author: PRESIDING JUSTICE MANNING

text:
    ROBERT L. KIRNBAUER, Plaintiff-Appellant, v. THE COOK COUNTY FOREST PRESERVE DISTRICT, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—0366
    Opinion filed June 17, 1991.

      Hoey & Farina, of Chicago (James L. Farina, of counsel), for appellant.
    Burke & Smith, Chartered, of Chicago (Ellen B. Van Vechten, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff-appellant, Robert L. Kirnbauer, brought this action for personal injuries which he sustained wherein he lost an eye when it was punctured by part of an extended steel cable barricade erected by defendant-appellee, the Cook County Forest Preserve District. The trial court granted defendant’s motion for summary judgment as to count II of plaintiff’s third-amended complaint, sounding in negligence. Following a trial on count I, sounding in willful and wanton conduct, a directed verdict was granted and judgment entered for defendant. Plaintiff does not challenge the court’s ruling with respect to the directed verdict on the willful and wanton count; rather, he filed this appeal as to the court’s ruling concerning the negligence count only. On appeal, plaintiff asserts that the trial court erred in granting the motion for summary judgment because there exists a genuine issue of material fact as to whether the area immediately around the barricade, purportedly on the public right-of-way, was part of “a park, playground or open area for recreational purposes,” pursuant to section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106). We affirm the judgment of the trial court for the following reasons.

Background

On June 5, 1979, plaintiff, then 13 years old, was waiting for a school bus on the north side of 135th Street near Natchez Avenue in Orland Park, Illinois. On the north side of 135th Street was a forest preserve owned by the defendant, commonly known as Tarn-pier Slough. At that time, a steel cable barricade constructed and erected by defendant was suspended between two posts about three feet above the ground. A sign marked “closed” was attached to the cable by wire, cold chucks or nails. Plaintiff and his companion, Mark Williams, used the sign to twist the cable. Mark pushed the sign over the cable toward plaintiff, who then pushed it under the cable to Mark. The boys rotated the cable seven or eight times and then stepped back to watch the cable spin. Mark stated that they stepped back in case anything came off and that he knew the cable could cause injury if it hit him while spinning. The boys then began to twist the cable a second time, twisting it one or two rotations more than the first time when the sign broke while it was in plaintiff’s hand and he was struck in the eye by the cable.

Plaintiff’s third-amended complaint alleged in count I that defendant had willfully and wantonly erected the cable off its own property onto the public right-of-way for 135th Street knowing that the area was used as a bus stop for children. Count II alleged that defendant negligently and carelessly erected the cable with a sign affixed to it by the use of nails, creating an unsafe condition for pedestrians, especially children playing in and near the park. Plaintiff had filed prior complaints alleging negligence or willful and wanton conduct by defendant; however, for the first time, in his third-amended complaint, plaintiff alleged that the property in question was not public property owned by defendant.

Defendant filed an answer, affirmative defenses and motions for summary judgment and sanctions directed at the third-amended complaint. Defendant initially asked the trial court to dismiss count II based on the court’s earlier ruling of June 21, 1989, wherein it granted summary judgment in favor of defendant based on section 3 — 106 of the Tort Immunity Act. However, because the trial court allowed plaintiff to amend his complaint on July 27, 1989, and plaintiff then added a new theory, i.e., the accident site was not the property of defendant, but part of the right-of-way for 135th Street, defendant proceeded with several arguments in support of its summary judgment motion. Defendant first reasserted that the accident site was public property within the meaning of the Tort Immunity Act and that since it was used for recreational purposes, the preserve was immune from liability for ordinary negligence. Defendant next maintained that for purposes of the summary judgment motion, assuming the accident site was a part of the right-of-way for 135th Street, it was no more than an easement, which the owner of the servient estate, i.e., defendant, was allowed to use in any way which did not interfere with the easement. Defendant further contended that since the barricade was also part of either a road or a trail, it was immune from tort liability “for an injury caused by a condition” thereon pursuant to section 3 — 107. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 107.) In any event, defendant asserted that the existence of an unused easement at the site of the accident did not change defendant’s duty to plaintiff.

When the trial court considered the issues raised on summary judgment, the court had before it certain affidavits, several exhibits which included photographs, certified copies of a warranty deed and a right-of-way property record, and the depositions of: plaintiff; his father; Mark Williams, the companion who was with plaintiff at the time of the accident; Mr. Strache, the defendant’s superintendent; and expert witnesses who testified on behalf of both parties. Defendant’s argument was that pursuant to section 3 — 106 of the Tort Immunity Act, the preserve was immune from tort liability, absent willful and wanton conduct, for injuries sustained on its property used for recreational purposes.

Opinion

A reviewing court is not limited to the precise reasons stated or those implied by the trial court in entering its summary judgment in determining whether judgment was correctly entered for the moving party as a matter of law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.) Rather, the reviewing court will consider all grounds urged and facts revealed in the trial court when determining the propriety of entry of the summary judgment. Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778.

In reviewing the trial court’s grant of summary judgment, the appellate court must consider all grounds urged and facts revealed in the pleadings in the case, together with all depositions and admissions on file, and affidavits, if any, to determine if a genuine issue of material fact was raised to be determined by a jury and if none was raised, whether the movant was entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229; Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 59, 545 N.E.2d 184.) The appellate court will affirm the summary judgment of a lower court if the decision is justified by a reason appearing in the record. Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.

Our review of the record here establishes that no material facts were in dispute, as shown by the legal documents and other evidence before the court, and that the question of interpretation of the Tort Immunity Act is a question of law properly decided on a motion for summary judgment. Pursuant to article XIII of the Illinois Constitution, the General Assembly is the ultimate authority in determining whether a unit of local government is immune from tort liability (Ill. Const. 1970, art. XIII, §4); accordingly, we must look to the language of the Tort Immunity Act. Pursuant to the Tort Immunity Act, local public entities and public employees are immune from liability arising from the operation of specific governmental functions in tort actions. (Ill. Rev. Stat. 1987, ch. 85, par. 2— 101; Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 689, 456 N.E.2d 904, 908.) Because the Tort Immunity Act is in derogation of the common law, it must be strictly construed against the local public entity or public employee. Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415, 417.

Defendant’s motion for summary judgment was based in part upon section 3 — 106 of the Tort Immunity Act, which provides in relevant part as follows:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106.)

Section 3 — 106 applies to situations where a municipality fails to maintain property under its control intended for recreational use by allowing an unsafe condition to exist. Section 3 — 106, unlike section 3— 102, contemplates liability only if the governmental unit or employee acts in a willful and wanton manner. Pursuant to section 3— 106, there is no municipal liability for negligence resulting in injuries occurring on public property intended for recreational purposes, unless the local public entity is guilty of willful and wanton conduct. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501. Accord Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 285 N.E.2d 564 (holding that a forest preserve will be liable for injuries only in the case of willful and wanton negligence that proximately causes such injuries).

Plaintiff first argues that defendant has no basis for immunity because the property where the injury occurred is located on the right-of-way for 135th Street, and even assuming such property can be considered an easement, easements are categorically excluded from the definition of public property pursuant to the Tort Immunity Act. Defendant counters that it is immune from liability for negligence because the steel cable barricade was located on public property which was intended for recreational purposes. Defendant also maintains that the accident site was not subject to an easement for highway purposes; but, even assuming such site was subject to an easement, the easement was unused and in the possession of defendant, and therefore public property within the meaning of section 3 — 101. Section 3 — 101 in defining public property states that “property of a local public entity” and “public property” “mean real or personal property owned or leased by a local public entity, but do not include easements, encroachments and other property that are located on its property but that it does not own, possess or lease.” Ill. Rev. Stat. 1987, ch. 85, par. 3 — 101.

In the present case, the warranty deed of record clearly establishes that defendant owns realty known as the Tampier Slough Forest Preserve and the southern boundary as the southern section of line 31, which lies in the center of 135th Street, an east-west street in Orland Park, Illinois. The travelled portion of 135th Street at the location of the accident consists of an asphalt road and a gravel shoulder. Defendant’s expert witness determined that the barricade had been located 12 feet north of the north edge of the gravel shoulder and 30 to 31 feet north of the property line. At the time of the injury, plaintiff, according to his statements and those of Mark, was standing two feet north of the cable, and thus, according to defendant’s calculations, 32 to 33 feet north of the southern boundary.

The entire property owned by defendant, as far south as the section line in the center of 135th Street, was dedicated for “the purpose of education, pleasure, and recreation of the public” by ordinance approved March 13, 1952. Mr. Strache, defendant’s superintendent, stated that defendant regarded the boundary to be the edge of the travelled roadway of 135th Street and that it maintained the area up to the road by cutting the grass and picking up litter from the ground.

Moreover, the evidence establishes that the area within the boundaries was used for recreational purposes. At the scene of the accident, where the trees and bushes parallel 135th Street, there is an opening where a trail or path runs north to the lake. The trail which is perpendicular to 135th Street is used by pedestrians to gain access to the forest preserve and had been used by plaintiff to gain access to the lake to fish. His father and Mark also stated during their respective depositions that they used the trail blocked by the cable to walk to the lake for fishing. The trail also was used for horseback riding and vehicular access for defendant’s employees for park maintenance. In the spring of 1979, defendant had problems with people driving their cars into the preserve at the site of the accident and thus erected the cable barricade to block vehicular access to such unauthorized vehicles.

