author: JUSTICE STOUDER JUSTICE BARRY,

text:
    KAREN CATES, Indiv. and as Special Adm’x of the Estate of Ronald D. Cates, Deceased, Plaintiff-Appellee, v. HUNTER ENGINEERING COMPANY, Defendant-Appellant (The Salem Valve/The Oil Gear Company, Defendant).
    Third District
    No. 3—89—0516
    Opinion filed November 30, 1990.
    BARRY, J., dissenting.

      Roger L. Taylor, of Kirkland & Ellis, of Chicago (David T. Erie, of counsel), for appellant.
    Louis L. Bertrand, of Anthony C. Raccuglia & Associates, of Peru, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Pursuant to Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)), the defendant, Hunter Engineering Company, has been granted leave to appeal from an order denying its motion to dismiss a negligence cause of action brought by the plaintiff, Karen Cates.

The defendant designed, built, and provided installation assistance for a cold rolling mill at the Alumax Mill Products plant in Morris, Illinois, in 1967. In September of 1984, the plaintiffs husband was killed in an accident at the plant involving the cold rolling mill. The plaintiff’s complaint alleged, inter alia, a theory of product liability in count I and, in count II, that defendant was negligent in the design, assembly, manufacture, distribution and/or sale of the cold rolling mill, which was characterized as a machine.

The defendant’s motion to dismiss the product liability count was granted and is not involved in this appeal. The trial court denied the motion to dismiss the negligence count and stated the issue for review as follows:

“Whether a cause of action based on negligence, brought more than 10 years after the defendant’s alleged acts or omissions in the defendant’s design and building of, and providing installation assistance for, a cold rolling mill that was installed in a newly-constructed aluminum sheet mill, is barred by Ill. Rev. Stat., ch. 110, par. 13 — 214(b) which provides:
‘No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years elapsed from the time of such act or omission.’ ”

The question on appeal is whether the defendant has met its burden of establishing that the cold rolling mill is an improvement to real property within the meaning of the statute of repose for construction activity. We note that, in her complaint, the plaintiff characterized the cold rolling mill as a “machine,” but this assertion is not a part of the certified question of law in the instant appeal.

An “improvement” is an addition to real property amounting to more than mere repair or replacement, and which substantially enhances the value of the property. (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 613, 483 N.E.2d 613, 616.) The defendant argues that the cold rolling mill was an improvement to real property within the meaning of section 13— 214(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b)) because it was an integral part of the manufacturing process in the plant since it was one of three rolling mills used to produce sheet aluminum, that it was permanently installed, and that it increased the value of the real property.

In reply, the plaintiff principally relies on Calumet Country Club to support her argument that the record is insufficient for the trial court to determine whether the cold rolling mill was an improvement to real property. In that case, however, there is no indication that the defendant presented any affirmative matter in support of its argument. Indeed, the court noted that if, on remand, the defendant presents evidence that the piping connection at issue amounts to an improvement in real property, then dismissal would be proper. Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 613, 483 N.E.2d 613, 616.

In the instant case, in contrast to Calumet Country Club, the record contains the affidavit of Clarence Moser, the president of Hunter Engineering, in which he states that the defendant designed, built, and assisted in the installation of the cold rolling mill, one of three rolling mills in the newly constructed Alumax aluminum sheet mill in Morris. Moser also states that the defendant also furnished American Metal Climax/AMAX with installation assistance for the cold rolling mills at the Morris plant by providing an erector, an individual who supplied advice concerning the erection of the cold rolling mill. We, therefore, find Calumet Country Club readily distinguishable from the instant case.

The plaintiff also asserts that these cases generally are not decided on a motion to dismiss. The case law reveals, however, that in Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131, and Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346, the respective courts were presented with essentially the same issue as that presented in the instant case. In both cases, significantly, the court affirmed the trial court’s granting the defendant’s motion to dismiss.

We conclude that the installation of the cold rolling mill was more than a “mere repair or replacement.” This addition to the plant substantially enhanced the value of the real property and, therefore, constitutes an improvement to real property under section 13 — 214(b). Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b).

For this reason, the judgment of the circuit court of La Salle County is reversed.

Reversed.

HEIPLE, P.J., concurs.

JUSTICE BARRY,

dissenting:

In my view the decision in Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, is controlling in the instant case and, therefore, I must dissent.

The majority distinguishes the Calumet Country Club decision on the ground that here defendant relied upon the affidavit of Clarence Moser while in Calumet Country Club there was no indication of any supporting affidavits. This distinction overlooks the fact that the Moser affidavit contains no facts supporting a conclusion that the cold rolling mill was an improvement to real property. Moser does not describe the cold rolling mill or its relationship to the plant of which it is a part. There is no evidence of its permanence, its construction, its method or extent of attachment to the building in which it is located, or the value of the building before and after the mill was installed. In other words, nothing in the record supports the conclusion of the majority. Mere statements of defendant’s counsel in written and oral argument are not evidence that the cold rolling mill is an improvement to real estate as contemplated by section 13 — 214(b).

Defendant relies upon Hilliard v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352, where a screw conveyor installed in a cocoa processing plant was held to be an integral component of the cocoa processing system and central to the operation of the entire plant; hence, the conveyor was an improvement to real property within the meaning of section 13 — 214(b). The court specifically ruled that the definitions used in fixture law do not apply under section 13 — 214(b) so that a determination of the permanence of attachment is not necessary for a finding that a structure is an improvement. The court distinguished cases where the defendant had only manufactured a piece of equipment to be installed on real property from those where the defendants designed and constructed general improvements to the property. In Hilliard, the trial court had entered summary judgment for the defendant, and the circuit court of appeals affirmed. Under the reasoning of the Hilliard case, the question in the case at bar would be whether the cold rolling mill is an integral component of the entire plant or whether it is a piece of equipment placed in the plant to perform a particular function.

Defendant also cites Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131, where the trial court entered summary judgment for defendant upon a finding that plaintiffs action for damages caused to its building by the allegedly negligent services of defendant was barred because the underground tunnel system for sewer purposes constructed by defendant was not a mere repair but was an improvement to real estate.

In Hilliard v. Lummus Co. and in Continental Insurance Co. v. Walsh Construction Co. and other cases cited by defendant, the trial courts had sufficient evidence in the record to determine the nature of the construction work in question. In the case at bar, the trial court did not. At this stage of the litigation, before any discovery, I would hold that the trial court correctly denied the motion to dismiss.


source: Caselaw Access Project

author: JUSTICE GORMAN PRESIDING JUSTICE HEIPLE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES A. CAMPBELL, Defendant-Appellant.
    Third District
    No. 3—90—0114
    Opinion filed November 30, 1990.

      HEIPLE, P.J., dissenting.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a bench trial, the defendant, Charles A. Campbell, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19— 3). The trial court sentenced him to serve five years in prison. He appeals, contending that he was not proved guilty beyond a reasonable doubt.

Jeffrey Miller testified at the defendant’s trial that on March 9, 1989, he resided at 308 Willard Street in Joliet with Susan Lewis Buchanan. Upon returning home that evening, Miller discovered that the lights were on and his house was in disarray. He noticed that there were muddy footprints throughout his living room and kitchen. Bills which had been on the kitchen table when he left that morning were scattered on the floor. He also noticed that a television and a VCR were missing. Upon examining the outside of his house, he observed footprints in the mud beneath the windows. On the day in question, Miller had not given anyone permission to enter his house.

Joliet police department evidence technician Rex Provensale testified that he conducted an investigation at the crime scene. On the floor, he found a telephone bill envelope bearing a shoeprint. Proven-sale examined the shoes of Miller and the other officers at the scene and determined that they did not match the print on the envelope. Provensale also retrieved a latent fingerprint from a videotape container. It was later established that the fingerprint did not match any of the defendant’s fingerprints.

Police officer Richard Fonck testified that on March 12, 1989, the defendant was at the Joliet police station on an unrelated matter. After observing that the defendant was wearing tennis shoes, Officer Fonck compared a photograph of the shoeprint on the envelope taken by Officer Provensale with the soles of the defendant’s shoes. Based on that examination, Fonck concluded that the designs were similar and confiscated the defendant’s shoes. Thereafter, the shoes were sent to the State crime lab for examination.

