author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    OLGA KOENIG, Plaintiff-Appellee, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
    Fifth District
    No. 5—90—0834
    Opinion filed July 21, 1992.
    GOLDENHERSH, P. J., concurring in part and dissenting in part.
    Sandra J. Doreson, of St. Louis, Missouri, for appellant.

      John W. Halloran, of Pratt & Callis, P.C., of East Alton, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, National Super Markets, Inc., appeals from a judgment of the circuit court of Madison County in favor of plaintiff, Olga Koenig, in the amount of $60,000 for injuries she sustained in a fall in defendant’s store located in Granite City. Defendant raises the following issues: (1) whether the trial court erred in denying defendant’s motion for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence during the first trial of this case, and (2) whether the trial court abused its discretion in granting plaintiff a new trial on the issue of damages due to what the trial court considered an error in plaintiff’s verdict form (Illinois Pattern Jury Instructions, Civil, No. A45.06 (2d ed. 1986) (hereinafter IPI Civil 2d No. A45.06)). We reverse.

Plaintiff, a 75-year-old woman, fell in defendant’s store on October 6, 1984. Plaintiff had been in defendant’s store grocery shopping between 9 and 10 a.m. that day, and she returned sometime after 12 p.m. to drop off some film to be developed.

It had been raining hard on and off all morning. When plaintiff entered the store for the second time, there was a big puddle of water in the middle of the entrance which covered the doorway. Plaintiff could not step either around or over the water; she had to walk through it in order to enter the store. There were some mats to the left of the puddle on which plaintiff attempted to dry her feet, but they were saturated with water. Plaintiff started toward the pharmacy to drop off her film. About 50 feet inside the store, plaintiff’s legs slipped from under her, and she fell flat on her back.

The manager came over to assist plaintiff. He checked to see if there were any foreign substances on the floor which caused plaintiff to fall. He found none. Plaintiff did not examine the floor after her fall and does not know what caused her to fall. Plaintiff was taken to a hospital, and it was determined that she had broken her hip. Surgery was performed. Plaintiff recovered, but she sustained permanent injuries as a result of the fall.

A jury awarded plaintiff $100,000, but she was found 85% contributorily negligent, and her award was reduced to $15,000. Plaintiff filed a motion for a new trial and claimed the court erred in giving plaintiff’s instruction No. 25 (IPI Civil 2d No. A45.06). Plaintiff tendered IPI Civil 2d No. A45.06, did not object to any of its language, and did not tender a substitute for it. In her motion for a new trial, plaintiff argued that the instruction as given “assumed contributory negligence on the part of plaintiff.” The trial court granted plaintiff’s motion for a new trial on the issue of damages only. Defendant had also filed post-trial motions seeking a judgment notwithstanding the verdict or, in the alternative, seeking a new trial on the issue of liability and damages. The trial court denied defendant's motions. Defendant then filed a petition for leave to appeal pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). On June 27, 1989, this court denied defendant’s petition for leave to appeal.

A second trial on damages only was conducted in February 1990, and the second jury also rendered a verdict for plaintiff. The second jury assessed plaintiff’s damages at $90,000 and found plaintiff to be 33V3% contributorily negligent. The trial court entered judgment for the plaintiff in the amount of $60,000.

Before we address the issues raised by defendant in this appeal, we must address plaintiff’s contention that since we denied defendant’s petition for leave to appeal after the first trial, defendant is foreclosed from raising any issues concerning the first trial, on the theory that these issues were previously presented to us and determined to be without merit. Plaintiff argues that our order dated June 27, 1989, denying defendant leave to appeal is the law of the case for purposes of this appeal. We disagree.

In cases involving leave to appeal from the appellate court to the supreme court under Supreme Court Rule 315 (134 Ill. 2d R. 315), denial of leave does not suggest that the supreme court has approved of the result in the lower court.

“Our denials of leave to appeal, of course, carry no connotation of approval or disapproval of the appellate court action, and signify only that four members of this court, for reasons satisfactory to them, have not voted to grant leave.” (People v. Vance (1979), 76 Ill. 2d 171, 183, 390 N.E.2d 867, 872.)

We believe this logic is applicable in cases involving petitions for leave to appeal to the appellate court filed from an order of the circuit court granting new trials. (See 134 Ill. 2d R. 306.) Our previous order issued on June 27, 1989, means only that at least two members of a three-member panel voted not to grant leave “for reasons satisfactory to them.” The court did not address the merits of the case.

Plaintiff cites Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 380 N.E.2d 786, to support her position that by our order denying defendant’s petition for leave to appeal, we decided all issues raised in this appeal and are bound by our order issued in the first appeal. We find Robbins to be distinguishable.