Plaintiff does not dispute that the center of the road is the boundary line or the use of the forest preserve property as a recreational area, but maintains that the barricade itself was off the forest preserve property and on the public right-of-way for 135th Street. He further asserts that a genuine question of fact exists as to whether defendant’s purported use of a portion of the right-of-way as an open area for recreational purposes is consistent with the public’s right to use the same area as a highway. In support of his proposition, plaintiff presented to the trial court a right-of-way property record which states that the road was dedicated as long ago as 1851, that there is no record of such dedication, that the width of the road is not specified and that the dedications at that time were made for a width of four rods. A rod is the equivalent of I6V2 feet. (Black’s Law Dictionary 1493 (4th ed. 1951).) According to plaintiff’s calculations, then, the width of the entire road would be 66 feet and defendant’s property boundary would begin 33 feet north from the center line. As the survey placed the barricade 30 to 31 feet north of the section line, plaintiff maintains that the barricade would have been built upon the right-of-way. Defendant counters that an easement was created only for the 19 to 20 feet north of the southern boundary of the forest preserve which were in use as a road, and because plaintiff was standing 32 feet north of the edge of the road, he was on defendant’s property.

It is well settled in Illinois that a highway can be established by: (1) statute; (2) dedication; or (3) prescription, defined as adverse use by the public for a 15-year statutory period. (People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 997, 373 N.E.2d 471.) The dedication of a road can be either a statutory dedication which is created by the recording of a plat or a common law dedication evidenced by acts of the grantor. (Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 135-36, 443 N.E.2d 804.) A statutory dedication occurs only upon strict compliance with the statutory requirements. (Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776, 403 N.E.2d 1275.) Here, the only relevant record relating to the origination of 135th Street, as mentioned above, is the right-of-way record dated March 1, 1851. Accordingly, here, absent proof of a statutory dedication of 135th Street as a highway, coupled with the use of the street as a public road since at least 1851, we believe that a public road exists by common law dedication or prescriptive use. It is established that a statutory dedication of a highway conveys a fee simple to the public entity while a common law dedication grants the public an easement for highway purposes. (Terwelp, 111 Ill. App. 3d at 136; Department of Transportation v. Thomas (1978), 59 Ill. App. 3d 684, 688, 375 N.E.2d 834.) Here, the record established that defendant maintained the area up to the gravel road. In Pilgrim v. Chamberlain (1968), 91 Ill. App. 2d 233, 234 N.E.2d 75, the highway commissioner sought to widen a road authorized and laid out in 1858 to a width of 66 feet even though the plat filed at that time failed to contain a description of the width of the road. The court held that the width of the road would be determined by the fence line established by the abutting owners, that on the record it would be difficult to sustain a statutory dedication, and that there was no record of acceptance by the grantee of 66 feet of right-of-way. (Pilgrim, 91 Ill. App. 2d at 239-40.) In Tucker v. Bunger (1982), 108 Ill. App. 3d 227, 439 N.E.2d 488, defendant highway commissioner also sought to widen a road to the width of 66 feet on the grounds that it was originally dedicated to include 66 feet of right-of-way. Like here, in Tucker, there was no record of the recording of the plat, but defendant there sought to establish the width of the road through use of a transcription of an 1851 order that described the road in metes and bounds. In rejecting this evidence and finding for the abutting landowners, the court held that the dedication of the road was governed by the common law and prohibited expansion beyond its existing width. Tucker, 108 Ill. App. 3d at 231.

Similarly, the owner of the land here, defendant, exercised dominion and control over the land up to the gravel road. Without addressing the issue of standing on the part of plaintiff to raise the question of expanding the width of the road, under Pilgrim and Tucker, we find that the road could not be expanded beyond its boundaries, and thus, the accident site was not subject to an easement; rather, it was located on defendant’s property.

However, assuming, arguendo, that the accident occurred on property that could be considered easement property, we believe that the evidence shows that defendant possessed this land, built personal property on the unused portion of the easement, i.e., the steel cable barricade, and continued to “possess” and use the area. A tract of land benefitted by an easement is the dominant tenement and the burdened land is the servient tenement. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.) The erection of a right-of-way will not terminate the easement where the obstruction is not of a material or permanent character. (Martin v. Murphy (1906), 221 Ill. 632, 77 N.E. 1126.) Thus, the owner of the servient estate, defendant here, may make any use of this land as long as it does not interfere with the easement of the owner of the dominant estate. Kurz v. Blume (1950), 407 Ill. 383, 389.

Contrary to defendant’s argument, the record shows that the east-west traffic on 135th Street could not have driven 33 feet north of the gravel shoulder without driving through trees and shrubs. The township did not permit users to travel north of the shoulder. Thus, defendant retained all right to use the land which was not inconsistent with the easement, including constructing a barricade to prevent traffic from turning off the highway or easement and driving into the preserve. Since the accident site was unused for highway purposes, defendant could and did retain possession of the site.

Moreover, the statutory definition of public property excludes “easements, encroachments and other property that are located on its property, but that it does not own, possess or lease.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 101.) The inclusion of the terms “possess” or “lease” suggests that the legislature intended to include within the definition of public property that property which is owned by the public and in its possession even if subject to an easement. We believe that plaintiff is misreading the statute in its argument that easements are not property. The definition of property in section 3 — 101 includes both real and personal property. We also agree with defendant’s argument that the phrase “other property” could be construed to refer to personal property located on real property or to interests in real property which include easements. We believe that the intent of the legislature here is to include all real or personal property owned, possessed or leased by the public entity and to exclude any encroachment, easement or property of others which is located on its property but which it does not possess or lease.

Accordingly, we find that based upon the plain language of section 3 — 101 of the Tort Immunity Act, the distinction whether the accident site was located on real property owned by defendant or personal property that was owned by defendant and placed upon the public right-of-way that was an easement upon defendant’s land is meaningless.

We likewise reject plaintiff’s argument that the accident site was not intended for recreational purposes within the meaning of section 3 — 106. While the record establishes that the area immediately around the barricade was used primarily by defendant as a block to public vehicular access, it also shows that the area was used as a footpath for plaintiff, his friends, family, and others to gain access to the lake for fishing, as access to the horse trail and as part of the area that defendant maintained for the public’s recreational purposes. The purpose of the Act is to encourage the development and maintenance of parks, playgrounds and similar areas. (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 560, 397 N.E.2d 175.) In Annen v. Village of McNabb (1990), 192 Ill. App. 3d 711, 548 N.E.2d 1383, this court found that the purpose of section 3 — 106 manifests an intent to include restroom facilities within a park as part of the park itself. The court stated:

“A restroom facility located within a park is a part of the park. While a restroom building itself is not intended to be used for recreational purposes, it allows a park user to continue using the park without having to leave the park to use restroom facilities. This increases the usefulness of the park and advances the legislative purpose.” Annen, 192 Ill. App. 3d at 713.

Accordingly, we find that the meaning of public property within section 3 — 106 encompasses the definition of public property intended for recreational use here since the erection of the steel barricade was to protect the public safety by barring unauthorized vehicles from a recreational area and to allow maintenance of the area in furtherance of recreational purposes. Because the injury could have taken place in an area not specifically used for recreational purposes, i.e., the grassy area, or horseback trail or lake, defendant cannot be stripped of its immunity. Under Annen, one can conclude that the Act applies to an area not specifically intended for recreational purposes if such area “increases the usefulness of the preserve” and furthers the purpose of the statute.

Similarly, in Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061, a student sustained injuries as a result of climbing a tree to gain entry to defendant’s field house. Defendant was granted immunity pursuant to section 3 — 106 even though plaintiff argued that neither the tree nor the fieldhouse was intended or permitted to be used for recreational purposes. See also Spencer v. City of Chicago (1989), 192 Ill. App. 3d 150, 548 N.E.2d 60 (where this court found that section 3 — 106 barred plaintiff’s action related to the drowning of a child in a lagoon where fishing and swimming were prohibited and which was not intended for recreational purposes).

In Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302, this court in finding that section 3 — 106 of the Immunity Act applied to an area subject to an easement, i.e., a public sidewalk and distinguishing Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, also held that “the reviewing court’s suggestion in Larson that the public property must be specifically intended for recreational purposes is questionable in light of the express language in section 3 — 106 which immunizes a public entity for injuries which occur because of the existence of a condition on any public property intended or permitted to be used for a recreational purpose.” Ramos, 188 Ill. App. 3d at 1037.

Defendant also argues that the lower court’s ruling can be sustained on the basis of section 3 — 107 because the injury was allegedly caused by the condition of a hiking or fishing trail. We agree. Section 3 — 107 states:

“Neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) Any road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street, (2) county, state or federal highway or (3) a township or other road district highway, (b) Any hiking, riding, fishing or hunting trail.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 107.)

Plaintiff’s engineer stated that the barricade crossed a dirt road and could be considered a condition of the road. Defendant contended that the barricade crossed a trail and its engineer testified that the area was not a road, but a trail. In any event the Act applies to both trails and roads, and the record shows that the area is either a trail or a road.