Walter Sherk, a forensic scientist, testified that he worked in the area of firearms, tool marks, and shoeprints. He noted that he had taken courses and attended various lectures on shoeprint analysis. In his 14V2 years as a forensic scientist, he had performed approximately 300 shoeprint comparisons and had testified in 15 cases about his conclusions from shoeprint comparisons. Sherk further testified that he had made a comparison of the Nike brand tennis shoes taken from the defendant and the shoeprints found on the envelope at the scene of the burglary. He noted that the envelope bore two separate shoe impressions. Since the patterns were dissimilar, he concluded that the smaller of the two prints on the envelope could not have been made by the defendant’s shoe. Sherk then made a test print from the defendant’s right shoe for a comparison with the larger of the two prints on the envelope. The larger impression consisted of two-thirds of the middle portion of a shoe. Based on his comparison, Sherk found that the sizes of the shoes and the patterns on the soles were consistent. Sherk then compared the shoeprints for similar individual characteristics. He explained that individual characteristics were nicks, cuts, and scratches that appeared in the pattern of a shoe over a period of time as a shoe was worn. Sherk’s comparison revealed six similar individual characteristics. Based on the matching characteristics, he concluded that the larger print on the envelope had been made by the defendant’s right shoe.

On cross-examination, Sherk acknowledged that there was not a set number of individual characteristics that had to be similar to identify a shoe. He stated that as little as two or three similar marks might be enough. Sherk admitted that wearing shoes for two or three days could cause some change in the characteristics of the soles. He also noted that he had not looked for dissimilarities and that dissimilarities could affect the comparison. He further stated, however, that given a dissimilarity, he would assume that the shoe was distorted after the original impression was made or that dirt was present at the time the impression was made.

Police officer James Klancher testified that while on patrol on May 24, 1989, he had observed the defendant walking along a residential street. The officer informed the defendant that he had a warrant for his arrest. At that point, the defendant fled. The officer gave chase and finally apprehended him at his residence.

Nineteen-year-old Tana Ramos testified on behalf of the defendant that on or about March 9, 1989, she resided at 306 Willard Street in Joliet, Illinois, which was next door to the burglarized home. She was a friend of the defendant and had known him since she was in the sixth grade. She stated that the defendant came to visit her almost daily.

The defendant argues on appeal that his conviction should be reversed because the shoeprint evidence, standing alone, was insufficient to establish his guilt beyond a reasonable doubt.

It is well settled that, on review of a conviction, this court must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that the defendant’s conviction must be reversed. The only evidence connecting the defendant to the crime was the shoeprint evidence. Although such evidence may be used in conjunction with other circumstantial evidence to support a conviction (see People v. Diaz (1988), 169 Ill. App. 3d 66, 522 N.E.2d 1386; People v. Stanbeary (1970), 126 Ill. App. 2d 244, 261 N.E.2d 765), we are unaware of any Illinois precedent establishing that such evidence alone can support a conviction. In this regard, we note from the expert’s testimony that shoeprint analysis does not appear to have the exacting standards applied to fingerprint analysis.

Further, we find the State’s sole reliance on the shoeprint evidence problematic in this particular case given the questionable reliability of that evidence. The State’s expert admitted that he did not check for dissimilarities. It was unclear from his testimony whether such dissimilarities would affect his analysis. Additionally, it was established that three days’ wear could change the contour of a shoe’s sole and that the instant defendant could have worn the shoe in question for up to three days after the crime. We also note that no evidence was presented establishing that the defendant was wearing the shoe in question on the date of the offense. Under the circumstances, we hold that the State’s evidence left a reasonable doubt about the defendant’s guilt.

The judgment of the circuit court of Will County is reversed.

Reversed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

Following a bench trial, the defendant was convicted of residential burglary and sentenced to five years’ imprisonment. The majority reversed the defendant’s conviction, holding that the defendant was not proved guilty beyond a reasonable doubt. I find that, after reviewing the evidence in the light most favorable to the State, the trial court could have found the defendant guilty of the crime charged beyond a reasonable doubt. Therefore, I dissent.

On March 9, 1989, the home of Susan Buchanan was burglarized. The front door of the residence was broken into and a television and VCR were missing. A friend of the defendant’s, whom the defendant visited almost daily- lived next to the burglarized home. At the crime scene, a telephone bill envelope bearing a muddy shoeprint was found on the kitchen floor. Three days following the burglary, the defendant was at the Joliet police station on an unrelated matter when an officer noticed the similarity between the soles of the tennis shoes the defendant was wearing and a photograph of the muddy shoeprint on the telephone bill envelope. Thereafter, the defendant’s tennis shoes were confiscated and sent to the State crime lab for examination. At trial, Walter Sherk, a forensic scientist who is an expert in shoeprint analysis, testified that six similar individual characteristics (nicks, cuts, scratches) existed between the defendant’s right shoe and the pattern found on the envelope, and concluded that they were one and the same. Further, Officer James Klancher testified that while on patrol on May 24, 1989, he observed the defendant walking along a residential street among a group of individuals. The officer stopped his vehicle and informed the defendant that he had a warrant for his arrest. The defendant then fled about one-half of a block and was finally apprehended at his home.

In finding the defendant guilty of residential burglary, Judge Raymond Bolden stated that there is no question that the shoeprint on the envelope belonged to the defendant and that the defendant could not “have been inside that residence for any purpose other than an unlawful one.”

In reviewing a conviction, it is neither the duty nor the privilege of the reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of the witnesses for that of the trier of fact. (People v. Hobson (1979), 77 Ill. App. 3d 22.) Rather, a reviewing court must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

Contrary to the majority, I find that the State presented sufficient evidence of the defendant’s guilt. Elements of the offense of burglary may be proved by circumstantial evidence and inferences drawn therefrom. (In re Stokes (1982), 108 Ill. App. 3d 637.) Here, the muddy shoeprint on the envelope was positively identified as coming from the defendant’s right tennis shoe. As stated by Judge Bolden, there is no lawful purpose for which the defendant could have been inside the residence on the date of the incident. Moreover, the defendant fled from the police when they informed him that they had a warrant for his arrest. Evidence of flight is admissible as a circumstance tending to show consciousness of guilt. People v. Harris (1972), 52 Ill. 2d 558.

For the following reasons I would affirm the defendant’s conviction. Accordingly, I dissent.


author: PRESIDING JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JUAN BOLAR, Defendant-Appellee.
    Third District
    No. 3—90—0258
    Opinion filed November 30, 1990.
    STOUDER, J., dissenting.
    William Herzog, State’s Attorney, of Kankakee (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Leonard Sacks, of Kankakee, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The State charged the defendant, Juan Bolar, with unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, pars. 1402(a)(2), 1401(a)(2)). The defendant subsequently moved to suppress evidence gained from a search of the car he was riding in when arrested. The court granted the motion, and the State filed the instant appeal.

At the defendant’s bench trial, Officer Robert Bodemer testified that on March 21, 1989, around 9 p.m., he observed a gray Pontiac with tinted front side windows traveling on Illinois Route 57. Since vehicles made after 1982 could not have tinted windows, he requested a computer check to determine the year of the car’s manufacture. The check revealed that the car was a 1984 Pontiac registered to Rodney Wallace.

Officer Bodemer then stopped the vehicle. He noted that two people sat in the front seat and one person sat in the back seat. The officer told the driver that his windows were illegal and asked to see his license. The driver did not have his license with him, but identified himself as Rodney Wallace.

Officer Bodemer further testified that the defendant sat in the front passenger seat. As Bodemer spoke to the driver, the defendant shifted in his seat and looked directly ahead. He then picked up some food scraps and placed them in a Kentucky Fried Chicken box.

After the officer issued a warning ticket to Wallace for illegal windows, he asked Wallace if he had any stolen property, weapons, or narcotics in his vehicle. The defendant leaned over and whispered something to Wallace. Wallace said that he did not have any illegal items in his car and agreed to let the officer search his vehicle.

