text:
    REBECCA JACKSON, Special Adm’r of the Estate of Ken Dale Jackson, Deceased, Plaintiff-Appellant, v. ARMANDO PELLERANO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 89—0652
    Opinion filed March 5, 1991.

      Steven J. Rosenberg, P.C., of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Douglas L. Prochnow and Mark P. Miller, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Rebecca Jackson brought suit against defendants Balasubramaniam Iyer, M.D. (Iyer), and Armando Pellerano, M.D. (Pellerano), alleging medical malpractice in their failure to treat her husband, decedent Ken Dale Jackson (Jackson). After a jury verdict in favor of defendants, plaintiff filed post-trial motions for a new trial or for judgment notwithstanding the verdict and for sanctions against Iyer and his counsel. The motions were denied. Plaintiff appeals, raising as issues (1) whether the circuit court erred in admitting evidence concerning the intoxication of plaintiff’s decedent; and (2) whether the circuit court erred in denying plaintiff’s motion for section 2 — 611 sanctions (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) against Iyer and his counsel.

On July 21, 1983, just before 6 p.m., Ken Jackson was injured in a single-car accident on the Stevenson Expressway when the van he was driving hit an abutment. At approximately 6 p.m., paramedics Roberto Lopez and Rudy Agguire arrived at the accident scene and transported Jackson to St. Anthony Hospital.

Although he was diabetic, restless, unruly, and combative, Jackson was in stable condition when he arrived at the hospital. After making his diagnosis that Jackson was a multiple-trauma patient and ordering X rays, Surander Singhal, M.D., the emergency room physician, ended his shift at 7 p.m., and Santosh Gill, M.D., a cardiology resident moonlighting at St. Anthony Hospital, took over the care of Jackson.

When Dr. Gill assumed Jackson’s care from Dr. Singhal, she determined that Jackson’s vital signs were stable and that he was experiencing mild respiratory distress. She also determined that he had a fracture of the left eighth rib, a fracture of the right femur, and a possible fat embolism. In addition, Jackson’s lab results, taken at 6:45 p.m., showed that no alcohol was detected in his blood.

Since the common practice at St. Anthony Hospital regarding multiple-trauma patients in the emergency room was to contact the general surgeon on call, Dr. Gill telephoned defendant Pellerano and advised him of Jackson’s status. Although Dr. Gill could not remember what she told Pellerano, her usual practice was to evaluate the patient, obtain a short history, and describe the physical findings and lab results to him. Pellerano was advised that Jackson was involved in an automobile accident, and that he had a broken leg, chest trauma, and bruises and cuts on his face and scalp. Pellerano also learned from Dr. Gill that she had reviewed the X rays.

Based on this information, Pellerano told Dr. Gill to contact Dr. Vachout, an orthopedist, concerning the bone injuries, and defendant Iyer, a thoracic surgeon, concerning the chest trauma. The medical chart on Jackson reflected that Iyer was called at 8:50 p.m. and Dr. Vachout was called at 9 p.m. Although she could not recall what she told Iyer, as a rule, Dr. Gill would have told him the same things she told the general surgeon, information concerning the patient’s condition and the lab results. Iyer had no recollection, however, of receiving a call from anyone at St. Anthony Hospital at 8:50 p.m.

At about 9:15 p.m., Jackson’s condition worsened. Dr. Gill summoned Dr. Travino, the house physician in charge of the entire hospital except for the emergency room. The diagnosis of hemothorax, or blood in the chest cavity, was made after Dr. Gill consulted with Dr. Travino. By 9:30, Dr. Travino had taken over Jackson’s care and treatment. Dr. Travino inserted a chest tube in Jackson’s left chest and inserted a tube in his trachea to assist breathing.

According to the nurses' notes, Iyer was called again at 9:45 p.m.; however, it was not known who spoke with him. Iyer had no recollection of receiving this call.

At approximately 10:35 p.m., Pellerano spoke with Dr. Gill on the telephone for the second time that evening, and was informed that Jackson was in shock and his condition was deteriorating. He advised Dr. Gill that he was coming to the hospital right away. Upon arrival at the emergency room, Pellerano was advised that Jackson had been taken to the intensive care unit.

When Pellerano arrived at the intensive care unit at approximately 11:15 p.m., a code blue was underway. Dr. Travino, the code blue leader, was attempting to resuscitate Jackson; nurses and respiratory therapists were assisting; and a crash cart was present. Shortly before Pellerano’s arrival, Jackson had suffered cardiac arrest. Pellerano remained at the intensive care unit doorway, observed the activities, and determined that the medical team was following the correct procedures for a code blue. He stayed in the intensive care unit in case he was needed as a backup for Dr. Travino. The code blue lasted approximately 1 hour and 10 minutes; Pellerano pronounced Jackson dead at 12:15 a.m. on July 22,1983.

On July 11, 1984, plaintiff filed a malpractice complaint against Pellerano and others to recover damages for the alleged wrongful death of Jackson. Iyer was added as a defendant in plaintiff’s first amended complaint. Based upon his testimony that he was never asked to, nor did he, treat plaintiff’s decedent, Iyer moved for dismissal. Judge Nicholson granted Iyer’s motion on October 30,1985.

Plaintiff appealed the dismissal, and on March 8, 1988, the appellate court reversed Judge Nicholson’s order and remanded the case to the circuit court. {Jackson v. Iyer (1st Dist. 1988), No. 86 — 3134 (unpublished order under Supreme Court Rule 23).) On May 5, 1988, a motion was filed to have the case against Pellerano set for trial on a date certain. On May 19, 1988, Iyer’s counsel was mailed a copy of the appellate court’s letter transmitting the mandate to the circuit court.

On June 9, 1988, Judge Foreman set a trial date of September 22, 1988. On June 20, 1988, counsel for Pellerano mailed copies of the June 9, 1988, order to counsel for plaintiff and counsel for Iyer. In addition, on June 21, 1988, plaintiff’s counsel wrote a letter to Iyer’s counsel which advised him that Iyer was back in the case. Between June 9, 1988, and September 22, 1988, counsel for plaintiff and defendants corresponded on numerous occasions in connection with discovery and the upcoming trial.

On September 22, 1988, counsel for Pellerano and counsel for plaintiff appeared, but counsel for Iyer did not. After receiving a call from the trial judge, Iyer’s counsel appeared in a special and limited capacity to contest the court’s assertion of personal jurisdiction. Iyer argued that, following the reversal of Judge Nicholson’s order on March 8, 1988, plaintiff had failed to properly reinstate her case under Supreme Court Rule 369(c) against Iyer. 107 Ill. 2d R. 369(c).

After a full hearing on the reinstatement issue, the trial judge ruled that the mandate which issued on May 19, 1988, reinvested the circuit court with jurisdiction, that Iyer was properly a party to the lawsuit, and that the trial should proceed.

On the morning of September 26, 1988, Iyer moved for mandamus relief and an emergency stay of the trial in the Illinois Supreme Court and served those motions upon all parties and the trial judge. The trial judge, however, ordered that the trial begin immediately. Iyer then filed a motion to continue the trial and motions to dismiss, all of which were denied.

For the next four days the trial progressed. On September 30, 1988, the supreme court granted Iyer’s emergency motion and stayed the trial; the proceedings against Iyer were then abated.