Furthermore, even if we concluded that the immunity statutes were not available, we would find that defendant was entitled to judgment as a matter of law on the ground that plaintiff failed to establish the defendant owed him a duty. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 60, 545 N.E.2d 184.) In Illinois, a landowner does not owe a duty of care to a child injured in its premises unless: (1) the landowner knows children frequent the premises and (2) the cause of the injury was a dangerous condition on the premises. (Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023.) This rule has also been applied with respect to injuries occurring on recreational property maintained by a public entity. (See Durham v. Forest Preserve District (1986), 152 Ill. App. 3d 472, 504 N.E.2d 884 (where the court held that defendant owed no duty to a 16-year-old who drowned in the retention pond).) Moreover, an object which is not inherently dangerous does not become a dangerous condition merely because it is capable of being abused or wrongfully used. Hootman v. Dixon (1984), 129 Ill. App. 3d 645, 649, 427 N.E.2d 1224.

Lastly, we conclude that the trial court did not abuse its discretion in hearing a motion for summary judgment with respect to plaintiff’s complaint that set forth a new theory of liability predicated upon facts contrary to those of record for 10 years. We find no abuse of discretion by the court in allowing a motion for summary judgment which attacked a complaint that sought to circumvent a prior ruling of the court granting summary judgment with respect to the same negligence claim that contradicted factual admissions which were of record for 10 years.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCARIANO

license: Public Domain

text:
    CHARLENE FRENCH, Indiv. and as Special Adm’r of the Estate of Jerome French, Deceased, Plaintiff-Appellant, v. BARBER-GREENE COMPANY et al., Defendants (The City of Chicago, Defendant-Appellee).
    First District (2nd Division)
    Nos. 1—89—3014, 1—90—1507, 1—91—1183 cons.
    Opinion filed June 18, 1991.
    Craig S. Mielke and Robert A. Larsen, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Chicago, for appellant Barber-Greene Company.
    Drumke & Patterson, Ltd., of Chicago (Ronald A. Drumke and Danielle M. Jaeschke, of counsel), for appellant Charlene French.
    Robert A. Chaney, of Purcell & War drope, Chartered, of Chicago, for appellee Monarch Asphalt Company.
    Gurion & Lewis, of Chicago (David W. Ott, of counsel), for appellee City of Chicago.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Jerome French was fatally injured after falling from a paving machine manufactured by defendant Barber-Greene Company (Barber-Greene), and while he was employed by Monarch Asphalt Company (Monarch). At the time of the incident, Monarch was performing under a contract with defendant City of Chicago (the City). When plaintiff sought to hold the City liable under the provisions of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) and to recover also from Barber-Greene for manufacturing an allegedly defective product, Barber-Greene filed a third-party action against Monarch. The trial court upheld the City’s motion for judgment on the pleadings, from which plaintiff appeals, and allowed Monarch’s motion for summary judgment, which Barber-Greene appeals; the two appeals have been consolidated.

Gary Heinrich, French’s fellow employee and the only witness to the occurrence, testified that on September 4, 1987, he was working with him on the paving machine when French stopped the machine in a normal manner by bringing both steering levers back to neutral. Immediately before the machine came to a stop, Heinrich was looking down at the asphalt, but after the machine stopped, he looked up at French and saw him getting up out of his seat. French began to stand up smoothly and his feet were on the deck, and when he was almost upright, his shoulders fell over and he fell directly to his right. He did nothing to prevent his fall and did not appear to have slipped. According to the testimony of decedent’s wife, French had operated Barber-Greene pavers for 21 years prior to his death.

Plaintiff’s allegation that the City is liable under the Structural Work Act is based upon her contention that it failed to provide decedent a safe place to work while taking part in the paving of a stretch of Sacramento Avenue and on the following language of the statute:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, 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, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 60.)

The trial court agreed with the City that a street is not a structure under the Act, granted its motion for judgment on the pleadings, and denied plaintiff leave to file a fourth amended complaint and a copy of the contract between Monarch and the City.

French sought recovery against Barber-Greene on the grounds that:

“a. Said machine lacked handrails or metal guards at or near the operating station thereof.
b. Said machine lacked seat belts or other restraining devices to protect the operator thereof in the event that he either slipped or fell from said machine.
c. Said machine lacked warning labels or literature advising the operator thereof to obtain reasonably necessary restraints or other devices to inhibit his falling from said machine to the pavement.
d. Said machine lacked corrugated steel flooring or other nonslip [sic] flooring devices at the position of the operator’s station in order to prevent the operator from slipping and falling to the ground and the pavement, several feet below the operator’s station.”

Defendant, Barber-Greene, denied the allegations of plaintiff’s complaint and thereafter filed a third-party complaint seeking contribution against Monarch, alleging that Monarch participated in several negligent acts. The only allegation which is relevant to this appeal states that Monarch:

“Failed to properly instruct and supervise plaintiff’s decedent regarding the safe operation of the Barber-Greene paver.”

The trial court granted Monarch its motion for summary judgment against Barber-Greene, stating that “Hinrich [sic] testified that plaintiff did not take a step, and that he did not slip ***. Furthermore, the paver had come to a normal stop ***.”

Plaintiff and the City agree that whether the trial court properly granted judgment on the pleadings in favor of the City depends entirely upon its determination that a street is not a structure under the Act. Plaintiff contends that in arriving at his decision, the trial judge would have had to conclude that a street is a structure if he had given consideration to the contract between the City and Monarch, and plaintiff’s proposed fourth amended complaint. Plaintiff argues that the City “understood and contemplated that Monarch would be required to build or rebuild structures such as Sacramento Avenue under the terms of [its] contract.” However, the trial court, as noted above, denied plaintiff leave to file a fourth amended complaint along with the contract, and plaintiff does not assign such denial as error. But even if we were to assume, arguendo, that plaintiff has not thereby waived this argument, “in construing the Act we must ascertain and give effect to the legislature’s intent in enacting the statute.” (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) Thus, whether the City and Monarch intended the street to be a structure for their own purposes is irrelevant to whether a street is a structure under the Structural Work Act, for we must determine the legislative intent behind the Act.

The City, citing People v. Capuzi (1960), 20 Ill. 2d 486, maintains that under the principle of ejusdem generis, when a general word follows an enumeration of specific things, the general term is held to apply only to things of the same kind as those specifically mentioned. As our supreme court has held, “when a statutory clause specifically describes several classes of persons or things and then includes ‘ “other” persons or things,’ the word ‘other’ is interpreted as meaning ‘other such like.’ ” (Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 155, quoting Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436.) “Thus, the court in Farley concluded that the General Assembly intended to limit the application of the Act to ‘structures of the general type specified therein,’ i.e., houses, buildings, bridges and viaducts.” Innis, 107 Ill. 2d at 155, quoting Farley, 60 Ill. 2d at 436-37.

Even if we were to accept plaintiff’s contention that we should examine the sufficiency of her proposed fourth amended complaint, the only fact alleged therein about the nature of the street on which the decedent was working is that the street was “Sacramento Avenue at or near the Kennedy Expressway in the City of Chicago, Cook County, Illinois.” We therefore hold that a street as alleged in the fourth amended complaint proferred to the trial court is not “sufficiently akin to a ‘house, building, bridge,’ or ‘viaduct’ so as to constitute a ‘structure’ within the meaning of the Act.” Innis, 107 Ill. 2d at 155-56.

Barber-Greene charges that the trial court erred in awarding summary judgment in favor of Monarch because the trial court did not recognize Monarch’s duty to warn decedent not to use the paving machine without safety restraints or that he should be admonished to sit down while operating the machine. While the trial judge did not directly address Barber-Greene’s contention, the record reflects, as noted above, that plaintiff was sitting while the machine was moving, and it would be absurd to impose a duty upon Monarch to warn employees not to stand up after they stop their pavers.

Numerous decisions have held that “one supplying a chattel for another must warn of the dangerous conditions, ‘if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.’ ” (E.g., Kirkman v. Kirkman (1990), 195 Ill. App. 3d 393, 397, quoting Restatement (Second) of Torts §388, comment k, at 306 (1965).) Because any danger from the lack of restraints on the paver was open and obvious to decedent, and the employer did not have any more knowledge of that danger than did the employee, Monarch had no duty to warn him of the danger of falling off of it. (See Kutzler v. AMF Harley-Davidson (1990), 194 Ill. App. 3d 273, 277-78.) Accordingly, we conclude that the trial court properly awarded summary judgment in favor of Monarch.

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

Affirmed.

DiVITO and COCCIA, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR SMITH, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2984
    Opinion filed June 18, 1991.

      Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Arthur Smith, was found guilty by the circuit court of aggravated criminal sexual assault, criminal sexual assault and robbery. The lesser included offense was merged into the greater and defendant was sentenced to an extended term of 40 years in custody of the Department of Corrections. Defendant also received a seven-year sentence for the robbery conviction. He appeals, challenging whether he was proved guilty beyond a reasonable doubt; he was legally arrested, if not, whether the victim’s lineup identification and articles of clothing seized from his home must be suppressed as the fruits of the illegal arrest; and he was erroneously sentenced.