In Robbins, a jury returned a verdict awarding plaintiff $25,000 in damages in a wrongful death action arising out of an automobile accident. The trial court set aside the verdict and ordered a new trial on the issue of damages only and conditionally granted plaintiffs motion for a new trial on all issues in the event that the order granting a new trial limited to damages was reversed, set aside, or vacated by the reviewing court. The defendants sought to appeal the trial court’s actions, but they failed to file a record or move for an extension of time, and consequently, the appeal was dismissed by the appellate court. On retrial on the issue of damages only, the second jury returned a verdict for the plaintiff in the amount of $120,000. The defendants then filed a post-trial motion requesting a new trial on all issues, including liability. The trial court’s denial of the defendants’ motion was affirmed. The appellate court’s holdings were as follows:

“(1) The earlier ‘denial’ of defendants’ ‘petition for leave to appeal’ authorized the appellate court to refuse to address the merits of the order granting plaintiff a new trial on the question of damages. Alternatively, the court would uphold that order on the merits. (2) Defendants waived their right to request a new trial on the question of liability by failing to request such relief either after the first trial or within 30 days of the trial court’s order granting plaintiff a new trial on the question of damages. Alternatively, even if the defendants had not waived the issue, they were not entitled to a new trial on the question of liability. (3) Defendants were not entitled to judgment notwithstanding the verdict. (Defendants apparently do not contest this holding.)” Robbins, 72 Ill. 2d at 220, 380 N.E.2d at 788.

The supreme court affirmed the appellate court. The Robbins court determined that “the appellate court’s reliance upon its previous summary dismissal of defendants’ petition was more than adequate to dispose of defendants’ right to review in this case.” (72 Ill. 2d at 223, 380 N.E.2d at 789.) The Robbins court also emphasized that the defendants were foreclosed from appellate review due to the defendants’ failure to request a new trial on the question of liability following the jury’s general verdict for plaintiff. (72 Ill. 2d at 223, 380 N.E.2d at 789.) The defendants in Robbins had further erred in the first appeal by failing to file a record or move for an extension of time. Defendant in the instant case has committed no such errors.

After the first trial, defendant filed a post-trial motion seeking a judgment notwithstanding the verdict or, in the alternative, seeking a new trial on the issues of liability and damages. Defendant also timely filed the record on appeal. Our previous order issued on June 27, 1989, did not address the merits of this case. It merely denied leave to appeal. We feel obliged to consider defendant’s arguments herein and issue an opinion dealing with the merits of this case.

Defendant’s first issue is whether the trial court erred in denying its motion for a directed verdict at the close of plaintiff’s evidence or at the close of all the evidence in the first trial. In this regard, defendant raises a number of arguments. First, defendant contends that plaintiff’s evidence was insufficient as a matter of law to prove the existence of a dangerous condition on the store premises. Second, defendant contends, assuming arguendo that plaintiff’s evidence demonstrated the existence of a dangerous condition on defendant’s floor, that plaintiff failed to make a submissible case to the jury because she failed to show defendant had notice of that condition. Third, defendant contends, assuming arguendo that plaintiff established the existence of a dangerous condition on the floor, that plaintiff’s case was insufficient as a matter of law because plaintiff failed to prove that the condition which caused plaintiff to fall was a result of defendant’s negligence. Finally, defendant contends that even if plaintiff’s evidence established the existence of a dangerous condition for which defendant was responsible, plaintiff failed to show that the dangerous condition was the proximate cause of her fall. Plaintiff responds that the trial court properly denied defendant’s motions for directed verdict because plaintiff did make a prima facie case on both the issues of negligence and proximate cause, and it was up to the jury to decide these issues. We agree.

This issue presents us with the familiar question of the circumstances under which a trial court may determine that the proof presents no factual question for the jury’s determination and that a verdict should be directed for defendant. The propriety of a directed verdict must be judged according to the standards set forth by the supreme court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504:

“[V]er diets ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.” (37 Ill. 2d at 510, 229 N.E.2d at 513-14.)

In a situation such as the one presented here, the general rule is that liability will be imposed where a business invitee, such as plaintiff herein, is injured by slipping on a substance on the premises if (1) the substance was placed there by the negligence of the proprietor, or (2) the defendant knew of its presence, or (3) the substance was there a sufficient length of time so the proprietor had constructive notice of it. (Blake v. Dickinson (1975), 31 Ill. App. 3d 379, 383, 332 N.E.2d 575, 578.) In reviewing the evidence, a trial court cannot ignore circumstantial evidence or reasonable inferences of negligence logically drawn from the circumstantial evidence. (Staten v. Pamida, Inc. (1989), 189 Ill. App. 3d 125, 128, 544 N.E.2d 1325, 1326.) In our judgment, the evidence in this case is such that the trial court correctly denied defendant’s motions for a directed verdict.

Most witnesses testified that it had been raining on and off all morning on the date in question. A few witnesses could not remember the weather on that date, but no one said that the weather was dry. Two of defendant’s employees, a cashier and the store manager, testified that mats were placed near the entrance on the floor for patrons to wipe their feet when it rained and these mats were changed if they became wet. Plaintiff testified to a large puddle which had accumulated in the entrance of the store. According to plaintiff, the puddle was so large that she could neither step over it nor around it. No evidence was presented to the contrary about the existence or the size of this puddle. Plaintiff also testified that while there were mats to the left of the entrance, it was useless to attempt to dry her feet because the mats were saturated with water. If the jury believed plaintiff’s testimony concerning the size of the puddle, it could logically conclude that such a large amount of water must have taken an extended period of time to accumulate. Two of defendant’s employees testified that mats were placed at the entrance of the store to allow customers the opportunity to wipe their feet in the event of rain. Once again, if the jury believed plaintiff’s testimony that the mats were saturated with water, it could logically conclude that these mats had not been changed for an extended period of time. The jury could reasonably conclude that the puddle, along with the saturated mats, was the proximate cause of plaintiff’s fall. The jury could conclude that plaintiff’s shoes became saturated with water from having to step in the puddle in order to enter the store and that plaintiff was unable to dry her shoes because the mats at the front of the store had become saturated from previous use. We believe plaintiff’s proof supports the probability that the large amount of water that accumulated at the front of the store was the proximate cause of plaintiff’s fall. (See Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 135, 437 N.E.2d 334, 338.) We further conclude the record supports the jury’s verdict and that the trial court was correct to deny defendant’s motion for directed verdict.

