text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUY JOHNS, Defendant-Appellant.
    Fourth District
    No. 4—91—0013
    Opinion filed October 24, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

After a jury trial, defendant Guy Johns was convicted of unlawful possession of a weapon by a person in the custody of the Department of Corrections in violation of section 24—1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1). He was sentenced as a Class X offender to a term of six years’ imprisonment, pursuant to section 5—5—3(c)(8) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(8)); this term was to be served consecutively to a sentence for an unrelated felony offense. Defendant appeals, alleging (1) the court erred in denying his request for a jury instruction on the defense of necessity; and (2) the State failed to prove beyond a reasonable doubt the statutory prerequisites for sentencing as a Class X offender, and double jeopardy bars his re-sentencing as a Class X offender. We affirm.

Defendant was charged by indictment with the Class 1 felony of unlawful possession of a weapon by a felon, in that on October 28, 1989, he possessed a dagger-like weapon (referred to as a “shank”) while an inmate of Pontiac Correctional Center (Pontiac).

On May 15, 1990, the date the trial was to commence, defendant announced his intention to proceed pro se and requested that his second court-appointed attorney be discharged. Defendant had previously discharged his first appointed attorney, alleging that attorney was not representing his interests. After admonishing defendant that his decision was ill-considered, the court found the defendant capable of making the decision to fire his lawyer and capable of representing himself. He then allowed defendant’s counsel to be discharged and the trial proceeded.

Several correctional officers from Pontiac testified at trial. Officers Russell Eckert and Stanley Patton stated that on the morning of October 28, 1989, they conducted a routine shakedown of cell 806 in the protective custody unit, which housed the defendant and his cellmate Brent, searching for contraband. A pat-down search of Brent uncovered a shank in his pocket. At that point defendant handed Officer Eckert another shank, approximately six inches in length, and gave Officer Patton a letter to the warden. Both inmates were then taken to segregation.

Billy Hyson, an inmate in the protective custody unit at Pontiac, testified for the defendant. Over objection by the State as to relevancy, Hyson testified that on the morning of October 26, two days before the shank was recovered from defendant, gang members from the Vice Lords attacked him while on the way to breakfast. Hyson testified that defendant and an inmate named Postlewaite were friends of his and they got into the fight as well. Hyson stated that an inmate named King, a member of the Vice Lords, pulled a knife, slashed defendant’s ear, and cut another inmate named Tillman on the hand. The guards took only Hyson and Tillman to segregation.

William Postlewaite next testified on behalf of the defendant. He stated that he was an inmate in the protective custody unit at Pontiac and that he was present during the attack on Hyson on October 26. Again over objection by the State, Postlewaite stated that Hyson was attacked by gang members and, in the course of the altercation, Tillman and defendant were injured. Postlewaite stated that he and King were placed under investigation.

Defendant then testified on his own behalf. He stated that three days before the shank was discovered in his possession he had heard that a gang member called King Fish had beaten his friend Billy Hyson. Defendant said he confronted King Fish, who told him that if he got involved “there was some for [defendant] too.” Although defendant considered this a threat, he ignored it. The following morning, October 26, while the inmates were on the way to breakfast, defendant again confronted King Fish. According to defendant, the gang members then began swinging and pulling knives. Defendant stated that he was cut on the ear and Tillman was cut on the hand. He stated that he did not go to a doctor for treatment of his injury nor report who had wielded the knives because he did not want to appear a “stool pigeon” to the onlookers. Defendant then put on a cap to conceal the injury to his ear from the guards. “I put the skull cap over my ear and I didn’t want to have to go to segregation and then have to lie about what happened ***.” Later, one of defendant’s friends told him he was going to be “hit” when he went through the tunnel. Defendant walked with his friends and nothing happened. Defendant went to his cell and made the shank from his bedsprings. Defendant stated that he talked to Captain McBirney about the threat but MeBirney only talked to the gang members as though they were friends. Defendant said he made no further effort to get anyone else to do anything, but planned to “let them approach me and I will cut his [sic] throat out. I am just trying to defend my life for what already happened to me so my mind was made up about that.”

Defendant testified that even though he was in the protective custody unit at Pontiac he did not feel protected. He stated that he did feel safe in segregation, so on the morning of October 28, he wrote a letter to the warden explaining why he made the shank and what had happened while incarcerated in protective custody. He gave this letter to the guard when he handed over the shank during the shakedown of his cell.

At the conclusion of the evidence, the trial court refused defendant’s tendered jury instruction on the affirmative defense of necessity, finding no evidence that “on October 28, 1989 something was occurring which put [defendant] in danger and jeopardy of serious bodily harm and that he had no choice but to grab a weapon.” Consequently, the court found there was insufficient evidence in support of a necessity defense and rejected the jury instruction. Defendant was convicted.

At the subsequent sentencing hearing, the State submitted a presentence report and certified copies of defendant’s prior convictions for robbery on November 30, 1982, and for murder on July 28, 1987. None of the documents included the dates of commission of the prior offenses.

The court found defendant was subject to mandatory Class X sentencing pursuant to section 5—5—3(c)(8) of the Code, and sentenced him to six years’ imprisonment to be served consecutively to the sentence he was then serving.

Defendant first argues the court erred in refusing his jury instruction on the defense of necessity because he presented “some evidence” supporting his theory of defense. People v. Tackett (1988), 169 Ill. App. 3d 397, 402, 523 N.E.2d 647, 650.

In People v. Govan (1988), 169 Ill. App. 3d 329, 337, 523 N.E.2d 581, 586, this court determined that necessity might be appropriate under certain circumstances as a defense to a charge of unlawful possession of a weapon by a person in the custody of the Department of Corrections, but for policy reasons its availability was limited. In People v. Ryan (1987), 117 Ill. 2d 28, 33, 509 N.E.2d 1001, 1002, the supreme court noted that the policy supporting the statutory offense “is to prohibit even the innocent possession of items that are likely to be hazardous in the penal setting.” The evils the inmate faces, to justify possession of a weapon and entitlement to a necessity defense, must be immediate and urgent. Govan, 169 Ill. App. 3d at 338, 523 N.E.2d at 586.

In Tackett, this court was again presented with a claim of necessity to a charge of unlawful use of a weapon by a felon incarcerated at Pontiac. We determined that assessment of the availability of a necessity defense involved consideration of several factors: (1) whether the prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) whether there is time for complaint to the authorities or there exists a history of futile complaints which make any result from such complaint illusory; and (3) whether there is time or opportunity to resort to the courts. Tackett, 169 Ill. App. 3d at 402, 523 N.E.2d at 650; People v. Unger (1977), 66 Ill. 2d 333, 342, 362 N.E.2d 319, 323.

In applying the above factors to this case, it is clear defendant was not faced with an emergency situation when he possessed the shank, and he failed to show that he chose the least harmful alternative in arming himself with the shank. The threat by King Fish three days before the shank was found was nonspecific and was more of a warning to defendant that he was not to “get involved” in the dispute with Hyson. The warning of a “hit” that never materialized occurred two days before the shank was found. While defendant reported this threat to Captain McBirney, he made no further effort to contact another correctional officer, but instead decided to procure the shank.

