 N.E.2d 897, 904.

Under the circumstances, we remand this case with directions that defendant be allowed to present evidence in the trial court supporting his contention that the State excluded African-Americans from the jury solely because of their race. If the trial court finds that defendant has established a prima facie case that the State systematically excluded African-Americans from the jury solely because of their race, the State must come forward with neutral explanations for its use of peremptory challenges. If the State does not come forward with neutral explanations, the defendant’s conviction is vacated and defendant is to receive a new trial. If, however, the State presents what are determined by the trial court to be neutral explanations sufficient to rebut defendant’s prima facie case of racial discrimination or if the trial court determines that defendant has not established a prima facie case, the defendant’s conviction is affirmed. People v. Andrews (1989), 132 Ill. 2d 451, 463, 548 N.E.2d 1025; McNeal, 160 Ill. App. 3d at 806.

Remanded with directions.

CERDA, P.J., and FREEMAN, J., concur.


author: JUSTICE WHITE

text:
    PATRICK M. RIORDAN, Plaintiff-Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—88—3333
    Opinion filed October 17, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Diane Curry Grapsas, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Robert A. Mankivsky, of Bullaro & Carton, of Chicago, and James S. Kamperda, of Park Ridge, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Following an administrative hearing the defendant Illinois Department of Registration and Education (DRE) suspended plaintiff Patrick M. Riordan’s medical license for 30 days and placed that license on probationary status for two years. On administrative review the circuit court of Cook County reversed that order, finding that defendant’s expert witness was not competent to testify about the appropriate standard of care allegedly violated by the plaintiff. Defendants DRE and DRE’s Director, Gary Clayton, then brought this appeal from the order of the circuit court. We reverse and remand for reinstatement of the penalties imposed.

In November 1985 DRE filed a complaint before the Medical Disciplinary Board, alleging that Dr. Riordan had breached accepted standards of medical care when he admitted eight patients to Humana Hospital. The following pertinent facts were adduced at the administrative hearing. Dr. Riordan is board certified in family practice but at the time of the hearing he specialized in pain control. His office was in Chicago and he worked out of Humana Hospital in Hoffman Estates. Defendants’ expert witness was Dr. Chauncey Maher, a physician for 35 years, who practices internal medicine and specializes in nephrology (kidneys) and hypertension. Dr. Maher testified that his practice was in Springfield, Illinois, where he also served as a clinical associate professor of medicine at Southern Illinois University School of Medicine. The doctor was the medical coordinator for DRE’s Medical Disciplinary Board. He also served on the medical utilization committee at a Springfield hospital.

At the hearing DRE introduced medical records from Dr. Riordan and Humana concerning eight patients hospitalized at Humana by Dr. Riordan between November 1982 and March 1983. All these patients had been involved in automobile accidents. Dr. Maher reviewed these records and testified that six of those patients had been unnecessarily hospitalized. He also found that Dr. Riordan had kept inadequate medical records on these patients, had prescribed inappropriate treatments and tests, and had ignored appropriate treatments. In Dr. Ma-her’s opinion many of Dr. Riordan’s discharge diagnoses were questionable. In several instances there was no record of an out-patient consultation by any doctor. Dr. Maher concluded that Dr. Riordan’s treatment of six of these patients had deviated from acceptable standards of care.

Dr. Riordan testified in defense of his treatment of only three of these patients. Because his motion to disqualify the hearing officer was denied, he refused to testify further. He also presented the testimony of Dr. Raymond Oses, a licensed Illinois physician specializing in family practice. Dr. Oses testified that he had reviewed the records of four of the patients. He concluded as to these patients that there were no improprieties in their admission to the hospital. Dr. Oses also testified that the decision to admit a patient was entirely within the discretion of the treating physician. He stated that he became involved in the case because he had known Dr. Riordan for years and Dr. Riordan asked him to analyze the case and then to testify for him.

