text:
    CITY NATIONAL BANK OF MURPHYSBORO, Plaintiff-Appellee, v. ROBERT E. VANCLOOSTERE et al., Defendants-Appellants (Roy Dean Bigham et al., Foreclosure Sale Purchasers-Appellees; Loretta Jane Schneider et al., Defendants).
    Fifth District
    No. 5—90—0668
    Opinion filed July 9,1992.
    Douglas Antonik and M. Keith Smith, both of Mt. Vernon, for appellants.
    Edward J. Heller, of Reed, Heller & Mansfield, of Murphysboro, for appellee City National Bank of Murphysboro.
    Donald Bigham, of Hohlt, House, DeMoss & Johnson, of Pinckneyville, for appellees Roy Dean Bigham and Orville Bigham.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, the City National Bank of Murphysboro (the Bank), brought an action in the circuit court of Jackson County pursuant to the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1101 et seq.) to foreclose on two mortgages it had issued to defendants, Robert E. and Willa Maxine Vancloostere. The Bank’s amended foreclosure complaint was filed July 26, 1989. On November 17, 1989, the circuit court entered its judgment of foreclosure. In that judgment, the circuit court specified that the redemption period, which it found to be governed by section 15 — 1603(b)(1) of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15— 1603(b)(1)), would expire on February 17, 1990, and that if no redemption occurred within that time, the property was to be sold on March 13, 1990. After making a number of other findings to comport with the requirements of the foreclosure statute, the circuit court made an express written finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal.

Defendants did not appeal, nor did they seek to redeem the property. They did attempt to have the foreclosure sale adjourned on the grounds that plaintiffs had not complied with certain statutory notice requirements, but that motion was denied, and the sale took place as scheduled on March 13, 1990. An order confirming that sale was entered by the circuit court on March 27, 1990. Within 30 days, defendants filed a motion to have the order confirming the sale set aside “on the grounds that the terms of the sale were not fair and that justice was not done by the sale.” At the hearing on that motion, defendants argued, among other things, that the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1101 et seq.) was unconstitutional because, as applied in this case, it had the effect of retroactively shortening the redemption period. The circuit court rejected this argument on the grounds that it had not been timely raised, and the motion to vacate the order confirming the sale was denied. Defendants now appeal.

As grounds for their appeal, defendants argue that the circuit court’s use of the redemption period specified in section 15 — 1603(b) of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1603(b)), which was in effect when the foreclosure complaint was filed, rather than the redemption period specified under the predecessor statute, which was in effect when the mortgages were executed, “unconstitutionally impaired] their contractual rights in violation of the contract clause of the federal constitution [U.S. Const., art. I, §10].” Although this argument has been ably argued by defendants’ counsel, we are constrained to conclude that it is not properly before us for review.

The redemption period was set by the circuit court’s November 17, 1989, judgment of foreclosure and sale. That judgment expressly indicated that the redemption period was based on section 15 — 1603(b) of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1603(b)), not by the period set forth in the predecessor to that statute. As we have indicated, the circuit court’s judgment contained the express "written finding required by Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and there is no question that a judgment of foreclosure and sale which contains such a finding is a final and appealable order. (Jo Jan Corp. v. Brent (1989), 182 Ill. App. 3d 70, 73, 537 N.E.2d 956, 958.) Accordingly, if defendants believed that the use of section 15 — 1603(b) (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1603(b)) was improper, that was when the issue should have been raised. Yet, defendants did not file a notice of appeal from that judgment within the time provided by Supreme Court Rule 303 (134 Ill. 2d R. 303). They filed no notice of appeal until now.

Under these circumstances, defendants are foreclosed from directly attacking the circuit court’s determination regarding the applicable redemption period. (See Jo Jan Corp. v. Brent, 182 Ill. App. 3d at 73, 537 N.E.2d at 958.) Their appeal as to that issue is not timely, and we have no jurisdiction to hear it. (Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1013, 377 N.E.2d 161, 166.) Because defendants have advanced no cognizable basis for a collateral attack on the circuit court’s ruling, their appeal must therefore be dismissed.

Appeal dismissed.

W. LEWIS and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    DAVID J. UHRHAN, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—91—0532
    Opinion filed July 14,1992.

      Roger C. Denton, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of Belleville, for appellant.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, David J. Uhrhan, brought an action in the circuit court of St. Clair County to recover damages for personal injuries he sustained while employed as a switchman by defendant, the Union Pacific Railroad Company (the Railroad). Plaintiff claimed that his injuries resulted from the Railroad’s negligence in failing to provide him with a safe place to work. He sought recovery under the Federal Employers’ Liability Act (45 U.S.C.A. §51 et seq. (West 1986)), and a verdict was ultimately returned in his favor following a jury trial.

The jury determined that plaintiff had sustained $17,000 in damages, but it reduced his recovery to $10,200 after concluding that he was 40% contributorily negligent. (45 U.S.C.A. §53 (West 1986).) The circuit court then entered judgment on the verdict and denied plaintiff’s post-trial motion. Plaintiff now appeals. There is no dispute as to the Railroad’s liability. The sole issue before us is whether plaintiff is entitled to a new trial regarding his damages. We hold that he is.

Plaintiff correctly argues that the circuit court erred in allowing the jury to consider the Railroad’s claim that he was contributorily negligent. Although a defendant in an FELA case is entitled to have the jury instructed on contributory negligence if there is any evidence to support the theory, it is also true that a defendant is obligated to produce evidence of the plaintiff’s lack of due care before a contributory negligence instruction can be given. (Gish v. CSX Transportation, Inc. (7th Cir. 1989), 890 F.2d 989, 992.) The Railroad here failed to meet that obligation.

The record shows that plaintiff was injured while relaying lantern signals during switching operations at one of the Railroad’s train yards. The procedure was not an easy one. It required plaintiff to keep a constant vigil for lantern signals from a fellow crew member located at the back of the train, where cars were being added and disconnected. Plaintiff would relay those signals with a lantern of his own to a third crew member, who would, in turn, convey them to the train’s engineer so that the train could be moved properly and without danger to the crew member responsible for actually coupling and uncoupling the cars.

The track was curved and the train was over half-a-mile long. As a result, plaintiff had to keep moving alongside the tracks in order to remain in a position where he could still see and be seen by his coworkers as the switching took place. The Railroad had previously hired workers to keep the area alongside the tracks free of debris, but it had discontinued the practice as a cost-cutting measure. Added to these difficulties was that plaintiff had to do his job in near darkness. At the time of the incident giving rise to this litigation, he was on duty after midnight, and there were no lights to illuminate the yard. Plaintiff had just relayed a signal and was watching for the next when, still having to walk along and still in darkness, he tripped on a large section of heavy, loose wire and fell onto a broken railroad tie, injuring his knee.

The Railroad did have a safety rule requiring workers to be on the lookout for tripping hazards and to correct or report those they observed, but that rule can have no application here. While carrying out switching operations, plaintiff’s responsibility was to watch the other signal lanterns. The safety of his co-workers depended on it. Given this, and in view of the darkness and the constant need to keep moving, plaintiff cannot reasonably have been expected to be more vigilant. Indeed, under the circumstances present here, watching more carefully where he was going was simply not a viable alternative for plaintiff. This is why it was so important that the area be kept free of debris, which it evidently no longer was.

The Railroad suggests that plaintiff might nevertheless be faulted for not complying with the safety rule because he did not check the area for hazards before commencing the switching procedure. As we have noted, however, the rule required only that workers keep an eye out for tripping hazards, and if they happened to see one, they were supposed to correct it or report it. Nothing in the rule obligated workers to go searching for such hazards before beginning their duties, especially at night, in the dark, with only the dull light of a signal lamp as a guide.

The concept of contributory negligence therefore has no applicability under the facts of this case. If anything, what is at issue here is the doctrine of assumption of risk. That, however, is no defense to an FELA action. (45 U.S.C.A. §54 (West 1986).) Accordingly, it was error to instruct the jury on contributory negligence, and the jury’s finding that plaintiff was 40% contributorily negligent cannot stand.