Officer Bodemer asked all three persons to exit the vehicle. Before exiting, the defendant placed the Kentucky Fried Chicken box in an open paper sack standing on the floorboard at his feet. Wallace then signed a consent form authorizing the search of his vehicle and its contents.

The officer took the chicken box out of the sack and noted that inside it were chicken bones, food scraps, and paper. He also noted that the sack contained a cheese ball canister, a lemonade mix canister, and a receipt. The receipt stated that it was for the purchase of two cans at a price of $35.98 each from Jimmy’s Record and Variety Shop in Chicago. When he shook the cheese ball canister, it did not feel like it had cheese balls in it. He then opened the canister, removed some cheese balls, and saw an opaque plastic container in the bottom half of the can. Inside the container there appeared to be two white round objects.

When he walked over to the three occupants and asked them what was in the sack, the defendant said that it contained groceries. Bodemer radioed for a canine unit to be sent to the scene and resumed the search. Under the back passenger seat he found a hand-rolled cigarette that smelled like cannabis.

After the police dog arrived, it indicated that narcotics were inside the cheese ball canister. Officer Bodemer unscrewed the bottom of the canister and saw two plastic baggies containing a white chunky substance. The lemonade mix canister also had a false bottom, but it was empty.

Bodemer subsequently arrested the defendant. Another officer searched him and found $1,294.99 in the defendant’s pocket.

A forensic scientist testified that one of the baggies contained 27.89 grams of a substance that was 94.8% cocaine. The other bag contained 27.65 grams of a substance which, according to preliminary tests, contained cocaine.

During Officer Bodemer’s testimony, defense counsel orally moved to suppress the results of the search. Following the conclusion of the hearing, the trial court suppressed the evidence in the sack, finding that the search violated the fourth amendment.

On appeal, the State contends that the court erred for three alternative reasons: (1) the defendant lacked standing to challenge the search; (2) Wallace consented to the search; and (3) the police had probable cause to search for drugs.

We note that a trial court’s ruling on a motion to suppress will not be reversed unless it was manifestly erroneous. (People v. Ingram (1986), 143 Ill. App. 3d 1083, 494 N.E.2d 148.) We also note, however, that a passenger lacks standing to challenge the search of another’s car unless the passenger had a legitimate expectation of privacy in the place searched. Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.

The uncontroverted evidence established that Wallace, the driver and owner of the vehicle, consented to a search of the car and its contents. The sack was open and standing in plain view. Moreover, the defendant did not assert a possessory interest in the sack or its contents. Consequently, we find that he did not have a legitimate expectation of privacy in the sack and thus lacked standing to challenge the search. (See People v. Manikowski (1989), 186 Ill. App. 3d 1007, 542 N.E.2d 1148; People v. Carlton (1985), 133 Ill. App. 3d 1061, 479 N.E.2d 1178.) We therefore conclude that the trial court’s ruling that the search violated the fourth amendment was manifestly erroneous.

Our resolution of this issue renders moot the State’s other arguments. We reverse the order of the circuit court of Kankakee County suppressing the use of the sack’s contents as evidence and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN, J., concurs.

JUSTICE STOUDER,

dissenting:

In the instant case, the appropriate question is whether the chailenged search violated the fourth amendment rights of the defendant. The capacity to claim the protection of the fourth amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, citing Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) The resolution of this issue turns on a factual determination. Findings of fact in connection with a motion to suppress evidence will not be overturned by a reviewing court unless manifestly erroneous. People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.

In the instant case, the trial court correctly found that the defendant had a legitimate expectation of privacy in the sack. In connection with a concurrent motion for a directed finding, the court found “ample evidence of the defendant’s possession, control and knowledge.” The trial court noted that the sack was between the defendant’s feet, that the defendant placed his dinner refuse in the sack, and that it was the defendant who responded to the officer’s inquiry into the sack’s contents. This was more than an adequate showing that the sack and its contents did not belong to the driver and that the defendant had a possessory interest in the sack and an expectation of privacy separate from that of the driver. The trial court concluded that Trooper Bodemer was interested in the contents of defendant’s sack and not the vehicle. However, instead of obtaining the defendant’s consent to a search of the sack, he obtained the driver’s permission to search the vehicle and ordered the driver and passengers out of the car. The fact that the defendant left the sack in the vehicle when he was ordered out by the State trooper does not diminish or eviscerate the defendant’s legitimate expectation of privacy in the contents of the sack. There was no showing that the contents of the sack were in plain view or that the trooper had probable cause to search the sack.

Under the circumstances, the defendant had a legitimate expectation of privacy in the contents of the sack. The trial court’s determination that the search was a violation of the defendant’s fourth amendment rights was not manifestly erroneous. Therefore, I believe the judgment should be affirmed.


author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    MERIDA ZUMBAHLEN, Plaintiff-Appellant, v. MORRIS COMMUNITY HIGH SCHOOL, DISTRICT No. 101, Defendant-Appellee.
    Third District
    No. 3—89—0680
    Opinion filed November 30, 1990.
    HEIPLE, P.J., dissenting.
    Stephen J. West, of Ottawa, for appellant.
    John W. Condon, of Dunn, Hayes & Condon, of Morris, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from a summary judgment order entered against the plaintiff, Merida Zumbahlen, who sustained injuries while attending a football game on the property of the defendant, Morris Community High School, District No. 101.

The facts are not in dispute. On October 16, 1986, the plaintiff was on the defendant’s premises to attend a football game. She went to the ticket booth to get a ticket and upon leaving that area caught her heel on the edge of a concrete parking curb, causing her to trip and fall. There were a number of children running around the area, and the plaintiff had to weave around them to avoid being run into. The plaintiff admitted, however, that she knew the curb was there and in fact was trying to be careful around it.

The plaintiff’s complaint alleged that the defendant was negligent for failing to exercise reasonable care in providing her with a safe place to walk and in failing to warn her that a concrete curb was in the vicinity. The defendant filed a motion for summary judgment, alleging that it did not have a duty to warn the plaintiff since she knew of the existence of the curb. The trial court granted the motion, finding that the plaintiff’s complaint failed to raise a genuine issue of material fact.

On appeal, the plaintiff argues that the trial court erred in finding as a matter of law that the defendant did not have a duty to warn her about the curb.

Summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) To survive a motion to dismiss in a negligence action, the complaint must allege facts from which the law will raise a duty. Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999, 513 N.E.2d 1026.

In Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, the Illinois Supreme Court recently addressed the issue of the existence of a duty in cases of known or obvious risks. In Ward, the court stated that the “ ‘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.” (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 148-49, 554 N.E.2d 223, 230.) “If the defendant may reasonably be expected to anticipate that even those [entrants] in the general exercise of ordinary care will fail to avoid the risk because they are distracted or momentarily forgetful, then his duty may extend to the risk posed by the condition. Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 156, 554 N.E.2d 223, 234.) “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 ***.” Ward v. K mart Corp. (1990), 136 Ill. 2d 132,147-48, 554 N.E.2d 223, 230.

In light of Ward, we believe there existed a genuine issue of material fact in the instant case.

For this reason, the judgment of the circuit court of Grundy County is reversed and the cause remanded for further proceedings consistent with the holding in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.

Reversed and remanded.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

The plaintiff, 62-year-old Merida Zumbahlen, sustained injuries when she caught her heel on a concrete parking curb on the defendant’s premises and fell. The defendant, Morris Community High School, District No. 101, was granted summary judgment by the trial court, which found that the plaintiff’s complaint failed to raise a genuine issue of material fact. The majority, relying on the recent Illinois Supreme Court case of Ward v. K mart Corp. (1990), 136 Ill. 2d 132, reverses, finding that a genuine issue of material fact exists as to whether the defendant had a duty to warn the plaintiff about the curb. I find that Ward is distinguishable and therefore I dissent.

On October 16, 1986, the plaintiff was attending a football game at Morris Community High School. After purchasing her ticket at the ticket booth, the plaintiff walked about four or five steps and then attempted to step carefully around a parking curb that she knew was there. She caught her heel on the edge of the concrete parking curb, causing her to trip and fall.