Defendant claims that his purpose in making the shank and writing the letter to the warden was to get into segregation, where he would be safe. However, defendant’s testimony belies his claimed defensive posture and sounds rather as planned retaliation. He testified that he planned to wait until a gang member approached him when he would “cut his throat out.” Further, defendant contradicts his claimed purpose of making the shank to secure placement in segregation. He apparently had the opportunity to be taken to segregation following the October 26 altercation simply by revealing his slashed ear and requesting medical attention, but instead he concealed his injury under a cap because he did not want to appear a “stool pigeon” or be sent to segregation, where for some undisclosed reason he would have to lie about what happened. It is clear defendant submitted no evidence to support a necessity defense, and the trial court properly refused to submit defendant’s jury instruction. Accordingly, defendant’s conviction is affirmed.

Defendant next argues that at his sentencing hearing the State failed to prove beyond a reasonable doubt the statutory prerequisites for Class X sentencing by omitting proof of the dates of commission of his prior offenses. Defendant further argues that, on remand, principles of double jeopardy attach so as to bar resentencing him as a Class X offender, citing People v. Hamilton (1990), 198 Ill. App. 3d 108, 113, 555 N.E.2d 785, 787.

Defendant argues, and the State concedes, that his sentence as a Class X offender must be reversed and the cause remanded for resentencing because the State failed to show the dates defendant committed robbery and murder upon which his prior convictions were based. The dates on which the prior offenses were committed must be shown as a statutory prerequisite to sentencing as a Class X offender pursuant to section 5—5—3(c)(8) of the Code, and requires us to reverse the sentence and remand for resentencing. People v. Shelton (1991), 208 Ill. App. 3d 1094, 1098, 567 N.E.2d 680, 681; People v. Washington (1990), 195 Ill. App. 3d 520, 529, 552 N.E.2d 1067, 1072-73.

We do not agree, however, that on remand the State’s burden of proof is beyond a reasonable doubt, or that double jeopardy bars resentencing defendant as a Class X offender. This court in Shelton expressly rejected the reasoning applied in Hamilton as to the State’s burden of proof and as to the application of double jeopardy principles at resentencing. We adhere to the precedent of Shelton and reject defendant’s request that we overrule that decision. We noted that the dates of commission of offenses for which defendant was previously convicted were not elements of the underlying substantive offense but only the prerequisites for sentence enhancement. “[T]he factual basis for a defendant’s eligibility to be sentenced as a Class X offender under section 5—5—3(c)(8) of the *** Code may be presented in any manner that the sentencing court, in its discretion, finds to be reliable and trustworthy.” Shelton, 208 Ill. App. 3d at 1105, 567 N.E.2d at 686.

In Bullington v. Missouri (1981), 451 U.S. 430, 438, 68 L. Ed. 2d 270, 279, 101 S. Ct. 1852, 1858, the United States Supreme Court determined that double jeopardy interests may be implicated in a sentencing proceeding if the proceeding “was itself a trial on the issue of punishment.” In applying the principles of Bullington, we determined in Shelton that defendant’s prior sentencing proceeding under the Class X offender statute “lacked the hallmarks of a trial on the [issue of] punishment” for the substantive offense of burglary. Shelton, 208 Ill. App. 3d at 1104, 567 N.E.2d at 686.

Similarly, in the case at bar, the elements of defendant’s underlying substantive offense, possession of a weapon by an incarcerated felon, were proved under the reasonable doubt standard, and the dates of commission of previous offenses are nonadversarial facts immaterial to that charge. The sentencing hearing lacked the substance of a trial and the question of guilt was not at issue. Defendant called one of the same witnesses who testified at trial to give evidence in mitigation of sentence. He also testified in his own behalf — essentially restating the same facts he testified to at trial. The State submitted the presentence report and certified copies of defendant’s convictions. No evidence refuting defendant’s eligibility for Class X sentencing was offered.

As support for his contention that double jeopardy principles attach to a sentencing hearing, defendant cites Lockhart v. Nelson (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285. There, Johnny Lee Nelson had been convicted in an Arkansas court of burglary and misdemeanor theft. That court then sentenced him to an enhanced term of imprisonment as an habitual criminal. The statute pursuant to which the sentence was imposed required proof of the four enhancing convictions in one of three formal ways and required that proof to be made beyond a reasonable doubt. Lockhart, 488 U.S. at 35, 102 L. Ed. 2d at 270, 109 S. Ct. at 287-88, citing Ark. Stat. Ann. §§41— 1005, 41—1003 (1977) (current version at Ark. Stat. Ann. §§5—4—502, 5—4—504 (1987)).

The sentencing proceeding was required to be separate from the trial on the question of guilt. Subsequently, in a Federal habeas corpus proceeding the question was whether the fact that Nelson had been pardoned for one of the offenses, the conviction for which had been used to enhance sentence, (1) required the sentence be set aside, and (2) barred resentencing as an habitual criminal on double jeopardy grounds.

The United States Supreme Court eventually granted certiorari in the habeas corpus proceeding to determine whether resentencing as an habitual criminal would be barred as constituting double jeopardy. The State did not raise the issue that, unlike Bullington, death sentencing procedures were not involved.

The United States Supreme Court concluded that the error in the State trial court was the improper admission of evidence and not the lack of evidence. Accordingly, retrial of Nelson on the issue of an enhanced sentence was not barred.

Thus, Lockhart did not directly reach the issue of whether the requirements of Bullington extend to noncapital sentencing cases. However, assuming arguendo, that they do, clearly the procedures required in the Arkansas statute involved in Lockhart involved much more of a trial on the issue of eligibility for an enhanced sentence than do the procedures here. The decision in Lockhart makes no inroads on the rationale of Shelton.

Therefore, we adhere to our position in Shelton and remand for a determination of the dates of commission of defendant’s prior offenses to show defendant’s eligibility to be sentenced as a Class X offender under section 5—5—3(c)(8) of the Code.

Affirmed in part; reversed in part and remanded.

LUND, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
      In re DANIEL CLARK, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Daniel Clark, Respondent-Appellant).
    Fourth District
    No. 4—91—0037
    Opinion filed October 30, 1991.

      D. Peter Wise, of Metnick, Barewin & Wise, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Daniel Clark was involuntarily admitted to the Department of Mental Health and Developmental Disabilities (Department) by the circuit court of Sangamon County on December 11, 1990, pursuant to a petition for involuntary admission under the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 3—701). Respondent appeals, contending the trial court erred in denying his motion to dismiss and for discharge. We disagree and affirm.

Respondent was voluntarily admitted to Andrew McFarland Mental Health Center (McFarland) on May 23, 1989, as a transfer from the H. Douglas Singer Mental Health and Development Center (Singer). He was apparently admitted to Singer after his release from the Hlinois Department of Corrections, where he had served 7½ years’ imprisonment for the voluntary manslaughter of his father.

On October 5, 1990, respondent requested a discharge under section 3—403 of the Code. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—403.) Such a request and the release may be stayed if a petition and two certificates conforming to the requirements of sections 3—601(b) and 3—602 are filed. (Ill. Rev. Stat. 1989, ch. 91½, pars. 3—601(b), 3—602.) The Department timely filed a petition on October 15, 1990, accompanied by one certificate. The second certificate required by section 3—403 was not filed until October 19, 1990.

The hearing scheduled for October 19, 1990, was continued at the request of respondent’s attorney to October 26, 1990. The hearing scheduled that date was continued at the request of respondent’s attorney to November 2, 1990. The hearing scheduled that date was continued at the request of the State, without objection by respondent, to November 9,1990.

At the November 9 hearing, respondent filed a motion to dismiss alleging certain deficiencies in the original petition and pointing out the second certificate required by section 3—403 was not timely filed. Judge Sue Myerscough granted the motion to dismiss, but entered an order for the temporary detention and examination of respondent pursuant to section 3—607 (Ill. Rev. Stat. 1989, ch. 91½, par. 3—607). A new petition accompanied by one certificate was filed on that date in response to the order to detain and examine.