In a proper case, we might be able to cure this error merely by setting aside the adjustment for contributory negligence and allowing plaintiff the full damages found by the jury. That solution will not work here, however, for the jury’s basic damage award is itself tainted by another error, namely, the introduction, over plaintiff’s objection, of the testimony of Dr. Edwin Carter.

Dr. Carter was retained by the Railroad to examine plaintiff and to give an expert opinion at trial regarding plaintiff’s medical condition. There is no dispute that Dr. Carter was subject to the disclosure rules specified in Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220(b)(1)), nor is there a dispute that the required disclosure was not made by the Railroad in the time set forth by the rule. When plaintiff raised an objection to his testimony, the circuit court should therefore have disqualified Carter as a witness. Such disqualification was mandatory. (Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 980, 572 N.E.2d 1169, 1186.) What the court did instead was give plaintiff the option of continuing the trial date in order to cure the time problem. This was improper. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 226, 511 N.E.2d 974, 982.) A party should not be forced to suffer a postponement of his day in court in order to accommodate a manifest violation of the discovery rules by the opposing party.

The Railroad contends that even if erroneous, the admission of Dr. Carter’s testimony was harmless because it was merely cumulative of the testimony of Dr. Forbes McMullin, another medical witness in the case. We disagree. To characterize Carter’s testimony as cumulative assumes that it possessed no independent significance, i.e., that it added nothing additional that might have materially altered the outcome of the litigation. (See In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 246, 470 N.E.2d 551, 560.) Ño such assumption can be made here.

At trial, the jury heard the testimony of a third medical witness, Dr. Marvin Rosecan. Although both McMullin and Rosecan were called by plaintiff, McMullin, who did the surgery on plaintiff’s injured knee, and Rosecan, who treated him following the surgery, had substantially different opinions regarding plaintiff’s postsurgical condition. McMullin felt that plaintiff was free of permanent disability, while Rosecan opined that he would continue to suffer pain and degenerative joint problems as a result of the accident.

How the jury assessed the respective positions of these two doctors was obviously central to plaintiff’s claims for future pain and suffering and future lost earnings. From the itemized verdict form, which set future lost earnings at zero, it is evident that McMullin’s view carried the day. This result was surely due, in significant measure, to Dr. Carter’s testimony, which contradicted Rosecan’s position just as it supported that of McMullin. Indeed, among this triad of medical doctors, Carter may well have been regarded by the jury as the tie breaker. In light of this pivotal role, the erroneous inclusion of Dr. Carter’s testimony was scarcely harmless.

For the foregoing reasons, we affirm the circuit court’s judgment to the extent that it found the Railroad liable, but we reverse its damage award and remand for a new trial limited solely to the question of damages.

Affirmed in part; reversed and remanded in part with directions.

RARICK and W. LEWIS, JJ., concur.


author: JUDGE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KWAMI GILES, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMIE C. DANIELS, Defendant-Appellant.
    Second District
    Nos. 2—90—0805, 2—90—0806 cons.
    Opinion filed June 12,1992.
    Rehearing denied August 5,1992.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUDGE WOODWARD

delivered the opinion of the court:

The defendants, Tommie C. Daniels and Kwami Giles, were jointly charged by information in the circuit court of Lake County with one count of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)), one count of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)) and one count of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — l(aXl))Both defendants pleaded guilty to the armed robbery charges, and the aggravated battery and theft counts were dismissed. Daniels was sentenced to 15 years in prison and Giles to an 8x/2-year term of imprisonment. Both defendants appeal, and their cases have been consolidated due to the similarity of the issues raised.

The issue raised by Daniels is whether the trial court erred in not considering a motion to reconsider his sentence filed by his counsel because he had subsequently filed, pro se, a notice of appeal. The issue presented by Giles is whether the trial court erred in not considering a motion to withdraw his guilty plea filed by his counsel because he had subsequently filed, pro se, a notice of appeal.

The facts relevant to this appeal are as follows. The State filed a joint information charging both defendants with armed robbery, aggravated battery and theft based on their theft of a Chevrolet Blazer by the use of force and while armed with a gun. Following a conference pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), each defendant pleaded guilty to the armed robbery charge. As a factual basis for the pleas, Giles testified that he was driving the victim’s vehicle, and Daniels testified he pointed a BB gun at the victim and also hit the victim in the head with the gun. The victim jumped out of his vehicle, and Giles continued to drive it.

On June 26, 1990, Daniels was sentenced to 15 years’ imprisonment, and Giles was sentenced to an 8x/2-year term of imprisonment. The court advised the defendants at the sentencing hearing that if they wished to appeal they “must within 30 days file with the Court [a] motion for reconsideration of sentence or a motion to withdraw [their] plea[s] of guilty.” The court further admonished the defendants that if they did not file either a motion to reconsider or a motion to withdraw before appealing then the appellate court would probably dismiss their appeals. Both defendants stated they understood the court’s admonishments.

On July 5, 1990, Giles, by his attorney, filed a motion to withdraw his guilty plea. On July 11, 1990, Daniels’ attorney filed a motion to reconsider the sentence on behalf of Daniels. Giles, on July 12, 1990, mailed a signed, notarized notice of appeal to the circuit clerk of Lake County. He included a handwritten note stating that he had “motioned to appeal [his] case so enclosed is the original notice and *** a copy to the State.” Giles’ notice of appeal and note are dated July 11, 1990. On July 12, 1990, Daniels also mailed a signed, notarized notice of appeal to the circuit clerk of Lake County. Accompanying the notice of appeal was a handwritten note stating that “[t]his is my notice of appeal.” The notice of appeal and note are dated July 11, 1990.

At a hearing on July 19, 1990, the court acknowledged that each defendant’s file contained a notice of appeal. The following colloquy took place:

“MR. BOCHES: I certainly didn’t file that on [Daniel’s] behalf. I think I’m the only attorney of record.
THE COURT: No, [Daniels] filed it on his own behalf.
MR. BOCHES: Well, I guess that takes care of that.
THE COURT: Isn’t it jurisdictional kind of?
MR. BOCHES: I suppose, if you want to. I guess who filed what first, I suppose.
THE COURT: I take it one who chose to file a notice of appeal, [Daniels] has filed a notice of appeal. I’ll find that he’s indigent, appoint the Appellate Defender to represent him, order the appropriate transcripts to be prepared, all as per order, see order.
MR. BOCHES: Judge, in that case—
THE COURT: Well, let’s just-
THE CLERK: Daniels is up, too, judge. Daniels and Giles both filed a notice. Is it Giles, too.
THE COURT: You’re just Daniels?
MR. BOCHES: Just Daniels.
THE COURT: All right.
MR. BOCHES: Joe Poell represents Mr. Giles.
THE COURT: We’ll show there’s also a notice of appeal for Mr. Giles. Show Ms. Grohs is present for Mr. Poell. Same order.”

The minute order for July 19, 1990, states that the clerk of the court was directed to prepare and file a notice of appeal on behalf of each defendant. The record contains a notice of appeal for each defendant filed on July 19, 1990, and signed by the circuit clerk of Lake County.

Each defendant contends on appeal that his case should be remanded for the trial court to consider his post-trial motion. Each defendant argues that the trial court, pursuant to Supreme Court Rule 309 (134 Ill. 2d R. 309), should have dismissed his pro se notice of appeal and considered his post-trial motion. Each defendant also maintains he was denied the effective assistance of counsel because his attorney did not move to dismiss his post-trial motion pursuant to Rule 309 or at the very least request time to consult with him about the motion and the notice of appeal.

In People v. Whigam (1990), 202 Ill. App. 3d 252, the appellate court held that under Rule 606(b) (134 Ill. 2d R. 606(b)) a notice of appeal filed before the disposition of a motion directed to the final judgment in a criminal case is premature. (202 Ill. App. 3d at 257.) While Rule 606(b) expressly excepts the provisions of Rule 604(d) from its time requirements for filing a notice of appeal from the entry of a final judgment, we find the reasoning of Whigam to be particularly applicable to this case as well. We see no reason to differentiate between a motion attacking a final judgment and a motion filed pursuant to Rule 604(d) seeking reconsideration of a sentence or asking to withdraw a guilty plea for purposes of determining the efficacy of a notice of appeal filed before the motion has been disposed of.