The majority finds that in light of Ward, the trial court decision to grant the defendant summary judgment must be reversed. The facts of Ward are distinct from the case at bar. In Ward, the plaintiff sustained injuries when he walked into a concrete post located just outside a customer entrance door of a K mart department store. At the time of the injury, the plaintiff was carrying a large mirror which he had purchased at the K mart. The plaintiff admitted that he had seen the post before entering the K mart. The trial court in Ward entered a judgment notwithstanding the jury’s verdict for the plaintiff on the ground that K mart had no duty to warn of the post which was an obvious condition. The appellate court affirmed. The supreme court reversed, holding that K mart’s duty of reasonable care encompassed the risk that one of its customers, while carrying a large, bulky item, would collide with the post upon exiting through the customer door. The supreme court found that there are certain dangerous conditions which, although obvious, do not alter a defendant’s general duty' of reasonable care to warn customers of those risks. In so finding, the supreme court stated that it may have arrived at a different conclusion if the post was located farther from the store entrance, or if the plaintiff would not have been carrying any vision-obscuring bundle. Ward, 136 111. 2d at 153.

In the case at bar, the plaintiff saw the parking curb yet attempted to step around it. Her view was not obstructed and no warning sign was necessary since she was fully aware of the parking curb’s presence. Further, the parking curb was located several feet from the ticket booth. Thus, unlike Ward, this case does not present a situation where the defendant should be reasonably expected to anticipate that customers in the general exercise of ordinary care will fail to avoid the obvious risk because they are distracted or are momentarily forgetful. Here, the plaintiff was not distracted and the defendant had no duty to warn the plaintiff about the open and obvious condition of a parking curb.

Accordingly, I would affirm the circuit court’s decision to grant summary judgment to the defendant. Therefore, I dissent.


author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    RANDALL P. PRICE et al., Plaintiffs-Appellees, v. VICTORY BAPTIST CHURCH OF SUNNYLAND, a/k/a Victory Baptist Church, a/k/a Victory Land Baptist Church, Defendant-Appellant.
    Third District
    No. 3—89—0439
    Opinion filed November 30, 1990.

      HEIPLE, RJ., dissenting.
    Duncan B. Cooper III and Craig S. Young, both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant.
    Stephen D. Gay, of Husch, Eppenberger, Donohue, Cornfeld & Jenkins, of Peoria, and Richard G. Hayes, of Pekin (Jeffrey A. Ryva, of counsel), for appellees.
   JUSTICE SCOTT

delivered the opinion of the court;

Defendant, Victory Baptist Church of Sunnyland, an Illinois religious corporation, appeals from a judgment entered upon a jury verdict awarding the plaintiffs, Randall R and Julie C. Price, $287,500 in damages under the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60).

On December 6, 1985, defendant was engaged in the alteration of what had been a store building for use as its church. The plaintiff, a member of the congregation, had regularly assisted in the remodeling project in a volunteer capacity and was working at the site. Pastor Buddy Glass, the head of the church and overseer of the remodeling, instructed the plaintiff to install a second speaker along the wall of the proposed. church auditorium. The plaintiff positioned a ladder against a metal duct along the wall and climbed to the top. As the plaintiff stepped from the ladder to the duct, the ladder slid out from under him, and he fell approximately 12 feet to the concrete floor.

The ladder was the bottom half of an extension ladder which was being used independently because the top and bottom parts would not fit together. The ladder had been supplied by Robert Frye, Sr., an experienced construction worker, who was appointed supervisor of the remodeling project by Pastor Glass. Our assumption, based on the jury verdict, is that the ladder was unsafe, too short for the job. No contrary argument is made by the church on appeal.

Defendant makes four arguments: (1) that the plaintiff as an unpaid volunteer is not among the class of people that the Structural Work Act is designed to protect; (2) that the defendant did not have charge of the construction site for the purposes of the Act; (3) that the doctrine of assumption of risk can be an affirmative defense in a Structural Work Act case and should be applied here; and (4) that there was an insufficient basis for the jury to award $57,500 in medical damages. We address these arguments in the foregoing order and affirm.

Defendant would have this court focus on the purpose of the Structural Work Act as stated in a multitude of cases that do not involve unpaid volunteers rather than examine the relevant statutory language. To this end, it argues that plaintiff was not its employee, that he was not employed in a construction occupation, that enforcement of the verdict in the instant case will not promote the safety of construction workers and that the church does not profit from construction activities.

In Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 7-8, 552 N.E.2d 719, the Illinois Supreme Court reiterated the rule that the Act may be violated by a defective ladder and stated at the outset of its analysis that the purpose of the Act is “to provide protection to workers engaged in work activities of a particularly hazardous nature.” This approach is relevant in the instant case. Although Meyer decided that the bundle of steel storage racks sitting on the ground which fell over was outside the scope of the statute, it did note that Harold Meyer had the benefit of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), a circumstance not present here. The presence or absence of workers’ compensation insurance coverage is not that significant in the instant case; this case turns on the terminology of the Act itself.

At the outset we note that Rule 341(e)(5) (107 Ill. 2d R. 341(e)(5)) requires an appellant, in any case involving the construction of a statute, to set out verbatim the pertinent parts of that statute under an appropriate heading such as “Statutes Involved.” Defendant’s brief omits this requirement. The applicable statutory language is as follows:

“All *** ladders *** erected or constructed by any person *** for the use in the erection [or] alteration *** of any *** building *** or other structure, shall be erected and constructed, in a safe, suitable and proper manner and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 60.

Plaintiff, as a person “employed or engaged” on the project, is easily within the contemplation of the Act; there simply is no statutory requirement that such a person receive monetary compensation. Defendant’s argument also neglects the special relationship members of a church have with one another and their pastor. The trial record indicates Pastor Glass made members feel guilty if they did not volunteer. The circumstance that plaintiff did not receive monetary compensation does not exclude him from the protection of the Act. Long v. City of New Boston (1981), 95 Ill. App. 3d 430, 420 N.E.2d 282, aff’d in part, rev’d in part on other grounds (1982), 91 Ill. 2d 456, 440 N.E.2d 625.

In Warren v. Meeker (1973), 55 Ill. 2d 108, 113, 302 N.E.2d 54, 57, the Illinois Supreme Court, in rejecting a contention that the Act was inapplicable to farmers or farm hands, said that “the plain language *** of the Act *** extends protection to ‘any person’ engaged on a ladder while repairing a structure.”

Unpaid volunteers are not, on that basis alone, barred from recovery under the Act. (Long v. City of New Boston (1981), 95 Ill. App. 3d 430, 420 N.E.2d 282, aff’d in part, rev’d in part on other grounds (1982), 91 Ill. 2d 456, 440 N.E.2d 625.) In Long, the plaintiff, while performing a civic function as an unpaid volunteer, was assisting in erecting decorative Christmas lights when he fell from the ladder on which he was standing. Relying on Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54, this court held that any person engaged on a ladder was protected by the Act, including volunteers.

The second contention on appeal is that the defendant was not in charge of the work being done for purposes of the Act. Although there is no rigid formula for deciding the “in charge” question, still it is useful to consider the factors outlined in Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 662, 534 N.E.2d 680, 683. They are as follows:

Did the defendant ***
(1) supervise and control work?
(2) retain the right to supervise and control?
(3) consistently participate in the work?
(4) supervise and coordinate subcontractors?
(5) take responsibility for safety at the site?
(6) have authority to change orders?
(7) have the right to stop work?
(8) own equipment at the site?
(9) have knowledge of construction customs and practices?
(10) have ability to assure worker safety or alleviate equipment deficiencies or improper work habits?

The corporate defendant, Victory Baptist Church of Sunnyland, exercised, or had the power to exercise, all or the more significant of the above-listed powers. During cross-examination, Robert Frye stated, “Pastor Glass was in charge of the job.” Later, when asked if Glass was the one in charge, he answered affirmatively. From the beginning of the project, workers were instructed to bring any questions to Glass, Frye, or assistant pastor Howard Humphrey.