The case was set for hearing on November 16, 1990. On November 15, 1990, the Department filed yet another petition under section 3—701 (Ill. Rev. Stat. 1989, ch. 91½, par. 3—701) accompanied by two certificates. At the November 16, 1990, hearing, Judge Diane Brunton found the second petition (November 9) was invalid, but denied respondent’s motion to dismiss and for discharge because the third petition (November 15) was correct in form, was accompanied by two certificates and everyone was appropriately notified of the hearing date.

The hearing was partially completed when Judge Brunton realized she had authorized the use of an eavesdropping device at McFarland to monitor the alleged efforts of respondent to hire a hit man to murder several of his enemies. The trial judge reset the matter to November 21, but continued it to November 30 on motion of respondent’s counsel. She then recused herself.

A hearing was finally conducted on December 11, 1990, and Judge Stuart Shiffman found the petition proved by clear and convincing evidence, i.e., respondent suffered from a mental illness, and could reasonably be expected to inflict serious harm on another in the near future. Respondent was ordered hospitalized in the Department.

Respondent raises three issues on appeal: did the trial court’s temporary detention order meet statutory guidelines, did the trial court err in allowing the State to proceed on its third petition when respondent should have been released prior to the filing of the third petition because of the State’s failure to have him examined by a psychiatrist within the statutorily prescribed time, and did the trial court err in allowing the State to proceed on the third petition when the record fails to show proper notice? The State essentially argues everything before November 15, 1990 (the filing of the third petition), is moot and irrelevant.

The trial court’s order of November 9, 1990, which dismissed the first petition and ordered respondent detained and examined, did not set forth in detall the facts which were the basis for its conclusion that respondent was subject to involuntary admission and in need of immediate hospitalization. The order must contain such detail (Ill. Rev. Stat. 1989, ch. 91½, par. 3—607). However, the trial judge took sworn testimony regarding respondent’s condition and threats he had made, and ordered the temporary detention and examination on that basis. Respondent did not object and his counsel even attempted to waive the late filing of the second certificate, but the trial judge refused the attempted waiver.

The State filed a new petition accompanied by one certificate on November 9, but failed to have respondent examined within 24 hours by a psychiatrist other than the person who executed the first certificate as required by section 3—610 (Ill. Rev. Stat. 1989, ch. 91½, par. 3—610). The relief for such a failure to conduct an examination is the release of respondent.

By the time respondent’s counsel made this omission known to the court on November 16, 1990, a third petition in proper form with two certificates had been filed on November 15, 1990. At this hearing, respondent’s counsel once again failed to complain about Judge Myers-cough’s failure to set forth in detail the facts supporting the temporary detention. Instead, counsel focused on the failure of the Department to have respondent examined by a psychiatrist. The trial court agreed a psychiatric examination and second certificate were necessary. However, the inadequacy of the second petition and the failure of the Department to conduct a psychiatric examination did not prevent the court from proceeding to hearing on the third petition.

The hearing proceeded until Judge Brunton remembered the eavesdrop authorization, and the petition was then set before another judge, Judge Shiftman. Respondent made no objection regarding notice at either the November 16, 1990, hearing or the December 11, 1990, hearing. His complaints about the lack of detail in the temporary detention order, the failure of the Department to have respondent examined by another psychiatrist, and the inadequate notice on the third petition come for the first time on appeal. Respondent has waived any consideration of these issues.

Strict adherence to the Code is necessary to protect the rights of persons involuntarily placed within the mental health system. (In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290.) Certain errors apparent on the face of the record which demonstrate noncompliance with relevant statutory provisions may render a judgment errone ous even if not complained of at trial. (In re Lanter (1991), 216 Ill. App. 3d 972, 576 N.E.2d 1219.) However, any errors here were either corrected by action of the trial court or harmless. The record supports the temporary detention and examination of the respondent. The record supports the trial court’s determination the invalidity of the second petition did not preclude the State from going forward on the entirely proper third petition. It would serve no purpose to order the respondent released because he was not examined within 24 hours by another psychiatrist given the filing of the third petition properly supported by two certificates and filed the day before respondent appeared in court to complain of the inadequate second petition.

To the extent notice did not meet statutory guidelines, it was nonetheless adequate. Respondent, his counsel, and every party involved in the case had actual notice of the November 16, 1990, hearing date. Everyone involved knew it was the State’s desire to commit the respondent. Everyone knew who the witnesses would be.

Respondent was present and represented by counsel. Counsel answered ready, cross-examined the State’s witnesses, called the respondent to testify, and vigorously argued the merits of the case. Respondent had ample time to prepare and much of the original delay was attributable to respondent. Neither respondent nor his counsel objected to the adequacy of notice on either November 16 or December 11, 1990. No prejudice is suggested as the result of any lack of formal notice. When the purposes of the notice provision are fulfilled and respondent suffers no prejudice, the absence of proof in the record of formal notice does not require reversal of the admission order. In re Splett (1991), 143 Ill. 2d 225, 232, 572 N.E.2d 883, 886.

WThile we reject respondent’s arguments, we are singularly unimpressed with the efforts of the Department and the State’s Attorney of Sangamon County to follow statutory procedures seeking commitment of the respondent. The commitment of a mentally ill individual previously convicted of the voluntary manslaughter of his father, who continues to make threats, and who is the subject of a criminal investigation for the solicitation of murder, is a matter of sufficient priority that the appropriate authorities ought be able to follow the clear requirements of the Code.

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

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: ' PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAYSON CHRISTY, Defendant-Appellant.
    Fourth District
    No. 4—91—0218
    Opinion filed October 31, 1991.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   ' PRESIDING JUSTICE LUND

delivered the opinion of the court:

On December 5, 1990, defendant Jayson Christy entered a plea of guilty to four charges of burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19—1(a).) On February 6, 1991, defendant was sentenced to three concurrent terms of three years for three of the charges of burglary and one consecutive sentence of seven years for the remaining charge of burglary. Subsequently, defendant filed a motion to modify the seven-year consecutive sentence. At the time of filing the motion to modify, defense counsel did not file a certificate pursuant to Illinois Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)), stating that counsel consulted with defendant and examined the trial court file prior to filing a motion to reconsider the sentence. The sole issue on appeal relates to whether a Rule 604(d) certificate is necessary when filing a motion to reconsider a sentence. Defendant contends the Rule 604(d) certificate was necessary, asks this court to vacate the trial court’s March 19, 1991, order denying the motion to modify, and requests that this cause be remanded to the trial court for further proceedings.