To hold that a notice of appeal filed after a Rule 604(d) motion has been filed but before it has been disposed of is proper and thus divests the trial court of jurisdiction to consider the motion would lead to absurd results. As happened in this case, the Rule 604(d) motion goes unconsidered and undecided, and the appellate court is forced to consider the appeal absent the trial court having had the opportunity to correct any potential errors in sentencing. Such a rule is inconsistent with our very recent interpretation that People v. Wilk (1988), 124 Ill. 2d 93, and People v. Wallace (1991), 143 Ill. 2d 59, are premised upon the theory that trial courts should have the opportunity to correct sentencing errors prior to appeal. (People v. Soles (1992), 226 Ill. App. 3d 944, 946.) Once a timely motion has been filed pursuant to Rule 604(d)), a notice of appeal filed thereafter but prior to disposition of the motion lacks efficacy and does not divest the trial court of the jurisdiction to dispose of the motion on its merits.

Such a holding is further bolstered by our decision in Soles that a trial court must consider the merits of a motion to reconsider a sentence filed pursuant to Rule 604(d). (See Soles, 226 Ill. App. 3d at 946.) Furthermore, a motion to withdraw a guilty plea, made in orderly fashion, should be given consideration, and the court should rule upon it. (People v. Chestnut (1973), 15 Ill. App. 3d 188, 190.) Because the trial court is not free to ignore a motion under Rule 604(d), whether it be one to reconsider a sentence or one to withdraw a guilty plea, and because a trial court should have the opportunity to reconsider the appropriateness of a sentence or a defendant’s guilty plea prior to appeal, we believe the most logical rule should be that a notice of appeal filed after a motion filed under Rule 604(d) but before disposition of the motion is ineffective, and the trial court retains jurisdiction to dispose of the motion. Of course, once the motion is decided or withdrawn the defendant will be able to file his or her notice of appeal within the provisions of Rule 604(d).

In the present-case, Daniels’ attorney filed his motion to reconsider sentence on July 11, 1990. Giles’ attorney filed his motion to withdraw his guilty plea on July 5, 1990. Each defendant mailed his pro se notice of appeal on July 12, 1990, after their respective Rule 604(d) motions were filed but before the court ruled thereon. Accordingly, the notices of appeal were ineffectual and did not divest the trial court of its jurisdiction to consider and rule on the motions. We therefore reverse the order of the trial court dismissing each defendant’s motion and remand the cause for consideration and disposition of each motion on its merits.

For the foregoing reasons, we reverse the order of the circuit court of Lake County as to each defendant and remand the cause for consideration and disposition of each defendant’s pending motion.

Reversed and remanded.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE SCARIANO

text:
    BLANCA CORONEL, Plaintiff-Appellant, v. CHICAGO WHITE SOX, LTD., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—0091
    Opinion filed May 19,1992.

      Michael J. Kane and Karen A. Kerbis, both of Kane, Obbish & Propes, of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, J. Kent Mathewson, Michael A. Pollard, and L. Michael Tarpey, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

On August 16, 1986, plaintiff, Blanca Coronel, attended her first Chicago White Sox baseball game at Comiskey Park, and sat in the first base “Golden Box Seats,” specifically, box section 32, row E, seat 2, behind home plate, facing first base, approximately three seats away from the edge of a protective screen. During the sixth inning, when plaintiff looked down into her lap to pick up some popcorn, she was struck on the right side of her face by a line-drive, foul-tipped ball, and suffered a broken jaw.

She brought suit against defendants Chicago White Sox, Ltd., and Comiskey Park Corporation (collectively the Sox), alleging negligence:

“[(1) for their] fail[ure] to provide adequate protection from batted balls for those spectators seated in the area of the stadium most vulnerable to stray foul balls; [(2) for] fail[ure] to provide an adequate number of seats in areas screened off from the playing field; [and (3) for] fail[ure] to warn her of the likelihood that batted balls would be projected towards her and those spectators seated near her.”

After the trial court granted the Sox’s motion for summary judgment, plaintiff filed a motion to reconsider but that motion was denied. Plaintiff appeals.

Plaintiff claims that the Sox failed (1) to adequately protect her from, and (2) to warn her of, foul balls which they knew would be hit into the unprotected area in which she was seated. Plaintiff asserts that these are questions of fact, and thus are questions for the jury, and cannot be decided on a motion for summary judgment.

The existence of a duty is a question of law, to be determined by the court. (Ward v. K mart Corporation (1990), 136 Ill. 2d 132, 140; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525; Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 440.) Whether or not there is a breach of a duty, however, is a question of fact, to be determined by the trier of fact. Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163.

A land owner or occupier of land owes a duty of reasonable care to business invitees located on his premises. (Ill. Rev. Stat. 1987, ch. 80, par. 302; Ward, 136 Ill. 2d 132.) We find no exception in favor of sports facilities from this requirement. Indeed, that the owner of a baseball park owes a duty to protect spectators from injury caused by foul balls was legally recognized a full quarter century ago by our court in the case of Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 343, where it was held that such duty does not require “a complete fencing of the spectators present at a baseball game to protect them from stray baseballs’^;] but rather, requires a “ ‘screen for the most dangerous part of the grandstand.’ ” (Maytnier, 80 Ill. App. 2d at 343, quoting Brisson v. Minneapolis Baseball & Athletic Association (1932), 185 Minn. 507, 240 N.W. 903.) The most dangerous part of a ball park is universally recognized as the area behind home plate (Clapman v. City of New York (1984), 63 N.Y.2d 669, 468 N.E.2d 697, 479 N.Y.S.2d 515; City of Atlanta & Fulton County Recreation Authority v. Merritt (1984), 172 Ga. App. 470, 323 S.E.2d 680; Akins v. Glens Falls City School District (1981), 53 N.Y.2d 325, 424 N.E.2d 531, 441 N.Y.S.2d 644); and whether the sports facility adequately screened the most dangerous area is a question of fact for the jury. Maytnier, 80 Ill. App. 2d at 343.

In Riley v. Chicago Cougars Hockey Club, Inc. (1981), 100 Ill. App. 3d 664, the lease between the Cougars and the amphitheater where the team played its home games, required the Cougars to provide “plastic walls for crowd protection,” but “did not specify how high the walls should be or what part of the stands should be protected. Around the edges, of the rink at ice level, Cougars erected herculite glass panels to protect spectators and to keep the puck in the rink. The herculite glass panels were higher behind the goals because most shots are aimed in that general direction. No protection was provided for balcony spectators.” (Riley, 100 Ill. App. 3d at 665.) While in play, “[t]he puck deflected off one of the Cougar players’ sticks and soared on an angle to the first row of the balcony [where it] struck plaintiff on the left side of his head and knocked him unconscious.” (Riley, 100 Ill. App. 3d at 665.) The appellate court, in affirming a jury verdict in favor of the plaintiff, rejected the “Cougars’ argument that the trial court should have found, as a matter of law, that Cougars owed no legal duty to provide protection for spectators at hockey games.” Riley, 100 Ill. App. 3d at 666, citing Maytnier, 80 Ill. App. 2d 336, 225 N.E.2d 83.

Especially on point are Wells v. Minneapolis Baseball & Athletic Association (1913), 122 Minn. 327, 142 N.W. 706, and Akins, 53 N.Y.2d 325, 424 N.E.2d 531, 441 N.Y.S.2d 644. In Wells, a spectator, unfamiliar with the dangers inherent in attending a baseball game, was seated near the protective screen and was struck by a foul-tipped ball. The screen covered “about 65 feet of the center of the grand stand” and “completely covered the opening from the roof down.” (Wells, 122 Minn. at 329, 142 N.W. at 707.) The plaintiff contended that the defendant “negligently constructed [the] screen *** of insufficient size to furnish *** protection.” (Wells, 122 Minn. at 329, 142 N.W. at 707.) The supreme court of Minnesota held that not only did the defendant owe a duty to protect its patrons by shielding certain seats, but also, “[w]hat precaution the ordinarily prudent person, furnishing a public amusement of this kind, should take to warn and protect the spectators from the attendant dangers of which they may be ignorant, we think a question for the jury.” Wells, 122 Minn. at 332,142 N.W. at 708.