Glass drew the plans for the project and made the final decisions on how the new church would be set up. At a church meeting prior to beginning the project, Glass announced he had appointed Frye as the supervisor of the project because of his construction experience. Frye agreed to accept this responsibility. Frye did the layout for practically all of the construction of the walls and the baptistry, as well as cutting the boards that were used.

Glass had an office at the site and was present virtually all the time. Price testified that this was the common procedure during the project: They (she and Mr. Price) would go to the site, report to Glass’ office, and he would assign them a task. Randy Price testified that on the day he was injured he went to Glass’ office when he arrived at the site. Price asked Glass what he wanted him to do, and Glass told him to hang a speaker on a wall “directly opposite of the other speaker.”

Glass knew a ladder would be needed to install the speaker and that plaintiff Price would have to “fish a wire” through the wall while Price was at the top of the ladder. Glass also knew, or should have known, that only one ladder at the site was tall enough for the job, that plaintiff had no choice of which ladder to use. Plaintiff was forced to use the bottom half of an extension ladder that Robert Frye had supplied for the project. Because the ladder was broken, the top and bottom halves would not stay together. Plaintiff testified that he had informed Glass of this prior to the accident.

Defendant argues that it did not supply or maintain the ladder or control its use. This argument is not persuasive. The ladder was supplied by Robert Frye. As supervisor of the project, Frye was an agent of the defendant.

Furthermore, plaintiff had no choice in how to go about performing the task assigned to him by Pastor Glass. He had to use a ladder, and only one ladder was tall enough to do the job.

The issue of control of the ladder, at the time of injury, is not enough, by itself, to insulate or immunize a corporate defendant that had overall responsibility for the work being performed and who also specifically directed the plaintiff to do the task that resulted in his injury. Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316.

As stated in Bisset v. Joseph A. Schudt & Associates (1985), 133 Ill. App. 3d 356, 358, 478 N.E.2d 911, 913:

“As long as there is some evidence connecting the person named, a jury question is presented. ***
Therefore, unless the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict could stand, the verdict should be affirmed.”

In the third alternative, defendant argues assumption of the risk as an affirmative defense. It points out that the plaintiff will-ingly accepted the risks associated with construction work; he positioned the ladder himself. However, the cause of action in this case is statutory, not common law, negligence. The supreme court has consistently held that comparative negligence or assumption of risk does not bar recovery in Structural Work Act cases. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 459, 473 N.E.2d 946, 953; Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 410, 485 N.E.2d 4, 8; Prewein v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 141, 483 N.E.2d 224.) In Simmons, the court stated, “the sole inquiry under the Act is an assessment of the defendant’s culpability and not the plaintiff’s conduct.” (Simmons, 104 Ill. 2d at 459, 473 N.E.2d at 953.) The court went on to point out that only by excluding consideration of the plaintiff’s conduct would the Act be an effective remedy.

Defendant’s final contention is that the jury had no basis on which to award $57,500 in medical damages or more precisely to award over $40,000 for future medical expenses.

Plaintiff had already undergone two knee operations and had shown little sign of improvement. Dr. Cahill, an orthopedic surgeon, testified more operations would probably be done in the future and that plaintiff’s condition would deteriorate. The amount of future damages was nearly 21/a times the amount of medical expenses that had already accrued. Those past expenses ($16,865.68) were known to the jury. Assuming a normal life span, plaintiff has 40 plus years of expenses to anticipate. These expenses will range from operations to therapy to regular maintenance and replacement of knee braces; he may need crutches or a wheelchair to get around.

Defendant’s argument is that the plaintiff’s witness, Dr. Cahill, gave no specific estimate of the future costs of the plaintiff’s medical care. Future medical expenses may be determined without a precise estimate in the circumstances that exist here. (Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 659, 518 N.E.2d 205, 218; Long v. Friesland (1988), 178 Ill. App. 3d 42, 58, 532 N.E.2d 914, 924; Young v. Gateway Transportation Co. (1975), 26 Ill. App. 3d 864, 871, 326 N.E.2d 222, 228.) We see no basis for the granting of a new trial on this issue.

The Structural Work Act applies to the plaintiff, and there is ample evidence to support the verdict of the jury. Assumption of risk is not a defense.

The judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

This appeal is taken by the defendant, the Victory Baptist Church of Sunnyland, Illinois, following a jury trial wherein the plaintiffs, Randall and Julie Price, were granted a $287,500 verdict on a Structural Work Act claim (hereinafter Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60). Randall, a 27-year-old member of the church, was injured when he fell off a ladder while working in a voluntary capacity on church remodeling activities. While I agree with the majority that a ladder is included within the purview of the Act and that a volunteer might be covered under the Act if someone is directing his work, I find that no one was in charge of Randall’s work. Accordingly, a Structural Work Act claim does not apply under the facts of this case and I dissent.

In the winter of 1985, Victory Baptist Church was converting an old grocery store into its church facilities. The remodeling work was done by church members on a volunteer basis with the exception of electrical work, which was contracted out. The plaintiff had regularly assisted in the remodeling project, and on December 6, 1985, the plaintiff went to the church in order to install speakers in the building. According to Pastor Buddy Glass, Randy volunteered for the project because he had experience in installing sound systems. Pastor Glass stated that he only told the plaintiff where to hang the speakers on the wall but that “I did not tell him *** how to go about doing it” because “I was leaving it up to him” since it “was his responsibility.” With regard to safety precautions, Pastor Glass testified that “we just left it up to the discretion and to the responsibility of that worker to take all safety precautions” because it was volunteer work.

At the time of the accident, the plaintiff and his wife were working alone in the back section of the building. To install the speakers on the wall, the plaintiff was using the bottom part of an extension ladder independently because the top and bottom parts would not fit together. The ladder had been loaned by Robert Frye, a member of the church who had been appointed supervisor of the remodeling project by Pastor Glass. Mr. Frye was not at the site when the plaintiff was injured and had not been there for two or three weeks. In attempting to thread the speaker wire, the plaintiff climbed the ladder and tried to step across an air duct when the ladder slipped from beneath him. The plaintiff fell approximately 12 feet to the concrete floor and injured his left leg.

The Structural Work Act imposes a duty of care on an “owner, contractor, sub-contractor, foreman or other person having charge of the *** construction *** of any building *** within the provisions of this act.” (Ill. Rev. Stat. 1987, ch. 48, par. 69.) While the determination of whether a defendant had charge of the work has generally been held to be for the trier of fact, this issue may be determined as a matter of law where the evidence presented is insufficient to create a factual question. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481.) The majority, citing to Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, delineated the following factors to be considered in deciding the “in charge” question:

“Did the defendant ***
(1) supervise and control work?
(2) retain the right to supervise and control?
(3) consistently participate in the work?
(4) supervise and coordinate subcontractors?
(5) take responsibility for safety at the site?
(6) have authority to change orders?
(7) have the right to stop work?
(8) own equipment at the site?
(9) have knowledge of construction customs and practices?
(10) have ability to assure worker safety or alleviate equipment deficiencies or improper work habits?” (205 111. App. 3d at 608.)

The majority finds that based on these factors, there was sufficient evidence to conclude that Victory Baptist Church was “in charge” of the work when Randall was injured. I disagree.

Pastor Glass testified that no one was directing Randall’s installation of the speakers and that it was Randall’s responsibility to determine how the job was to be completed. When the plaintiff was injured, no other person was supervising this work. Additionally, the ladder the plaintiff fell from was not owned by the church. Moreover, the renovating work was being done by volunteers who were responsible for taking their own work and safety precautions. Based on these facts, it is clear that the church was not “in charge” of the work within the meaning of the Structural Work Act. Rather, by analogy, the facts of this case compare with a homeowner who merely schedules the work to be done and purchases the supplies, but does not exercise control over those who perform the work. In such situations, the homeowner is not a party “in charge” and the Structural Work Act does not apply. (Angus v. Doss (1987), 157 Ill. App. 3d 300.) Similar reasoning should be applied to the facts of the case at bar.

Therefore, I dissent.


author: PRESIDING JUSTICE HEIPLE

text:
      In re MARRIAGE OF ROGER H. WILLIAMS, Petitioner-Appellee, and MARIAM R. WILLIAMS, Respondent-Appellant.
    Third District
    No. 3—89—0831
    Opinion filed November 29, 1990.