Our court in People v. Dickerson (1991), 216 Ill. App. 3d 561, 575 N.E.2d 935, specifically noted that counsel need not comply with Rule 604(d) when challenging only defendant’s sentence. In People v. Wallace (1991), 143 Ill. 2d 59, 60-61, 570 N.E.2d 334, 335, our supreme court concluded that a motion to reconsider a sentence was a prerequisite to an appeal relating to that sentence, and that a motion to withdraw a guilty plea was not necessary. In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the defendants filed motions to reconsider their sentences prior to appealing, but neither filed a Rule 604(d) motion. The appellate court dismissed the defendants’ appeals for failure to comply with the requirements of Rule 604(d), that a motion to withdraw a guilty plea be filed before taking an appeal. The supreme court held that it was not necessary for them to file a Rule 604(d) motion because they were not appealing their guilty pleas. The cases were remanded to the appellate court for review of the sentences. If a certificate under Rule 604(d) had been necessary, the appeals would have been dismissed instead of remanded. We concluded, as stated in Dickerson, compliance with Rule 604(d) is not required when motions are filed for the purpose of modifying or reconsidering sentences. The trial court’s order denying the motion to modify is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
    PEOPLES BANK OF BLOOMINGTON, Special Adm’r of the Estate of John D. Taylor, Deceased, Plaintiff-Appellant, v. BASHKAR RAO DAMERA, Defendant-Appellee.
    Fourth District
    No. 4—91—0181
    Opinion filed October 31, 1991.
    W. Loren Thomson, of Thomson & Weintraub, of Bloomington, for appellant.
    Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Paul C. Estes, and Terrence K. McGrath, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Peoples Bank of Bloomington, Illinois, as special administrator of the estate of John D. Taylor, sued defendant, Bashkar Rao Damera, M.D., a psychiatrist, for medical malpractice. A trial was held, and the jury returned a verdict for defendant. On appeal, plaintiff argues that an incorrect instruction given to the jury was prejudicial error and deprived plaintiff of a fair trial. We agree and reverse and remand for a new trial.

I. Facts

In early December 1985, John Taylor admitted himself into the De Witt County Services Clinic (Clinic) in Clinton, Illinois. Taylor complained of depression and was diagnosed as having a suicidal ideation. Defendant was contacted by the Clinic and recommended that Taylor be admitted to the psychiatric ward of BroMenn Hospital in Normal, Illinois. During his treatment at BroMenn, Taylor was put on suicide precautions and administered medication for his treatment.

During Taylor’s hospitalization, nurses observed his depression and noted in his medical records that he stated, “I just can’t take it anymore,” and “If I had a way to do it, I would.” Defendant testified that he read these nurses’ notes during Taylor’s hospitalization and considered them in his treatment of Taylor.

Shortly before Christmas 1985, Taylor telephoned his wife. During this conversation, Taylor’s wife told him that she wanted a divorce. Taylor returned to the hospital, tearful and crying. The next day, Taylor asked to be discharged. Defendant consulted with Taylor and decided to release him. Prior to Taylor’s release, defendant prescribed a two-week supply of Ativan, a prescription medication used to combat anxiety and sleeplessness, and Sinequan, which is used to combat depression. A nurse testified that she instructed Taylor prior to his discharge on the use of the medication prescribed to him. She stressed to Taylor that the medication should not be mixed with other medications or be taken with alcohol or in increased dosages without his physician’s approval.

A few hours after being discharged, Taylor bought a bottle of wine, drove to a secluded spot, and ingested all of the prescription drugs that he had been given, washing them down with the wine. He died as a result.

At trial, plaintiff called Dr. Richard Grant, a psychiatrist, who testified that, in his opinion, (1) defendant was negligent, (2) defendant’s diagnosis was wrong, (3) Taylor obviously was planning suicide, and (4) Taylor was a substantial suicide risk. Grant also testified that he believed defendant should not have discharged Taylor just before Christmas and that Taylor should not have been given a two-week supply of prescription medicine. Defendant called Dr. Laura Miller, also a psychiatrist, who testified that, in her opinion, defendant complied with the standard of care in his overall treatment of Taylor and that the dosages of Sinequan and Ativan were within permissible standards.

At the jury instruction conference, defendant tendered Illinois Pattern Jury Instructions, Civil, No. 105.08 (2d ed. 1971) (IPI Civil 2d), which states, in part, as follows:

“A patient is required to follow reasonable advice as to treatment. In addition, he must follow the doctor’s instructions. A doctor is not liable for the consequences of a patient’s failure to do so.”

Plaintiff objected to the use of this instruction, arguing that while it may apply when a patient refuses the treatment prescribed by a doctor, it did not apply in this type of malpractice case. Plaintiff also argued that the instruction would apply only in regard to the mitigation of damages. Despite these arguments, the court overruled plaintiff’s objection.

The next day plaintiff renewed the objection to this instruction. First, plaintiff’s attorney pointed out that the bracketed material of IPI Civil 2d No. 105.08 was not included in the instruction offered by defendant. That material reads as follows:

“[A patient’s failure to receive treatment or follow instructions does not absolve the doctor from the results of any earlier malpractice. It only absolves him from any injury caused by the patient’s not accepting reasonable treatment or following instructions.]” IPI Civil 2d No. 105.08, at 330.

Second, counsel pointed to the comment to that instruction, which states as follows:

“The patient must also follow the doctor’s instructions, but the doctor will not be relieved if the failure to follow instructions merely aggravates the injury, Krauss v. Ballinger, 171 Ill. App. 534 (2d Dist.1909). The failure causing the aggravation goes to mitigation of damages rather than relief from liability.” IPI Civil 2d No. 105.08, Comment, at 330.

The court ultimately decided to modify the instruction so that it read as follows:

“A patient is required to follow reasonable advice as to treatment. In addition, he must follow the doctor’s instructions. A doctor is not liable for the consequences of the patient's failure to do so, unless you find that the patient was unable by reason of mental impairment to follow the doctor’s instructions.” (Emphasis added.)

The court overruled plaintiff’s objection to this instruction.

The jury returned a verdict for defendant, the trial court denied plaintiff’s post-trial motion, and plaintiff now appeals.

II. Jury Instruction

Plaintiff argues that the trial court erred by giving IPI Civil 2d No. 105.08 in a modified form. The issues on appeal are whether or not this instruction was erroneous, and, if so, was it sufficiently prejudicial to warrant a new trial.

The first question we address is whether the trial court erred by givirig IPI Civil 2d No. 105.08, as modified. We note that IPI Civil 2d No. 105.08 is solely a damages-reducing instruction. (Fisher v. Stager (1990), 201 Ill. App. 3d 480, 489, 559 N.E.2d 118, 124; Illinois Pattern Jury Instructions, Civil, No. 105.08, Comment, at 105-20 (3d ed. 1991) (IPI Civil 3d).) When the only issue before the jury is defendant’s liability, the court should not give IPI Civil 2d No. 105.08 because it concerns only the mitigation of damages assessed against defendant due to the comparative negligence of plaintiff. IPI Civil 2d No. 105.08 does not apply unless the jury is called upon to determine the relative percentages of negligence of both parties. The present case does not involve comparative negligence. Accordingly, we hold that the trial court erred in giving the jury IPI Civil 2d No. 105.08 as modified, because it addressed the issue of plaintiff’s decedent’s comparative negligence.

We also note that court and counsel in this case were at a disadvantage because the IPI Civil instructions available to them at the time of trial were outdated. The 1971 version of IPI Civil 2d No. 105.08 used in this case is a relic of a bygone era, when plaintiffs in tort actions still had to plead and prove their freedom from contributory negligence. IPI Civil 2d No. 105.08 was only recently updated to conform to the law as it has been since Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the seminal comparative negligence case in this State. Fortunately, this instruction has recently been modified to comport with the doctrine of comparative negligence introduced by Alvis over a decade ago, and the comment to that instruction now correctly emphasizes that the instruction should be limited solely to the mitigation of damages. See IPI Civil 3d No. 105.08, Comment, at 105-20.

We must next decide if this error sufficiently prejudiced plaintiff so as to require a new trial. We find the language of the instruction in question particularly troubling when we examine it in context with other instructions given to this jury. For example, the jury was given, in part, the following instruction:

“If you decide for the Plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the two daughters and the widow of the decedent for the pecuniary loss proved by the evidence to have resulted to the two daughters and the widow from the death of the decedent.” (Emphasis added.)