Akins held that where an injured spectator presented no evidence that a backstop 24 feet high and 50' feet wide was inadequate, the owner was not liable for failing to provide additional screening along the baselines of its field. Citing Maytnier, the court stated:

“[W]e do not attempt to prescribe precisely what, as a matter of law, are the required dimensions of a baseball field backstop. Nor do we suggest that where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue, the case should not be submitted to the jury.” Akins, 53 N.Y.2d at 331, 424 N.E.2d at 534, 441 N.Y.S.2d at 647.

Also persuasive is Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, where the plaintiff, a spectator attending a “Western Open” golf tournament, while standing near a concession stand located between two fairways, was struck by an errant golf ball and was injured. The concession stand was “placed in [an] area[ ] in which balls had regularly landed in the past, and *** the *** spectators located between the fairways [were] within range of balls likely to be hit by golfers.” (Duffy, 92 Ill. App. 3d at 196.) The court held that the defendant owed a duty of “ordinary and reasonable care” to the plaintiff, and that “whether the standard of care required in a given case has been exercised is ordinarily a question of fact for the jury. [Citation omitted.]” Duffy, 92 Ill. App. 3d at 198.

In light of the authorities cited above, we cannot accept the suggestion advanced by the Sox that it should be they and not the jury who should determine the adequacy of the protection afforded its fans at a baseball game. (Riley, 100 Ill. App. 3d at 667, citing Maytnier, 80 Ill. App. 2d 336, 225 N.E.2d 83.) Considering the location of plaintiff’s seat and the comparatively small width of the screen, a .question of fact exists as to whether there was violation of the duty owed by the Sox to spectators seated in the most dangerous part of the ballpark. We note that in Wells the adequacy of a screen 65 feet wide, and in Akins the adequacy of a backstop 54 feet wide, properly put in issue, were held to be determinations to be left to the jury. Here the Sox’s director of purchasing, construction and maintenance, testified in his deposition that the protective screen behind home plate was 21 feet high and 39.7 feet wide, one of the smallest in major league baseball. In discussing the significance of evidence used to compare the screening utilized in one park to that which is commonly employed in others, cases cited by the Sox themselves state that “[w]hile customary methods do not furnish a conclusive or controlling test of negligence or justify a practice obviously laden with danger, they are nevertheless to be considered as factors of measurement of due care.” (Schentzel v. Philadelphia National League Club (1953), 173 Pa. Super. 179, 185, 96 A.2d 181, 185; Jones v. Three Rivers Management Corp. (1978), 483 Pa. 75, 84, 394 A.2d 546, 550.) Accordingly, we hold that plaintiff has met the requisite burden for her case to proceed to a jury.

The Sox also maintain that they did not owe plaintiff a duty to warn her of the risk of being injured by foul balls because as a matter of law a land owner owes no duty to warn of an “open and obvious” danger. While case law in other jurisdictions supports this principle (see Friedman v. Houston Sports Association (Tex. Ct. App. 1987), 731 S.W.2d 572, 573; Jones v. Three Rivers Management Corp. (1978), 483 Pa. 75, 82 n.5, 394 A.2d 546, 550 n.5; Anderson v. Kansas City Baseball Club (Mo. 1950), 231 S.W.2d 170, 173; Felgner v. Anderson (1965), 375 Mich. 23, 45 n.6, 133 N.W.2d 136, 152 n.6), such is not the law in Illinois. First of all, this court, in Maytnier, followed the Restatement (Second) of Torts, and held that there is a duty to warn, stating:

“It does not necessarily follow, however, that once an owner of a ballpark has provided an adequate fenced-in area for the most dangerous part of the grandstand he has thereafter exculpated himself from further liability as defendant Chicago Cubs contends. To the contrary see Restatement of the Law of Torts, 2d, 344 (1964), which states:
‘A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons ..., and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’ ” (Emphasis added.) Maytnier, 80 Ill. App. 2d at 343.

However, in support of their argument that no duty to warn exists, the Sox cite Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456. Their reliance on Genaust, however, is unwarranted. According to the Sox, Genaust stands for the proposition that the presence of an open and obvious danger will automatically relieve a land owner from his duty of reasonable care owed to an invitee. The Sox overlook, however, that in Ward, our supreme court, in commenting on sections 340 and 343 of the original Restatement of Torts, stated “that an owner or occupier of land has no duty under any circumstances to protect entrants from conditions on his land of which the entrant knows and realizes the risk or which are obvious, has fallen under harsh criticism.” (Ward, 136 Ill. 2d at 146.) The plaintiff in Ward sued K mart, “seeking damages for injuries he sustained when he walked into a concrete post located just outside a customer entrance.” (Ward, 136 Ill. 2d at 135.) At issue was whether “defendant’s duty to exercise reasonable care extended to the risk that one of its customers would collide with the post while leaving the store carrying a large, bulky item.” (Ward, 136 Ill. 2d at 136.) As a preliminary matter, the court stated that besides being “relevant to whether the injured party was exercising a reasonable degree of care for his own safety,” the “obviousness of a condition is also relevant to the existence of a duty on the part of defendant.” (Ward, 136 Ill. 2d at 143.) The court then went on to caution that merely because a danger is deemed “open and obvious,” a land owner’s duty to warn is not necessarily negated, as the Sox contend here. The court stated:

“This court has not recently had occasion to address the validity of the ‘known’ or ‘obvious’ risk principle. We do so now. We conclude that to 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.) Ward, 136 Ill. 2d at 145.

Still later in its opinion, the court enlarged upon its clarification of the “open and obvious” rule:

“It must be remembered that under our Premises Liability Act [(Ill. Rev. Stat. 1985, ch. 80, par. 302)], and at least nominally under the common law, the landowner’s or occupier’s duty toward his invitees is always that of reasonable care. The only sound explanation for the ‘open and obvious’ rule must be either that the defendant in the exercise of reasonable care would not anticipate that the plaintiff would fail to notice the condition, appreciate the risk, and avoid it [citation], or perhaps that reasonable care under the circumstances would not remove the risk of injury in spite of foreseeable consequences to the plaintiff. But neither of these explanations justifies a per se rule that under no circumstances does the defendant’s duty of reasonable care extend to conditions which may be labeled ‘open and obvious’ or of which the plaintiff is in some general sense ‘aware.’ *** Attempting to dispose of litigation by merely invoking such relative and imprecise characterizations as ‘known’ or ‘obvious’ is certainly no adequate substitute for assessing the scope of the defendant’s duty under the circumstances ***.” (Emphasis added.) Ward, 136 Ill. 2d at 147-48.

Particularly pertinent to the facts in this case are the following comments by the Ward court:

“[T]he ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it. ***
‘[I]n any case where the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned ***.’ ” (Emphasis added.) Ward, 136 Ill. 2d at 148-49, quoting W. Keeton, Prosser & Keeton on Torts §61, at 427 (5th ed. 1984).

Thus Ward clearly holds that landowners cannot totally disclaim a duty owed to those rightfully on their premises merely because a danger is “open and obvious.” Rather:

“[t]he inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted *** or forgetful of the condition after having momentarily encountered it. If in fact the entrant was also guilty of negligence contributing to his injury, then that is a proper consideration under comparative negligence principles.” (Emphasis added.) Ward, 136 Ill. 2d at 152.

The Ward court’s concern for invitees whose attention might be distracted, or who may, after a lapse of time, forget the existence of the condition, is especially pertinent here, for it is common knowledge that at major league baseball games the attention of the spectators is frequently diverted, for example, by large numbers of vendors who purvey a variety of food and drink which the fans consume on the premises while the game is in progress, as plaintiff was doing in the instant case. It is to be expected, then, that in the process of purchasing and consuming such items, the fans’ distraction from the game is bound to occur. Taking into consideration the instruction that Ward affords, as well as Maytnier’s clear setting forth of a duty to warn, it would be reasonable to conclude that the Sox were under a duty to warn plaintiff of the possible dangers of being struck by a foul-tipped ball.