Pursuant to defendant’s motion to quash arrest, the circuit court conducted a hearing where the following evidence was adduced. Chicago police officer David Dougherty was at the police station on Monterey Avenue on February 2, 1987, at 7 p.m., where he met Detective Fred Sosinski in the station parking lot. Sosinski was in the midst of an ongoing investigation into a string of recent rapes in the Beverly area and showed Dougherty a police artist’s composite sketch of the suspect, based on one of the victims’ description. From information previously given to patrol officers at their roll call meetings, Dougherty also knew the suspect’s general description and was familiar with the crime pattern. After speaking with Sosinski, Dougherty proceeded with his patrol assignment. About V-k hours later, he observed defendant crossing the street in the area where the rapes had occurred. In Dougherty’s opinion, defendant’s physical characteristics “closely matched” those in the composite Sosinski had shown him earlier. Dougherty stopped defendant on the street, asked his name, conducted a protective pat-down search, and handcuffed him. Dougherty instructed officers in another patrol car to take defendant to the station for an interview. As defendant was being led through the back door of the station, Dougherty saw a woman in the station “jump up” and identify defendant as the man who had just robbed her.

Detective Sosinski corroborated Dougherty’s description of their meeting. At the time, Sosinski testified, police knew that the assaults had been concentrated between 105th and 112th Streets and from Hale to Longwood Streets and that the suspect was a black male between 25 to 35 years old, 5 feet 7 inches to 5 feet 9 inches tall, weighing between 150 and 160 pounds. At 9 p.m., Sosinski was in the station interviewing a female robbery victim who immediately identified defendant as her assailant as he was being led in. Defendant was then arrested and was later removed to Area 2 Headquarters. Sosinski thereafter contacted the various rape victims in order to conduct a lineup.

At the close of the hearing, the circuit court ruled that, in the totality of the circumstances, Dougherty had probable cause to arrest defendant given (1) the nature of the charges; (2) defendant was in and about the area of the crime; (3) defendant matched the general description of the suspect; and (4) defendant matched the composite drawing. In commenting upon the testimony regarding the sketch, the court stated that there were “a number of similar general appearances; not even general, specific characteristics that I find in the sketch that are very close to the facial characteristics of [defendant].” The motion to quash arrest was denied.

At trial, the victim testified that on January 14, 1987, at 8:50 p.m., she was walking down South Hale Street when she saw defendant walking toward her. When she crossed the street, defendant also crossed the street. As she was approaching an alley, he came up, grabbed her by the neck, and told her not to do anything or he would kill her. The entrance to the alley was illuminated by a streetlight, and the victim looked at defendant’s face for 10 seconds. Defendant wore a green jacket, a gray hooded sweatshirt and dark boots. He put his hand on her mouth and neck, and pushed her farther into the alley, which the victim characterized as “bright” because the snow on the ground “reflected.” Moreover, the alley was partially illuminated by the lights from the houses that were on each side and the light from the entrance.

As defendant continued to push her into the alley, the victim looked at him five times. He stopped her and then took off her scarf, tying it around her face so that she could not see. Defendant kept repeating that he would kill her so she did not try to push him away. He searched her pockets, gloves, and bra for money, taking her Walkman, a cassette tape, and a quarter. He then pushed her down with his arm and got on top of her. He pulled down her pants, unzipped his pants, and put his penis into her vagina. Although defendant told the victim to touch it and kiss him, she did not cooperate with him. During the sex act, the victim’s scarf fell from her eyes, and she again saw defendant’s face. When defendant saw her looking at him, he got angry, started to choke her, and told her she had “better do” what he said. He removed his hands from her neck after she nodded to him in agreement. Defendant had held her neck “really tight,” and the victim stated that she “couldn’t breathe.”

The sexual intercourse lasted between one to two minutes, and defendant told the victim not to move until he left. She waited and then proceeded to the police station, two blocks from the alley. There, she stopped officers in a patrol car and reported that she had just been raped, giving them a description of her attacker. They then took her back to the alley and later took her to the hospital.

On February 2, the victim went to Area 2 Headquarters to view a lineup, which consisted of five men. She viewed the lineup only once for two to three minutes and identified defendant as her assailant. She asked each subject to come up to the glass and say something because she “knew who he was but [she] wanted to make sure.” In court, she identified a photograph of the men she viewed in the lineup, indicating defendant as the man she had picked out from the lineup. She also identified a green jacket and a gray hooded sweatshirt, recovered during a search of defendant’s home, as the clothes defendant had worn on the night of the attack.

Chicago police officer David Ducar assisted the victim when she ran up to his patrol car and reported the assault. His description of the alley and its lighting matched the victim’s.

Serological testimony presented by the State revealed that, based on analyses of the vaginal swab taken from the victim and of samples of both the victim’s and defendant’s blood types, it was possible for defendant to have deposited his semen in the victim’s vagina.

The State rested, and defendant’s motion for a finding was denied.

During defendant’s case in chief, Chicago police officer David Friel testified that he had read the case report in the assault in question before going out on patrol shortly after January 14. During his previous patrols, he had seen a man whom he considered a likely suspect in the attack three-quarters of a mile from the scene of the attack, wearing a dark green army jacket and dark hiking boots. After interviewing this suspect, Friel wanted to conduct a lineup, but could not do so because the victim was out of town. He subsequently released the suspect.

On cross-examination, Friel stated that he spoke with the victim four days later and showed her an array of photographs which included the man. The victim told him that none of the men depicted was her attacker.

I

Defendant initially asserts that the State failed to prove his guilt beyond a reasonable doubt, particularly because the victim’s identification was “unreliable.”

A victim’s in-court identification of the accused must contain the following elements: (1) the victim is present at trial to testify as to what occurred between her and the offender and to identify the defendant as the culprit; (2) the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime; and (3) the defendant is physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender. (United States v. Crews (1980), 445 U.S. 463, 471, 63 L. Ed. 2d 537, 546, 100 S. Ct. 1244, 1250 (Crews).) All three elements are satisfied here. The victim was present at trial; testified as to what took place between her and the defendant; and identified defendant as her attacker. The victim was able to reconstruct the occurrence clearly, and defendant was present to be identified.

In addition to the test outlined above, the reliability of an identification is grounded upon the assessment of several other factors, which also must be considered. In Crews, the U.S. Supreme Court described these factors as (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness’ degree of attention at that time; (3) the existence of any discrepancy between any pretrial description and the defendant’s actual appearance; (4) the lapse of time between the crime and the confrontation; (5) any identification of another person prior to a lineup; and (6) the failure to identify the defendant on a prior occasion. Crews, 445 U.S. at 473 n.18, 63 L. Ed. 2d at 547 n.18, 100 S. Ct. at 1251 n.18; People v. Cohoon (1984), 104 Ill. 2d 295, 300, 472 N.E.2d 403.

Applying these factors to the case at bar, the in-court identification of defendant by the victim was properly admitted into evidence. First, the victim had a clear opportunity to view defendant before he blindfolded her. Her testimony revealed that she saw defendant’s face when he initially walked past her; when he came up and grabbed her by the entrance to the alley; and when the scarf fell from her eyes during the sexual assault. The victim also looked at defendant five times as he pushed her down the alley. She had sufficient opportunity to observe defendant prior to the attack. (People v. Frisby (1987), 160 Ill. App. 3d 19, 33, 512 N.E.2d 1337.) Furthermore, she observed defendant at the entrance to the alley, which was lit by a streetlight. The victim maintained that the alley was “bright” because of the reflective nature of the snow on the ground in addition to lights from the surrounding houses and from the entrance to the alley. Officer Ducar corroborated the victim’s account of the lighting in the alley. Since the most important factor of the above analysis is the victim’s opportunity to view the offender (People v. Moore (1983), 115 Ill. App. 3d 266, 270, 450 N.E.2d 855), these facts alone present reliable identification indicia.

Second, the victim was an interested witness and, as such, she had reason to scrutinize the offender’s face with some amount of care and attention. People v. Frisby, 160 Ill. App. 3d at 33; People v. Payne (1981), 102 Ill. App. 3d 950, 958, 429 N.E.2d 1344, aff’d in part & rev’d in part (1983), 98 Ill. 2d 45, 456 N.E.2d 44.

As for the victim’s description of the offender to the police, the testimony presented reveals that the victim did in fact describe her attacker to the police; however, the description itself was never elicited from her while she testified. It is impossible to tell from this record, therefore, whether the victim provided police with a description of the offender which was a relatively accurate portrayal of defendant.

Although over two years had passed between the occurrence, January 14, 1987, and the in-court identification made on June 16, 1989, this alone is not dispositive of the issue. In People v. Dean (1987), 156 Ill. App. 3d 344, 352, 509 N.E.2d 618, the appellate court upheld an identification made 2V2 years after the occurrence, and in People v. Rodgers (1972), 53 Ill. 2d 207, 290 N.E.2d 251, an identification made two years later was upheld.

Other factors further strengthen the reliability of the victim’s identification. The victim never identified another person as her attacker prior to the lineup, although she had the opportunity to do so when Officer Friel brought her an array of photographs, which included a suspect some police considered the offender. Moreover, she demonstrated a convincing level of certainty when she positively identified defendant as her assailant at the lineup conducted two weeks after the attack. Contrary to defendant’s assertions that her lineup identification was weak, the victim’s testimony revealed that she “knew who he was” from the outset and had each subject say something in order to “make sure.” Defendant’s contention that the identification is unreliable must be rejected.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Our function upon review is not to retry defendant, but to ascertain whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) The complainant’s testimony here is clear and convincing and sufficient to sustain a rape conviction despite the fact that it is contradicted by the defendant. People v. Williams (1983), 115 Ill. App. 3d 276, 279, 450 N.E.2d 851; People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.