On October 3, 1988, plaintiff filed with the supreme court her consolidated motion to vacate the order staying the trial, objections to the motion for leave to file a petition for a writ of mandamus, and a motion for sanctions against Iyer and his counsel. On October 4, 1988, Justice William Clark denied plaintiff’s motion to vacate the emergency stay and set the remaining motions to be briefed and for decision by the full supreme court. On October 6, 1988, the trial judge declared a mistrial.

On November 1, 1988, the supreme court denied plaintiff’s motion for sanctions, denied Iyer leave to file for mandamus, and vacated its earlier stay.

On November 7, 1988, Iyer filed a motion to transfer the case to Judge Nicholson and to set a discovery schedule. The motion recited the full appellate history of Iyer’s motion to dismiss. After hearing arguments, Judge Foreman returned the case to the trial judge.

The trial judge ordered that the trial of both defendants begin on December 5, 1988. On November 10, 1988, Iyer filed a motion to vacate the trial date, to set a discovery schedule, and to transfer the motion to dismiss to Judge Nicholson for rehearing. On November 15, 1988, the trial judge set a discovery schedule, but refused to vacate the trial date and refused to transfer the motion to dismiss to Judge Nicholson.

Before trial commenced, plaintiff filed several motions in limine to preclude the introduction of any evidence concerning Jackson’s possible intoxication at the time of the accident. Plaintiff asserted that Jackson’s possible intoxication was irrelevant to defendants’ alleged failure to render treatment. Defendants responded that in a wrongful death action, the jury was entitled to know what type of person decedent was in order to properly assess damages. The court denied plaintiff’s motion and ruled that evidence of intoxication would be admitted.

The second trial began on December 5, 1988. The jury heard evidence on several different occasions concerning decedent’s possible intoxication. Roberto Lopez, one of the paramedics at the accident scene, testified that decedent was unruly and combative and told him he had been drinking heavily prior to the accident. Moreover, the paramedics’ report of the accident reported that decedent was heavily intoxicated. Lopez acknowledged, however, that decedent’s unruly behavior could also have been due to the fact that he was seriously injured and was having trouble breathing.

Dr. Singhal testified that decedent, when brought into the emergency room, was restless and uncooperative and stated that this could have been a sign that decedent was intoxicated. Dr. Singhal, however, admitted that restlessness and uncooperative behavior could also have been due to decedent’s severe pain.

Both Dr. Gill and Pellerano testified that, according to the tests performed in the emergency room, decedent did not have any alcohol in his bloodstream. However, Pellerano testified that decedent could still have been intoxicated even though the blood-alcohol results were negative; if decedent had vomited prior to taking the test, the test results could have shown negative.

Similarly, defendants’ expert, Larry Gunn, M.D., testified that it was possible that, if an intoxicated individual vomited prior to undergoing a blood-alcohol test, the results might be negative. Dr. Gunn, however, acknowledged that a patient’s intoxication would not change the standard of care which a doctor renders.

Vincent Markovchick, M.D., plaintiff’s expert, testified that decedent would not have had alcohol on his breath because his initial blood-alcohol was negative.

Sergeant Vernes Jones, who investigated the accident, testified that he saw decedent in the emergency room and that decedent was swinging his arms around and yelling. However, Jones could not say whether decedent was intoxicated.

During closing arguments, neither counsel for defendants mentioned decedent’s possible intoxication. Rather, it was plaintiff’s counsel who argued that defendants attempted to defend themselves on the basis that decedent was so drunk that he was not worth saving.

On December 15, 1988, the jury returned a verdict in favor of defendants, upon which the court entered judgment. Plaintiff filed a post-trial motion alleging that the verdict was not supported by the evidence and that the circuit court erred in permitting defendants to argue and present testimony concerning decedent’s alleged intoxication. Plaintiff also filed a motion for sanctions against Iyer and his counsel. Following a hearing, the court denied both motions. It is from these orders that plaintiff appeals.

I

Plaintiff first maintains that the circuit court erred in denying her motion in limine to exclude testimony concerning decedent’s alleged intoxication. Specifically, plaintiff contends that the evidence of intoxication was irrelevant and highly inflammatory. She argues that, though defendants stated that they would present evidence of intoxication to show the jury “what kind of person Mr. Jackson was”— whether he was a drinker or an alcoholic — in order to evaluate plaintiff’s loss of companionship, defendants never presented competent evidence that decedent was intoxicated. Moreover, plaintiff argues, even if decedent was intoxicated on this one occasion, his intoxication would have been irrelevant regarding defendants’ failure to render care.

In a personal injury negligence case, evidence of intoxication is admissible where it tends to show the negligence of one of the parties; in the absence of supporting evidence, testimony concerning the drinking of intoxicants should be stricken and, under certain circumstances, may constitute reversible error notwithstanding a sustained objection. (Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 1085, 443 N.E.2d 786.) However, irrelevant evidence of drinking is grounds for reversal only if it results in prejudicing the jury’s verdict. Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 914, 410 N.E.2d 249; Coleman v. Williams (1976), 42 Ill. App. 3d 612, 617, 356 N.E.2d 394.

In Benuska v. Dahl, the court found that irrelevant evidence that one defendant had thrown a can of beer out of a car after an accident was sufficiently prejudicial to require reversal. The court held that a mistrial should have been granted not only because the suggestion of drinking without proof was highly prejudicial, but because defendant was also denied a fair opportunity to rebut the allegation. In Coleman v. Williams, no evidence that the plaintiff was intoxicated was introduced, but evidence was admitted that plaintiff had spent some time in taverns on the day of the accident. The court held this to be reversible error.

However, where it appears an error did not affect the outcome of the trial, or where the reviewing court can see from the entire record that no harm has been done, the judgment will not be disturbed. (Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 511, 524 N.E.2d 939.) Admission of evidence is largely a matter within the discretion of the trial court, and evidentiary rulings will not require reversal absent an abuse of discretion. (Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, 521, 505 N.E.2d 1239.) Moreover, a party is not entitled to a reversal based upon rulings on evidence unless the error was substantially prejudicial and affected the outcome of trial. (Cairns v. Hansen, 170 Ill. App. 3d at 511.) The burden is on the party seeking reversal to establish prejudice. Cairns v. Hansen, 170 Ill. App. 3d at 511.

In response to plaintiffs assertion that the intoxication evidence was irrelevant and inflammatory, defendants argue that the evidence was relevant to determine the monetary loss of decedent’s society to his wife and children. For support, defendants offer cases where evidence was admissible concerning decedent’s background relevant to proving an adult child’s loss of society (Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, 505 N.E.2d 1239); concerning decedent’s extramarital affairs relevant to the value of consortium (Countryman v. County of Winnebago (1985), 135 Ill. App. 3d 384, 481 N.E.2d 1255); and concerning duration, nature, and effect upon the marital relationship of husband’s inability to sustain an erection (Tjaden v. Moses (1968), 94 Ill. App. 2d 361, 237 N.E.2d 562). Defendants do not, however, offer any support for their contention that evidence of a single incident of driving while intoxicated is relevant to a claim of loss of society.

Defendants also argue that plaintiff should be estopped from arguing that the evidence was prejudicial because plaintiff herself zealously injected evidence concerning intoxication into the trial. This argument is meritless as plaintiff offered this evidence only to rebut evidence of intoxication entered by defendants.

Defendants argue further that the evidence of intoxication did not so clearly influence the jury’s verdict. They maintain that every instance of evidence of intoxication was countered by plaintiff. For example, when defendants attempted to show that decedent’s unruly behavior was due to intoxication, plaintiff was able to elicit testimony which showed that such behavior could be explained by decedent’s severe injuries. Moreover, plaintiff showed that decedent’s blood-alcohol level was negative after being admitted to the emergency room. This argument is equally meritless; simply because plaintiff was able to diffuse several instances of inflammatory evidence produced by defendants does not mean that the jury was not improperly influenced by such evidence.