The final issue defendant raises is whether the trial court abused its discretion in granting plaintiff a new trial on the issue of damages due to an error in plaintiff’s verdict form, IPI Civil 2d No. A45.06. Defendant contends that the verdict form submitted to the jury at the first trial properly advised the jury of the law. In addition, defendant argues that plaintiff effectively waived any argument concerning IPI Civil 2d No. A45.06 by failing to object to the verdict form at trial and by failing to tender an alternative verdict form. Plaintiff responds that it did not waive this argument by failing to object at trial or by failing to tender an alternate verdict form since the instruction is clearly erroneous. Plaintiff contends that the trial court was within its discretion to order a new trial. We disagree.

The general rule is that a party may not assert error on the basis of instructions which he caused to be given to the jury. The rationale of this rule is that it would be manifestly unfair to allow one party a second trial on the basis of error which he injected into the proceedings. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500, 502; People v. Riley (1964), 31 Ill. 2d 490, 202 N.E.2d 531.

While the supreme court approved a relaxation of the general rule in Junker v. Ziegler (1986), 113 Ill. 2d 332, 498 N.E.2d 1135, the exception was allowed because the plaintiff had first tendered an instruction calling for the jury to consider only the negligence of the defendants. It was after the trial court refused the plaintiff’s originally tendered instruction in Junker that he tendered an instruction incorporating comparative negligence. Under the circumstances the supreme court held that plaintiff was not estopped from raising the instructional error.

In this case, the plaintiff tendered no instruction other than the one given. If there was error in the instruction it was created by the plaintiff. The plaintiff cannot later ask for relief from the error she created. Ervin, 65 Ill. 2d at 144, 357 N.E.2d at 502.

Therefore, the trial court erred in granting the plaintiffs motion for a new trial on damages only. Under our power (134 Ill. 2d R. 366), we reverse the trial court’s order and enter judgment for the plaintiff in the amount of $15,000 plus interest since October 22,1987, and costs of suit.

Reversed; judgment entered.

H. LEWIS, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I concur with most of the majority’s opinion in this cause. With respect to the majority’s conclusion on the granting of a new trial due to error in the verdict form, I respectfully dissent.

Our supreme court in Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500, stated that “we do not foreclose the possibility that there might be unusual circumstances under which the interests of justice require a relaxation of this rule.” 65 Ill. 2d at 145, 357 N.E.2d at 502.

In the instant case, I do not believe plaintiff is estopped from raising her argument concerning the verdict form even though it was plaintiff who tendered the verdict form about which she later complained.

The verdict form complained of by plaintiff read as follows:

“We, the jury, find for the plaintiff and against the defendant and further find the following:
First: Without taking into consideration the question of reduction of damages due to the negligence of the plaintiff, if any, we find that the total amount of damages suffered by the plaintiff as a proximate result of the occurrence in question is $__
Second: Assuming that 100% represents the total combined negligence of the plaintiff and of the defendant we find that the percentage of negligence that was a proximate cause of plaintiff’s injury attributable solely to the plaintiff is _percent (%).
Third: After reducing the total damages sustained by the plaintiff by the percentage of negligence attributable to the plaintiff, we assess plaintiff’s recoverable damages in the sum of$__”

The third paragraph essentially instructs the jury to find some negligence on the part of plaintiff. It does not provide the cautionary language, “if any,” which is found in the verdict form used at the second trial. The verdict form used in the first trial is so misleading that it constitutes error. This situation is exactly what the Ervin court envisioned when it stated that “there might be unusual circumstances under which the interests of justice require a relaxation of this rule.” 65 Ill. 2d at 145, 357 N.E.2d at 502.

The decision to grant a new trial is an exercise of judicial discretion which should not be disturbed unless there is a showing of a clear abuse of discretion. (McCracken v. Westinghouse Air Brake Co. (1981), 103 Ill. App. 3d 26, 430 N.E.2d 539.) After a review of the verdict form of which plaintiff complains and a review of the instructions as a whole, I cannot conclude that the trial court abused its discretion in granting plaintiff a new trial. Therefore, the verdict delivered by the second jury should be allowed to stand.

For the foregoing reasons, I would affirm the judgment of the circuit court of Madison County.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES G. JACOBSON, Defendant-Appellant.
    Fifth District
    No. 5—90—0631
    Opinion filed July 21, 1992.

      David V. Grigsby, of Hillsboro, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro, and David B. Shaw, of Pittsfield (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Charles G. Jacobson, appeals from a judgment of the circuit court of Montgomery County finding him guilty of possession of a controlled substance in violation of section 402 of the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402) and possession of cannabis in violation of section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. h&k, par. 704(b)). The sole issue on appeal is whether the trial court erred in denying defendant’s motion to quash arrest and suppress evidence. We affirm.