Considering all the evidence at bar in the light most favorable to the prosecution, including the victim’s testimony and identification, which the circuit court characterized as “clear and accurate,” as well as the testimony of the officer who came to her aid, and the serology testimony, a trier of fact could readily find that defendant committed the acts beyond a reasonable doubt.

II

Defendant next contends that the circuit court’s finding of probable cause for arrest constituted manifest abuse and assigns as error the circuit court’s denial of his motion to quash arrest and suppress evidence.

The question of whether probable cause exists is a common sense, practical question to be determined by the totality of the circumstances. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Generally, probable cause exists when the circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed and that the person arrested committed the offense. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Only where a finding of probable cause constitutes manifest error will a reviewing court reverse that ruling.

Here, Officer Dougherty had probable cause to arrest based on the fact that defendant fit the general description of the suspect; defendant was in the vicinity of the area where the rapes had been concentrated; and specific facial characteristics of defendant matched those appearing on the police sketch of the suspect previously shown to the arresting officer. Defendant characterizes the police description of the offender as “general”; however, the record reveals that police knew the assailant’s race, sex, age, height, and weight. This description, in addition to the sketch, gave police a more than general description upon which to base their investigation. The circuit court, which had the opportunity to view defendant in person and compare him to the sketch, found certain similarities between them. From the photo of defendant contained in the record and the sketch provided to this court, it cannot be said that the circuit court erred in making this finding. The court’s ruling on the existence of probable cause was not manifestly erroneous. See People v. Washington (1980), 89 Ill. App. 3d 734, 412 N.E.2d 1; People v. Jenkins (1975), 31 Ill. App. 3d 910, 335 N.E.2d 87.

Defendant cites People v. Thomas (1980), 80 Ill. App. 3d 1121, 400 N.E.2d 1019, in support of his argument; however, Thomas is factually distinguishable from the instant case. In Thomas, the appellate court affirmed the circuit court’s quashing of arrest where the arresting officer conceded that his arrest was based only on suspicion, following his receipt of a general description of a suspect in an armed robbery which had occurred one hour before. No such acknowledgement was made in the case at bar. Moreover, police here knew much more about the suspect than the police in Thomas since, in the instant case, the investigation had been ongoing for several weeks, and officers were aware of the attacker’s pattern and the area where the assaults had occurred. Finally, the circuit court in Thomas granted defendant’s motion to quash thereby resolving credibility issues in favor of defendant.

Since defendant’s arrest was lawful, it is unnecessary for this court to address the issue of whether the circuit court should have excluded the identification testimony and the articles of clothing seized from defendant’s house where both were obtained during a period of detention following an illegal arrest.

Ill

Defendant lastly contends that the circuit court relied upon an improper aggravating factor in sentencing defendant to an extended term of imprisonment, resulting in reversible error. Defendant maintains that the court erroneously considered whether defendant’s conduct caused or threatened serious harm to the victim, an element implicit in the crime of aggravated criminal sexual assault.

The imposition of a sentence is a matter of judicial discretion in the absence of which the circuit court’s determination may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(c)), with a maximum term of 30 years’ imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(3)). A defendant is eligible for a term of imprisonment in excess of the maximum if the sentencing judge finds certain statutory aggravating factors present. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a).

The circuit court did not consider an improper aggravating factor in the case sub judice. Defendant concedes that his sentence was within the statutory range of 30 to 60 years by virtue of his 1977 rape conviction alone. The degree of harm caused to the victim may be considered as an aggravating factor in determining sentence even in cases where serious bodily harm is arguably implicit in the offense for which defendant is convicted. (People v. Saldivar (1986), 113 Ill. 2d 256, 269, 497 N.E.2d 1138.) At bar, the State sought the maximum 60-year term, noting in aggravation defendant’s long criminal history, which included the above-noted rape, as well as robbery and attempted robbery convictions. In mitigation, defendant’s counsel, argued, inter alia, that “there was no great bodily harm in that the victim was not shot, stabbed, or severely beaten.” The circuit court specifically rejected this argument, finding the assault, as testified to by the victim, “vicious and brutal.” The court also noted defendant’s criminal record in addition to the fact that deterrence to others may be considered in sentencing.

Defendant insists that the record evidence does not support the court’s finding of brutality. The evidence presented, however, reveals that defendant stalked his victim for at least one block, attacked her from behind by grabbing her neck, repeatedly threatened to kill her and dragged her down a deserted alley. Even before the sexual assault began, defendant blindfolded the victim, frisked her for money, and robbed her. When he caught her looking at him, he choked her so hard that she “couldn’t breathe.” The record amply supports the circuit court’s finding of bodily harm and brutality. For the foregoing reasons, defendant’s sentence must be affirmed.

The record here fully supports the circuit court’s findings, decision and sentencing in this case. There are no bases upon which to disturb the outcome, and we are obliged to affirm.

Affirmed.

SCARIANO, P.J., and COCCIA, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY GRAY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—3899
    Opinion filed June 18, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James F. Fitzgerald, and Kathleen Howlett, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Terry Gray was convicted by a jury of murder and acquitted of aggravated criminal sexual assault; he appeals the murder conviction upon numerous grounds.

Detective Victor Breska testified that on March 25, 1986, he was riding in an unmarked police car when, at about 8:45 p.m., someone flagged him down at 13th and Troy Streets in Chicago, and upon pulling over, he was told that a body had been discovered behind a building in a nearby alley. Breska walked into the alley and saw a body lying in the basement stairwell of an abandoned three-flat building. There was blood on the deceased’s upper torso and head, and the head was also partially covered with garbage. There was blood on the ground and wall as well, and bricks, glass and other sharp objects were lying around in the alley near the deceased. Although the evidence conflicted as to whether the pants of the deceased were pulled down, there seems to be agreement that they were unzipped. Breska also testified that all but two or three steps in the stairwell leading to the basement were covered with garbage, that the alley was below the middle of the basement door, and that a photograph taken at alley level did not disclose the body.

Detective Ed Rave testified that the area where the body was found had a high crime rate, with numerous incidents of narcotics use and homicide. On March 25, 1986, at 9 p.m., he proceeded to the rear of 1316 South Troy, and observed a body lying in the basement stairwell with clenched fists.

On cross-examination, Rave stated that although the area was dusted for fingerprints, none was found. The trial judge then sustained the State’s objection and barred defendant from cross-examining Rave about information he had received during his investigation concerning threats to the deceased by a third party. Rave further testified that the nearest streetlight was 20 feet from the body and that there was a porch or platform directly above the basement door.

Calvin Polk, who lives on the second floor of 1255 South Troy, testified as a witness for the State that he spent the early evening of March 25, 1986, behind 1254 South Troy, drinking with his brothers James and Omar. At about 8:30 p.m., as the three were entering the alley, Calvin spoke to Sam Redmond, who was just leaving it. As Calvin and his brothers walked down the alley and behind one of the buildings, Calvin saw two people in the stairwell under the porch, one of whom was standing, and the other was lying on the ground. Because the porch blocked his view, he could see only the legs of the person lying on the ground, and he could not see the face of the person who was standing. However, he identified defendant based upon his body build. Calvin also stated that at about 9:35 p.m., he dialed 911, and at that point in his testimony the record reflects the following:

“Q. When you called 911, what did you tell them?
MR. HOWSE: Objection, your Honor.
A. I stated that there had been a murder committed and that the police were there investigating the scene.
Q. Okay. And did you tell them who they were looking for?
A. Yes, sir, I did.
Q. Who did you say that was?
A. I said Terry Gray.”

During this conversation with the police, he also gave a description of defendant, including his clothing, body build, facial hair and age.

Over defendant’s hearsay objection, Calvin stated that on April 12, 1986, he was interviewed at police headquarters, where at first he denied knowledge of the incident, but after being told of certain information obtained by the police, he told them of the phone call he had made and what he saw and had seen. Defendant renewed his objection, alleging that Calvin’s testimony was a prior consistent statement used to bolster trial testimony. The judge overruled the objection. Calvin also testified over the defense’s objection that on April 12, 1986, he picked out defendant’s photograph at the police station.

On cross-examination, Calvin stated that it was dark by 8 p.m. on March 25, and the nearest light was 20 feet away, but that he had known defendant for seven or eight years, saw him on the streets and occasionally shot pool with him. He further testified that he and his companions had been drinking whiskey and beer for an hour or two, that he never saw the suspect’s hands or hair, that he could not determine if the person that he saw standing was black or white, and that he went back to the comer to drink intermittently for another two hours after seeing the body. After the police showed him photographs of the defendant and one Willie Barber, Calvin picked out defendant’s picture as the man he saw.

Dr. Tae An, an assistant Cook County medical examiner, testified that the postmortem examination he performed on the deceased on March 26, 1986, disclosed several lacerations, bruises and facial fractures, and that he took swab samples of the deceased’s vagina, rectum and mouth. He determined the cause of death to be multiple blunt and sharp facial injuries. A cutting wound appeared on the left wrist area, which he characterized as a defense wound. On cross-examination, the doctor stated that none of the fingernails on the deceased was broken, and there was no skin recovered from them.