Here, it is apparent that the evidence concerning decedent’s intoxication was irrelevant and inflammatory. Decedent’s intoxication had no bearing on the issue of whether defendants breached their standard of care. Furthermore, one instance of intoxication was not probative of the type of husband or father that decedent was, and was thus not relevant to the issue of damages for loss of society.

Correspondingly, the intoxication evidence did not serve to show that plaintiff’s decedent was contributorily negligent. Although defendants raised the affirmative defense of contributory negligence in their answers, they produced no such evidence at trial. Although evidence of intoxication may be admissible to show contributory negligence (Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 443 N.E.2d 786), in the instant case it was error to allow such evidence at trial. Plaintiff was denied a fair trial in these circumstances, and a new trial must be granted.

In the instant case, intoxication is clearly not a necessary part of the cause of action, nor is it pertinent to the issue of damages. Decedent’s ability to act with due care is likewise not a part of the cause of action where defendants’ malpractice is alleged to be the cause of death. Accordingly, because of the prejudicial nature of the intoxication evidence, defendant may not introduce such evidence on retrial of this cause.

II

Plaintiff next contends the circuit court erred in not granting her request for sanctions against Iyer and his counsel. Specifically, plaintiff contends that Iyer and his counsel, in bad faith, filed a groundless mandamus action in the supreme court; caused a stay of the first trial which resulted in a mistrial; filed a “series of groundless motions asking for different judges to rule upon matters already decided”; and misrepresented the procedural history of the case.

In ruling upon plaintiff’s motion for sanctions, the court stated:

“I think it’s clear from my rulings that I didn’t think that Dr. Iyer’s position was well-founded. *** I will say that there was some basis because there wasn’t much case law in this area *** perhaps this area was somewhat unsettled or unclear.”

The grant or denial of a motion for sanctions rests within the sound discretion of the trial court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611, repealed by Pub. Act 86 — 1156, eff. Aug. 10, 1990; Fried

v. Barad (1989), 187 Ill. App. 3d 1024, 543 N.E.2d 1018.) Furthermore, as section 2 — 611 was penal in nature, its provisions had to be strictly construed. (Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App. 3d 64, 530 N.E.2d 1041.) The burden of proving entitlement to fees and costs rests on the party seeking sanctions. (Diamond Mortgage Corp. v. Armstrong, 176 Ill. App. 3d at 71.) A petition for attorney fees and costs must meet minimum specificity requirements so that a responding party has an opportunity to challenge and defend against the allegations; the petition must specifically state which statements were falsely made and what fees were incurred as a result of such statements. Geneva Hospital Supply, Inc. v. Sanberg (1988), 172 Ill. App. 3d 960, 966, 527 N.E.2d 611.

Here, plaintiff has failed to allege with specificity her motion for sanctions. Plaintiff avers in her request for sanctions that Iyer filed “a series of groundless motions.” Plaintiff, however, does not state what, exactly, these motions were. Furthermore, plaintiff alleges that Iyer misrepresented “the procedural history of the case in both the Illinois Supreme Court and in subsequent motions.” Here, again, plaintiff fails to specify what these “subsequent motions” were, nor does she specify how and where Iyer misrepresented the case.

Notwithstanding plaintiff’s failure to address specific allegations of misconduct in her motion for sanctions, it does not appear that Iyer’s petition for mandamus was entirely groundless. Iyer petitioned for mandamus on the grounds that he was not subject to the jurisdiction of the circuit court because plaintiff had failed to reinstate her case against him after the appellate court remanded the case. Iyer argued that he did not receive notice of the reinstatement of the case while plaintiff argued that the case was reinstated automatically and Iyer had notice. Both parties were unable to produce case law on this particular issue.

When the mandate of an appellate court, remanding a cause, is filed in the circuit court, jurisdiction is again vested in the circuit court. (Bank of Viola v. Nestrick (1981), 94 Ill. App. 3d 511, 514, 418 N.E.2d 515.) However, absent a showing that notice of reinstatement was sent or waived, the court should not proceed to take action in the case. Bank of Viola v. Nestrick, 94 Ill. App. 3d at 515.

Here, the parties disputed whether notice was actually sent to and received by Iyer or his counsel. Because plaintiff offered numerous letters which showed that Iyer and his counsel were informed of the case proceedings, Iyer’s argument that no notice was received may be disingenuous. Nonetheless, the trial court did consider the imposition of sanctions and refused to do so. We find no basis for concluding that the court abused its discretion in so ruling.

Accordingly, the judgment of the circuit court of Cook County denying plaintiff’s motion for sanctions is affirmed; the judgment of the circuit court of Cook County denying plaintiff’s motion in limine to exclude intoxication evidence is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE ANDREWS, Defendant-Appellant.
    First District (4th Division)
    No 1 — 88—1381
    Opinion filed March 7, 1991.
    — Rehearing denied April 18, 1991.

      Michael J. Pelletier and Gordon H. Berry, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Walter Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Willie Andrews, was convicted of armed robbery after a bench trial and sentenced to 20 years in prison. He contends on appeal that he did not receive a fair trial because of his attorney’s incompetence; he was not proved guilty beyond a reasonable doubt; and the trial court erred by considering improper factors when imposing his prison term.

We affirm.

Background

Denise Sowell, the complaining witness, testified that she and her roommate, Carmen Hunter, were at 47th and King Drive in Chicago at 2 a.m. on April 9, 1987. Sowell parked the car near the corner, in front of a restaurant, while Carmen went inside. Sowell noticed a man, whom she identified as Andrews, standing in the door of the restaurant. She said that Andrews jumped into the car, pulled a long butcher knife out of his coat, and held it to her throat. He ordered, “Pull off bitch, before I cut your throat.” She eased up on the brakes but pulled the car up only a couple of feet. She told defendant she had nothing except her purse in the back. He grabbed the purse and ran off. The purse contained a wallet, identification and approximately $20.

Sowell testified that she ran into the restaurant screaming that she had been robbed and asked to call the police. She said they came a few hours later and she signed a complaint.

The following night, around 4 a.m., she and Carmen Hunter were again driving around. They entered a lounge on 47th and Forrestville to buy cigarettes. Sowell saw defendant on her way in, but he did not react to her. She called the police from the lounge, went outside, and flagged down an unmarked police car. She told the two detectives inside, Szudarski and Segers, that defendant was the man who had robbed her the night before with a knife. The officers pulled over to the sidewalk and arrested him. They found a wallet on him and a butcher knife.

Sowell further testified that at the police station she identified the wallet recovered from defendant. She said the police returned her driver’s license and business cards that were inside the wallet. She did not have any identification with her in court and said she thought her driver’s license had expired.

Detective Alan Szudarski’s testimony corroborated much of what Sowell said concerning the arrest of defendant and the items recovered from him. He described the wallet as a vinyl identification wallet. He agreed that in his inventory report, he had written that the wallet contained Andrews’ identification in it and he did not list anything else. At trial, however, he maintained that when the red wallet was lying on a table at the station, Sowell saw it, said it was hers, and Szudarski then looked through it. He testified that the officers kept the wallet but gave her the identification because she had none.