The Medical Disciplinary Board (the Board) adopted the conclusions of Dr. Maher. The Board found that Dr. Riordan’s inappropriate hospitalization of these patients exposed them to unnecessary risk from being in the hospital. It also found that the inappropriate utilization of hospital facilities constituted unprofessional conduct likely to harm the general public as well as the individual patients. Accordingly, the Board recommended that Dr. Riordan’s license be suspended for 30 days and that he be placed on a two-year probation, with the condition that he successfully complete 100 hours of course work in diagnosis and treatment of trauma. This course work was to be approved in advance by the Board. On March 30, 1987, DRE entered an order adopting those recommendations.

Dr. Riordan then filed a complaint for administrative review in the circuit court of Cook County. On October 12, 1988, the circuit court entered an order reversing DRE’s decision as against the manifest weight of the evidence. The court found that Dr. Maher was not competent to testify about the standard of care in Chicago because his practice was in Springfield, not in Chicago, where Dr. Riordan practiced. The court stated that the record contained no showing of the standard of care in Chicago or that Springfield standards were similar. The court also noted that Dr. Maher specialized in kidney diseases and rarely saw trauma cases whereas Dr. Riordan’s practice was pain control.

The sole issue before us is the propriety of the circuit court’s determination that Dr. Maher was not competent to testify. Dr. Riordan does not contend that Dr. Maher’s testimony itself was insufficient to support the Board’s finding, assuming that Dr. Maher was qualified to testify. Nor would such a contention be tenable, given the standards of review applicable to the circuit court and this court in administrative review cases. The findings of fact made by the administrative body are statutorily deemed to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) In this cause the Board clearly chose to accept Dr. Maher’s testimony and rejected the limited testimony of Dr. Riordan and Dr. Oses.

The circuit court’s determination was primarily based upon the “similar locality” rule, which generally requires that a medical expert testifying about the professional conduct of a physician be familiar with the customary standard of practice in the locality in which the physician practices. (Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 343 N.E.2d 589.) The rule was developed at a time when there were substantial differences between the medical education opportunities available to rural physicians and urban ones. (Stogsdill, 35 Ill. App. 3d 634, 653, 343 N.E.2d 589, 604.) But the rule as it has developed in modern times has been greatly limited in its effect. As our supreme court has recently indicated, an expert is not disqualified by lack of familiarity with the practice in a particular locality if there are uniform standards applicable to a specific situation throughout the country. (Purtill v. Hess (1986), 111 Ill. 2d 229, 247, 489 N.E.2d 867, 874-75.) In this cause Dr. Maher testified that a review of medical records is a valid and generally accepted form of peer review. Although he admitted that he was not specifically familiar with the standards of Humana Hospital, he stated that he was familiar with the standards established by the joint commission on hospital accreditation, by Medicare, and by the American Board of Surgery. He also testified that he believed that Humana was accredited and therefore would follow the standards on records review with which he was familiar. Dr. Maher also testified that in his medical career he had been involved in peer review in between 3,000 and 10,000 instances. Based upon this testimony we find that the similar locality rule was satisfied and that Dr. Maher’s testimony was properly heard.

The circuit court also found that Dr. Maher should have been disqualified because his specialty differed from that of Dr. Riordan. But Dr. Maher testified that over his 35-year medical career he had handled 20 to 25 trauma patients a year. Accordingly, we find that the circuit court erred in this determination, and we need not determine whether, absent this experience, Dr. Maher would have been qualified to testify.

For all the reasons set forth in this opinion, we find that the circuit court erred in finding that the expert testimony of Dr. Maher should have been barred. We therefore reverse the judgment of the circuit court and remand the cause for reinstatement of the penalties imposed upon Dr. Riordan.

Reversed and remanded with directions.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE WHITE JUSTICE RIZZI,

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Adm’r of the Estate of Raymond Lukas, Sr., Deceased, and as Guardian of the Estate of Raymond John Lukas, Jr., Plaintiff-Appellant, v. NATIONAL ADVERTISING COMPANY, Defendant-Appellee (Commonwealth Edison Company et al., Defendants).
    First District (3rd Division)
    No. 1—89—1538
    Opinion filed October 17, 1990.