Bruno Whitman, a dispatcher with the police department, testified that he received an anonymous call at about 10:34 p.m. on March 25, 1986. Over defendant’s hearsay objection, Whitman further testified that the caller said that a murder had been committed in an alley near 13th and Kedzie and that defendant might be the offender.

Rick Roberts, a criminologist in the police department’s crime lab, testified that in April of 1986, he examined the swabs obtained from the medical examiner’s office and found the presence of sperm, which could have been present in the victim’s body for up to 48 hours, but that his tests could not determine whether the presence of sperm indicated rape.

Ghanetta Simms, another State witness, testified that she had known defendant between 10 and 13 years and that at about 5 p.m. on March 18, 1986, one week before the murder of the deceased, the defendant grabbed her from behind as she walked down 13th Street near Troy. The defendant then started pulling her down an alley, the same alley in which the deceased was found, and stated that he wanted “some of her stuff.” Simms struggled, broke loose and ran away.

Defendant objected to Simms’ testimony as inadmissible evidence of prior bad acts. Although the State argued that the testimony was proper in order to show intent, motive and identity, the trial court overruled the objection, stating that Simms’ testimony could be admitted to show common scheme and design. On cross-examination, Simms testified that she never called the police to report the incident, and stated over defendant’s objection that the reason she did not do so was because she was afraid of the defendant.

Omar McGhee, brother of Calvin Polk, testified that he knew the defendant as a friend of Calvin’s and that he had seen the two shooting pool together four or five times since 1981. On March 25, 1986, at 8:30 p.m., he accompanied his brothers Calvin and James into the alley behind South Troy, where, from a distance of 10 to 12 feet, he saw defendant standing in the basement stairwell of an abandoned building. McGhee testified that he had four prior convictions for burglary and one for an attempted robbery, all in the 1970’s.

Another State witness, Richard Bates, testified as follows: he lived and worked in the neighborhood of the murder, and had known both the defendant and the deceased for about 10 years. On March 25, 1986, at about 8 p.m., he was walking down the alley behind 1340 South Troy when he heard someone call out for help. He then turned around and saw the defendant and the deceased in the basement of a building, standing a foot apart. When Bates was about 12 feet away from the defendant and the deceased, the defendant threatened to shoot him if he did not go home. Over defendant’s objection, Bates then testified that he later identified defendant from a photograph shown to him by the police. Although most of Bates’ testimony on direct examination indicated that he saw the deceased, he stated on cross-examination that he never saw her, but could hear her voice. Bates stated on redirect that although he originally declined to pick defendant out of a lineup because he was afraid to become involved, after learning that others had come forward to testify against defendant, he identified him in a lineup and agreed to testify against him as well. The defense objected to this testimony on the ground that it was “improper rehabilitation.”

During a conference in chambers, the trial judge overruled defendant’s objection to the State’s interrogating Detective Sherry about his search for the defendant. Sherry then testified that during the course of his investigation, he had received certain leads and had questioned defendant’s mother, who told him that she had not seen defendant for five or six weeks. Sherry also stated that he tried to contact defendant five or six times.

On cross-examination, after Sherry testified that he had also received information regarding Willie Barber, the trial court sustained the State’s objection to the defense’s asking Sherry if he had learned that Barber had threatened the deceased. The trial court also sustained the State’s objection when defense counsel asked Sherry about his interview of Bates on March 25, 1986. On redirect, over defendant’s objection, Sherry testified that Willie Barber appeared to be around 60 years old.

During the exhibit conference, over defendant’s objections that they were gory, the trial judge admitted several photographs — including two morgue photos of the deceased, and photos of bloodstained bricks and glass. The trial court also overruled defendant’s objection and allowed Officer Soltysiak to testify about photos taken after defendant’s arrest depicting certain marks on his face. Officer Soltysiak then testified that he was present when defendant appeared at Area 4 headquarters on April 18, and that he noticed the same scratches on his face. On cross-examination, Soltysiak admitted that he had no way of knowing the source of the marks. A photograph of defendant that was taken on April 18, depicting the marks, was then admitted into evidence.

During defendant’s case in chief, Detective Sherry was recalled and testified that when he interviewed Bates in his apartment on March 28, 1986, he at first denied any knowledge of the incident. And although Bates testified that he told Sherry that he saw two people in the alley, Sherry testified that Bates told him he saw three people in the stairway, under the porch, but that he could not identify them due to his poor eyesight. On cross-examination, over defendant’s objection, Sherry testified that Bates said that he was too scared to get involved.

Also recalled, Officer Soltysiak testified that he had interviewed Polk twice. Polk at first denied any knowledge of the incident, but after he was told that someone had seen him in the alley, he stated that he saw defendant’s physique.

After the instructions conference, the trial court denied defendant’s request for a continuance so that Willie Cobbs could be brought in to testify. According to defense counsel, Cobbs was aware of the threats made by Barber.

As noted above, the jury found defendant guilty of murder and not guilty of aggravated criminal sexual assault. At sentencing, the State filed a victim impact statement prepared by the deceased’s brother, Ralf Shines. Shines also testified about the emotional impact caused by his sister’s death upon their family.

Finding defendant’s crime to be an exceptionally brutal and heinous one, the trial court sentenced him to an extended term of 60 years in the custody of the Illinois Department of Corrections.

Defendant contends that the trial court improperly admitted evidence that a week before the murder, he grabbed Simms, dragged her into an alley, and made lewd comments to her — testimony that the judge allowed on the ground that it showed that Simms’ abduction and the murder of the deceased were part of a common design or scheme. “[EJvidence which goes to show *** common scheme or plan or modus operandi may *** be received even though it may show the commission of a separate offense. [Citations.]” (People v. Allen (1989), 184 Ill. App. 3d 438, 449.) However, the evidence must be “relevant to prove [a] material fact in issue other than defendant’s propensity to commit a crime [and there must be] a similarity between the other crimes and the offense with which defendant is charged. [Citations.]” (184 Ill. App. 3d at 448-49.) Here, there is no evidence that the deceased’s presence in the alley was involuntary, that defendant was the source of the sperm found in her vagina, indeed, that he had sex with the deceased, and if so, whether the sex was consensual. Thus, in contrast to Allen, there appears to be a total absence of similarities between the Simms incident and the case at bar.

The “common design or scheme” exception to the general rule that evidence of other crimes or wrongful conduct is inadmissible “refers to a larger criminal plan of which the crime charged is only a part. [Citation.]” (People v. Bayer (1987), 160 Ill. App. 3d 218, 221.) There was no evidence that the abduction of Simms and the murder in this case were part of a common scheme. However, in light of the clear and unequivocal testimony of three witnesses who placed defendant at the scene of the crime at the approximate time that it was committed and under the circumstances described by them, we hold such error to be harmless. (Allen, 184 Ill. App. 3d at 451.) “[T]he concern of a reviewing court is prejudicial error, and the court need not determine that a trial was devoid of error before affirming a conviction.” (People v. Warmack (1980), 83 Ill. 2d 112, 129.) In Warmack, the court found that although it was error to allow evidence of a prior arrest when it was not relevant to any issue in the case, it was harmless error since a trial without such error, considering the totality of the evidence, would have produced no different a result. (83 Ill. 2d at 128-29.) We are satisfied that the result in this case would have been no different in the absence of the objectionable evidence admitted by the trial court.

Defendant next alleges that the trial court improperly admitted certain autopsy photos. As our supreme court noted in People v. Lefler (1967), 38 Ill. 2d 216, 221, “courts have been strict in the requirement that a proper purpose be shown for the introduction of such pictures.” Although in Lefler the court held that it was error to admit photographs of an autopsy because the extent of the deceased’s injuries appeared exaggerated due to the autopsic incisions, here, defendant’s objection was not based on any charge that the photographs appeared to exaggerate the extent of the deceased’s injuries. Furthermore, in People v. Speck (1968), 41 Ill. 2d 177, 203-04, rev’d on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279, despite the fact that the parties had stipulated to the identity of the decedents and to the causes of their deaths, the court admitted autopsy photos to prove defendant’s premeditation and the extent of the injuries he was alleged to have inflicted, holding that trial courts are given great discretion in deciding whether to admit such evidence. We are persuaded that the trial court here did not abuse its discretion in admitting the disputed photos.

Defendant also asserts that the admission of testimony concerning a photograph, and the photograph itself, showing scratches on his face, were incorrectly admitted because they were taken 23 days after the murder, thus constituting “a classic example of prejudice outweighing probative value.” However, we regard the evidence as highly probative considering that there was medical testimony that the victim tried to defend herself and that there was other evidence that sharp objects were found near the deceased. The jury could have reasonably concluded that in using the glass or other sharp objects which had accumulated in the alley, the victim could have scratched defendant’s face in the process of defending herself. We therefore hold that “the trial court’s decision that the probative value of this evidence outweighed its prejudicial impact was not an abuse of discretion and, therefore, not error.” People v. Torres (1990), 198 Ill. App. 3d 1066, 1074.