After Szudarski’s testimony, defense counsel asked the court to recall Sowell so that he could examine the identification she supposedly had retrieved after the arrest, specifically the driver’s license. The trial court questioned her regarding her driver’s license. She said she no longer had a license and that it had expired the previous March (1987). She then said it had not expired at the time of the incident, April 1987. There was additional confusion over the actual expiration date of the license.

Defense counsel moved to strike Sowell’s testimony, arguing that although she testified that she had called the police immediately after the incident on the first night, this was not reflected in any police reports tendered to the defense. Also, Sowell could not produce her license and the detective’s report did not mention that any of her identification was in the wallet they recovered. Defense counsel also tendered to the court a police report dated April 21, 1987, eleven days after the incident. This report stated that the crime of April 9, 1987, was a strong-arm robbery, one committed without a weapon. This report was not furnished to the defense before trial, and defendant moved for a mistrial on the ground that he had prepared the case from discovery furnished him by the State. The trial court denied the defense motions to strike Sowell’s testimony and the motion for mistrial, stating that defense counsel could call in the officer who wrote the report and examine him directly on the weapon issue.

Defendant’s witness was his sister, Vanessa Andrews, a law student and mother of four children. She testified that on April 9, 1987, Willie was at her home the entire night. She said she had stayed up all night studying and that her boyfriend and her brother were watching television and drinking rum and cola. She testified that at around 3 a.m. defendant was watching a karate picture, which he called to her attention. She also testified that he owned a small maroon “bus pass type thing” that she had bought for him on the “el” from a man who was selling small items on the train.

After the defense rested, the court asked if counsel planned to bring in the other officer as a witness. Counsel stated he would subpoena Sowell to question her as to why she told the reporting officer that there was no weapon. The trial court continued the case for another week and suggested that defense counsel bring in the author of the police report in question.

On the next trial date the State called Carmen Hunter in rebuttal. Hunter was serving a term of probation and periodic imprisonment for involuntary manslaughter. She testified that she was with Sowell on April 9 and 10 and that she had observed defendant standing about a door away from the restaurant. A few minutes after Hunter went into the restaurant, Sowell came in and said she had been robbed at knife point. The next morning, at 4 a.m., Hunter was again with Sowell. They went to a lounge to buy cigarettes. According to Hunter, Sowell told her to keep an eye on the man she identified as defendant while Sowell called the police. Hunter's recollection of what defendant was wearing was vague and she said she’d just taken “a glance” at him.

After the State rested in rebuttal, defense counsel said he had nothing further. Sowell was in court and had talked to defense counsel. He said he did not plan to call her as a witness.

During his summation, defense counsel cited the police report, which he had received a week after trial began, emphasizing that it stated “no weapon” had been used. That would reduce the armed robbery charge to simple robbery.

The trial court’s comments reveal that the court found Sowell’s testimony to be clear as to what had happened. The court noted that simply because Detective Szudarski’s report only mentioned defendant’s identification in the wallet did not mean that Sowell’s identification was not there also. The court did not mention the police report that referred to the lack of a weapon. Expressing skepticism over the testimony of the defendant’s sister, the court found that the State’s witnesses had been consistent in their testimony. Accordingly, the court determined that the State had carried its burden of proof.

At the sentencing hearing, the court noted that defendant had served 15 years for second degree murder in Tennessee and remarked that his conduct in the pending case caused harm or serious threats of harm. Accordingly, the court imposed a 20-year prison term on defendant for armed robbery.

Opinion

I

Defendant contends that his attorney ineffectively assisted him at trial by failing to call the reporting officer who prepared the report of April 21, 1987, in which it was specifically noted that there was no weapon. Defendant asserts that this testimony could well have given him an additional defense on the armed robbery charge. He also maintains that his counsel’s apparent reliance on the inadmissible report itself was a legal error that could not be justified by any trial strategy. Moreover, defendant contends that the officer’s testimony not only would have supported a reduction of the offense to simple robbery, but also would have impeached the complaining witness’ entire account of the incident.

The State responds that defendant fails to meet either prong of the Strickland test for proving ineffective assistance of counsel: (1) the advice of counsel fell outside the objective standard of reasonable competence demanded of attorneys in criminal cases; and (2) there is a reasonable probability that but for counsel’s unprofessional error, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) If the court finds that the alleged errors did not result in sufficient prejudice, the court need not determine whether the performance of counsel was deficient. People v. Albanese (1984), 104 Ill. 2d 504, 527, 473 N.E.2d 1246.

In the pending case, we cannot say that defense counsel’s failure to call the police officer to testify regarding the April 21 report was sound trial strategy. Nor do we agree with the State that because of the alibi defense the officer’s testimony regarding the weapon or lack of weapon is “totally irrelevant.” On the contrary, credible proof that there was no weapon could have reduced the conviction to simple robbery and reliance on an alibi defense does not preclude an accused from the benefit of any reduction in the grade of offense.

Nevertheless, we believe that even if the officer had testified it is highly unlikely that the outcome of defendant’s trial would have differed. The contents of the report, as recited by the trial court in the record, are as follows:

“April; 4-21. In summary, R/O vaguely remembers details of this reporting offense. Victim was sitting in her vehicle in front of a public address whereupon an unknown male black jumped in the passenger side vehicle and took victim’s purse, also U.S. currency and personal valuables. It has strong arm, no weapon.”

The reporting officer who presumably took Sowell’s telephone call did not write up the incident until 11 days after the occurrence. If his memory of the incident was admittedly vague at that point it is doubtful that it would have been any clearer at trial, a year later. Moreover, the trial court did state that it would consider the report “as to its credibility” but would not grant the defense motion for mistrial based on the alleged discovery violation. The court gave defense counsel ample time to subpoena the officer to testify.

The State’s witnesses testified positively as to the existence of the butcher knife. Sowell, as victim and eyewitness, saw him take the knife from his jacket and hold it to her throat. The arresting officers, Szudarski and Segers, testified that Sowell told them about the butcher knife when she identified Andrews to them as the one who had robbed her. A butcher knife was recovered from Andrews upon his arrest, the day following the incident. In light of this uncontroverted evidence, the significance of defense counsel’s failure to call the officer with the vague memory diminishes. Even if the officer had testified that he clearly remembered Sowell’s failure to mention a weapon, the trial court would have had ample evidence from which to infer that the robber did in fact carry one.

There is a difference between a victim’s failure to report a knife and her positive statement that the assailant was unarmed. Only if the reporting officer could remember at trial that Sowell actually told him that her assailant had no weapon would the officer’s testimony be of significance. In such a case, the trial court could consider the statement as an admission of the complaining witness and therefore it would be substantive evidence of a prior, inconsistent statement. But this scenario is a rather farfetched one and we need not give it much credence. The overriding consideration is whether the defense attorney’s failure to call the officer resulted in an unfair trial, one that would have had a different outcome if the officer had testified.

As the trial judge commented, he would consider the April 21 report for what it was worth, under the rubric of credibility. The reporting officer’s own credibility was already diluted by his admission that the report, made 11 days after the event, was based on his vague recollections. The officer may well have taken many other calls around the time of the incident and in the days before preparing his report. His notation of “no weapon” could be attributed to the fact he did not recall if there had been one reported. Or, it is possible Sowell did not mention a weapon in her initial summon for police help. We conclude that any prejudice to defendant resulting from his lawyer’s failure to call the police officer who wrote the April 21 report was insufficient to change the outcome of the trial under the Strickland standard. Therefore, we hold that Andrews has failed to establish that his trial attorney’s performance violated his constitutional right to effective assistance of counsel.