      Reynolds, Murphy & Associates, of Peoria (G. Edward Murphy, of counsel), for appellant.
    James E. Shadid, of Peoria, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This action involves a custody dispute between Roger and Mariam Williams over their three-year-old daughter, Eleanor. The trial court ruled that it was in Eleanor’s best interests to award custody to the father. We affirm.

Roger Williams left the marital residence in September 1988, when he learned that his wife, Mariam, was involved in an ongoing homosexual relationship with Angela Fulton. In subsequent divorce proceedings, the trial court awarded custody of Eleanor to the father based on the following findings: (1) that the mother’s open and continuing intimate cohabitation with Angela Fulton was a proper factor to consider in deciding original custody; (2) that the mother’s actions indicate that she is unlikely to screen her daughter from her own lifestyle choice; (3) that the mother’s choice of Angela as her lesbian partner posed a risk to the child because of Angela’s serious emotional problems and past drug abuse; (4) that the child does not appear to be the mother’s highest priority; and (5) that although the father, by his actions, showed a lack of good judgment during the time period that Mariam had sole custody of Eleanor, the father is better able, on the whole, to provide for the child’s physical, mental, moral and emotional needs. We find that Judge Barra’s holding is supported by the evidence.

On behalf of Roger Williams, the following witnesses testified. John Carlson, a friend of Roger’s for 20 years, testified that Roger was a very nurturing parent and that he can provide a stable environment for Eleanor. Laurel Hancock, a first-grade school teacher, stated that she and her five-year-old son do quite a few things with Roger and Eleanor and that Roger has a positive, loving relationship with Eleanor. Lori Williams, who was married to Roger Williams’ brother and whose children play with Eleanor, testified that Roger has a very positive approach to disciplining and caring for Eleanor. J. Wesley Bennett, the minister at the church where Eleanor was baptized, stated that based on his observations and experiences in getting to know; Roger, Roger is a fine young man and would make a good parent. Richard Nelson, owner and operator of the Pilot Club, a restaurant and bar in Bartonville, Illinois, testified that Roger visited the Pilot Club three times a week and that on many occasions he would bring Eleanor and Mariam. Nelson stated that when Roger and Eleanor visited his establishment, the child seemed very happy and Roger acted like a good, very loving father. Nelson also stated that Roger always behaved like a gentleman in his presence and never appeared drunk in his presence.

Dr. Eric Ward, a pediatric psychologist in Peoria, Illinois, testified as an expert witness for Roger Williams. Dr. Ward stated that one-half of his practice involves children involved in separation or divorce. Dr. Ward held 10 hours of examination with Roger Williams, Mariam Williams, Eleanor Williams, and Angela Fulton, and observed the interaction between the child and the adults. Dr. Ward further reviewed letters that were written by Angela, the mother, and the father, and examined a deposition of Mariam Williams. In Dr. Ward’s opinion, the best interest of the child would be served by placing custody of the child with the father based on the following findings: parent/child interactions and discipline, the instability of the relationship between Mariam and Angela, and Angela’s past and present instability. Regarding Angela, Dr. Ward specifically voiced concerns about her young age (18 years old), her history of parent-child sexual abuse, and the relatively short period of time that she has been in a recovery period from alcohol and drug abuse. Dr. Ward also stated that he was concerned that Mariam did not give Angela sufficient time to work through some of her problems before becoming involved in an intimate relationship with her.

Roger Williams testified that he is currently working for Homer Williams Construction Company and rents the downstairs and part of the main floor of a single-family dwelling. Roger and Eleanor each have their own bedrooms. Roger testified that he has fully exercised his visitation rights and that during said visitation, Roger engaged in activities such as rock hunting, planting flowers, growing vegetables and playing on his parents’ farm with Eleanor. Roger stated that he wants custody of Eleanor for her moral upbringing, self-esteem, and the traditional type of family setting that he could provide.

At trial, evidence was produced to show that Roger had violated a protective court order prior to the resolution of this custody dispute. In September 1988, Roger removed Eleanor for six weeks from the physical care of Mariam without her consent. During this six-week period, the court granted Mariam temporary custody and issued an emergency order of protection in that regard. Roger did not comply with said order, and on April 24, 1989, he was found in contempt of court for violating the protection order. Additionally, evidence was presented that Roger had engaged in demeaning name-calling towards both Mariam and Angela when he picked Eleanor up for visitation. Roger had called Angela a “little dyke bitch” and Mariam a “dyke.” It is disputed whether or not this name-calling occurred while Eleanor was present.

On behalf of Mariam Williams, the court heard testimony from Angela Fulton, Mariam Williams, and Dr. Richard Grant. Ángela Fulton was treated as an interested party at the request of the defendant’s attorney because of her special relationship with Mariam.

Angela, who was 18 years old at the time of the hearing, testified that she first met Mariam in May of 1987, when she was 16 years old while a patient at the Lifeway Chemical Dependency Center (hereinafter Lifeway). Mariam was a nurse at Lifeway and provided routine health care to Angela. Angela further testified that in April 1987, she tried to commit suicide and for six years, prior to entering Lifeway, she used marijuana, cocaine, quaaludes, alcohol, uppers and downers. Angela also stated that she had been sexually abused as a child and became pregnant at the age of 12. At the time of the trial court hearings, Angela was continuing to undergo counseling to deal with her family situation and drug abuse situation.

Angela stated that she began to see Mariam on a social basis while she was an outpatient at Lifeway. Angela was released from Lifeway in July of 1987 and received outpatient care for six months following her release. Angela further testified that she presently lives with Mariam and that they are involved in a lesbian relationship which she considers to be permanent in nature. Angela perceives her role with Eleanor to be an authoritative adult in the household with the ability to discipline and correct.

Angela admitted writing a letter to Mariam in August of 1988, wherein she made the following statements: (1) “too many of today’s victims are tomorrow’s abusers”; (2) “blood comes up alot in my mind when I look at my life”; (3) Angela had a dream “about people being shot and that suddenly [I] was standing over them with a gun in [my] hand”; and (4) Angela had a dream that she “killed Ele (Eleanor) in the quiet room.” The “quiet room” is a room at the Lifeway facility where patients go to take out their frustrations.

Angela stated that she wants to fight her past and that she has a positive outlook towards the future. Angela is presently a student at Bradley University majoring in psychology. During her freshman year at Bradley, she received all A’s and B’s and made the dean’s list. Angela also works part time at the Methodist Hospital childcare center where Eleanor attends daycare.

Mariam Williams testified that the staff at Lifeway did not think that it was a good idea for her to have contact with Angela on a social basis while Angela was still an outpatient with Lifeway. Nevertheless, Mariam chose to have contact with Angela allegedly on a friendship basis. Mariam testified that she did not consider herself a lesbian until mid-September of 1988, after Roger had left the marital residence. Mariam stated that Eleanor would be better off in her custodial care because she provided a more loving and caring environment for Eleanor, under a more routine daily schedule. Further, Mariam felt she had more quality time and activities to devote to Eleanor and that while Roger could adequately take care of Eleanor’s physical needs, she could better take care of Eleanor’s emotional needs. At the time of the hearing, Mariam had changed departments at Methodist Hospital and was working as a labor and delivery nurse. Mariam, Angela and Eleanor resided in a three-story, four-bedroom house.

Dr. Richard Grant, a medical psychiatrist specializing in marital and sexual dysfunctions, testified as an expert witness for Mariam. Dr. Grant met with both parties and Angela in his evaluation. Dr. Grant concluded that custody should be retained by Mariam, who had physical custody for the previous one-year period. The basis for Dr. Grant’s conclusion was that Eleanor had prospered under the custodial care of Mariam, that Roger did not know how to foster independence or treat Eleanor or Mariam with respect, and that based on his clinical evaluations and personality tests, Roger had a strong tendency to “distort facts or lie in order to present information in a favorable light.”

On cross-examination, Dr. Grant agreed that there is considerable instability with relationships in which one of the partners is a teenager. Dr. Grant also stated that he did not evaluate any interaction between Eleanor and her parents, that custody situations are not routinely part of his practice, and that Dr. Ward has more expertise in evaluations of children than he does.