      RIZZI, J., specially concurring.
    Doyle & Ryan, Ltd., of Chicago (John A. Doyle, of counsel), for appellant.
    Henry C. Szesny, Victor J. Pierkarski, and Michael Resis, all of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff American National Bank (American) appeals from an order of the circuit court of Cook County granting summary judgment for defendant National Advertising Company (National) on two counts of American’s complaint for damages arising from the death of Raymond Lukas, Sr. (Raymond). American brought this action as administrator of Raymond’s estate and as guardian of the estate of Raymond’s minor child, Raymond Lukas, Jr. The two counts at issue, counts IV and VI, were based, respectively, on alleged violations of the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) and on negligence. We reverse and remand.

The pertinent facts are as follows. On February 11, 1983, Raymond and a co-worker, Jeffrey Skoumal, both employees of All Sign Corporation, were assigned to paint a billboard located near Interstate 55 in Will County. That billboard was leased by National, which contracted with All Sign for the painting. The billboard was about 26 feet high. Running along the back of it, two feet down from the top, was a walk rail which consisted of two-by-sixes nailed to the structure. The billboard ran in a north and south direction. At the north end was a high voltage power line, suspended eight inches from the end of the billboard and about 24 to 30 inches above the billboard.

Skoumal was the first to climb to the top of the billboard, placing four hooks at the top to support the aluminum staging they used to support themselves while painting. In his deposition Skoumal testified that he never saw the power line before the accident. In order to place the hooks, he mounted a ladder, which he placed at the north end of the billboard, to a height two feet below the top of the billboard. He then climbed over the top to reach the walk rail. He did not see the power line while on the walk rail because he had to concentrate on his footing, as the boards of the walk rail were old and rotten.

The men proceeded to paint the north section of the billboard. Raymond then climbed up the ladder and onto the walk rail in order to move the hooks farther south along the billboard. Skoumal remained below to finish some painting. The last Skoumal saw of Raymond before the accident was Raymond coming back toward the ladder from the south end of the billboard, along the walk rail. As he continued to paint, Skoumal felt a slight shock and heard a buzz. He looked up and saw Raymond falling. It is apparently undisputed that Raymond’s death was caused by his contact with the power line. Wisps of Raymond’s hair were found on the line, and burn marks were found on the ladder. Testimony at a coroner’s inquest established that the electricity entered at Raymond’s forehead and exited from his left hand and left leg. Two handmarks, apparently caused by electricity passing through Raymond’s hands, were observed at the top of the billboard above the ladder.

Count IV of American’s complaint was based on alleged violations of the Structural Work Act by National in, inter alia, failing to provide safe scaffolds and supports. The trial court relied on a line of Illinois cases, all decided at the appellate court level, which holds that the danger of electrocution is too far removed from the risks associated with scaffolds and ladders and therefore that injuries resulting from contact with power lines while working on or around such structures could not be the basis for a Structural Work Act suit. (Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921 (first district, fourth division); Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 491 N.E.2d 1246 (first district, first division); Barrera v. Windy City Exteriors, Inc. (1989), 182 Ill. App. 3d 936, 538 N.E.2d 773 (first district, fourth division); Overbeck v. Jon Construction, Inc. (1989), 184 Ill. App. 3d 918, 540 N.E.2d 969 (first district, second division); O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 543 N.E.2d 546 (fourth district).) We are not persuaded by these cases. In Kochan, the plaintiff was injured while standing on a ladder when he contacted uninsulated high tension lines. The court found that there was no cause of action under the Structural Work Act because the ladder itself was not defective, even though the court also acknowledged that positioning a ladder in an unsafe location could be a violation of the Act. The Kochan court was apparently influenced by the plaintiff’s admissions that he had been warned about the high tension lines and that he would place the ladder in the same position again were he to receive the same assignment. In Smyrniotis, the plaintiff was installing flashing on a roof when he stood up and contacted a power line with his head, receiving severe electrical burns. The court did not dispute that the roof could be construed to be a support or scaffold. But the court held that the hazards of a high-voltage wire were “distinct” from the hazards that are covered by the Act. The Smyrniotis court relied heavily on language from Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, a case in which the plaintiff tripped and fell against a ladder, resulting in a fall through an unbarricaded chamber to a basement. The Smyrniotis court quoted the following language from Tenenbaum:

“The obvious hazards of a scaffold or ladder are that workmen or materials may fall off such devices or that the devices themselves may fall. *** The ladder may well have been placed or left in the baffle area in a negligent manner and may have contributed to plaintiff’s injury, but the testimony shows no violation of the Structural Work Act. It is only when an injury has some connection with the hazardous nature of one of the devices named in section 1 of the Act that a cause of action may be maintained under that section of the Act.” (Tenenbaum, 60 Ill. 2d at 371, 325 N.E.2d at 612-13.)

It was by applying this language that the Smyrniotis court held that the hazards of high-voltage wires were distinct from the hazards covered by the Act. Similar logic was used in the later cases we have cited to find no cause of action under the Act where power lines were involved in injuries. (Barrerra, aluminum siding held by plaintiff while on scaffolding contacted power lines; Overbeck, electrician on ladder injured while installing electrical wiring; O’Rourke, painter contacted power lines while working on aluminum ladder.) But all of these decisions are based upon the faulty premise that the Act does not contemplate this type of hazard.

It is axiomatic that the Act is to be liberally construed in light of its purpose of protecting persons engaged in extrahazardous activities involving construction, repair, alteration or removal of structures. (Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 481 N.E.2d 709.) Utilizing this liberal construction, we find it to be evident that the hazards of contact with power lines are contemplated by the Act. By their nature, ladders and scaffolds are utilized to support workers above the ground. High power lines are of course commonly elevated some distance above the ground. It is therefore logical to anticipate that the use of scaffolds and ladders would result in placing workers in close proximity to power lines. Accordingly, we find no basis for holding that accidents involving workers on scaffolds or ladders who contact power lines are not within the contemplated hazards of the Act.

We would note in this regard that several Illinois courts have found similar accidents actionable under the Act, although they have not specifically discussed or distinguished Kochan, Smyrniotis, and their progeny. In Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 513 N.E.2d 152 (third district), the court upheld a verdict under the Act for the estate of a man who contacted electric wire and fell to his death while descending a ladder. And in Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354 (first district, third division), this division affirmed a verdict under the Act for a plaintiff who was injured when a crane under which he was working contacted electrical wires, sending electricity through a steel pipe being lifted by the crane and guided by the plaintiff. Accordingly, we find that the trial court erred in holding as a matter of law that no cause of action under the Act was possible under the facts of this case.

In the trial court National also contended that it was not sufficiently in charge of the work to be liable under the Act. We find that the trial court correctly denied this contention as a basis for summary judgment. There was evidence in the record tending to establish that National was in charge of the work. John Katrenik, a National employee, testified by deposition that he was responsible for fulfilling National’s obligation to Santa Fe, the lessor of the property, to maintain the property in a safe condition. He also testified that National had the right to inspect the painting and to stop it if the contractor was not following safety instructions. This testimony, if believed, would suffice to establish that National had the responsibility and opportunity to prevent dangerous work procedures and therefore was in charge of the work for purposes of the Act. Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 408 N.E.2d 1051.

The second dismissed count before us, count VI, was based on common law negligence. National successfully argued in the trial court that summary judgment was appropriate on this count because the danger of the power lines was open and obvious. The court rejected American’s claim that Raymond could have been momentarily distracted by the condition of the walk way and therefore that the dangerous condition was not then open and obvious. The recent Illinois Supreme Court case of Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, directly supports our conclusion that the trial court erred in its finding. In Ward the plaintiff had walked into a concrete post located immediately outside the entrance to the defendant’s store. The plaintiff admitted that he had seen the post when entering the store, but testified that as he left the store his view of the post was blocked by the large mirror that he had purchased and was carrying out. The appellate court had affirmed the entry of a judgment for defendant, finding that the defendant owed no duty to warn the plaintiff of this open and obvious condition. Our supreme court reversed and reinstated the jury verdict. The court held:

“[T]o the extent that the rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State.” (Emphasis in original.) (136 Ill. 2d at 145, 554 N.E.2d at 229.)