II

Andrews next challenges the sufficiency of the evidence against him. He primarily attacks the victim’s account of the incident and the corroboration of that account by her roommate, Carmen Hunter. He asserts that Sowell’s account of the incident was “unconvincing” because, among other things, she merely eased the car forward a few feet when the assailant held a knife to her throat and ordered her to take off. As a second example of behavior that defendant deems to be inconsistent with having a knife at her throat, defendant cites the fact Sowell stared at her assailant rather than straight ahead or at the knife.

We cannot agree that Sowell’s behavior was inconsistent with having a knife at her throat. On the contrary, it seems more likely that a driver with a knife at her throat would ease the car forward rather than pull out fast and it further seems quite plausible that a knife under one’s chin would focus attention on the person holding the knife.

Next, Andrews contends that Carmen Hunter was not a believable witness either, both because she was on probation for manslaughter and because she admitted that she only glanced at the assailant. As the State points out, however, Hunter noticed Andrews standing in the doorway just before she entered the restaurant before the robbery and also recognized him the next night when she and Sowell spotted him in the lounge where they were buying cigarettes.

As for the claimed inconsistences between the testimony of Hunter and Sowell, we find them to be minor. The two witnesses were two hours apart on their estimate of the time the robbery occurred, for example, a matter that might actually bolster their credibility since their stories were not identical in every respect. Sowell testified that when she saw the assailant he was standing in the door of the restaurant, but Hunter saw him standing “about a door away from the restaurant.” Again, both women placed him at or very near to the restaurant, and we find it inconsequential that they placed him in slightly different locations when they first saw him.

Defendant’s other attacks on the credibility of the State’s witnesses are similarly unpersuasive. The mere fact that Szudarski’s report mentioned only that Andrews’ identification was in the wallet recovered from his person does not mean that the wallet did not contain the victim’s as well. Sowell identified the small red wallet as hers, and the officer testified that he went through it, found her identification therein, and returned it to her.

Questions relating to witness credibility are specifically matters for the fact finder to resolve. (E.g., People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.) This court is restricted to the high standard of reviewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find the offense proved beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461.) We can and we do.

Ill

The third and final issue concerns the propriety of the court’s sentencing determination. Although Andrews’ 20-year prison term is within the statutory, unextended range for the offense of armed robbery, Andrews argues that the trial court wrongly considered an aggravating factor that is already part of the crime charged. In addition, he charges that the trial court made an unfounded comment on the issue of possible harm to the victim.

The trial court stated, at the sentencing hearing:

“The court has taken into consideration that your conduct certainly has caused others serious harm, threats of harm. No excuses for your conduct ***.

* * *

The court remembers this crime. A young lady, you put a knife to her throat, stole property of hers. I’m not going to give you a medal because you didn’t cut her throat or stab her. As your counsel said she wasn’t hurt. But for the grace of God you were separated before she did get injured.”

One of the statutory factors in aggravation that the sentencing judge may consider is that “the defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3.2(1).) According to Andrews, such harm or threat of harm is an “inherent element” of armed robbery and thus cannot be doubly punished by way of the aggravating factors. Andrews analogizes the situation in this case with that in People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, a burglary case in which the trial court had considered the proceeds of the crime as a factor in aggravation because one of the provisions of the sentencing code allowed enhancement of a sentence if the offense was done for “compensation.” The supreme court refused to equate “proceeds” with “compensation” and reasoned that because most burglaries and all thefts involve “proceeds” from the crime itself it is reasonable to conclude that the legislature already had considered the element of receiving compensation in defining the offense. Therefore, Conover held that a defendant’s receipt of proceeds from the crime could not be used in the sentencing determination as a basis for increasing the penalty.

The State does not dispute the fact that the trial court may not consider a statutory or inherent element of the offense as an aggravating factor. (See People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181.) The case law does support, however, a consideration of the degree of force employed to commit a theft or robbery. (People v. Tolliver (1981), 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44.) The gravity of the offense and surrounding circumstances are primary matters to consider. See People v. Hall (1987), 159 Ill. App. 3d 1021, 513 N.E.2d 429.

Andrews also relies on People v. Rhodes (1986), 141 Ill. App. 3d 362, 490 N.E.2d 169. There, the appellate court reversed the defendant’s sentence, after reviewing his lack of any criminal record, his honorable discharge from military service, and his employability, stating, “We do not believe the record in the present case evidences other thanthat the defendant committed a robbery using a dangerous weapon; elements present in every armed robbery [citation].” Rhodes, 141 Ill. App. 3d at 364, 490 N.E.2d at 170.

We find Rhodes to be distinguishable from the pending case because here the trial court did not base its sentence on the mere fact that defendant carried a dangerous weapon while committing a burglary. The court’s comments reflect concern over the great risk of harm threatened by a robber holding a butcher knife to a person’s throat and ordering her to drive off. Although a degree of risk is inherent in any crime involving a weapon, we do not believe it improper for the trial court to consider the specific nature of Andrews’ conduct. Moreover, the record reveals that the court also considered Andrews’ prior criminal convictions, including one for second degree murder, plus the court’s belief that he was a threat to the public safety and not a good candidate for rehabilitation. The trial court did not impose the maximum, 30-year sentence available but instead considered the particular circumstances of this case. Had the court based the sentence only on the finding that Andrews was armed and thus created a threat of harm without any other consideration, the sentencing determination would have been vulnerable to attack. Under the circumstances of this case, however, we do not believe that the sentence imposed was based on an erroneous evaluation of aggravating factors.

Likewise, we reject Andrews’ assertion that the trial judge relied on unfounded matters or speculation when he noted that “but for the grace of God” the victim and Andrews “were separated before she got injured.” It may be reversible error to increase a sentence based on the mere speculation that a burglar could have gotten shot by “[h]iding and ducking back and forth” in a building (People v. Allen (1981), 97 Ill. App. 3d 38, 39, 422 N.E.2d 254, 255). In the instant case, however, the court’s remark is not a vague guess about generalized possibilities of harm. Instead, there is support for the notion that when Andrews pressed the knife against the victim’s throat, she could have been severely harmed, just by the movement of the car. Furthermore, the comment about the separation of victim and assailant before she was injured only reflects the judge’s observation that it was a fortuity that she did not sustain an actual injury. Hence, we do not find the remark to be an unfair or speculative comment on the evidence.

For the foregoing reasons, we affirm the trial court’s conviction and sentencing of Andrews for armed robbery.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE McMORROW

text:
    WEST SUBURBAN MASS TRANSIT DISTRICT et al., Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—2916
    Opinion filed March 7, 1991.

      Lord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Paul J. Peralta, of counsel), for appellant.
    John Newell and Kenneth J. Wysoglad & Associates, both of Chicago (Michael L. Sazdanoff and Kenneth J. Wysoglad, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Burlington Northern Railroad Company (Burlington) filed suit against defendant Consolidated Rail Corporation (Consolidated) for damages that occurred when Burlington’s train derailed. Burlington’s complaint alleged in pertinent part that the parties had entered into an indemnity agreement that required Consolidated to assume liability for the accident. Consolidated filed an answer to the complaint in which Consolidated admitted the occurrence of the derailment as well as the existence and terms of the indemnity agreement, but denied liability for the loss pursuant to the indemnity agreement.