The Sox go on to claim that they warned plaintiff on three separate occasions of the dangers inherent in watching a major league baseball game by (1) flashing a warning on the screen, (2) announcing a warning over the public address system, and (3) the caveat printed on the back of the ticket stub, even though the part with the warning imprinted on it was taken at the admission gate. Whether or not these warnings were adequate compliance with the Sox’s duty, however, are issues for the trier of fact. Summary judgment was therefore improper.

Accordingly, for the reasons stated above, the judgment of the circuit court is reversed and this cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

HARTMAN, P.J., and DiVITO, J., concur.

“Also, the White Sox ask that all fans be alert and aware of thrown or batted balls. And bats that may leave the field of play and enter the seating area. The risk of injury to a spectator is greatly increased by those who do not pay attention to the play in progress. Thank you!!”
“The holder assumes all risk and danger incidental to the game of baseball, whether occurring prior to, during, or subsequent to the actual playing of the game, including specifically (but not exclusively) the danger of being injured by any object, including, without limiting the generality of the foregoing, thrown bats, and thrown or batted balls, and agrees that the participating clubs or their agents or their players, are not liable for injuries resulting from such cases.”

      The warning is alleged to have been announced as follows:

      The alleged warning reads as follows:


author: JUSTICE JOHNSON

text:
    CARL CURATOLA, Plaintiff-Appellant, v. THE VILLAGE OF NILES, Defendant-Appellee.
    First District (4th Division)
    No. 1—90—2401
    Opinion filed February 27,1992.
    Steinberg, Polacek & Goodman and Lewis, Davidson & Hetherington, Ltd., both of Chicago (Ann-Louise Kleper and Bruce D. Goodman, of counsel), for appellant.
    Richard T. Ryan and Mark F. Smolens, both of Flynn, Murphy, Ryan & Seyring, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Carl Curatola, brought this negligence action against defendant, the Village of Niles, to recover for an injury he received when he fell on Elizabeth Street in Niles, Illinois. The circuit court of Cook County ordered summary judgment in favor of defendant and denied plaintiff’s motion to reconsider. The sole issue on appeal is whether defendant owed a legal duty to plaintiff and therefore whether the trial court erred in denying plaintiff’s motion to reconsider the entry of summary judgment in favor of defendant.

We affirm.

On March 2, 1983, plaintiff was working as a truck driver for Yellow Freight System. He was delivering freight to Joseph’s Electric, located on the corner of Elizabeth Street and Milwaukee Avenue in the Village of Niles. An employee of Joseph’s Electric instructed plaintiff to park his truck and attached trailer. Plaintiff’s vehicle was positioned approximately six inches from the curb. After the delivery was unloaded, plaintiff walked to the rear door of the trailer. As he was pulling the trailer door closed, he stepped down to the ground with his right foot and into a pothole. Plaintiff’s foot twisted and he fell.

There are three elements to prove in an action for negligence: the existence of a duty, a breach of that duty, and an injury proximately resulting from a breach of that duty. Whether a duty exists is a question of law. Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 752.

Plaintiff contends that defendant owed him a duty of exercising ordinary care to maintain its property in a reasonably safe condition for intended or permitted users who are using the property in a reasonably foreseeable manner. Plaintiff argues that this duty arises pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a)), which provides in relevant part as follows:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.)

(See Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 830.)

A doctrine has developed with respect to the duties of a municipality to pedestrians not using the crosswalk. No duty is owed to pedestrians who use the public streets as walkways and walk outside of the crosswalks. Such a duty would overextend a municipal function. (Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 313, citing Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911.) Plaintiff’s underlying contention is that the fact situation of the instant case sets it apart from this doctrine.

Plaintiff stated that he was the driver of a legally parked vehicle. Further, he contends that his exit from the driver’s side onto the street was foreseeable. Plaintiff argues that no great burden would be imposed upon the municipality for it to exercise ordinary care in the area of the street where parking is permitted as well as in the adjacent area.

A case addressing this issue of foreseeability is Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290. That case involved a pedestrian who was struck by an automobile while crossing a thoroughfare lined with commercial buildings and residential dwellings on his way to his parked car.

In stating that foreseeability is not the sole factor in assessing a duty, the Wojdyla court reiterated the principle set forth by the supreme court, which observed: “ ‘The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.’ ” Wojdyla, 209 Ill. App. 3d at 297-98, quoting Lance v. Senior (1967), 36 Ill. 2d 516, 518.

Plaintiff cites Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, to support his contention that the burden he wishes to place on the Village of Niles is reasonable. Di Domenico involved a plaintiff who parallel parked his car and walked on the street side to remove some items from the trunk. In so doing, he fell into a hole that was near his vehicle. In that case, the court argued that by allowing parking on the street, a municipality should recognize “the necessity of pedestrians walking in the street and using a portion of it as a pathway, as means of ingress and egress to and from their vehicles.” Di Domenico, 171 Ill. App. 3d at 295.

The plaintiff in Di Domenico was legally parked. In a motion to reconsider, plaintiff in the case at bar provided evidence that he too was legally parked. Counteraffidavits on this issue were not filed. However, even assuming plaintiff was legally parked, the holding of Di Domenico has been called into doubt by Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 914.

Vlahos involved a plaintiff who was injured when he fell into a hole while stepping off the curb en route to the driver’s side of his truck. Plaintiff in that case and plaintiff here have a similar argument. They both assert that defendant permitted and intended the area where the respective incidents occurred to be used for parking. A further contention in both cases is that use of the immediate area around the vehicles was foreseeable and intended by the municipalities in each case.

Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, relied upon Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, and Risner v. City of Chicago (1986), 150 Ill. App. 3d 827. This is noted by plaintiff in the instant case as a means to distinguish Vlahos from the case at bar. Still, the principles brought forth from these two cases remain valid. A municipality has no duty to warn pedestrians not using the crosswalk. (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 831.) Further, it is reasonable for a municipality to foresee that streets will be used only for vehicular traffic. Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 654; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 332.

Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, is a case that has been decided since the instant case was briefed. Its holding supports plaintiff’s argument in the case at bar. Torres involves a plaintiff who alighted from his automobile after parking it on the street. He exited on the street side and continued to the rear of the vehicle to remove groceries from the trunk. He was injured when he fell into a pothole near the trunk of the automobile.

Torres acknowledges the duty of a municipality as set forth in Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, but instead relies upon Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, and Marshall v. City of Centralia (1991), 143 Ill. 2d 1. Di Domenico has already been called into question by Vlahos. Princivalli and Marshall are also distinguishable.

In Princivalli, the court reversed the entry of summary judgment for the City of Chicago because its motion did not address the threshold issues of permitted and intended use, and reasonable foreseeability. It is plausible to consider plaintiff’s use of his delivery truck as foreseeable. Nevertheless, the duty of a municipality has never been extended to include deliverymen utilizing the street as an unloading zone. Plaintiff was not prohibited from having his truck unloaded on the street in front of Joseph’s Electric. Yet his being permitted to do so does not include him in the category of “intended and permitted” users under the Illinois Local Governmental and Governmental Employees Tort Immunity Act. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a).) The importance of this determination was emphasized by the Illinois Supreme Court and noted in Torres as follows:

“Our supreme court has recently had the opportunity to evaluate the City’s duty under the Tort Immunity Act. In Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315, the court found that the defendant’s duty is limited by the language of the Tort Immunity Act and, therefore, whether the defendant owed the plaintiff a duty requires the court to determine whether the plaintiff was an intended and permitted user of the property.” Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, 92.

The duty of care required from a municipality cannot be extended to account for the seemingly endless scope of foreseeable use. The necessity of imposing a limitation on municipal duty was noted in Householder v. City of Bunker Hill (1988), 172 Ill. App. 3d 1037:

“The reluctance of the courts to place a duty upon municipalities to use care to maintain streets in a safe condition for pedestrians other than places designated as crossings must arise from the magnitude of the burden of doing so when compared with the likelihood streets will be used for that purpose.” (Householder, 172 Ill. App. at 1039.)