On August 30, 1989, defendant was charged by information with unlawful possession of a controlled substance and unlawful possession of cannabis. On February 20, 1990, defendant filed a motion to quash arrest and suppress evidence. A hearing on the motion was held on March 26, 1990, at which time the following evidence was adduced. Michael A. Sheeley, special agent for the Illinois State Police, testified that on August 11, 1989, he was driving southbound on Interstate 55 in an unmarked vehicle when he noticed two men in the vehicle in front of him smoking what appeared to be a marijuana cigarette. Sheeley based this assumption on his observations of the way the two men passed what appeared to be a small, hand-rolled cigarette back and forth several times, the way they handled the cigarette, and the way they inhaled the smoke. Sheeley then radioed the Illinois State Police headquarters and requested that a uniformed officer be sent to stop the vehicle containing the two men. Trooper George Martin responded and stopped the vehicle. At that time, Martin engaged defendant in a conversation while Sheeley spoke to the passenger. Sheeley detected what he believed to be the odor of marijuana and asked the men to step out of the car. Both men were frisked and asked for permission to search their vehicle. After obtaining permission from both men, Martin and Sheeley searched the car and found two film canisters, one containing marijuana and the other containing LSD. Sheeley testified that through experience and training he has observed people smoking marijuana cigarettes on several occasions, making him familiar with both the actions and the odor involved in such activity.

The only other witness who testified at the suppression hearing was defendant. Defendant testified that he has smoked unfiltered Camel cigarettes since 1968 and that he was smoking a Camel and sharing it with the passenger at the time he was stopped by Martin on August 11,1989.

In an order dated May 1, 1990, the trial court denied defendant’s motion to quash arrest and suppress evidence, finding the intrusion of stopping the vehicle was reasonable:

“[Sheeley] has testified to specific, articulable facts from which he could reasonably infer from the circumstances that the occupants of [defendant’s car] were smoking a marijuana cigarette.”

The matter proceeded to trial where defendant was found guilty of both offenses, sentenced to serve two years of probation and four days in the county jail, and ordered to pay a $750 fine.

On appeal, defendant contends that the trial court erred in denying his motion to quash arrest and suppress evidence. The narrow issue presented for review is whether Sheeley’s investigatory stop of defendant was proper. As both parties correctly assert, it is well settled that a police officer, under appropriate circumstances and in an appropriate manner, may approach an individual for purposes of investigating possible criminal behavior, even though there is no probable cause to arrest, provided, however, that the officer’s decision to stop is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Tassone (1968), 41 Ill. 2d 7, 241 N.E.2d 419.) The Terry standard has been codified in section 107 — 14 of the Code of Criminal Procedure of 1963, which provides, in pertinent part:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense ***.” Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14.

Defendant argues that Sheeley was operating under a mere suspicion that defendant was smoking marijuana and was not justified in making a warrantless stop. In support of his argument, defendant cites People v. Fox (1981), 97 Ill. App. 3d 58, 421 N.E.2d 1082, in which the court held that mere suspicion or hunch is not sufficient to warrant an investigatory stop. The State argues that Sheeley relied upon specific, articulable facts from which he could reasonably infer under the circumstances that defendant was smoking a marijuana cigarette, in accordance with the Terry standard. We agree. As stated earlier, Sheeley testified that he clearly observed defendant and another man passing what appeared to be a short, hand-rolled cigarette back and forth as many as four times. He further observed that the manner in which the two men handled and inhaled the cigarette was consistent with smoking a marijuana cigarette as known by Sheeley through experience and training. Such facts, as articulated by Sheeley, constitute more than a mere hunch or suspicion. Applying the Terry standard to the facts articulated by Sheeley, the trial court determined that it was rational for Sheeley to infer that defendant was smoking marijuana and that inference reasonably warranted the investigatory intrusion. A trial court’s determination at a suppression hearing will not be overturned unless it is manifestly erroneous. (People v. Stout (1985), 106 Ill. 2d 77, 88, 477 N.E.2d 498, 503.) Such is not the case at bar. We conclude that the investigatory stop by Sheeley and Martin was not improper and the trial court was correct in denying defendant’s motion to quash arrest and suppress evidence.

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

Affirmed.

HARRISON and RARICK, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re THOMAS HOULIHAN, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Thomas Houlihan, Respondent-Appellant).
    Second District
    No. 2—90—1107
    Opinion filed July 9, 1992.

      William E. Coffin, of Guardianship and Advocacy Commission, of Elgin, and Rosemarie Thurman, of Guardianship and Advocacy Commission, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Thomas Houlihan, appeals from an order of the circuit court which involuntarily committed him to the Department of Mental Health. On appeal, respondent challenges his commitment on two bases: that the State’s noncompliance with the statutory requirements of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 911/2, par. 1—100 et seq.) renders the order of commitment erroneous and ineffective; and that the court’s finding of involuntary commitment was not based on clear and convincing evidence.

Respondent was convicted of public indecency (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 9(aX2)) and was sentenced to a term of probation. As a condition of that probation, respondent was ordered to undergo a psychiatric evaluation at Riveredge Hospital. Respondent was discharged from Riveredge in July 1990. He then voluntarily entered the Elgin Mental Health Center (EMHC). On August 28, 1990, he requested to be released from the EMHC. The State filed a petition for involuntary commitment on September 5, 1990. Respondent moved to dismiss the petition because it was filed more than five days after his request for release. The trial court agreed and, on September 7, dismissed the petition and discharged respondent. The State immediately filed, in open court, a new petition for involuntary commitment. Respondent requested that the court order his release from the EMHC pending a hearing on the new petition. The court denied respondent’s request. Following a hearing on the second petition, the court found that respondent was a person subject to involuntary commitment. Respondent timely appealed.