The court adopted the position of the Restatement (Second) of Torts §343A (1965), which provides that a possessor of land may be liable to invitees for harm arising from known or obvious conditions if the possessor should anticipate the harm despite this knowledge or obviousness. Comment / to this section specifies that such.reason to anticipate the harm may arise

“where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” (Restatement (Second) of Torts §343A, comment/, at 220 (1965).)

In the case before it, the court held that there was ample basis to support a finding that the defendant store should have anticipated the risk that a customer carrying a large, bulky item-would collide with the post when leaving the store.

In this cause there was evidence before the court that shortly before the accident Raymond’s co-worker had himself been so distracted by the necessity of care for his footing on the rotten boards of the walk rail that he did not notice the power line over his head. There was also physical evidence suggesting that Raymond was in the act of transferring from the walk rail to the ladder when he struck the power line with his head. Summary judgment is a drastic measure which is to be granted only where the evidence, even though construed strictly against the movant, still establishes the movant’s clear right to that relief. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) Given this evidence before the trial court, we find that it was error to grant summary judgment for National on the negligence count.

National has also requested that we disregard or strike certain speculative portions of two affidavits and an attorney’s summary contained in the record. Suffice it to say that our decision has not been based on those portions of the record.

The judgment of the trial court is reversed and the cause remanded with directions that the trial court reinstate counts IV and VI of American’s second amended complaint.

Judgment reversed and remanded.

CERDA, P.J., concurs.

JUSTICE RIZZI,

specially concurring:

I concur in the result reached by the majority. As to the trial court’s summary judgment on count IV of the complaint, however, I believe the focus should be on (1) whether the placement of a ladder may give rise to a cause of action under the Structural Work Act and (2) whether the placement of the ladder in this case may have been a proximate cause of the decedent’s death. Since the answer to both questions is in the affirmative, it is plain the trial court erred in entering summary judgment in favor of the defendant on count IV of the complaint.

As to the first question, I believe that the placement of a ladder may give rise to a cause of action under the Act if the placement is a proximate cause of a worker’s injury or death. The Act provides:

“All scaffolds, *** ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any *** structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 60(1).)

The legislative intention of the Act must be ascertained from the language used by the legislature and from the evil to be remedied and the object to be obtained by the Act. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 317, 175 N.E.2d 785, 791.) Plainly, the language used by the legislature mandates that all ladders shall be placed as to give proper and adequate protection to the life and limb of any person engaged thereon. The evil to be remedied and the object to be obtained by the Act is to prevent injuries to persons employed in dangerous and extrahazardous occupations so that negligence on their part in the manner of doing their work might not prove fatal. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 573, 408 N.E.2d 117, 119.) Surely, the placement of a ladder can cause persons employed in dangerous and extrahazardous occupations to be injured or killed, especially if they are negligent in the manner of doing their work. It follows that the legislative intention is that the placement of a ladder may give rise to a cause of action under the Act if the placement is a proximate cause of a worker’s injury or death. The fact that an electric power line was involved in the occurrence makes no difference. The key question in each case is whether the placement of the ladder was a proximate cause of the worker’s injury or death.

The remaining question here, therefore, is whether the placement of the ladder may have been a proximate cause of the decedent’s death. Usually, whether a certain act was a proximate cause of a decedent’s death is a factual question to be determined by all attending facts or circumstances. It is fundamental, however, that there may be more than one proximate cause. Liability will attach under the Act if a defendant’s violation contributed in whole or in part to the death so long as it was one of the proximate causes. Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008,1014, 405 N.E.2d 1283,1287.