(See IPI Civil 3d No. 31.04.) Then, using IPI Civil 2d No. 105.08, the court instructed the jury that “A doctor is not liable for the consequences of a patient’s failure” to follow the doctor’s instructions. (Emphasis added.) See IPI Civil 2d No. 105.08.

We conclude that the inclusion of IPI Civil 2d No. 105.08, as modified, in this particular set of jury instructions skewed the jury’s focus from the conduct of the defendant physician, where that focus properly belonged, to the conduct of the suicidal patient. The erroneous instruction told the jury that it could not find defendant “liable for the consequences of a patient’s failure” to follow the doctor’s instructions unless the patient could not follow those instructions by reason of mental impairment. Clearly, however, Taylor could follow the instructions given to him concerning his prescription medication. He apparently understood perfectly well that ingesting more than the daily prescribed amount in combination with alcohol would prove fatal. Indeed, the evidence shows that he understood those instructions so well that he twisted them around to find the means to kill himself.

On appeal, defendant argues that “[djecedent’s ability to follow instructions was a key issue in this case.” We disagree and deem this issue to be totally irrelevant. The instruction at issue in this case, IPI Civil 2d No. 105.08, as modified, improperly provided defendant with a complete affirmative defense, which in turn was premised upon an irrelevant issue. Accordingly, we find the trial court’s error in giving this instruction sufficiently prejudiced plaintiff so as to require a new trial.

We note that this case is different than the typical medical malpractice case because plaintiff here alleges medical malpractice by a psychiatrist treating a suicidal patient who ultimately committed suicide. The critical distinction between this case and all other medical malpractice cases is that here the patient does not share the goal of his physician of getting better; while the doctor is working to assist the patient to suppress suicidal tendencies, the patient, by the nature of his illness, may be working at cross-purposes to his doctor’s suggestions and may not be interested in following instructions designed to enable him or her to safely take prescribed medication. We hold that in a suicide malpractice case against the decedent’s psychiatrist, the comparative fault of the decedent is not likely ever to be an appropriate or relevant issue, and here it was not.

In any event, defendant in this case did not raise comparative negligence as an issue. The sole issue for the jury to determine was whether defendant was liable for medical malpractice.

III. Conclusion

The parties have raised other issues on appeal, but because we believe they are unlikely to arise at retrial, we decline to address them.

Reversed and remanded.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE GREEN

text:
    VIRGINIA LIMER, as Independent Ex’r of the Estate of James Limer, Deceased, Plaintiff-Appellant, v. MARY JANE LYMAN, as Independent Ex’r of the Estate of Homer C. Lyman, Deceased, Defendant-Appellee.
    Fourth District
    No. 4—91—0264
    Opinion filed October 30, 1991.

      James Walker, Ltd., of Bloomington, for appellant.
    , Christopher L. Nyweide, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Section 13—209(a) of the Code of Civil Procedure (Code) provides:

“If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his or her representative before the expiration of that time, or within one year from his or her death whichever date is the later.” Ill. Rev. Stat. 1989, ch. 110, par. 13—209(a).

Under the circumstances alleged here, section 13—212(a) of the Code limits the time within which an action for medical negligence may be brought to:

“[N]o *** more than 2 years after the date on which the claimant knew, or *** should have known *** of the injury or death for which damages are sought in the action *** but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1989, ch. 110, par. 13—212(a).

Section 13—217 of the Code provides that, following the voluntary dismissal of a cause of action by the plaintiff, then, “the plaintiff, his or her heirs, executors or administrators may commence a new action within one year.” Ill. Rev. Stat. 1989, ch. 110, par. 13—217.

The appeal concerns the combined effect of those statutory provisions on a suit against the estate of a medical provider filed by the personal representative of a person allegedly injured by a misdiagnosis by the medical provider. The suit contained two counts. One was brought pursuant to sections 1 and 2 of the Wrongful Death Act (Act) (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2). The other was for injuries sustained during the lifetime of the decedent and was brought pursuant to section 27—6 of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1987, ch. 110½, par. 27—6), which permits the survival of such actions. A timely suit for those injuries had been brought by the plaintiff’s decedent during his lifetime and then voluntarily dismissed. More than the four-year period of repose of section 13—212(a) of the Code had elapsed before the complaint was filed by the personal representative. We hold that repose provisions barred the wrongful death count but, where that repose provision was not pleaded as a defense, the combined effects of sections 13—217 and 13—209(a) of the Code preserved the survival action for the decedent’s injuries suffered during his lifetime.

On May 17, 1988, Virginia Limer, executor of the estate of James Limer, deceased, filed a complaint in the circuit court of McLean County against the estate of Homer C. Lyman alleging that Lyman, a physician, had negligently failed to timely diagnose plaintiff’s decedent’s condition of lung cancer, which eventually resulted in his death on May 18, 1987. The misdiagnosis was alleged to have occurred on various dates up to September 13, 1983, and to have become known to plaintiff and the decedent on September 13, 1983. Count I of the complaint was based upon the Act. Count II sought recovery for the injury suffered by the decedent during his lifetime and was brought pursuant to the provisions of section 27—6 of the Probate Act.

On October 7, 1988, the defendant filed a motion to dismiss, alleging that previously (1) plaintiff’s decedent had filed a timely suit against defendant’s decedent for the same injuries alleged in the instant complaint; (2) on March 5, 1987, that complaint had been voluntarily dismissed upon the motion of plaintiff’s decedent; and (3) a period of time in excess of the one-year extension period of section 13—217 of the Code had elapsed since the voluntary dismissal and before the filing of the complaint. In opposition to that motion, plaintiff filed a document (1) pointing out that at the time of her decedent’s death on May 18, 1987, the one-year period of section 13—217 of the Code had not expired; and (2) contending that the provisions of section 13—209(a) of the Code, giving a personal representative a one-year period to file surviving actions, operated to extend the time for filing the instant action until May 18, 1988, which was the first anniversary of her decedent’s death. She noted that the filing on May 17, 1988, met that deadline.

Notably, the motion to dismiss, although purporting to request dismissal of the entire complaint, did not make reference to and would not have been applicable to the first count, which was brought for wrongful death. Also, the motion to dismiss made no reference to the four-year repose provisions of section 13—212 of the Code. Nevertheless, the circuit court dismissed the complaint in its entirety. Subsequently, on July 5, 1989, on plaintiff’s motion, the court vacated the portion of its order dismissing count I, the wrongful death count. However, the portion of the order dismissing count II remained in force, and we consider its propriety on appeal in the posture in which it,was entered.

Prior to the wrongful death count going to trial, defendant filed a motion “for Judgment on the Pleadings, Involuntary Dismissal, and Summary Judgment” as to the wrongful death count. The motion was based upon the operation of the four-year repose provisions of section 13—212(a) of the Code. The motion pointed out that the four-year period from September 13, 1983, expired on September 13, 1987, which was after the death of plaintiff’s decedent on May 18, 1987, but before the filing of the complaint containing the wrongful death count on May 17, 1988. The motion also placed some reliance upon the fact that the one-year period of section 13—217 of the Code for refiling plaintiff’s decedent’s complaint had expired before plaintiff filed a complaint containing a wrongful death count. The circuit court entered an order on March 21, 1991, rendering judgment on the wrongful death count in favor of defendant and against plaintiff.