Municipalities cannot be subject to the unreasonable financial burden of every foreseeable user.

For the foregoing reasons, we affirm the trial court’s order granting defendant’s motion for summary judgment.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIBERIUS MAYS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0243
    Opinion filed April 3, 1992.
    Rehearing denied July 16,1992.

      Randolph N. Stone, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Robyn Berman, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant, Tiberius May, was convicted in the circuit court of Cook County of attempted murder, three counts of aggravated battery and armed robbery. (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9 — 1(a), 12 — 4, 18 — 2.) The trial court thereafter sentenced defendant to a 50-year term for attempted murder under the extended-term provision (111. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 2(a)(2)), and a consecutive 15-year term for armed robbery. On appeal, defendant challenges his conviction and sentence, and raises the following issues for our review: (1) whether defendant’s statement was voluntary; (2) whether the State’s impeachment by prior convictions was proper; (3) whether the State proved defendant guilty of attempted murder beyond a reasonable doubt; and (4) whether defendant’s sentences were proper.

Defendant filed a pretrial motion to suppress, claiming that his statements to the police and assistant State’s Attorney resulted from physical coercion and threats and were, therefore, involuntary. For trial purposes, the parties stipulated to all of the testimony heard on the motion to suppress. The facts in this case, with the exception of defendant’s allegation of police brutality, are substantially undisputed.

On November 4, 1987, at about 2 a.m., defendant beat John Sarnicki with a metal pipe until he was unconscious, then took his wallet. Defendant gave a court-reported statement at the police station, which is summarized as follows: While walking on a street in Chicago, defendant saw a city tow truck. After the driver exited the truck, and refused defendant’s offer of assistance, defendant struck him on the head with a 15- to 16-inch hollow, metal pipe. When the victim fell to the ground face-up, defendant hit him twice in the head and mouth, turned him over, and removed his wallet. Defendant fled the scene and dropped the pipe in some water. He then went to an empty apartment where he tried to stuff the wallet in the toilet and hide the credit cards under a radiator. He threw his bloodstained sweater in the stairwell of the apartment building, then fell asleep. Two officers entered the apartment, woke him up, asked him his name, and hit him when he denied involvement in the incident. After one of the officers retrieved the wallet from the toilet, defendant showed them where he hid the credit cards. He agreed to return to the scene with the officers. He concluded his statement by stating that the assistant State’s Attorney and the detectives treated him fairly and allowed him to use the telephone.

Defendant testified in his own behalf at the hearing on the motion and by way of stipulation at trial. When the police arrived at the vacant apartment at about 2 a.m., he was “very intoxicated” and “very groggy.” Between 11 p.m. and 12 a.m., he drank two one-half pints of gin, and smoked marijuana and cocaine. After the officers learned his name, they kicked him, and then hit him in the stomach after they searched the apartment. Defendant stated that the officers threatened “to do this and that” if he didn’t cooperate with them. Defendant stated that he spoke with Detective Jaglowski at the police station, and when he denied any involvement, Jaglowski hit him in the stomach three or four times and threatened to continue if he did not cooperate. He requested a public defender several times, but was refused. He also stated that Jaglowski did not read him his rights. According to defendant, when Evelyn Clay, the assistant State’s Attorney, arrived, he asked for a lawyer and for permission to use the telephone. Clay refused to get him an attorney, then left when defendant stopped talking to her. Clay returned a few hours later with a court reporter. He stated that he told Clay that the police had hit him, and that she “cut [him] off in the statement.” Defendant claimed that he was “very high,” groggy and “somewhat tired” when he gave the statement. On cross-examination, defendant admitted that he told Clay he was treated fairly and was allowed to use the telephone. He claimed that he told a paramedic about his stomach pains when he first arrived at the Cook County jail, but that the paramedic found “nothing real bad.” He testified that he requested a doctor 30 to 40 times, but was never treated for stomach injuries nor had he seen a doctor. Defendant stated that he had two prior convictions in 1986, one for theft and one for possession of a controlled substance.

Lonnie Williams, a hotel switchboard operator, testified that defendant entered the hotel at about 1:30 a.m. on the night of the beating. Defendant, whom Williams had known for several years, was “tipsy, smelling of marijuana and beer.” About one hour later, a man entered the hotel and said, “Look at this guy beating up on this tow truck driver.” Williams went outside and saw defendant across the street with a crowbar in his left hand several feet from a person lying on the ground. Williams saw defendant walk across the lot, pick up a piece of paper and wipe off the crowbar. Williams telephoned the police twice. When the police arrived defendant was gone, but Williams gave them defendant’s name.

By way of stipulation, it was established Darnell Jackson would testify that at about 2:40 a.m. on the morning of the incident, he and a friend were walking and saw a city tow truck. Next to the tow truck, they saw the victim on his back bleeding severely from the head. Jackson used the radio in the tow truck to call an ambulance and waited several minutes until the police arrived.

Officers Michael Decker and Edward Dolan of the Chicago police department gave substantially identical testimony. When they arrived at the scene, they saw the victim lying on the ground next to the tow truck. The victim was unable to respond to questions and was taken by ambulance to the hospital. The officers spoke with Williams, who gave them defendant’s name, and Larry Parker, a hotel resident, who took them to the apartment of Doris Mays, defendant’s sister. Mays directed the officers to a vacant apartment in her building where defendant sometimes slept. The officers found defendant sleeping on the floor near the open door, woke him up, and arrested him. They read him his rights which he stated that he understood. Dolan found a wallet inside the toilet which contained a slip of paper with a City of Chicago tow pound number on it. Defendant told the officers that he “got the wallet from the tow driver on Lake Street.” Defendant said that he hit the victim over the head with a pipe, and then showed the officers a radiator under which he hid the remaining contents of the victim’s wallet. Defendant returned to the scene and led the officers to the pipe. Both officers testified that they did not strike or threaten defendant at any time. Dolan described defendant as “somewhat calm. Very articulate. Not very excitable. He was fine.” Defendant did not appear drunk, nor did he tell the officers that he was drunk or tired.

Detective Allen Jaglowski testified for the State that he spoke with defendant at the scene at about 6 a.m., and later that morning at the police station. Defendant told Jaglowski that he was walking down the street and tried to engage the tow truck driver in conversation. When the driver did not respond, defendant beat him with a dumbbell handle and took his wallet from his pocket. Defendant identified the wallet, the credit cards and the dumbbell handle. Jaglowski testified that neither he nor any other officer hit or threatened to hit defendant if he did not cooperate. Nor did defendant complain to Jaglowski of any mistreatment or stomach pains. Jaglowski stated that defendant spoke with Assistant State’s Attorney Evelyn Clay for several hours in his presence and gave the statement. Although Clay did not testify, the parties stipulated that Clay did not question defendant about his claim of police mistreatment in his statement.

The State introduced by stipulation the testimony of Dr. John Shea, a neurosurgeon at McGaw Hospital, that when the victim, who was not breathing, was brought to the hospital, he had four large lacerations to his head and was not expected to survive the remainder of the day. Shea performed a life-saving operation and removed 25% of the victim’s brain which had been damaged. The victim remained in a coma for eight days and was hospitalized for six months. The victim is unable to speak, is deaf in one ear, and has limited vision as a result of the injuries.

The parties also stipulated that the paramedic who interviewed defendant on the day of the arrest would testify that defendant told him he had no complaints about his physical condition and that his health was good.

The trial court denied defendant’s motion to suppress, finding that defendant intentionally attempted to ruin his statement by claiming police brutality. The court also found that defendant was not intoxicated at the time of the beating, although there was some evidence of substance abuse in his past. The court found defendant guilty of attempted first degree murder, armed robbery and aggravated battery. At the sentencing hearing, the trial court heard evidence in aggravation and mitigation. The court subsequently found defendant eligible for an extended and a consecutive term, and sentenced him to a 50-year term for the attempted murder charge and a consecutive 15-year term for armed robbery.