Bearing the above-stated principles in mind, I believe that in this case although the decedent may have been negligent and a proximate cause of his own electrocution, the placement of the ladder may also have been a proximate cause of contact being made between the decedent and the energized electric power line or electrical current arcing to the decedent. The ladder may have been negligently placed too close to the energized power line to allow the decedent to safely do his work while engaged on the ladder, or the ladder may have been placed too close to the energized power line so as not to give proper and adequate protection to the decedent if he was negligent in the manner in which he was doing his work while engaged thereon. Thus, to me, the placement of the ladder may give rise to a cause of action under the Act albeit an electric power line was involved in the occurrence.

Also, in reaching my conclusion, I reject any contention that the Act should be interpreted to mean that the only basis for imposing liability with respect to the placement of a ladder is that the ladder was not secure or not properly supported. (Compare Carrillo v. Pepper Construction Co. (1990), 201 Ill. App. 3d 647, and Overbeck v. Jon Construction, Inc. (1989), 184 Ill. App. 3d 918, 923-25, 540 N.E.2d 969.) Such a contention is contrary and does violence to the legislative intention of the Act, and is contrary and does violence to long-established principles of proximate cause.

Under the circumstances, I believe that there is a factual issue in this case as to whether the cause of action alleged in count IV of the complaint may be maintained. The factual issue is whether the placement of the ladder was a proximate cause of the decedent’s death.

Accordingly, although I concur in the result reached by the majority, I would reverse the summary judgment on count IV of the complaint for the reasons that I have stated.


author: JUSTICE LINN

text:
      In re MARRIAGE OF DENISE SOBO, n/k/a Denise Iosco, Petitioner-Appellee, and PETER SOBO, Respondent-Appellant.
    First District (4th Division)
    No. 1—89—0006
    Opinion filed October 18, 1990.

      Sewell & Brown, of Chicago, for appellant.
    Doss, Puchalski & Keenan, Ltd., of Chicago (Donald E. Piichalski, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Respondent Peter Sobo brings this appeal seeking reversal of certain portions of a trial court’s order relating to the dissolution of his marriage to petitioner Denise Sobo. Peter does not contend that the trial court erred in dissolving his marriage to Denise. Rather, Peter asserts that the trial court’s order must be reversed because: (1) the trial court’s finding that Peter had dissipated marital assets was against the manifest weight of the evidence; (2) the trial court’s order that Denise had not dissipated marital assets was against the manifest weight of the evidence; and (3) the trial court erred in distributing the marital property.

We affirm.

Background

Peter and Denise were married on October 30, 1982. Peter and Denise had two children: Alexandra, born October 21, 1984, and Kristen, born November 23, 1985.

During the course of the marriage, the parties acquired a home in Melrose Park, two individual retirement accounts, a personal injury settlement of approximately $24,000, a 1986 automobile, and interests in certain pension plans. In addition, the parties acquired furniture, home furnishings, and clothing.

The parties separated on January 15, 1987, and Denise filed for dissolution on April 9, 1987. On May 21, 1987, a mutually agreed upon restraining order was entered prohibiting the parties from withdrawing, spending, destroying, assigning or incurring any liens on the assets of the parties.

The parties thereafter waived the two-year statutory separation period and agreed that Denise should retain custody of the two children. Peter was granted reasonable visitation. The matter went to trial on the grounds of irreconcilable differences.

The record reveals that Peter is employed as a policeman with the Melrose Park police department. Denise, on the other hand, was not employed at the time of the parties’ separation but instead cared for the parties’ two young children. After his departure from the home, Peter agreed to provide Denise with $966 per month to cover the expenses incurred by herself and her two children.

The trial testimony centered on the charges and countercharges regarding the dissipation of marital assets. The evidence revealed that Peter had a serious gambling problem. This gambling problem led him to incur substantial debt even after the entry of the trial court’s restraining order. Specifically, to pay his gambling debts, Peter borrowed $14,600 from his parents, obtained a $3,000 loan on Peter’s life insurance policy, and incurred approximately $10,000 in credit card and credit line charges. In addition, Peter borrowed $10,500 from his police association and withdrew $2,000 from his individual retirement account. All of these monies were used to pay gambling debts and living expenses and all were incurred in violation of the trial court’s restraining order.