Defendant also contends that his due process rights were violated because the State failed to prove him guilty of murder beyond a reasonable doubt. When deciding whether a verdict is supported by the evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [(Emphasis in original)]’ ” (People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) Bates, Polk and McGhee all testified to having seen the defendant, whom they all knew, at the murder scene on the evening of March 25, 1986. Polk testified that he saw a person lying on the ground next to the defendant, and Bates testified that he had known the deceased for 10 years, heard her cry for help, and that defendant threatened to shoot him if he did not leave. In light of such evidence, we hold that the verdict was fully consistent with all due process requirements.

Defendant next contends that the trial court’s admission of testimony concerning certain out-of-court identifications of defendant were inadmissible hearsay used improperly to bolster the witnesses’ credibility. Specifically, he alleges that the trial judge admitted Polk’s prior statements consistent with his testimony when, over defendant’s objection, he stated that on March 25, 1986, he called 911 and told the police that they were looking for Terry Gray, and that on April 12, 1986, at police headquarters, he told the police about his 911 call and about his identification of the defendant. Further, Bruno Waltman, a police department dispatcher, testified over defendant’s objection that on March 25, 1986, he received a call from a black male who said that a murder had been committed in an alley near 13th and Kedzie, and that Terry Gray was a possible offender.

The prosecution responds that “[a] statement [of identification] is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12.) Under the statute, the State argues, both Polk’s and Waltman’s statements were admissible because both testified at trial and were subject to cross-examination, and the statements of identification were made by Polk after having observed defendant in the alley. People v. Lemons (1989), 192 Ill. App. 3d 997, 1001-02; People v. Kelly (1989), 185 Ill. App. 3d 43.

Defendant alleges, however, that Polk’s statements to the police that they were looking for Terry Gray were not an identification because on March 25, 1986, Polk saw only defendant’s body build and did not see his face. Instead, defendant contends, Polk’s statements to the police were merely disguised hearsay. Preliminary to the legal question of whether there was an identification is the factual one of whether Polk’s statements to the police were based upon his observations or based upon his discussion with one Sam Redmond, who was just leaving the alley as Polk was entering it. Implicit in the trial judge’s holding is the finding that Polk’s statements were based upon his observation of the defendant, a finding which we conclude to be reasonable. Assuming, arguendo, that the trial judge abused his discretion in admitting this evidence, we conclude that such admission does not constitute reversible error. People v. Sadaka (1988), 174 Ill. App. 3d 260, 264.

After Bates had testified that he had seen the defendant with the deceased, that he heard her scream for help, and that defendant threatened him, the defense impeached him by eliciting testimony that he had earlier told the police that defendant never spoke to him on March 25, 1986, and that his poor eyesight prevented him from making an identification. Defendant claims that on redirect, the State improperly used leading questions and hearsay to rehabilitate him by establishing that Bates was initially afraid to testify that he saw the defendant with the deceased on the night of the murder. The trial court has considerable discretion in determining whether to permit leading questions. (People v. Hirschmann (1988), 175 Ill. App. 3d 150, 154.) Assuming, arguendo, that the trial judge abused his discretion in allowing the questions, we hold that the defendant waived his objection by not raising it in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Moreover, in light of the overwhelming evidence presented against defendant, this court would be unwarranted in invoking the plain error rule in this case. (People v. Nevitt (1990), 135 Ill. 2d 423, 448.) The plain error rule does not operate in the nature of a general savings clause preserving for review all errors affecting substantial rights which were not properly preserved in the trial court. (People v. Precup (1978), 73 Ill. 2d 7.) The criteria for applying the rule are whether the evidence is closely balanced, or whether the verdict would have been different had the error not occurred, or whether the error is of such magnitude that the defendant is denied a fair and impartial trial. (People v. Young (1989), 128 Ill. 2d 1.) As a matter of grace, a reviewing court may address an issue of plain error only when such criteria are present (People v. Pickett (1973), 54 Ill. 2d 280, 283; People v. Bracy (1986), 152 Ill. App. 3d 566); but we do not find them to exist here.

The defendant next complains that evidence of the investigation leading up to his arrest was improperly admitted and that the prosecution’s opening statement referring to the investigation was prejudicial. Without any citation to the record, he alleges that at trial the State charged that the police “hunted” for him and that he “seemed to have vanished from the neighborhood.” The State responds that because the police had contacted his mother and numerous other relatives looking for him and because defendant surrendered to the police only after a warrant was issued for his arrest, such evidence was admissible to show the circumstances of the arrest and to show consciousness of guilt. There are several reasons for our holding that the trial court did not abuse its discretion in permitting the State to make its arguments and in admitting the disputed evidence: (1) defendant’s failure to object to the statement that defendant had vanished constitutes waiver (People v. Carlson (1980), 79 Ill. 2d 564, 576); (2) defendant’s failure to make any citation to the record concerning the State’s allegedly prejudicial comments about the “hunt for Terry Gray” (134 Ill. 2d R. 341(e)(6)); and (3) the recent ruling of our supreme court in People v. Hayes (1990), 139 Ill. 2d 89, 131-32, which holds that the State may properly comment about the length of the search for the defendant to prove the circumstances of the arrest. (Hayes, 139 Ill. 2d at 132.) Accordingly, defendant has failed to make the requisite showing of error.

The defendant also complains that the trial court’s decision forbidding him to cross-examine Detective Rave concerning the victim’s arrest in 1978 for soliciting in a public way deprived him of the right to confront witnesses under the sixth and fourteenth amendments to the constitution of the United States. We hold, however, that defendant has waived his right to raise this issue on appeal since he did not object to the State’s motion in limine, which the court granted and which prohibited such inquiry, nor did he include this point in his written post-trial motion. (Enoch, 122 Ill. 2d at 186.) Nor do we find plain error, for we are satisfied, as we have already noted, that the verdict is supported by overwhelming evidence; moreover, the verdict returned by the jury here was obviously not dependent upon evidence necessary to support the sexual assault charge. Accordingly, since the previous arrest of the deceased is totally irrelevant to whether defendant murdered the deceased, we hold that he was not denied a fair trial.

Defendant also contends that he was denied a fair trial because he was barred from cross-examining Detective Sherry as to whether he had heard that another suspect, Willie Barber, had threatened the deceased. However, threats against a victim of a crime made by a person other than the defendant are inadmissible hearsay. (People v. King (1916), 276 Ill. 138; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.5, at 635 (5th ed. 1990).) Therefore, the trial court properly excluded these statements.

Defendant next argues that in closing argument, the prosecution implicitly shifted the burden of proof to him when it was permitted to assert that “[i]n order for you to find him not guilty, you have to honestly believe that those three people, [Simms, McGhee and Bates] *** somehow got together and conspired this Satanic conspiracy to point to an innocent man and to say that he killed another human being.” However, here again we are constrained to hold that since the evidence incontestably established defendant’s guilt beyond a reasonable doubt, the trial court’s error, if any, cannot be regarded as prejudicial to the extent of requiring reversal. People v. Tate (1981), 87 Ill. 2d 134, 148.

Defendant further asserts that his constitutional right to effective assistance of counsel was violated when the State admitted evidence of the emotional suffering of the victim’s relatives, although he raised no objection to such evidence in the trial court. Acknowledging that a victim impact statement is not admissible in capital cases (Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529), defendant argues that the prohibition should be extended to noncapital cases. Furthermore, defendant argues that the admission of the impact evidence violated section 5 — 4—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 4—-1(a)), which determines what evidence is admissible at sentencing hearings. However, our supreme court has already addressed this issue. Even if we were to assume for the purposes of argument that the statute was violated:

“[w]e hold that allowing this [victim impact] statement at the noncapital sentencing hearing did not violate the defendant’s constitutional rights. In light of the strong evidence of guilt, we find that the error in the admission of this evidence was not reversible.” People v. Turner (1989), 128 Ill. 2d 540, 578, 539 N.E.2d 1196.

Defendant alleges, in the pro se brief that he was given leave by this court to file, that the following jury instruction was improperly read to the jury: “The fact that the defendant did not testify should be considered by you in any way in arriving at your verdict.” He claims, of course, that the instruction should have been worded “should not be considered.” (Emphasis added.) However, we are bound by the certified record of proceedings conducted in the trial court, and that record is presumed to be correct unless it can be shown to be otherwise. (People v. Vincent (1988), 165 Ill. App. 3d 1023, 1030.) As the court held in People v. Lewis (1979), 75 Ill. App. 3d 259, 286:

“[I]f the correct instructions had been submitted in written form to the jury in the jury room, a prior error in the reading of the instructions would have been cured and prejudicial error would not have resulted. In the case at bar, the error in the reading of the instructions was corrected by the the submission of correct, written instructions to the jury in the jury room.”

Therefore, because the jury received the correct written instruction, the error in giving the incorrect oral instruction was cured.

Defendant also argues pro se that the cumulative effect of the errors at trial was not harmless. However, because the identification by even a single eyewitness may be sufficient to support the conviction of a defendant (People v. Hayes (1990), 139 Ill. 2d 89, 147), we find the evidence to be quite enough to sustain the verdict at trial. The other issues that defendant raises pro se are either too frivolous to require discussion or were waived because they were not addressed at trial (People v. Carlson (1980), 79 Ill. 2d 564, 576), and we hold that none of those waived at trial would constitute plain error.