Before proceeding to the merits of the appeal, we will address respondent’s motion to strike a portion of the State’s appellee brief. Respondent argues that, since the State did not appeal from the dismissal of the initial petition, the State cannot argue on appeal that the initial petition was timely filed within the meaning of section 3— 403 of the Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 403) and that this court lacks jurisdiction to consider the merits of that argument. The State counters that because respondent’s contention is premised on the invalidity of the initial petition, respondent should be estopped from challenging the State’s argument in support of the initial petition.

Estoppel principles are inappropriate when determining whether jurisdiction lies in the appellate court to consider an issue. This is because even if the parties do not contest jurisdiction, the reviewing court has the duty to determine if jurisdiction is lacking and dismiss the appeal. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.

The order dismissing the petition was final and appealable since the court dismissed the petition because it was fatally defective. (Knox v. Keene Corp. (1991), 210 Ill. App. 3d 141, 144-45.) The court discharged respondent, and the action terminated. The State’s failure to appeal deprives this court of jurisdiction to consider the propriety of the dismissal of the initial petition. Knox, 210 Ill. App. 3d at 145.

In its appellee brief, the State argues that it could not have appealed the dismissal because the issue would have been moot. We disagree. Two exceptions to the mootness doctrine apply here: the issue is of substantial public importance, and it concerns an event of short duration, capable of repetition, and yet evading review. (In re A Minor (1989), 127 Ill. 2d 247, 257-58.) Thus, the State cannot rely on the mootness doctrine to excuse its failure to appeal the dismissal. We therefore grant respondent’s motion to strike the portion of the appellee’s brief concerning the propriety of the dismissal of the initial petition.

Respondent first contends that the petition for involuntary commitment was ineffective and invalid because it was not filed within five days of his request for release as required under article IV of the Code (see Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 403) and, therefore, he was entitled to be released from the EMHC. The State responds that the petition was a proper petition pursuant to section 3 — 701 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 701).

This court has not considered this precise issue. There are two divergent trends within the appellate court concerning the proper procedure following a voluntarily admitted patient’s request for release to which the State does not timely object. In the first, represented by In re Shaw, on which the State relies, the court held that “the mere failure to discharge *** does not necessarily insulate the respondent from subsequent, otherwise-valid involuntary proceedings” pursuant to article VII. (In re Shaw (1987), 153 Ill. App. 3d 939, 945.) The second view, as expressed in In re Guthrie, rejects the Shaw analysis as “inconsistent with the principle that a mandatory requirement of discharge under the Code cannot be circumvented by utilizing other sections of the Code.” (In re Guthrie (1990), 196 Ill. App. 3d 352, 354.) Our supreme court denied leave to appeal in both causes. We must therefore consider general principles of statutory construction to determine whether the sections of the Code are mutually exclusive. We note, parenthetically, that, unlike in Shaw and Guthrie, respondent here was discharged.

The goal of statutory interpretation is to give effect to the legislature’s intent in drafting the statute. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 484.) The best barometer of that intent is the statutory language itself. (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 394.) The court should also consider the purpose of the statutory enactment. Harvel v. City of Johnston City (1992), 146 Ill. 2d 277, 283.

Our supreme court discussed the policy behind the voluntary admission sections of the Code in In re Hays (1984), 102 Ill. 2d 314. The court interpreted section 3 — 403 as mandating a voluntarily admitted patient’s release within five days of written notice unless an involuntary admission petition is filed. (Hays, 102 Ill. 2d at 319.) As the court explained:

“The rights given voluntarily admitted patients under our code show a legislative intent to encourage voluntary admissions. An important means of encouraging voluntary submission to treatment for mental problems is to grant voluntary patients the right to request their discharge. Of course, the public must be protected from persons dangerous because of mental illness. Accordingly, the Code provides that a voluntary patient who requests discharge may nevertheless be subject to an involuntary commitment if he is deemed to be dangerous to himself or others. Section 3 — 403 *** provides that in this one instance an involuntary petition may be brought against a voluntarily-admitted patient within the five-day period prescribed in the statute following his request for discharge.” (Hays, 102 Ill. 2d at 320.)

In addition, involuntary commitment procedures infringe on a patient’s liberty interests, and therefore these statutory sections must be construed strictly in favor of the patient. (In re Splett (1991), 143 Ill. 2d 225, 236.) The eloquent discussion in People v. Valentine teaches that:

“When we recall that other governments have used involuntary commitment to a mental hospital as a ruse, as a device to silence critics, we feel that this bright line is but one brick in a wall against the evils of tyranny that we, in this country, have erected. One brief glance toward the recent history of Eastern Europe is persuasive of the wisdom of that wall, the wisdom of this rule.” (People v. Valentine (1990), 201 Ill. App. 3d 10, 13.)

The Code must be employed to balance the liberty interests of those involuntarily committed versus the interest of the public to be safe from mentally ill persons who will engage in violence if released and society’s obligation to protect and care for those unable to take care of themselves. (In re Stephenson (1977), 67 Ill. 2d 544, 554-55; People v. Sansone (1974), 18 Ill. App. 3d 315, 323; see also In re Williams (1987), 151 Ill. App. 3d 911, 919.) This balance is fragile, and the statute leaves much room for valid dispute. Although both views are persuasive, we choose to follow Shaw rather than Guthrie for the following reasons.