On appeal, the mother argues that the trial court abused its discretion in considering the mother’s lesbian relationship in violation of section 602(b) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) (Ill. Rev. Stat. 1989, ch. 40, par. 602) when all the evidence indicated that said relationship would have no adverse consequences on the minor child. Additionally, the mother claims that the trial court abused its discretion by not properly considering those factors delineated in section 602(a) of the Act. Section 602 directs that the best interest of the child be considered in any child custody determination, stating as follows:

“§602. Best Interest of Child, (a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; and
(7) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
(c) The court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. However, such presumption shall not be construed as a presumption that an order awarding joint custody is in the best interests of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 602.)

We find that based on all the evidence, the trial court, pursuant to section 602, did not abuse its discretion in awarding custody to the father.

A decision of the trial court regarding custody will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence or unless it appears that manifest injustice has been done. {In re Custody of Switalla (1980), 87 Ill. App. 3d 168.) The presumption favoring the result reached by the trial court is strong and compelling in custody cases because it, rather than the reviewing court, is in a better position to evaluate the credibility of the witnesses and the needs of the children. In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617.

Under section 602(a) the trial court shall determine custody in accordance with the best interest of the child by considering all relevant factors. (Ill. Rev. Stat. 1989, ch. 40, par. 602(a).) Here, the evidence reveals that the mother exhibited gross character defects. The mother, while a nurse at Lifeway, actively recruited a patient who was a minor to engage in an illicit and criminal sexual relationship. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4).) In so doing, the mother showed her propensity to feed her sexual appetite without regard to morals, ethics or law. As an employed nurse at the drug treatment center, Mariam abused her position in order to take advantage of an underage drug addict whom she desired as a sexual partner. Such behavior is not only reprehensible but criminal. Thus, the trial court, being aware of this, was correct in deciding that the father was better able to provide for the child’s mental, moral and emotional needs.

Moreover, the mother’s argument that the trial court was incorrect in taking into consideration Mariam and Angela’s homosexual relationship in determining original custody is without merit. Section 602(a)(3) states that the court shall consider the interaction and interrelationship of the child with any person who may significantly affect the child’s best interest. Angela is a practicing homosexual and drug abuser who has a life history of being sexually abused. Angela, now 18 and living in the same household with Mariam, considers herself to be an authoritative adult with the ability to discipline and correct Eleanor. We agree with the trial court that the choice of Angela as a partner who will help raise the child through her formative years is not in the best interest of Eleanor.

Angela is an 18-year-old teenager who, at the time of the hearing, was still undergoing counseling for sexual abuse and for recent drug abuse. Angela admitted writing a letter to Mariam in August of 1988, where she dreamed about killing Eleanor. Angela also indicated in that letter that many of the victims of sexual abuse become the perpetrators of sexual abuse. Such evidence supports Dr. Ward’s and the trial court’s conclusion that Angela’s present and past emotional problems pose a risk to Eleanor and provide a high degree of instability in the household.

Additionally, we disagree with the mother’s contention that the trial court erred in considering the mother’s open and continuing homosexual cohabitation with Angela as a. factor in deciding original custody. In Jarrett v. Jarrett (1979), 78 Ill. 2d 337, our supreme court found that a parent’s continuing cohabitation with a member of the opposite sex can be considered in a petition to modify a custody judgment, even without tangible evidence that the child has been harmed by the relationship. Thereafter, the Illinois Supreme Court in In re Marriage of Thompson (1983), 96 Ill. 2d 67, clarified its position in Jarrett by stating:

“The Jarrett case does not establish a conclusive presumption that, because a custodial parent cohabits with a member of the opposite sex, the child is harmed. No such presumption exists in this State. The court in Jarrett indicated that a custody award is not arrived at by pressing one lever and mechanically denying custody to one parent; rather all the circumstances must be considered that affect the child.” (Thompson, 96 Ill. 2d at 67.)

We agree with Thompson that all the circumstances that might affect the child must be considered in awarding custody. In fact, section 602(a) clearly states that the court shall consider all relevant factors to determine custody in accordance with the best interest of the child. (Ill. Rev. Stat. 1989, ch. 40, par. 602(a).) As in Jarrett and Thompson, we find that Judge Barra did not improperly consider as a factor the effect of the mother’s homosexual relationship with Angela and how that relationship may affect Eleanor.

For the reasons indicated herein, the judgment of the circuit court of Peoria County is, therefore, affirmed.

Affirmed.

GORMAN and SCOTT, JJ., concur.


text:
      In re MARRIAGE OF LYDIA M. FRAZIER, n/k/a Lydia M. Stanton, Respondent-Appellant, and WILLIAM E. FRAZIER, Petitioner-Appellee.
    Third District
    No. 3-90-0210
    Opinion filed November 30, 1990.

      Roy A. Sabuco, of Rudman & Sabuco, of Joliet, and Philip J. Vacco, of Wilson & Vacco, of Hinsdale, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Respondent Lydia M. Frazier appeals from a judgment reducing petitioner William E. Frazier’s child support obligation and ordering him to pay attorney fees.

Initially, we note that William has not filed a brief in this case. However, since the record is simple and the claimed errors can be decided without an appellee’s brief, we elect to address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that William and Lydia were divorced in 1984. Under the dissolution order, William was to maintain medical insurance for their three children and pay for any medical expenses not covered by the insurance. He was also ordered to pay $200 a week in child support for the three children until their emancipation.

In 1989, William filed petitions against Lydia seeking reimbursement for medical expenses he had paid on behalf of their son Michael and a reduction in child support. Lydia filed a petition requesting that William be held in contempt for failing to pay child support.

At a hearing on the petitions, Lydia testified that in February of 1989, William had unilaterally reduced his weekly child support payment to $133. Because of additional arrearages, by April 11, 1989, he owed her $1,870 in past-due support.

Lydia further testified that their son Michael had lost his heel and part of his leg muscle in a lawn mower accident. Several days after the accident, she informed William that she had filed a guardianship action concerning the incident. However, she did not send him notice of the suit or a copy of the petition. As a result of the suit, Michael received $72,234.54, which was to be held in trust until he reached the age of majority.

William testified that he had not received notice of his wife’s suit regarding Michael’s accident. Since his insurance had not covered all of Michael’s medical expenses, he personally paid some of the bills. He presently had about $100 in savings. He also testified that on March 16, 1989, their 18-year-old son William Jr. was expelled from high school.

After the hearing, the trial court made the following findings: (1) because of Lydia’s failure to notify William about the lawsuit, she was to reimburse him for $3,000 he had expended on Michael’s medical care; (2) because William owed Lydia $1,335 in past-due child support, her reimbursement obligation was lowered by that amount; (3) because of William Jr.’s emancipation and Michael’s settlement, William was entitled to a $100 weekly reduction in child support; (4) the child support reduction was retroactive to March 16, 1989; (5) because of the retroactivity of the modification, William had overpaid child support by $1,287; (6) William was to pay child support of $80 per week until he had been reimbursed for the medical expenses and overpaid support; (7) William was to pay Lydia’s counsel $500 in attorney fees; and (8) William’s counsel was to pay Lydia’s counsel $660 in attorney fees.

Lydia first argues on appeal that the trial court erred in ordering her to reimburse William for his payment of Michael’s medical expenses. She contends that the trial court improperly reasoned that because of her failure to give notice to William regarding the guardianship suit, she should pay William’s out-of-pocket expenses.

Although we have found no cases directly on point, there are two principles which guide our resolution of this issue. First, while section 11 — 10.1 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110½, par. 11 — 10.1) states that in a guardianship proceeding any relative named in the petition should be given notice of the action, the notice requirement is not mandatory. (See In re Estate of Neuf (1980), 85 Ill. App. 3d 468, 406 N.E.2d 907.) Second, since a parent is liable for a child’s medical expenses, the cause of action to recover for such expenses lies in the parent, not the child. In re Estate of Hammond (1986), 141 Ill. App. 3d 963, 491 N.E.2d 84.