Burlington filed a motion for partial summary judgment, contending that the undisputed facts and the clear and unambiguous language of the indemnity agreement obligated Consolidated to indemnify Burlington for the damages arising from the accident. Consolidated responded that summary judgment was improper, because the indemnity agreement was ambiguous with respect to its coverage for the derailment. Consolidated also filed, with leave of court, an amended answer to Burlington’s allegations regarding the indemnity agreement. In this amended answer, Consolidated raised the affirmative defense that Burlington’s willful and wanton acts contributed to the accident. Burlington did not file a reply to the allegations made in Consolidated’s affirmative defense, nor did Burlington file a motion to strike Consolidated’s affirmative defense. In addition, Burlington did not amend its summary judgment motion in order to present evidentiary matter with respect to these allegations.

Following a hearing, the trial court determined that the indemnity agreement between the parties clearly and unambiguously provided for Consolidated’s liability for the accident. Based upon this determination, the trial court entered summary judgment in Burlington’s favor with respect to Consolidated’s liability for the derailment. Consolidated appeals.

We conclude that the entry of summary judgment was error. The record shows that Burlington presented no proof in support of its summary judgment motion to contradict the allegations of Consolidated’s affirmative defense that Burlington’s willful and wanton conduct contributed to the derailment. Because Burlington presented no evidence or argument on the issue of willful and wanton conduct in its summary judgment motion, there remained disputed issues of material fact regarding Consolidated’s affirmative defense. Under these circumstances, summary judgment should not have been granted in Burlington’s favor with respect to Consolidated’s liability for the accident pursuant to the indemnity agreement. In addition, we determine that the parties’ indemnity agreement was ambiguous with respect to its coverage for the derailment that occurred in the instant cause. Accordingly, we reverse and remand.

Burlington’s suit against Consolidated sought damages relating to the derailment of a Burlington commuter train that took place on April 19, 1983, while the train was running on track owned and operated by Burlington. Burlington alleged in its pleading that the derailment occurred when the commuter train struck a boxcar door that was lying on the track over which its commuter train was operating. Burlington alleged that the boxcar door fell from a Consolidated train while the Consolidated train was running on Burlington track shortly before Burlington’s train accident occurred. Burlington sought damages from Consolidated based on principles of negligence (count I) and based on an indemnity agreement between Burlington and Consolidated that was executed on June 11,1981 (count II).

In its answer to count II of Burlington’s complaint, Consolidated admitted that a Burlington train had derailed following a collision with a door that had fallen from a Consolidated train. Consolidated’s answer also admitted to the existence and terms of the indemnity agreement between the parties. However, Consolidated denied liability for the derailment because of the indemnity agreement.

Burlington moved for partial summary judgment with respect to Consolidated’s liability on count II of the complaint, arguing that under the clear and unambiguous terms of the parties’ indemnity agreement, Consolidated was liable to Burlington for the damages caused by the derailment. Consolidated filed a response to the summary judgment motion, disputing Burlington’s interpretation of the indemnity agreement.

Thereafter, Consolidated was granted leave to file an amended answer to Burlington’s complaint. In this amended answer, Consolidated raised an affirmative defense to count II regarding the indemnity agreement. Specifically, Consolidated alleged that Burlington engaged in certain willful and wanton acts that proximately caused the door to become disengaged from the Consolidated boxcar while it was located on Burlington’s track. Burlington did not file a reply to the allegations made in Consolidated’s affirmative defense, nor did Burlington file a motion to strike Consolidated’s affirmative defense. Burlington also did not amend its summary judgment motion to present evidence regarding these additional allegations.

Following Consolidated’s amended answer, the trial court allowed Burlington’s partial summary judgment motion on the ground that the indemnity agreement, by its clear and unambiguous terms, obligated Consolidated to indemnify Burlington for the losses associated with the derailment. Thereafter, the parties stipulated to the amount of damages resulting from the accident, and the trial court found no just reason to delay enforcement of or appeal from its ruling with respect to count II of the complaint. Consolidated’s appeal followed.

Consolidated argues that the trial court’s summary judgment order should be reversed, because there remain issues of fact regarding its affirmative defense against Burlington. In this affirmative defense, Consolidated alleged that Burlington’s willful and wanton acts proximately caused the boxcar door to fall from Consolidated’s train before the derailment occurred. These allegations, if proved, would defeat Burlington’s right to indemnity under the parties’ agreement. Under Illinois law, exculpatory agreements governing willful and wanton conduct are invalid. See, e.g., Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 604, 533 N.E.2d 941; Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 164-65, 510 N.E.2d 409.

A party who files a summary judgment motion must show that, based on the documents of record, there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.) The summary judgment movant is obligated to demonstrate the absence of factual dispute with respect to all issues raised by the pleadings, including the absence of factual dispute regarding an affirmative defense raised by the party’s opponent. See Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E.2d 1295; Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 604, 533 N.E.2d 941; Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.

In light of this precedent, once Consolidated’s affirmative defense was filed, it was incumbent upon Burlington to file a pleading attacking the affirmative defense, or to file an amended summary judgment motion demonstrating that there were no genuine issues of material fact regarding Consolidated’s affirmative defense that Burlington’s willful and wanton conduct contributed to the derailment. Burlington did not file a motion to dismiss the affirmative defense or any other pleading challenging the affirmative defense. Burlington’s motion for summary judgment did not controvert the affirmative defense. Contrary to Burlington’s argument, Consolidated had no duty to present evidence to support its affirmative defense at the time Consolidated filed its amended answer or at the hearing on the summary judgment motion. Instead, having pleaded the issue in its amended answer, Consolidated had a duty to present evidence to support its affirmative defense only if Burlington disputed the allegations made in Consolidated’s affirmative defense. The trial court’s allowance of Burlington’s summary judgment motion deprived Consolidated of an opportunity to present evidence in support of the factual allegations made in Consolidated’s affirmative defense. Consequently, we reverse the entry of summary judgment in Burlington’s favor and remand the matter for further proceedings consistent herewith.

We also conclude that the parties’ indemnity agreement was not clear and unambiguous with respect to its coverage for the derailment at issue in the instant cause. The indemnity agreement provided in pertinent part as follows:

“It is hereby agreed *** that if either party hereto operates its trains, engines, cars or other rolling stock over and upon the trackage of the other party hereto for interchange and/or other purposes *** then the provisions of this Agreement shall apply to said operation and use.

1. Each party hereto from time to time operating its trains, engines, cars or other rolling stock over and upon the trackage of the other party shall be responsible, without regard to negligence, for the consequences of any wreck, derailment, or other accident involving a train, engine, car or other rolling stock being moved by or involving an employee of such party which is caused by the condition of track or roadbed or by the condition of equipment appurtenant thereto, or by the condition of engines, cars or other rolling stock being moved by such party.”

Paragraphs 2 through 5 of the indemnity agreement provided for the allocation of liability only under circumstances other than those governed by paragraph 1. Paragraph 2 stated that, except as provided in paragraph 1, the negligent party was liable for “the consequences of any wreck, derailment or other accident resulting solely from the negligence of one of the parties hereto, or resulting solely from the negligence of one of the parties hereto concurring with the negligence of a person or corporation not a party to this Agreement.” Paragraph 3 provided for the apportionment of liability, except as set forth in paragraph 1, for damage to persons and property when both parties were jointly and concurrently negligent for “the consequences of any wreck, derailment or other accident.” Paragraphs 4 and 5 governed the parties’ respective liability, except as stated in paragraph 1, when either one party’s train, or both parties’ trains, were “involved in any wreck, derailment or other accident” resulting from “the sole negligence of a person or corporation not a party to this Agreement” (paragraph 4), or resulting from a “cause which cannot be determined” (paragraph 5).