First, nothing in the Code indicates that the statutory sections are to be mutually exclusive. Hays did not address the interplay between the statutory sections. We cannot rely on the dicta in Hays that once a voluntarily admitted patient has requested release the State can only commit the patient pursuant to article IV (Hays, 102 Ill. 2d at 320), since such a proposition is irrelevant if the faulty article IV petition has been dismissed and the patient has been discharged. The statute is silent regarding the course to follow in a situation such as the one presented by the facts of this cause. Under the general rules of statutory construction, the entire act should be construed as a whole. (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 96.) Thus, it appears that the State is not precluded from seeking to admit a person involuntarily under either article VI or article VII (Ill. Rev. Stat. 1991, ch. 911/2, pars. 3 — 600 et seq., 3— 700 et seq., respectively) after the voluntarily admitted patient has requested release.

Moreover, the ultimate decision depends on the answer to one question: Should a potentially dangerous individual be released merely because the State filed a petition one day too late? If no remedy existed for the patient, the answer would be yes. Yet, as Shaw points out, the patient may file a writ of habeas corpus to secure his release (see Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 905) if the State fails to release him timely. The court should consider the resulting consequences of a decision to construe a statutory section one way versus the other. (Fumarolo, 142 Ill. 2d at 96.) The balance is tipped in favor of the public’s safety because the patient has another remedy to protect his liberty interest.

Our conclusion is bolstered by In re Clark (1991), 220 Ill. App. 3d 1024, 1028. In that case, a voluntarily admitted patient requested discharge, and the State filed a defective article IV petition. The trial court dismissed that petition, yet ordered that the respondent be detained pursuant to article VI (Ill. Rev. Stat. 1991, ch. 911/2, par. 3— 600 et seq.). The article VI petition was defective, so the State filed a proper article VII petition. The appellate court found that the record supported the respondent’s temporary detention and the trial court’s determination that the invalidity of the second petition did not preclude the State from proceeding on the proper third petition. The court explained, “[i]t would serve no purpose to order the respondent released because he was not examined within 24 hours by another psychiatrist given the filing of the third petition properly supported by two certificates and filed the day before respondent appeared in court to complain of the inadequate second petition.” (Emphasis omitted.) Clark, 220 Ill. App. 3d at 1028.

We therefore hold that when a voluntarily admitted patient requested release and the State filed its section 3 — 403 petition more than five days later and that petition was dismissed and the patient was discharged, the patient may still be committed involuntarily if the State follows the proper procedures under section 3 — 701.

Next, respondent contends that the trial court’s finding of involuntary commitment must be reversed. For a person to be committed involuntarily, the State must prove, by clear and convincing evidence (Ill. Rev. Stat. 1991, ch. 911/2, par. 3—808), that the person is mentally ill and that because of this illness “is reasonably expected to inflict serious physical harm upon himself or another in the near future” (Ill. Rev. Stat. 1991, ch. 911/2, par. 1—119(1)). (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 504.) This “clear and convincing” finding must be based on the current condition of the respondent’s illness and the future likelihood of harm he might cause. (In re Orr (1988), 176 Ill. App. 3d 498, 505-06.) “[T]he decision to commit must be based upon a fresh evaluation of respondent’s conduct and mental state.” (People v. Nunn (1982), 108 Ill. App. 3d 169, 174.) When reviewing a trial court’s order of involuntary commitment, this court must give the lower court’s findings great deference, and we will not set aside the order unless it clearly is erroneous. In re Long (1990), 203 Ill. App. 3d 357, 362-63.

Because the trial court found more credible the respondent’s treating psychiatrist at EMHC, Dr. Jules Michel, we need not detail the testimony of respondent’s expert witness. At the hearing on September 21, 1990, Dr. Michel testified that respondent suffered from a schizoaffective disorder, possible substance abuse, and a sociopathic personality disorder. Dr. Michel opined that respondent is a danger to himself and others based on his aggressive and threatening behavior while at the EMHC and his past history of extensive and threatening behavior. The day after his arrival at the EMHC, respondent was denied a razor to shave himself, “and so he inserted his hand through the open window where the nurse dispenses medication and attempted to grab her neck and choke her.” Around the end of July, a female patient at the EMHC reported that the respondent attempted to engage her in fellatio. Over the Labor Day weekend, respondent became aggressive and started throwing chairs and fighting with the security staff when they attempted to restrain him. We note that the court, in finding that respondent presented a danger to himself and others, mentioned the choking and fighting incidents but failed to mention the fellatio occurrence.

Respondent argues that evidence relating to the choking and fighting incidents with the staff did not rise to the required clear and convincing level of proof. He attacks only the weight to be afforded such evidence, not its admissibility. Specifically, respondent claims that Dr. Michel’s sole knowledge of the incidents was derived from EMHC’s medical history records, that the nurse involved in the choking incident failed to testify, and that testimony about the fighting incident was too vague and general. We find respondent’s argument without merit. A patient’s psychiatric history is one of the most important criteria in making a diagnosis. (People v. Anderson (1986), 113 Ill. 2d 1, 8.) Any psychiatric history would be incomplete and unreliable if it did not include the observations of nurses, social workers, and other personnel at the hospital where the patient has received psychiatric treatment. (See In re Germich (1981), 103 Ill. App. 3d 626, 629.) Respondent points out that Dr. Michel offered conflicting testimony about the choking incident. On cross-examination, Dr. Michel admitted that because he was not present when the choking incident occurred, he could not be certain whether respondent was possibly attempting to grab some item other than the nurse’s neck. We fail to see how this speculative response concerning a mere possibility could in any reasonable manner affect the weight to be accorded Dr. Michel’s testimony concerning the choking incident.