Initially, we consider defendant’s contention that his post-arrest statements resulted from physical coercion and threats and were, therefore, involuntary. In this regard, defendant claims that the trial court improperly denied his motion to suppress.

We will not set aside a trial court’s ruling on a motion to suppress unless it is clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Nor will we substitute our judgment for the trier of fact when the evidence is merely conflicting. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) It is the trier of fact’s function to determine the credibility of witnesses, the weight given to their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) It is also the trial court’s function to judge the voluntariness and admissibility of a confession. (People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684.) A confession resulting from the use of force is not admissible, and when it is “conceded or clearly established” that defendant received injuries while in police custody, the State bears the burden of establishing the cause of such injuries by clear and convincing evidence. People v. Hooper, 133 Ill. 2d at 496-97, 552 N.E.2d at 695; People v. Wilson (1987), 116 Ill. 2d 29, 40, 506 N.E.2d 571, 576.

We find People v. Hooper and People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123, instructive here. In each case, our supreme court rejected defendant’s claim where no evidence established that defendant was injured while in police custody. In Hooper, the court determined that neither the photographs nor defendant’s “general appearance” supported the claim of injury. The court noted that although defendant was treated subsequent to his arrest for a cut on his ankle, the testimony did not support his claim that he received such injury while in police custody. (Hooper, 133 Ill. 2d at 497, 552 N.E.2d at 695.) In Clark, defendant sustained “a blunt trauma to the neck and chest,” which defendant claimed he received when he was “kicked all over.” The supreme court rejected defendant’s claim, finding that defendant did not demonstrate when the injury occurred and showed no signs of physical impairment while in custody. (Clark, 114 Ill. 2d at 458-59, 501 N.E.2d at 127.) Like Hooper and Clark, the evidence here does not support defendant’s claim that he was injured while in police custody. Defendant did not complain of pain or discomfort during his interview at the police station, nor did he mention police misconduct apart from the single, isolated comment in his statement. Moreover, when asked specifically about his health following his arrest, defendant told the paramedic that he was healthy and had no complaints.

People v. Banks (1989), 192 Ill. App. 3d 986, 549 N.E.2d 766, relied upon by defendant, is inapposite. In Banks, this court held that the trial court should have suppressed defendant’s confession as involuntary where medical testimony supported defendant’s claim of police brutality. Unlike here, the evidence of defendant’s injury in Banks was clear. Medical testimony established that defendant sustained numerous injuries, including lacerations, bruises, scrapes, discolorations and swelling. Moreover, the examining doctor testified that such injuries supported defendant’s theory of police brutality. In contrast to Banks, no evidence here established that defendant suffered any injury while in police custody. (Cf. People v. Sloss (1952), 412 Ill. 61, 104 N.E.2d 807.) Indeed, the parties stipulated that defendant told a paramedic on the day of his arrest that his health was good and that he had no complaints. Nor did defendant at any time receive treatment for his alleged injuries. Defendant’s single reference that the police hit him was contradicted by Officers Dolan, Decker and Jaglowski, who each denied involvement in or knowledge of defendant being hit. (Cf. People v. Cunningham (1964), 30 Ill. 2d 433, 197 N.E.2d 40.) After hearing this conflicting evidence, the trial judge expressly rejected defendant’s testimony as incredible. We will not substitute our judgment for that of the trial judge when the evidence is conflicting, as here. Moreover, defendant spoke openly about the events which led to the arrest (People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123), and according to Jaglowski, defendant appeared alert and coherent when he gave his statement. During the interview with Clay, which lasted several hours, defendant did not complain of pain. When we consider the totality of the circumstances surrounding defendant’s statement (People v. Cages (1980), 82 Ill. App. 3d 900, 403 N.E.2d 565), we find ample evidence to support a finding that defendant made the statement voluntarily.

We also reject defendant’s argument that the assistant State’s Attorney’s failure to investigate the claim of police misconduct denied defendant due process, and his reliance on People v. Frazier (1984), 127 Ill. App. 3d 151, 469 N.E.2d 594, for this proposition. In Frazier, this court stated that “[i]n this regard, *** a prosecutor is the representative of all the people, including the defendant, and it is as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen.” (Emphasis added.) (Frazier, 127 Ill. App. 3d at 156, 469 N.E.2d at 598.) At issue in Frazier was whether the prosecutor systematically excluded black jurors. Such systematic exclusion by the State is per se unconstitutional, and “a clear violation of [a prosecutor’s] ethical and professional duty.” (Frazier, 127 Ill. App. 3d at 156, 469 N.E.2d at 598.) By contrast, Clay’s decision not to investigate here was not a per se unconstitutional, affirmative act. Moreover, when she interviewed defendant, defendant did not complain of police mistreatment, except for the isolated reference, nor appear to be injured or in physical discomfort. Defendant responded affirmatively when asked if the detectives and the assistant State’s Attorney treated him well. We cannot say that Clay’s failure to investigate defendant’s allegation that the police hit him, in light of the other contradictory evidence, constituted a denial of due process. For all of the above reasons, we find defendant’s statement voluntary and find that the trial court’s denial of the suppression motion was supported by the manifest weight of the evidence.

Defendant next contends that he was not proved guilty of attempted murder beyond a reasonable doubt because he intended only to rob the victim, not to kill him. In addition, defendant argues that the State improperly carved two offenses out of a single act in violation of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

When a defendant claims that he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) To sustain an attempted murder conviction, the State must show that the accused acted with the specific intent to kill. (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a); People v. Mitchell (1991), 209 Ill. App. 3d 562, 568 N.E.2d 292.) Because intent is a state of mind which can rarely be proved by direct evidence, intent may be inferred from the character of the assault, and the use of a deadly weapon. (People v. Starks (1989), 190 Ill. App. 3d 503, 546 N.E.2d 71; People v. Tyler (1989), 188 Ill. App. 3d 547, 544 N.E.2d 1077.) Moreover, the nature and seriousness of the injury may be considered in assessing whether the incident amounted to an attempted murder. (People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.) It is the function of the trier of fact to determine the existence of the requisite intent, and such determination will not be disturbed on appeal unless reasonable doubt exists as to defendant’s guilt. People v. Myers (1980), 83 Ill. App. 3d 1073, 404 N.E.2d 1082.

We believe that the evidence in this case, when viewed in the light most favorable to the prosecution, is sufficient to support a finding of guilty of attempted murder beyond a reasonable doubt. Defendant gave a detailed account of his beating of the victim. Defendant admitted that he struck the victim in the head from behind several times with a 15- to 16-inch pipe, which he concedes on appeal is a “deadly weapon.” Defendant then continued to hit the unarmed victim even after he fell to the ground and defendant saw that he was bleeding. The victim did not instigate the attack or resist in any way. Moreover, defendant’s intent to kill may be inferred from the seriousness of the victim’s injuries. The stipulated medical testimony established that the victim’s injury was life-threatening and required emergency surgery. (People v. Tyler (1989), 188 Ill. App. 3d 547, 544 N.E.2d 1077.) The question of intent was for the trier of fact (People v. Starks (1989), 190 Ill. App. 3d 503, 546 N.E.2d 71), and based upon the foregoing, we cannot say that the trial court’s express finding that defendant specifically intended to kill the victim was error. We therefore will not reverse defendant’s attempted murder conviction.

Nor do we believe, as defendant claims, that the State improperly carved two offenses out of a single act in violation of People v. King. Attempted murder and armed robbery are based upon separate acts which each require proof of different elements. (People v. Camacho (1979), 71 Ill. App. 3d 943, 389 N.E.2d 1213.) The record shows that defendant used force to steal the victim’s wallet and thus substantiates the armed robbery conviction. As indicated above, we believe that the State also provided sufficient evidence to prove attempted murder beyond a reasonable doubt. For these reasons, we reject defendant’s claim that his conduct may support only one conviction.