Applying the above principles to the instant case, we find that Lydia’s failure to notify William of the lawsuit did not entitle him to reimbursement from her. Instead, his cause of action lay against the tortfeasor who caused Michael’s injuries. Accordingly, we reverse the finding that William should be reimbursed $3,000.

Lydia further argues that the court erred in reducing William’s duty to pay child support by $100 per week. Noting that a modification of child support is warranted only where there is a substantial change in the circumstances of the parties (In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 548 N.E.2d 139), she contends that William failed to prove such a change.

The trial court’s decision regarding the modification of child support will not be reversed absent an abuse of discretion. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 436 N.E.2d 561.) The financial resources of a child may be considered in determining the amount of child support. (Ill. Rev. Stat. 1989, ch. 40, par. 505(2)(a).) Moreover, where a child’s parents are unable to provide for his needs, his estate may be invaded to pay for his necessities. In re Estate of Weisskopf (1963), 39 Ill. App. 2d 380, 188 N.E.2d 726.

The record shows that Michael’s estate far exceeded William’s financial resources. Additionally, the parties’ 18-year-old son was emancipated on March 16, 1989. Based on these facts, we find that the trial court did not abuse its discretion in reducing William’s support obligation to $100 a week.

Lydia further argues that the court erred in retroactively applying the reduction in child support to March 16, 1989.

It is well settled that past-due child support payments constitute a vested and unmodifiable right. (In re Estate of Ierulli (1988), 174 Ill. App. 3d 134, 528 N.E.2d 1008.) Support payments may be modified only as to installments accruing after the party moving for modification has given due notice. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) Since William gave notice of his petition for modification on May 1, 1989, he was only entitled to a reduction of support retroactive to that date. Accordingly, we reduce his credit by $212.

Lydia lastly argues that the court erred in ordering William’s counsel to pay her counsel only $660 in attorney fees. She contends that her counsel was entitled to $3,271.50, and that the court lacked authority to make a partial award.

The instant record indicates that the parties disputed the proper amount of fees and that a hearing was held on the matter. Although Lydia, as the appellant in this appeal, had the burden of providing a complete record (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246), she failed to include a transcript of the hearing. In the absence of an adequate record, it is presumed that the trial court’s judgment conformed with the law and had a sufficient basis in fact. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) We therefore affirm the award of attorney fees.

The judgment of the circuit court of Will County is affirmed in part, reversed in part, and remanded for further proceedings consistent with this decision.

Affirmed in part; reversed in part and remanded.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN J. TORTORICI, Defendant-Appellee.
    Third District
    No. 3-90-0173
    Opinion filed November 30, 1990.

      Joseph Navarro, State’s Attorney, of Ottawa (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Mark D. Fisher and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal is brought by the State from an order of the circuit court of La Salle County granting defendant Steven Tortorici’s motion to suppress evidence seized after he was involved in a traffic accident.

At the hearing on the motion to suppress, defendant testified that he was driving his wife’s car on Interstate 39 on October 4, 1989, at about 10:45 a.m. when he fell asleep. His car left the roadway and collided with a pickup truck parked in the median. Illinois State Trooper James Lower testified that after he arrived at the scene, he had both defendant and the driver of the truck get into the police car to answer questions. The driver of the truck explained that he had stopped to help another motorist who was having car trouble. Defendant fell asleep during questioning and, upon awaking, talked about having left a woman. The officer issued a ticket to defendant for driving into the median.

Since defendant’s vehicle was inoperable, Officer Lower called a tow truck and offered to take defendant to a restaurant located just off the interstate. He told defendant to get anything of value out of his car and then saw defendant carrying a blue denim jacket back to the police car in an unusual manner. He carried it with both hands, palms up, instead of by the neck of the jacket. When defendant got back into the police car, he placed the jacket across his knees. The officer asked if he had any weapons or contraband, and defendant did not answer.

The officer then reached over, took the jacket, placed it on the floor on his own side of the car, and ordered defendant out of the car. The officer testified that when he picked up the jacket he observed that it was very heavy and that there was something inside of it. The officer did not testify, however, that he felt or otherwise observed anything like a weapon or other contraband in the jacket. He did a pat down search, told defendant he was under arrest, put handcuffs on his wrists with his hands behind his back, put him back in the car, and fastened his seat belt. The officer then searched the jacket and found a loaded gun, a knife, and a cocaine pipe.

The officer transported defendant to a police station where he was given the Miranda warnings for the first time. A later search of defendant’s car produced additional drug paraphernalia. Defendant was indicted on charges of unlawful use of weapons by a felon, unlawful possession of a controlled substance, and driving under the influence of drugs.

In ruling on the motion to suppress, the trial court found that an arrest occurred when the officer told defendant he was under arrest, that there was no probable cause for an arrest at that point, and that the search occurred after defendant was arrested. The trial judge ruled that since the arrest was unlawful, the items seized were suppressed.

On appeal, the State first contends that, in spite of the police officer’s words and actions, an arrest did not take place prior to the search of the jacket but rather the officer conducted a brief stop in order to maintain the status quo and to take reasonable measures to protect himself, pursuant to the authority of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The determination of the trial court on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.) Here the officer testified that, before he told defendant he was under arrest and handcuffed him, he had no knowledge that defendant had committed a crime, only a “hunch” or suspicion. It is important to note that the State does not claim that probable cause for an arrest existed prior to the search of the jacket. Neither does the State claim that a valid arrest occurred. Rather, the State urges us to look beyond the trooper’s words to the objective circumstances as they existed at the time. The State argues that the trooper was justified in temporarily detaining and searching defendant so as to be assured of his own safety before he transported defendant in his car.

It is plain from the record that the police officer believed he had arrested defendant when he handcuffed him, and the trial court so found. The facts do not support the State’s argument that no arrest took place. The test is whether a reasonable, innocent person would believe he was under arrest (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766), and it has been held that handcuffing a defendant in a squad car constituted an arrest (People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574). In People v. Gabbard, the Illinois Supreme Court held that the items seized after the handcuffing should have been suppressed.

When we analyze the events in the case at bar, we conclude that a Terry stop may have occurred when the officer took the jacket, ordered defendant out of the car, and frisked him. When the officer said, “You are under arrest” and put handcuffs on defendant, the temporary stop was converted into an arrest. We cannot imagine what more an officer would do to accomplish an arrest than to advise the arrestee, to handcuff him, and to strap him into the police car with the seat belt.

The State did not argue in the trial court and does not argue on appeal that the officer had probable cause to arrest defendant. The trial court ruled that the officer arrested defendant on mere suspicion and then, after defendant was handcuffed, conducted a search of the jacket. Clearly, had the officer searched the jacket first and found the gun and/or other contraband, a lawful arrest could have followed. The problem here is that the arrest came before cause for the arrest was discovered. The trial court correctly granted the motion to suppress.

The State also argues for the first time on appeal that this case comes within the “inevitable discovery exception” to the exclusionary rule. According to the State, the exclusionary rule should not be applied where evidence of an offense obtained illegally would inevitably have been discovered lawfully, such as during an inventory search at the police station following a valid arrest. See People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941 (where drugs were found during an illegal search of the purse of a woman previously arrested for prostitution).

We consider this issue to have been waived by the State when it failed to argue this theory in the trial court. Furthermore, the fact that the officer found a weapon and contraband during the search which followed an unlawful arrest does not entitle the State to claim that the weapon would inevitably have been found lawfully. Since the State virtually admits that there was no cause for an arrest other than the weapons and contraband found in the jacket, whether any subsequent lawful search would occur was a matter of speculation and was not inevitable. In United States v. Cunningham (D.C. Cir. 1970), 424 F.2d 942, 943, the court stated, “A lack of probable cause cannot be made up in hindsight by a hypothetical variation in the basis on which the search was conducted.” As the court held in United States v. Cunningham, the fact that a lawful frisk might have disclosed the concealed items does not validate the unlawful arrest or render admissible the evidence obtained in a search incident to that arrest.

For the reasons stated, we affirm the order of the trial court.

Affirmed.

SCOTT and STOUDER, JJ., concur.