In support of his argument that evidence of the fighting incident is too vague and general, respondent relies on People v. Cutsinger (1989), 186 Ill. App. 3d 219. Therein, a physician testified that Cut-singer was mentally ill and presented a danger to himself and others because he was loud, angry, used abusive language, threatened to call politicians, and advanced towards people when he became angry. (Cutsinger, 186 Ill. App. 3d at 226.) This court found the behavior described, although offensive, was not evidence that he intended to harm anyone or himself because he had not physically threatened or harmed anyone, or even made gestures to harm anyone. (Cutsinger, 186 Ill. App. 3d at 226.) Based on these facts, this court held that there was an insufficient factual basis to involuntarily commit Cutsinger, 186 Ill. App. 3d at 227.

We find the facts in respondent’s case distinguishable from Cut-singer. Unlike Cutsinger, respondent committed overt acts which could be reasonably intended to cause harm to other persons or himself. These acts included the attempted choking of a hospital employee, throwing chairs, and fighting with the security staff. In addition to the choking and fighting incidents, Dr. Michel’s opinion that respondent is a person reasonably expected to inflict serious harm upon himself or another in the near future included respondent’s criminal history. Dr. Michel testified that respondent’s criminal behavior reaching back to 1981 was consistent with his mental illness. The history included a charge of rape, which was plea bargained to a lesser charge, a sexual exposure conviction for which he is currently on probation, and an unspecified burglary offense.

Based on the evidence presented, we cannot say that the trial court’s finding that the defendant is reasonably expected to inflict serious physical harm upon himself or another in the near future is manifestly erroneous.

The decision of the circuit court of Kane County is affirmed.

Affirmed.

NICKELS and DOYLE, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA CARABALLO, a/k/a Bobbie Caraballe and Barbara Cockrell, Defendant-Appellant.
    Second District
    No. 2—90—1328
    Opinion filed July 21, 1992.

      Marc Kadish, of Chieago-Kent College of Law, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Barbara Caraballo, was found guilty at a bench trial of four counts of delivering cocaine in violation of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1100 et seq.). She was thereafter sentenced to concurrent terms of 6, 10 and 24 years’ imprisonment. This appeal is limited solely to the 24-year sentence, imposed under section 401 of the Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401), for defendant’s delivery of 970.9 grams of cocaine.

Defendant argues that the super Class X statute mandating a sentence of “not less than 15 years and not more than 60 years with respect to 900 grams or more of *** cocaine” was not in effect at the time of her arrest. (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2)(D).) Alternatively, defendant argues that, if the statute was in effect, the trial judge failed to consider relevant mitigating circumstances when he imposed the 24-year sentence on defendant. We affirm.

Defendant was arrested on April 24, 1990, and indicted on four counts of delivering cocaine. Count I, which is of concern in this appeal, was based on her delivery of over 900 grams of cocaine on April 24, 1990. Following a bench trial at which 12 witnesses testified, defendant was found guilty of all four counts. On November 5, 1990, the trial judge imposed a sentence on defendant which included a 24-year sentence of imprisonment on count I.

We will first address defendant’s argument that she was improperly sentenced under the Act since the relevant portion was effectively repealed by the Illinois General Assembly in 1989. The problem here lies in the fact that there are two different versions of section 401 of the Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401 (“Manufacture or delivery unauthorized by Act — Penalties”)) in the 1989 Illinois Revised Statutes. Version I of section 401 was amended by Public Act 86 — 266 (1989 Ill. Laws 1893), which passed the legislature on June 19, 1989, and Public Act 86 — 442 (1989 Ill. Laws 2681), which passed the legislature on June 15, 1989. Version I includes subparagraph 401(a)(2)(D), which allows a trial judge to impose a sentence of “not less than 15 years and not more than 60 years with respect to 900 grams or more of any substance containing cocaine, or any analog thereof.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 401(a)(2)(D) (amended by Pub. Acts 86 — 266, eff. Jan. 1, 1990; 86 — 442, eff. Jan. 1, 1990) (Version I).) Version II of section 401 is based on Public Act 86 — 604 (1989 Ill. Laws 3295), which passed the legislature on June 27, 1989. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401 (amended by Pub. Act 86 — 604, eff. Jan. 1, 1990) (Version II).) Version II does not contain a section similar to section 401(a)(2)(D) of Version I. The effective date for both Versions I and II was January 1, 1990.

Defendant argues that, since there are two conflicting versions of section 401, the version last acted on by the legislature — Version II — controls. She therefore contends that the trial judge’s reliance on section 401(a)(2)(D) of Version I was without statutory authority. We disagree.

Our analysis of these conflicting versions of section 401 is guided by section 6 of the Statute on Statutes (Ill. Rev. Stat. 1991, ch. 1, par. 1105), which states in pertinent part:

“Two or more Acts which relate to same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. * * *
An irreconcilable conflict between 2 or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed.” Ill. Rev. Stat. 1991, ch. 1, par. 1105.

See Illinois v. Mikusch (1990), 138 Ill. 2d 242, 254; People v. Frye (1983), 113 Ill. App. 3d 853, 859-60.