We decline to address defendant’s claim that the State improperly impeached defendant at the suppression hearing by failing to introduce certified statements of conviction, and by using a conviction based upon a probation violation. (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1410.) To preserve error for review defendant must object both at trial and by post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Any error in proving a prior conviction during cross-examination is waived if not raised at the time such information is elicited. (People v. Preston (1978), 61 Ill. App. 3d 434, 378 N.E.2d 372.) Defendant here failed to object to this testimony at trial and did not raise this issue in his post-trial motion. We, therefore, find that defendant waived this issue, and we, accordingly, decline to address it.

Defendant next claims various errors in sentencing. At the sentencing hearing, defendant presented evidence that he was an educated and intelligent person who subsequently turned to drugs. Defense counsel also pointed to defendant’s lack of a prior violent criminal record, his remorse and his potential for rehabilitation. Defendant stated that he felt he was being victimized because he is black and the victim is white. Defendant was 26 years old at the time of the crime. The State presented the following factors in aggravation: the brutality of the attack; defendant’s two prior convictions for possession of a controlled substance and theft; the nature of the injuries suffered; and the impact on the victim’s family.

The trial judge described defendant’s conduct as "one of the most wantonly brutal and heinous that [he] had ever seen as a prosecutor, as a defense attorney, or as a judge in over 30 years in this business.” The judge also stated as follows:

“You had everything in the palm of your hand, but you chose to put it up your nose and ingest vile drugs. Well, this is what happens. You brought it upon yourself.
* * *
I find you to be a totally reprehensible individual. Unlike most of the people who appear before this Court, you had the abilities and you had the chance and you chose to throw them away.”

The judge found defendant eligible for an extended term and a consecutive term. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—2(a)(2), 1005 — 8—4(a).

It is well settled that the imposition of a sentence is a matter of judicial discretion which this court will not disturb on appeal absent an abuse of discretion. (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.) In determining the appropriate sentence, a court must consider all factors in aggravation and in mitigation, and balance them against each other. (People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001.) A trial court’s sentence is entitled to great deference and weight on appeal because it is in a better position than a reviewing court to determine a proper sentence. People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492.

Defendant contends that the trial court improperly imposed a consecutive sentence because defendant was prosecuted for more than one offense arising out of a single episode. We disagree. Section 5— 8 — 4(a) of the Unified Code of Corrections (the Code) states in pertinent part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, *** in which event the court may enter sentences to run consecutively.” (Emphasis added.) (111. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a).)

As this statutory provision indicates, the trial court may impose a consecutive sentence if a defendant is convicted of a Class X felony and if he inflicted severe bodily injury. (People v. Buford (1988), 178 Ill. App. 3d 329, 533 N.E.2d 472.) Defendant here was convicted of armed robbery, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 18— 2(b)), and he inflicted serious bodily injury by repeatedly hitting the victim in the head. Indeed, the stipulated medical testimony established that the injuries required removal of 25% of the victim’s brain, and that the victim could not speak, was deaf in one ear and had limited vision as a result of the injuries. Therefore, whether defendant’s criminal objective changed throughout the incident is irrelevant because defendant’s conviction and the conduct surrounding the armed robbery satisfied the statutory exception to the “substantial change” requirement. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a).

We also reject defendant’s related claim that the trial court’s failure to state in the record its opinion that a consecutive term was necessary to protect the public renders the consecutive sentences improper. The relevant provision states as follows:

“(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-4(b).)

We believe that the reasons set forth in the record satisfy its requirements. Prior to sentencing, the trial judge described defendant’s behavior as “absolutely horrendous” and “the most wantonly brutal and heinous” that he had seen in 30 years. Moreover, after imposing sentences totalling 65 years, the trial judge stated that defendant “won’t be released a day too soon as far as I’m concerned.” Nothing in the statute requires the court to recite particular language in imposing consecutive sentences (People v. Lewis (1988), 175 Ill. App. 3d 156, 529 N.E.2d 752), and we believe that the trial judge’s strong comments indicate his opinion that the need for public protection warranted a consecutive term. Moreover, the record demonstrated that the court considered defendant’s prior convictions. (People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.) As to the sufficiency of reasons set forth in the record for a consecutive sentence, we will not substitute our judgment for that of the sentencing court. People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

Defendant claims that the extended-term sentence was excessive on the grounds that defendant’s criminal conduct here was not exceptionally brutal or heinous. Section 5 — 8—2(a)(2) of the Code provides that an extended-term sentence may be imposed when a defendant is convicted of any felony and the “court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)). In evaluating the brutality and heinousness of the offense, the court will consider all of the circumstances surrounding the incident. (People v. Hall (1987), 164 Ill. App. 3d 770, 518 N.E.2d 275; People v. Buford (1988), 178 Ill. App. 3d 329, 533 N.E.2d 472.) A showing that defendant inflicted torture or unnecessary pain is not a prerequisite to finding brutal or heinous behavior. (People v. Barfield (1989), 187 Ill. App. 3d 190, 543 N.E.2d 812.) Our supreme court in People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, emphasized that the basis for the extended-term sentence is to ensure that punishment is appropriately based upon the particular circumstances of the case, and to ensure that society is protected from people whose conduct demonstrates a capacity to commit particularly brutal or heinous crimes. La Pointe, 88 Ill. 2d at 500-01, 431 N.E.2d at 352-53.

In People v. Barfield this court upheld the imposition of an extended sentence, finding defendant’s conduct indicative of wanton cruelty. In Barfield, codefendants intended to rob the victim. After the victim was thrown to the floor, defendant shot the victim in the head, waited awhile, then shot him in the head again. Defendant ran from the scene and hid the weapon. This court upheld the extended sentence, characterizing defendant’s conduct as “a cold-blooded attack upon a person who was on the ground and defenseless.” (Barfield, 187 Ill. App. 3d at 203, 543 N.E.2d at 819.) This court found it significant that defendant showed no remorse for his conduct, but rather “defendant ran from [the scene] and made no attempt to help the victim. Defendant went home and attempted to hide the murder weapon.” Barfield, 187 Ill. App. 3d at 203, 543 N.E.2d at 819.

In the present case, defendant admitted that he hit the unarmed victim in the head from behind with a metal pipe, then continued to inflict blows to the head and face even after the bleeding victim fell to the ground. As in Barfield, defendant made no attempt to help the victim, who was not conscious or breathing when paramedics arrived. Defendant here, as in Barfield, tried to hide the weapon and went home. See also People v. Gutierrez (1985), 136 Ill. App. 3d 774, 791, 483 N.E.2d 944, 955 (extended term warranted where defendant shot victim from behind while victim was “minding his own business”); People v. Eckles (1980), 83 Ill. App. 3d 292, 404 N.E.2d 358 (extended term warranted where defendant shot the victim twice, then four more times after she fell to the ground).

Nor does this result conflict with People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, and People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003, as defendant claims. In reversing and remanding defendant’s extended-term sentence in Andrews, our supreme court relied on the following facts: defendant’s prior convictions, theft and burglary, were not crimes of violence; defendant’s lack of intent to kill the victim prior to the crime; and defendant’s sincere expression of remorse at the sentencing hearing. (Andrews, 132 Ill. 2d at 466, 548 N.E.2d at 1032.) Andrews is inapposite because the record here did not conclusively establish defendant’s lack of intent to kill the victim prior to the crime. Moreover, the trial judge here apparently did not find defendant’s remorse sufficiently persuasive. Lucas addressed whether the circumstances surrounding the victim’s death were exceptionally brutal or heinous and indicative of wanton cruelty to support the death penalty under section 9 — l(bX7) of the Criminal Code of 1961. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(bX7).) Because Lucas involved a different statutory provision, we find it unpersuasive here.

Lastly, defendant argues that the trial court erred in sentencing defendant by not giving proper consideration to mitigating facts and the possibility of defendant’s rehabilitation. We disagree. The record reflects that the trial court heard the factors in aggravation and mitigation. After giving adequate consideration to these factors, the court felt that the extreme brutality justified the imposition of an extended term for attempted murder and a consecutive term for armed robbery. We do not believe that the sentence reflects an abuse of judicial discretion, and we find no error requiring reversal.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.