Burlington argues that the meaning of paragraph 1 of the indemnity agreement is clear and unambiguous. According to Burlington, this paragraph recognizes a party’s liability, without regard to that party’s fault, for the consequences of any accident caused by a condition on the track of either party, whenever that track condition was created by that party’s use of the track. Consolidated also contends that paragraph 1 is clear and unambiguous. According to Consolidated, paragraph 1 recognizes a party’s liability for the consequences of any accident causing damage to its own property, when (a) the accident occurs while on the other party’s track, and (b) the accident was caused by a condition on the track. In the alternative, Consolidated maintains that the agreement is ambiguous and requires extrinsic evidence for its proper construction.

A contract is to be interpreted according to its plain and ordinary meaning in order to give effect to the parties’ intent, and the construction of the contract is a question of law to be resolved by the court. Where the contract’s meaning is clear and unambiguous on its face, resort to extrinsic evidence to interpret the contract is unnecessary. (Lucas v. Beaton (1990), 201 Ill. App. 3d 341, 346-48, 559 N.E.2d 20.) A contract is ambiguous when it may be reasonably construed to have more than one meaning. Beard v. Mt. Carroll Mutual Fire Insurance Co. (1990), 203 Ill. App. 3d 724, 729, 561 N.E.2d 116.

We conclude that the indemnity agreement is not clear or unambiguous with respect to its coverage of the instant cause. Paragraph 1 appears to be applicable, without regard to fault, whenever one of the parties “operate[s] its trains *** over and upon the track-age of the other party,” there is an accident “involving a train *** being moved by *** such party,” and the accident “is caused by the condition of the track.” However, it is unclear what is intended in paragraph 1 with respect to its applicability to an accident “involving” a party’s train. Paragraphs 2 through 5 apply to all accidents that are not governed by paragraph 1. However, these paragraphs contain no language that clarifies the word “involving” in paragraph 1. Paragraphs 2 through 5 also do not contain an explicit restriction regarding the track upon which the train was passing at the time of the accident.

In view of the foregoing, paragraph 1 is susceptible of more than one interpretation in its applicability to the instant cause. Paragraph 1 governs liability when there is an accident “involving a train” and the accident “is caused by the condition of the track.” In its narrowest interpretation, Consolidated’s train may not have been “involved” in the derailment of Burlington’s commuter train. Consolidated’s train did not derail or collide with Burlington’s train, nor was Consolidated’s train damaged during the accident. However, in a broader interpretation, Consolidated’s train may have been “involved” in the derailment of Burlington’s commuter train. As alleged in Burlington’s complaint, it was a door from Consolidated’s boxcar that fell on the track and was struck by Burlington’s train, thereby causing the derailment. Because of this ambiguity with respect to whether Consolidated’s train was “involved” in the derailment under paragraph 1, we conclude that extrinsic evidence is necessary to interpret the application of the parties’ indemnity agreement to the case at bar. As a result, we determine that summary judgment was improperly entered in Burlington’s favor with respect to count II of its complaint, in which Burlington alleged that Consolidated was obligated to indemnify Burlington pursuant to the terms of the parties’ indemnity agreement.

Burlington contends that Consolidated made arguments during the trial court’s hearing on its partial summary judgment motion that amounted to judicial admissions by Consolidated that it was liable for the derailment of Burlington’s commuter train. Specifically, Burlington points to statements made by counsel for Consolidated that paragraph 1 was intended to render the “visiting railroad” liable when that party “bringfs] in cars *** which are defective.” Burlington submits that by these statements, Consolidated judicially admitted that it owed Burlington indemnification for damages due to derailments of Burlington’s trains, where those derailments were caused by the condition of cars and trains operated by Consolidated on Burlington’s tracks.

To support its position that these statements amounted to binding judicial admissions, Burlington relies on Lowe v. Kang (1988), 167 Ill. App. 3d 772, 521 N.E.2d 1245. Lowe was a personal injury case wherein the parties’ comparative negligence was sharply contested at trial. In closing argument to the jury, the defendant’s attorney made statements in which he admitted his client had been partially responsible for the plaintiff’s injuries. Upon review, the court found that these statements were binding judicial admissions of the defendant’s partial liability for the plaintiff’s injuries.

The decision in Lowe is distinguishable from the case at bar. Consolidated’s attorney acknowledged to the trial court that paragraph 1 could be interpreted to render the “visiting railroad” liable when that party “bring[s] in cars *** which are defective.” However, Consolidated’s attorney did not admit that Consolidated had brought defective cars onto Burlington’s tracks. Instead, Consolidated’s attorney argued that its cars had not been defective, but had been damaged by the willful and wanton acts of Burlington. On this record, we cannot say that Consolidated’s arguments to the trial court constituted binding judicial admissions that Consolidated was liable for the derailment of Burlington’s commuter train.

Burlington also contends that Consolidated waived its argument that paragraph 1 applies only when one party is operating equipment on the tracks of the other party, because Consolidated did not present this argument to the trial court. Even assuming arguendo that this claim is waived on appeal, we cannot accept Burlington’s position that paragraph 1 clearly and unambiguously applies to the facts as alleged by the parties in the instant cause.

In light of our disposition, we need not and do not address Consolidated’s argument that because the indemnity agreement was allegedly drafted by Burlington, the agreement should be strictly construed against Burlington in the case at bar. The parties have stipulated to the amount of damages and other matters relating to damages.

For the reasons stated, the judgment of the circuit court of Cook County is reversed on the issue of liability and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


text:
    SHERI SEMERAU, Plaintiff-Appellant, v. THE VILLAGE OF SCHILLER PARK et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 90—0430
    Opinion filed March 7, 1991.

      John M. Bowlus, of Chicago, for appellant.
    Stuart Jay Mann, of Franklin Park, and David A. Epstein, of Much, Shelist, Freed, Danenberg, Ament & Eiger, P.C., of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Sheri Semerau appeals from the trial court’s affirmance of the decision of Village of Schiller Park (the Village) and the Village’s director of emergency medical services, Daniel R. Sliwicki (hereinafter collectively referred to as defendants), to terminate plaintiff’s employment as an emergency medical technician for the Village. On appeal, we conclude that the Village’s personnel policy manual did not constitute a contract of. employment. As a result, we determine that the defendants’ discharge of plaintiff was lawful, without regard to whether the defendants’ perceived basis for said discharge was supported by the weight of the evidence. Based upon these considerations, we affirm the trial court’s judgment.

The defendants terminated plaintiff’s employment on September 14, 1988, because of certain improper actions allegedly undertaken by plaintiff during an emergency medical ambulance call in which plaintiff participated on July 28, 1988. Plaintiff demanded a hearing before the Village board of trustees regarding her discharge, which was held in December 1988 and January 1989. Following this evidentiary hearing, the board determined that plaintiff’s employment was properly terminated because of her alleged failure to administer the proper dosage of a drug to the patient for whom the ambulance service had been provided.

Plaintiff filed an action for administrative review and requested a declaratory judgment that her employment had been terminated in violation of a contract of employment allegedly contained in the Village’s personnel policy manual. The trial court entered summary judgment in defendants’ favor with respect to plaintiff’s claims. The court determined that the decision to terminate plaintiff’s employment was supported by the manifest weight of the evidence presented at the evidentiary hearing. The court- also concluded that the Village’s personnel policy manual did not amount to a binding contract of employment. Plaintiff appeals.