Plaintiff has appealed both judgments of involuntary dismissal. We affirm the dismissal of count I (wrongful death) but reverse the dismissal of count II (survival action).

We consider first the question of the propriety of the dismissal of count II, the survival count, which was brought to recover for the injuries suffered by the decedent during his lifetime. As we have stated, a complaint setting forth that cause of action was originally timely filed by the decedent and voluntarily dismissed on decedent’s motion on March 5, 1987, pursuant to section 13—217 of the Code. The one-year extension period of that section had not expired when decedent died on May 18, 1987, and the one-year extension period of section 13—209(a) of the Code concerning survival actions had not expired when the instant complaint was filed by plaintiff on May 17, 1988. The defense of the four-year repose provision of section 13—212(a) of the Code was not raised in the circuit court, and defendant seems to rely upon a theory that plaintiff cannot rely upon the advantage of the extension provisions of both of the two foregoing sections in the same case.

More particularly, defendant notes that section 13 — 217 of the Code provides that when a complaint is voluntarily dismissed, the plaintiff or his or her personal representative “may commence a new action within one year.” (Ill. Rev. Stat. 1989, ch. 110, par. 13—217.) Defendant interprets the words “may commence *** within one year” as words of absolute limitation against an action being brought after the one-year period, rather than as words giving vitality to the action for that period of time without prohibiting possible further extension. We do not agree that section 13—217 prohibits further extension by other statutory provisions. Section 13—209(a), providing for survival actions, states it applies when “a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 13—209(a).) Here, because of the extension granted plaintiff’s decedent by section 13—217, he died “before the expiration of the time limited” for him to again commence an action seeking recovery for his injuries.

We recognize that a person who has had the benefit of section 13—217 has already had one concession. However, section 13—209(a) indicates a policy which recognizes that a hiatus may result from the death of an injured person and the personal representative of that person needs additional time to protect the rights of the estate of that person. The fact that the injured party had previously obtained an extension under section 13—217 ordinarily would not reduce the need of the personal representative for the one-year extension granted by section 13 — 209(a). We know of no case directly in point, but we consider both the purpose of section 13 — 209(a) and its express language indicate an intention to extend the time which the personal representative had to file the survival action here for a period of one year after the decedent’s death. Count II was timely filed. The court erred in dismissing it.

We are also unaware of any case directly in point in regard to operation of the four-year repose provision of section 13—212(a) of the Code where, as here, it was interjected by defendant to bar the wrongful death count, count I. However, we consider the strong statement of the supreme court in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, justifies the involuntary dismissal of that count. In Hayes, the court held that actions for contribution among medical providers in a medical malpractice case must be brought within the four-year period of repose of section 13—212(a) of the Code. The court stated:

“We believe that the medical malpractice statute of repose bars any action after the period of repose seeking damages against a physician or other enumerated health-care provider for injury or death arising out of patient care ***.” (Emphasis added.) Hayes, 136 Ill. 2d at 456, 557 N.E.2d at 876.

The Hayes court later noted the General Assembly’s desire “to limit a physician’s exposure to liability for damages for injury or death arising out of patient care under all theories of liability, whether then existing or not.” (Emphasis added.) (Hayes, 136 Ill. 2d at 459, 557 N.E.2d at 877.) The claims barred there were for contribution, which cannot be brought until an original complaint is brought. A cause of action for wrongful death does not arise until the death of the party wronged. (Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, 546 N.E.2d 58.) By analogy to Hayes, the four-year repose provision of section 13—212(a) of the Code could bar an action for wrongful death before the party wronged died.

Even under the foregoing analogy, the instant alleged cause of action for wrongful death was not extinguished before the decedent died on May 18, 1987. Under the allegations of the complaint filed by the personal representative, the last day of malpractice by defendant’s decedent was September 13, 1983, less than four years before May 18, 1987. However, the complaint was not filed until May 17, 1988, which was more than four years after September 13, 1987, and analogy to Hayes would indicate the circuit court properly dismissed the wrongful death count in bar of action.

Cases cited applying section 13—212(a) of the Code in regard to wrongful death actions concentrate upon whether section 13—212(a) barred the decedent in his or her lifetime from bringing an action. They point out that section 1 of the Act permits recovery only if the deceased would have had a cause of action had he or she not died, and the tortfeasor “would have been liable if death had not ensued.” (Ill. Rev. Stat. 1989, ch. 70, par. 1.) Those cases then determine whether any cause of action by the deceased was time barred.

Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 787, involved an appeal from a circuit court order dismissing a complaint containing, as here, wrongful death and survival counts. The alleged acts of medical malpractice upon which the case was based occurred more than four years before the decedent died or the case was filed. The four-year repose provisions of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1), which is now section 13—212(a) of the Code, were held to bar both actions. The court held the repose provisions barred the survival action. The court reasoned that because the repose provisions would have barred the decedent from bringing a cause of action for his injuries prior to his death, the wrongful death action was likewise barred since, under section 1 of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 1), the decedent had no cause of action at his death.

In Wolfe v. Westlake Community Hospital (1988), 173 Ill. App. 3d 608, 527 N.E.2d 912, a decedent’s cause of action for medical malpractice was deemed to be still alive at the time of his death. The court noted the four-year repose period of section 13—212(a) of the Code had not expired then or at the time a survival action and one for wrongful death were filed. The court stated the Kim court’s analysis was that a wrongful death action was derivative of the action the decedent would have if death had not occurred. The Wolfe court then held that there, the decedent would have been able to timely file at the time of his death and thus could file anytime within the two-year period for filing wrongful death actions permitted by section 2 of the Act. (Ill. Rev. Stat. 1985, ch. 70, par. 2.) Then the Wolfe court stated:

“Additionally, in a case where the negligent acts are alleged to have been caused by a physician, the medical malpractice statute requires that, in any event, the cause of action must be filed within four years from the date of the negligent acts.” (Emphasis added.) Wolfe, 173 Ill. App. 3d at 612, 527 N.E.2d at 915.

In Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 558 N.E.2d 304, a personal representative appealed a summary judgment dismissing counts of a medical malpractice action against two physicians, seeking recovery on survival and wrongful death counts. The malpractice charged occurred in the summer and fall of 1982. The complaint was not filed until December 2, 1986, more than four years later. However, the opinion does not make clear whether the four-year repose provision of section 13—212(a) was raised, although the ruling turned upon whether the actions were time barred. The entire discussion in the opinion turns upon the application of the two-year limitations period of section 13—212(a), where the limitations period begins upon the injured party’s discovery of the cause of action. The appellate court reversed and remanded on the theory that a factual question existed as to the date of discovery. Plaintiff maintains this case supports her position that the running of the four-year period from the time of the malpractice to the filing of a wrongful death complaint is not an absolute bar to that cause of action.

Plaintiff’s argument that her wrongful death action here was not barred by the four-year repose provision follows, somewhat, the theory of the cited cases that the wrongful death action is derivative of the action her decedent had in his lifetime. She maintains that action was alive at the time of his death. She points out how section 13 — 217 of the Code preserved that action until defendant’s death and argues that section 13 — 209(a) then operates to extend the time for bringing the wrongful death action, as well as the survival action, for one year. Section 13 — 209(a) does not seem to apply to wrongful death actions, as it refers to a cause of action which could have been brought by the decedent and which “survives.” The wrongful death action is a new action.