The general rule is that, when an act is amended so as to read as it is repeated in the amendatory act, portions of the old law not repeated are deemed repealed. (County of Cook v. Renaissance Arcade & Bookstore (1988), 122 Ill. 2d 123, 149-50; see Ill. Const. 1970, art. IV, §8(d) (“A bill expressly amending a law shall set forth completely the sections amended”).) However, courts will strive to find harmony between legislative acts so as to give effect to the legislature’s intent. For example, our supreme court has stated that, “[i]f the two enactments are capable of being construed so that both may stand, the court should so construe them.” (People v. Ullrich (1990), 135 Ill. 2d 477, 483; see United Citizens v. Coalition to Let the People Decide in 1989 (1988), 125 Ill. 2d 332, 339 (statutes which are in apparent conflict should be construed as harmonious insofar as reasonably possible).) We further note that, when we determine the intent of the legislature as to a particular act or amendment, we are not confined to its literal language, but may consider its history and subsequent amendments. In re Pronger (1987), 118 Ill. 2d 512, 520.

At first, the two versions of section 401 of the Act appear to be incongruous. However, upon a reading of both versions and the relevant public acts, it is apparent that the legislature hastily passed the latter, Version II. The fifth sentence of Version II incorrectly refers to section 401.2, as that section had been repealed by the earlier public acts which were the basis for Version I (Pub. Acts 86 — 266, 86 — 442). Version I repealed section 401.2, which contained the relevant super Class X sentencing language at issue in this case, and incorporated that exact language into the body of amended section 401. Version II was passed eight days later and specifically prefaced the detailed sentencing section by stating “[e]xcept as provided in section 401.2.” (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401.) The fact that Version II explicitly, although incorrectly, referred to section 401.2 is evidence that the legislature intended to keep the super Class X sentencing features within section 401. Further evidence of this is found in the recently amended version of section 401. (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401.) The 1991 version contains super Class X sentencing language identical to that found in Version I (1989). We conclude that Versions I and II of section 401 of the 1989 statutes can be read together so as to uphold the trial judge’s use of the super Class X sentencing feature of Version I (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2)(D) (as amended by Pub. Acts 86 — 266, eff. Jan. 1, 1990; 86 — 442, eff. Jan. 1, 1990)).

We trust that, in the future, the legislature will use more care when amending the Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 561/2, par. 1100 et seq.). We agree with Justice Steigmann’s special concurrence in People v. Liberman (1992), 228 Ill. App. 3d 639, 651-54, where he noted that, in the past 41/2 years, the legislature passed 27 substantive amendments to the Act. Justice Steigmann expressed deep concern about such a “legislative frenzy” and the confusion that it entails. He noted the “confusion and uncertainty these frequent changes engender in the prosecutors and police who have the duty of enforcing the drug laws.” (228 Ill. App. 3d at 653.) We join Justice Steigmann in urging “calm deliberation” over future amendments to the Act.

Defendant’s final argument is that the trial court committed reversible error by not giving proper weight to certain mitigating evidence when he sentenced her to 24 years’ imprisonment for delivering over 900 grams of cocaine. Defendant argues that the trial judge did not adequately consider her age (51 years), her medical condition (prior diagnoses of breast cancer, uterine cancer and high blood pressure), her lack of a criminal record and her contention that she was entrapped.

Sentencing is a matter for the trial court’s discretion; we will not disturb a sentencing decision absent an abuse of that discretion. People v. O’Neal (1988), 125 Ill. 2d 291, 297-98; People v. Garcia (1991), 217 Ill. App. 3d 350, 352.

The 24-year sentence, which the trial court imposed upon defendant for delivering 970.9 grams of cocaine, fell within the statutory range of 15 to 60 years. (Ill. Rev. Stat. 1989, ch. 56%, par. 1401(a)(2)(D) (as amended by Pub. Acts 86 — 266, eff. Jan. 1, 1990; 86 — 442, eff. Jan 1, 1990).) In comments from the bench, the trial judge stated that defendant engaged in three separate cocaine transactions within one week even though she was concerned about the consequences of criminal behavior on her family. The trial judge stated that he did not believe defendant’s testimony and that defendant failed to show any genuine expression of “remorse for having delivered substantial amounts of cocaine into the community, except that she has been caught and must go to prison.” He found that defendant has shown an “ability to deliver controled [sic] substances in substantial quantities on short notice” and no ability to reform herself. The trial judge then stated:

“Rather than showing true remorse [for] delivering cocaine into the community, she views herself in some respect as the victim in this matter. I find that totally unwarranted. I find that her repeated delivery of controlled substances establishes the severity of her danger to the community. I find that she does not demonstrate the likelihood of rehabilitation and she is a serious threat to the community.”

The sentencing judge need not set forth on the record each factor considered. (People v. Meeks (1980), 81 Ill. 2d 524, 534.) Where mitigating evidence is presented, as defendant alleges here, a court of review will presume that the judge considered it, absent some indication to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 387, aff’d (1986), 115 Ill. 2d 184.) Our review of the record and the sentencing hearing transcript leads us to conclude that the trial judge carefully weighed the evidence in mitigation and aggravation. We cannot agree with defendant’s assertion that, in this case, the imposition of a 24-year sentence for the delivery of 970.9 grams of cocaine was an abuse of discretion.

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

Affirmed.

McLAREN and DUNN, JJ., concur.