The trial testimony also revealed that after Peter’s departure, Denise withdrew certain monies to pay the living expenses of herself and her two children. Denise withdrew approximately $23,000 from the family’s accounts, after Peter’s departure, to pay for the day-today expenses incurred by the family.

At the conclusion of the trial, the trial court found that sufficient evidence had been presented to dissolve the marriage. The trial court also ruled that Peter had dissipated marital assets in the amount of $38,800 and found that Denise had not dissipated any marital assets. The trial court awarded each party its respective nonmarital property. In addition, the trial court ordered Peter to pay three years of maintenance and child support of $700 per month to Denise, awarded Denise the home in Melrose Park, split the proceeds from the parties’ personal injury settlement, separated the couple’s personal property, and ordered that each party pay his or her own attorney fees.

Peter took exception to certain aspects of the trial court’s rulings and thereafter filed his timely notice of appeal.

Opinion

As set forth above, Peter urges three grounds for reversal. Initially, Peter asserts that the trial court’s finding that he dissipated marital assets was against the manifest weight of the evidence.

Illinois courts have ruled that dissipation occurs when a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship is in jeopardy. (Head v. Head (1988), 168 Ill. App. 3d 697, 523 N.E.2d 17.) The issue of dissipation is generally a question of fact and the trial court’s findings will not be disturbed unless the trial court’s decision is contrary to the manifest weight of the evidence. (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) In addition, where the facts are disputed, the credibility of the witnesses and the weight to be given to their testimony are matters for the trier of fact. In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.

In the case at bar, the trial court entered, pursuant to the parties’ agreement, a restraining order prohibiting either party from utilizing marital assets without leave of court. Notwithstanding that order, the evidence is undisputed that Peter incurred substantial debt following the entry of the trial court’s restraining order. This debt was incurred to satisfy Peter’s gambling debts and was incurred without leave of court and without Denise’s consent.

In addition, the trial court heard and considered Peter’s testimony and explanation regarding the debts he incurred. The court also heard and considered Denise’s testimony. The trial judge’s order reflects that he believed Denise’s testimony. Upon a full consideration of the record, we do not find that the trial court’s factual finding that Peter dissipated marital assets to be against the manifest weight of the evidence. Accord In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028.

We are likewise compelled to reject Peter’s challenge to the trial court’s ruling that Denise did not dissipate marital assets. Here again, the issue revolves around a question of fact. Specifically, Peter claimed that Denise’s withdrawals were excessive and constituted dissipation of marital assets. Denise, on the other hand, testified that all of the withdrawals were necessary to pay the day-to-day expenses of herself and her children. The trial court heard the parties’ conflicting testimony, reviewed each party’s evidence, considered the arguments of counsel, and found that Denise did not dissipate marital property. We do not find that this ruling was either an abuse of discretion or against the manifest weight of the evidence.

Finally, Peter asserts that the trial court erred in the manner in which it divided the parties’ marital property. The division of marital property is governed by section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503). In dividing marital assets, the trial court can consider the income and earning power of the respective parties (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447), and the needs of the parties’ children. (In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 459 N.E.2d 1056.) In dividing marital assets, the trial court is granted wide discretion and its determination will not be disturbed absent an abuse of discretion. In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 522 N.E.2d 317.

Applying these principles to the case at bar, we find that the trial court did not abuse its discretion in dividing the parties’ marital assets. The trial court’s order reflects the court’s concern for the welfare of the parties’ minor children while carefully balancing Peter’s needs. Specifically, Peter was granted $10,700 from the proceeds of a personal injury settlement, he was permitted to retain his $14,000 interest in his pension plan, and he was awarded the individual retirement accounts in his name. The trial court also split the personal property of the parties and ordered each party to pay its own attorney fees. Although Denise was awarded possession of the parties’ automobile and home in Melrose Park, Denise retained custody of the parties’ two children and the trial court could reasonably find that the automobile and home should therefore be awarded to Denise. Finally, an award of $700 per month as child support and maintenance for three years is not clearly erroneous. Under these circumstances, we do not find that the trial court abused its discretion.

Accordingly, for the reasons set forth, the decision of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.