The personnel policy manual in effect since May 1988, which plaintiff had received, read, and acknowledged, provided in pertinent part as follows. On the first page of the document, under a heading titled “Introduction,” the manual stated that it had three purposes: (1) to establish uniform personnel procedures; (2) to provide a clear outline of the responsibilities of those administering personnel policies; and (3) to provide employees with a complete version of personnel policies and their “rights and responsibilities” as Village employees. The manual then stated, “This is an information book, it is not intended to be a contract between employees and the Village. The Village policies can be changed by the President and Board, from time to time as is necessary and required by changes in Village Rules, Regulations and Laws.”

Following these introductory statements, the manual set forth the organization of the village government, requirements for employment, conditions of probation and promotions, and employee benefits such as salary, paid holiday and vacation time, and medical/life insurance. With respect to standards of conduct for employees, the manual stated that the “tenure of every employee shall be contingent upon acceptable conduct and satisfactory performance of duties.” The manual provided that “[fjailure to meet minimum standards of conduct and work performance for any of the following listed reasons, such list is not to be considered all inclusive, shall be sufficient to dismiss an employee.” After specifying reasons for dismissal, the manual then stated, with respect to “General Types of Disciplinary Action for Cause,” that disciplinary action “may include” suspension without pay, dismissal, demotion, oral or written reprimand, involuntary transfer, or reduction in compensation. The manual further provided that “[disciplinary action should generally be progressive in severity and in relation to the behavior itself, the length of the employee’s tenure and his work history.”

Plaintiff contends that the terms of the personnel policy manual created a contract of employment whereby she could only be discharged “for cause.” We disagree.

The presumption that an employment relationship is at will, and may therefore be terminated at any time without cause, may be overcome where the parties have entered into a contract setting forth the conditions that limit the circumstances under which an employee may be discharged. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) Whether an employee personnel manual amounts to a contract of employment is determined according to the traditional requirements for contract formation, with particular attention to three factors: (1) whether the language of the manual contains “ ‘a promise clear enough that an employee would reasonably believe that an offer has been made’ (2) whether the manual was “ ‘disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer’ and (3) whether the employee has accepted the offer “ ‘by commencing or continuing to work after learning of the’ ” manual. Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 161, quoting Duldulao, 115 Ill. 2d at 490.

We conclude that the personnel policy manual in the instant cause did not contain language that could be reasonably construed as an offer of employment terminable only “for cause.” Illinois courts have repeatedly recognized that a personnel manual is not reasonably interpreted as an offer of employment when the manual contains language that disclaims the creation of a contract of employment. See Robinson v. Christopher Greater Area Rural Health Planning Corp. (1991), 207 Ill. App. 3d 1030; Habighurst v. Edlong Corp. (1991), 209 Ill. App. 3d 426; Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 559 N.E.2d 1119; Rudd v. Danville Metal Stamping Co. (1990), 193 Ill. App. 3d 1009, 550 N.E.2d 674; Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025; Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979; Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519; see also Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 102-03.

In the case at bar, the personnel policy manual specifically stated, “This is an information book, it is not intended to be a contract between employees and the Village.” This sentence plainly appeared in the first section of the manual. By its explicit terms, the sentence amounted to a clear and unambiguous statement by the Village that the manual did not create an employment contract between the Village and its employees, and that the Village did not intend to be bound by the policies and procedures contained in the manual. Consequently, the personnel policy manual disclaimed the creation of an employment contract between the Village and its employees.

Plaintiff notes that the manual also provided that its terms could be changed “by the President and Board, from time to time as is necessary and required by changes in Village Rules, Regulations and Laws.” Plaintiff argues that because of this additional sentence, the Village intended the manual to serve as an employment contract whose terms could be modified by the Village only if there were a change in Village rules, regulations or laws. We are unable to accept this argument. The personnel policy manual explicitly provided that it was not intended to be a contract between employees and the Village. The subsequent sentence, upon which plaintiff relies, merely reflected that the manual might be changed by the Village in the future. Under a reasonable construction of its explicit and unambiguous terms, the manual’s recognition of possible future amendment did not affect, limit, or modify the specific language of disclaimer plainly stated in the manual.

We also find no inconsistency in the personnel policy manual because the manual utilized the term “tenure” with respect to the period of time for which a person was employed by the Village, or because the manual stated that its purpose was to set forth an employee’s “rights and responsibilities.” This language does not raise an issue regarding whether the personnel policy manual amounted to a contract of employment. Rather, “[t]aken as a whole, the [manual] spells out policies and procedures which are generally followed ***, but states clearly at the outset that the defendant is in no way legally bound to follow them simply because it put them in writing.” Anders, 201 Ill. App. 3d at 1096.

In light of these considerations, we determine that the Village’s personnel policy manual did not confer upon plaintiff a contractual right to termination of her employment only “for cause.”

Our conclusion does not conflict with reported Illinois decisions that have found the existence of an employment contract despite language of disclaimer in a personnel manual. (See Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982; Seehawer v. Magnecraft Electric Co. (N.D. Ill. 1989), 714 F. Supp. 910 (applying Illinois law).) In these cases, the personnel manuals set forth grievance procedures to be followed in the event that discharge of an employee was contemplated. (See also Land v. Michael Reese Hospital & Medical Center (1987), 153 Ill. App. 3d 465, 505 N.E.2d 1261.) In the case at bar, the personnel policy manual contained no mandatory procedure for grievance of an adverse employment decision such as termination of employment. Rather, the manual stated that certain specified grounds would be sufficient to dismiss an employee, but added that these grounds were not “all inclusive.” In addition, the manual stated that disciplinary action “may include” suspension, dismissal, demotion, or other actions, and that disciplinary action “should generally be progressive in severity.” Thus, the personnel policy manual suggested, but did not mandate, certain specified grounds and procedures with respect to disciplinary actions against an employee. As a result, the disclaimer language of the manual stands as a bar to plaintiff’s claim. See Habighurst, 209 Ill. App. 3d at 429-31; see also Bjorn v. Associated Regional and University Pathologists, Inc. (1990), 208 Ill. App. 3d 505; Rudd, 193 Ill. App. 3d 1009, 550 N.E.2d 674; Tolbert v. St. Francis Extended Care Center (1989), 189 Ill. App. 3d 503, 545 N.E.2d 384; De Fosse v. Cherry Electrical Products Cory. (1987), 156 Ill. App. 3d 1030, 510 N.E.2d 141.

Plaintiff argues that the personnel policy manual must have amounted to an employment contract, on the premise that “[tjhere must be some purpose in providing a handbook other than simply the expense of preparing the same.” (Pundt v. Millikin University (1986), 145 Ill. App. 3d 990, 993-94, 496 N.E.2d 291.) We cannot conclude that the personnel policy manual rendered no benefit to employees, notwithstanding its failure to provide an employment contract. “Published policies, as opposed to spoken policies or no articulation of policy at all, provide a greater degree of clarity and certainty to at-will employment relationships and foster a better working environment.” (Anders, 201 Ill. App. 3d at 1098.) The personnel policy manual was not, as plaintiff argues, a “nullity” for its failure to create a contract of employment.

In light of these considerations, we conclude that plaintiff’s employment was terminable at will by defendants. As a result, we need not consider the parties’ remaining arguments regarding the personnel policy manual, nor do we address whether defendants’ perceived ground to discharge plaintiff was supported by the weight of the evidence.

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

Affirmed.

JOHNSON and LINN, JJ., concur.