The Act and the cases we have discussed point out that for a wrongful death action to exist the tortious act upon which the action is based must be one upon which the decedent could have sued if he or she was alive. A derivative relationship does exist between a survival action and a wrongful death action arising from the same tort. However, no case called to our attention has held that timeliness of a survival action necessarily gives vitality to a simultaneously filed wrongful death action with the same subject matter. The Wolfe court took pains to explain that each medical malpractice wrongful death case was subject to an additional rule of the filing within the four-year period from the tortious acts. The language in Hayes strongly reinforces the existence of this requirement, harsh though it may be here. The circuit court properly entered judgment in favor of defendant as to count I, the wrongful death count.

We affirm the judgment dismissing, in bar of action, count I of the complaint and reverse the judgment dismissing count II of the complaint. We remand to the circuit court of McLean County for further proceedings.

Affirmed in part; reversed in part and remanded.

McCULLOUGH and KNECHT, JJ., concur.


text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0844
    Opinion filed October 30, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Roland W. Burris, Attorney General, of Springfield (Myra L. Karegianes, Special Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Randall V. TeWinkle, of Soo Line Railroad Company, of Chicago, for appellee Soo Line Railroad Company.
   JUSTICE GREEN

delivered the opinion of the court:

Section 18c — 7401(3) of the Illinois Commercial Transportation Law (Transportation Law) (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(3)) forbids construction of a road, highway, or street across the track of any rail carriers without first obtaining approval of the Illinois Commerce Commission (Commission). On May 3, 1988, Illinois Department of Transportation (IDOT) filed a petition with the defendant Commission seeking permission to construct an “at-grade” highway crossing at the intersection of the tracks of defendant Soo Line Railroad Company (Soo Line) and proposed relocated routes U.S. 52 and Illinois 64 west of Lanark in Carroll County. An “at-grade” crossing is one where a railway and a highway intersect at the same elevation. Soo Line was made a respondent to those proceedings. It objected, contending that the IDOT plan failed to preserve and promote the safety and convenience of the public.

After holding hearings, the Commission entered an order on November 8, 1989, approving IDOT’s proposal. This proposal was part of a plan to relocate the previously mentioned highways in such a way as to remove dangerous curves. The highways had previously passed underneath the Soo Line tracks at a point some 400 feet away. As a condition of building the new crossing, the Commission ordered that Soo Line remove the existing underpass structure or fill in the underpass and restore the embankment but ordered IDOT to pay for the work. The Commission ordered IDOT to pay for the expense of erecting the crossing but charged the Soo Line with the responsibility of maintaining the crossing and the warning lights and gates which were ordered to be installed. The Commission also required IDOT to erect a median between the two lanes of the highway for a distance of 100 feet on each side of the crossing.

IDOT objected to the requirements that it (1) pay the cost of removing the underpass or filling it and restoring the embankment, and (2) install median strips. IDOT sought reconsideration, which was denied. Acting pursuant to section 18c—2206 of the Transportation Law (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—2206) on February 14, 1990, IDOT filed a petition for administrative review (Ill. Rev. Stat. 1989, ch. 110, par. 3—104) in the circuit court of Sangamon County. On October 4, 1990, that court affirmed the order of the Commission. IDOT appealed to this court. We hold the Commission order was proper in regard to its provisions concerning the overpass, but the requirement for providing medians was entered without sufficient evidence being offered to enable the Commission to make a considered decision.

Similar to other rules in regard to judicial review of administrative decisions, section 18c — 2202(1) of the Transportation Law limits the scope of judicial review of Commission decisions under the Transportation Law to determinations of whether:

“(a) The Commission’s order is against the manifest weight of evidence in the record before the Commission;
(b) The order is contrary to provisions of this Chapter or Commission regulations;
(c) The order is an abuse of discretion;
(d) The order is beyond the jurisdiction of the Commission; or
(e) The order denies constitutional rights of the person seeking judicial review.” (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—2202(1).)

IDOT contends that the requirements for it to pay for the work in connection with the underpass and for the median were both beyond the power of the Commission and contrary to the manifest weight of the evidence.

We examine first the question of the power of the Commission. In setting forth the powers of the Commission when requests are more for the construction of crossings, section 18c—7401(3) of the Transportation Law states:

“The Commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe. The Commission shall have power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each such crossing.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(3).)

Section 18c—7401(3) also states:

“The Commission shall also have power, after a hearing, to require major alteration of or to abolish any crossing, heretofore or hereafter established, when in its opinion, the public safety requires such alteration or abolition, and, except in cities, villages and incorporated towns of 1,000,000 or more inhabitants, to vacate and close that part of the highway on such crossing altered or abolished and cause barricades to be erected across such highway in such manner as to prevent the use of such crossing as a highway, when, in the opinion of the Commission, the public convenience served by the crossing in question is not such as to justify the further retention thereof *** and to prescribe, after a hearing of the parties *** the proportion in which the expense of the *** abolition of such crossings *** shall be divided between *** such carrier or carriers and the State *** or other public authority in interest.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(3).

The Commission held its authority to impose the cost of the removal of the underpass upon IDOT arose from the provisions of section 18c—7401(3) authorizing it to proportion costs involved in the abandonment or major alteration of any crossing.

IDOT asserts that any removal or filling of the presently used underpass is not part of the construction of the new crossing nor is it part of a major alteration of the existing crossing within the meaning of section 18c—7401(3) of the Transportation Law. IDOT explains that the underpass is some 400 feet from the new crossing. IDOT points out that it has not petitioned the Commission for authority to abandon the underpass but argues it does not need Commission authority to do so and will do so, without such authority, when the new crossing is in existence. Accordingly, IDOT contends the Commission’s power to prorate expenses connected with the abolition of a crossing, as set forth in section 18c — 7401(3), is not applicable. Finally, IDOT notes that the Commission found that the railroad bridge over the underpass will remain in use, and that authority granted the Commission in section 18c — 7401(7) of the Transportation Law (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(7)) to proportion costs of abandonment of a railroad bridge is inapplicable.

The Soo Line and the Commission request that we interpret the power of the Commission pursuant to section 18c—7401(3) more broadly than IDOT would have us do. We agree. In City of Chicago v. Illinois Commerce Comm’n (1980), 79 Ill. 2d 213, 402 N.E.2d 595, the Commission had issued a rule requiring public bodies, at their expense, to place and maintain signs on railroad overpasses at crossings indicating the clearance available for vehicles using the crossing. The City of Chicago brought suit contesting the power of the Commission to enact the rule. The supreme court held that section 58 of the then Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111⅔, par. 62), which contained language similar to the wording of section 18c—7401(3) of the Transportation Law, implied that the Commission had authority to impose the rule upon the city, because of the power the Commission had to direct reconstruction and alteration of crossings. The court stated that “[i]t is well settled that the Commission’s jurisdiction over all phases of grade-crossing regulation is plenary and exclusive.” City of Chicago, 79 Ill. 2d at 219, 402 N.E.2d at 598.

As we have indicated, the evidence showed the changed location of the crossing was part of a plan to straighten the two-lane road which carried the traffic of the two designated routes, eliminating dangerous curves. Another aspect of the plan was to replace a bridge across Straddle Creek at a point approximately one-quarter mile west of the railroad crossing. Because of the intended “plenary” and “exclusive” jurisdiction of the Commission over railroad crossings, we agree with the Commission that the installation of the crossing at grade and at a point approximately 400 feet from the underpass constituted a “major alteration” of the crossing at the underpass within the meaning of section 18c—7401(3). Accordingly, the Commission had the power to proportion the expenses involved in connection with the elimination of the underpass. Even if the installation of the at-grade crossing be deemed a new crossing, the Commission would still have the power to require IDOT to pay for the work at the underpass. Because of the plenary power of the Commission and the proximity between the at-grade crossing and the underpass, we conclude that the obligation to pay for the work at the underpass was one of the “conditions [the Commission] may prescribe,” pursuant to section 18c—7401(3) of the Transportation Law for granting permission for the at-grade crossing. Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(3).