For all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE RIZZI

text:
    PRICHARD TOWER ERECTIONS, INC., Plaintiff, v. GREAT AMERICAN INSURANCE COMPANY, Defendant-Appellant (Communication Services Corporation, Plaintiff-Appellee; Dewey American Insurance Company et al., Defendants).
    First District (3rd Division)
    No. 1—88—2232
    Opinion filed June 19, 1991.

      Marthe C. Purmal, of Chicago, for appellant.
    Rooks, Pitts & Poust, of Chicago (Terrence M. Burns and Karen E. Wilson, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Great American Insurance Company (Great American), appeals from an order of the circuit court of Cook County which granted plaintiff Communication Services Corporation’s (CSC’s), motion for summary judgment on count I of its five-count complaint for declaratory judgment and denied Great American’s motion for summary judgment on counts I and II of CSC’s complaint. We affirm in part; reverse in part and remand.

Prichard Tower Erections, Inc. (Prichard), is an Iowa corporation. CSC is a South Dakota construction company. In July 1982, Prichard was the general contractor engaged in the erection, repair, alteration and construction of a microwave relay tower in Downers Grove, Illinois. CSC subcontracted with Prichard to perform work on the construction project. On July 23, 1982, CSC learned that it needed Illinois worker’s compensation insurance coverage for the Illinois work site employees.

CSC contacted P.G. MacFarlane at the Grandy-Pratt Insurance Company in Iowa and requested insurance coverage for employees at the Illinois jobsite. When MacFarlane was unable to obtain insurance coverage for CSC, he contacted Joseph Dennis at the Dewey Insurance Agency in Illinois and requested an application for worker’s compensation insurance through the Illinois Assigned Risk Plan (the plan). The plan provides for the assignment of an insurance carrier to an employer who has been previously rejected by other insurance carriers. Dennis provided MacFarlane with the application for insurance. The application was completed and signed by CSC on July 26, 1982. CSC mailed the completed application to Dennis.

In section one of the application CSC indicated that it requested insurance coverage as of 12:01 a.m., July 26, 1982. The application form had a provision by which the agent or broker could request immediate binding insurance coverage. However, Dennis did not invoke that provision of the application. Dennis sent CSC’s completed application to the Illinois Council on Compensation Insurance (the Insurance Council) on July 29, 1982. CSC’s employees testified at deposition that they believed that there was an insurance policy in effect within a day or two after their initial request to Mr. MacFarlane on July 23,1982.

On August 2, 1982, the Insurance Council sent a letter of assignment to CSC and Great American. The letter provided in pertinent part:

“The assigned carrier wiH furnish you with a premium proposal indicating the estimated annual premium within ten days of the above assignment date. Within five days of receipt of the premium proposal you shall send TO THE CARRIER a certified check or money order COVERING THE ESTIMATED PREMIUM. Within ten days of receipt of that check the carrier must issue a policy or binder which shall commence at 12:01 a.m. the day following receipt of the check and terminates twelve months thereafter.”

CSC alleged in its complaint that on August 2, 1982, MacFarlane assured CSC that it was provided with worker’s compensation insurance coverage by Great American effective August 2, 1982, pursuant to the assignment letter.

On August 19, 1982, an accident involving a CSC employee occurred at the Illinois work site. When CSC notified the Grandy-Pratt Insurance Agency of the accident on that date, it was informed that Great American had failed to furnish the premium proposal. Thereafter, the injured worker filed worker’s compensation claims in addition to a Structural Work Act lawsuit against Prichard and a third-party lawsuit against CSC. On August 20, 1982, Great American sent its premium proposal to CSC. On August 25, CSC mailed a certified check for the premium payment to Great American. Great American accepted the check and issued a worker’s compensation insurance policy for CSC to cover the period of August 31,1982, to August 31,1983.

CSC requested and Great American denied insurance coverage for the August 19, 1982, accident. Thereafter, CSC and Prichard filed the present declaratory judgment action. Count I of CSC’s complaint for declaratory judgment aHeged, inter alia, that Great American was negligent in failing to provide a premium proposal within 10 days of its assignment as the carrier by the Insurance Council. CSC and Prichard further alleged that as a result, Great American was obligated to provide insurance coverage for the August 19, 1982, accident. Count II of CSC’s complaint alleged that Great American was obligated to provide coverage to CSC due to the acts and omissions of Dennis and the Dewey Insurance Agency as agents for Great American. Counts III through V of the complaint remain in the trial court and are not at issue in the present case.

CSC filed a motion for summary judgment on count I of its complaint. Great American filed a motion for summary judgment as to both counts I and II of the complaint. Following a hearing on the motions, the trial court granted CSC’s motion for summary judgment on count I and denied Great American’s motions for summary judgment on counts I and II of the complaint. The trial court also granted Great American’s motion to dismiss Prichard as a plaintiff with prejudice. The trial court stayed enforcement of its order pending appeal. This appeal followed.

On appeal, Great American first contends that the trial court erred in granting CSC’s motion for summary judgment on count I of its complaint. We agree.

Summary judgment is appropriate if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any 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); Inryco, Inc. v. Multuloc Corp. (1990), 202 Ill. App. 3d 367, 370, 559 N.E.2d 1000, 1002-03.) Evidence in support of the motion must be strictly construed against the moving party and summary judgment should be denied where reasonable persons could arrive at different conclusions. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 327, 532 N.E.2d 333, 336.) An order granting summary judgment must be reversed if a reviewing court determines that an issue of material fact exists. Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 785, 537 N.E.2d 823, 827.

Great American contends that summary judgment for CSC on count I of its complaint was inappropriate because its negligence in failing to mail the premium proposal in a timely manner was not the proximate cause of Prichard’s failure to have worker’s compensation insurance coverage when its employee was injured on August 19,1982.

In a negligence action, the burden is on the plaintiff to establish the existence of a duty of reasonable care owed to him by the defendant, a breach of that duty, i.e., a negligent act or omission, and an injury proximately resulting therefrom. (Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 512, 464 N.E.2d 818, 821.) Proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injury. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207.) The issue of proximate cause is one for the trier of fact. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393, 493 N.E.2d 1022, 1028.) However, where it is apparent from the facts that only one conclusion can be drawn, the question then becomes one for the court to resolve as a matter of law. Lindenmier, 156 Ill. App. 3d at 90.

In the present case, CSC alleged and the trial court found that because Great American failed to send out the insurance premium proposal in a timely manner, it was estopped from denying coverage and putting at issue the time it would have taken for the proposal to be delivered and returned by CSC via the mail. However, Great American contends that while it concedes that its failure to send out the proposal in a timely manner was negligent, a material issue of fact remains as to whether or not its negligence proximately caused CSC’s injury. A review of the record reveals that the Illinois insurance agent, Dennis of Dewey Insurance Agency, failed to invoke the application procedures for obtaining immediate binding insurance coverage. In addition, the Insurance Council’s letter of assignment to Great American and CSC specifically provided that the assigned insurance carrier would issue a policy or binder “which shall commence at 12:01 a.m. the day following receipt of the [premium] check.”

Under these circumstances, a genuine issue of material fact remained as to whether or not Great American’s acts proximately caused CSC’s injury. We therefore conclude that the trial court erred in determining as a matter of law that Great American’s acts proximately caused CSC’s injury since more than one conclusion could be drawn from the facts. Where reasonable persons could draw different inferences from the facts, a triable issue remains. Since the trial court could not have reached a decision without determining whether or not Great American rather than CSC or one of the insurance agents’ acts or omissions was the proximate cause of CSC’s failure to have insurance on August 19, 1982, summary judgment for either CSC or Great American on count I of the complaint was inappropriate.

Great American further contends that its motion for summary judgment on count II of the complaint should have been granted because there were no material issues of fact on the subject of whether or not Dennis of Dewey Insurance Agency was the agent of Great American. We disagree.

Unless the parties’ relationship is so clear as to be undisputed, the existence and scope of an agency relationship are questions of fact to be decided by the trier of fact. Matthews Roofing Co. v. Community Bank & Trust Co. (1990), 194 Ill. App. 3d 200, 206, 550 N.E.2d 1189, 1193; Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 862, 504 N.E.2d 1289, 1294.

Here, CSC alleged in count II of its complaint that Dennis of Dewey Insurance Agency received a commission from Great American and was authorized to solicit insurance business on behalf of Great American. Great American, in its motion for summary judgment, alleged that the Insurance Council handbook specifically informed insurance agents that they were not agents of the servicing insurance carrier. Great American further alleged that Dennis testified at his deposition that he did not have an agency agreement with Great American. Based on these disputed factual allegations, it is clear that the existence and scope of the agency relationship in this case was a question of fact for the trier of fact. We therefore conclude that because a material issue of fact remained as to the existence of an agency relationship between Dennis of Dewey Insurance Agency and Great American, the trial court did not err in denying Great American’s motion for summary judgment on count II of the complaint.

Accordingly, for all of the foregoing reasons, we affirm the order of the circuit court which denied Great American’s motions for summary judgment on counts I and II of the complaint, reverse that portion of the order which granted CSC’s motion for summary judgment on count I of its complaint and remand this matter for trial.

Affirmed in part; reversed in part and remanded for trial.

WHITE and GREIMAN, JJ., concur.

       Justice Freeman participated in this appeal, but has since been elected to the Illinois Supreme Court. Justice Greiman was substituted as the third member of the panel and has read the briefs and listened to the oral argument tapes.