In the Commission’s order, it did not set forth specific reference to the power to order median strips at the crossing, apparently presuming that its power was clear and obvious. In its brief, it explains that this arises from its plenary power of crossings (City of Chicago, 79 Ill. 2d 213, 402 N.E.2d 595) and over the statement in section 18c—7401(3) of its power “to determine *** protection of each such crossing.” IDOT maintains that the question of whether medians should be placed at the crossing is a technical aspect of highway design which the Commission should not control. Citing Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 103 N.E.2d 595, IDOT maintains it has plenary and exclusive control over such design. However, Lewis concerned a dispute between the State and a landowner over the design of a highway and did not speak to the division of authority at a rail crossing. As the proposed medians extended only 100 feet on either side of the crossing, we hold that they were protective devices at the crossing and a matter upon which Commission authority prevailed.

We now turn to the question of the sufficiency of the evidence to support the determination of the Commission. We deem the decision in regard to the underpass was not contrary to the manifest weight of the evidence, but the decision concerning the medians was made without the presentation of sufficient evidence to make a decision.

The biggest dispute in the evidence concerning the expenses in regard to the underpass arose over whether the underpass could reasonably be left in its present condition. The Soo Line took the position that the new crossing should not be put in because an at-grade crossing is inherently more likely to produce train-car collisions, which are nonexistent when the highway traffic goes under the tracks. Its contract engineer, Leif Thorson, testified the underpass structure was presently in good condition and could be maintained for another 15 years if approximately $20,000 were spent to maintain the pilings, and no present need to replace the structure existed. Some photographs were introduced showing graffiti spray painted on the underpass structure. The Commission and the Soo Line maintain this indicates children play there, and the structure is inherently dangerous.

IDOT’s evidence indicated it intended to remove the abandoned portion of the highway and to allow the land to be returned to agricultural use. Larry Reed, an IDOT engineer, testified that because of possible flooding of Straddle Creek, filling the underpass to a height approximately four feet from its present level would be required. He stated no further filling was contemplated and did not believe any such filling was necessary. No evidence as to the cost of filling and restoration of the embankment was presented. Thus, the Commission’s decision requiring IDOT to pay for this work was based upon very little evidence.

However, the existence of some danger arising from an abandoned railroad underpass is a matter of common knowledge. The Commission noted it would be freestanding in a field. The Commission also expressed fear it would subject the Soo Line to liability. Both were proper matters for consideration. The public interest has long been the predominant factor in making decisions about rail crossings. (Yowell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1935), 360 Ill. 272, 276, 195 N.E. 667, 669.) The interest of railroads may also be considered. (Baltimore & Ohio Chicago Terminal R.R. Co. v. Illinois Commerce Comm’n (1977), 55 Ill. App. 3d 915, 918, 370 N.E.2d 1266, 1268-69.) The decision to require the designated work at the underpass was neither arbitrary, unreasonable, nor contrary to the manifest weight of the evidence.

The Commission’s decision to require IDOT to pay for the work on the underpass met the same standard. The underpass had been constructed in 1927 at State expense, but the railroad using the tracks had paid for the expenses of maintaining it. The Soo Line received no benefit from the crossing change, and replacing a crossing where highway traffic went under the tracks with an at-grade crossing inherently increased exposure of the Soo Line for liability and damage to its train arising from crossing collisions. The Soo Line was also required to incur the expense of maintaining the new crossing and its warning lights and gates.

The issue of whether median strips should be provided on each side of the crossing was one upon which even less evidence was offered. The question arose because, under IDOT plans, the new highway would cross the railroad at a 17° angle which, admittedly for various reasons, was usually too sharp an angle to be recommended even when the crossing was to be protected by flashing lights and gates. Evidence was admitted that, because of the sharp angle, the length of the diagonal of track within the area of the two-lane highway and shoulder of 10 feet each would be 156 to 160 feet.

The question of a possible median was apparently raised for the first time when James A. Phillip, appearing for the Commission, in cross-examining Steve Haring, IDOT utility engineer called by IDOT, asked if, because of the length of track exposed, drivers on the highway could easily get through closed gates and if a median barrier would make doing so more difficult. Haring responded by stating “[i]t may not be as easy for them, yes.” On redirect, IDOT’s counsel asked Haring if he had “an opinion as to what effect such a median separation would have on traffic safety for a highway of [the type involved].” Haring answered “[m]y opinion would be that this barrier may present more of a problem because of highway speeds than possibly somebody running around the gate.” (Emphasis added.) Presumably, Haring meant that the median would likely present a possible hazard for vehicles crossing the tracks at normal highway speed when no train was coming, and that hazard might be greater than that of vehicles sneaking through when the gates were closed. In addition, Thorson testified that when the crossing gates are down but there is a wide gap between them, motorists would have a tendency to swerve between them to get across.

Even though the Commission has expertise on matters within its jurisdiction (Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 48, 529 N.E.2d 671, 677), no proper decision as to whether the median strips would increase or decrease safety could be made on that meager evidence.

Accordingly, we reverse the portion of the circuit court’s order which approved the part of the Commission’s order requiring median strips at the at-grade crossing. We affirm the remainder of the circuit court’s order affirming the Commission’s order. Pursuant to our power under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)) to enter any order the circuit court should have entered, we remand the cause to the Commission as authorized by section 3—111(a)(6) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3—111(a)(6)) with directions to hear further evidence in regard to the median strips and to make a decision as to whether they should be required.

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

McCULLOUGH and KNECHT, JJ., concur.


text:
    DANNY R. MELTON et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellee.-BRYCE E. ANTONACCI et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—91—0178
    Opinion filed October 31, 1991.

      Kevin C. Kaufhold, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, for appellants.
    Jeffrey Alan Ryva, of Husch & Eppenberger, of Peoria, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, employees of Central Illinois Public Service Company (CIPS), sued CIPS on the ground that its absentee policy threatened to penalize them for taking time off work to receive medical treatment for workers’ compensation-related injuries. The trial court granted defendant’s motion to dismiss on the pleadings. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—615.) Plaintiffs appeal, arguing that they stated a cause of action under Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, for threatening retaliatory discharge.

We affirm.

I. Facts

Plaintiffs work for CIPS, a public utility corporation, at its Springfield facility. CIPS has an absentee policy with various levels of sanctions for excessive and patterned employee absences. The policy expressly excludes certain absences, such as those for jury duty, military training, vacations, layoffs, pall-bearer duties, and deaths or hospitalization of family members. However, the CIPS absentee policy allows management to consider absences due to hospitalization and medical treatment for occupational injuries covered by the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) in determining whether an employee has been excessively absent. The policy states the following:

“Any employee who is excessively absent *** will have their absence record reviewed to determine the reasons for such excessive absence. Where the excessive absence is the result of hospitalization for major illness, heart attack or surgery, or because of occupational injuries, the excessive absence may or may not be subject to corrective remedial action *** depending on management’s consideration of the following factors:
1. The medical problems are of a recurring nature, or otherwise demonstrate to management that there is reason to doubt the employee can be counted upon to be present at work on a regular basis.
2. The occupational injuries are frequent, or otherwise demonstrate to management that there is reason to doubt the employee can be counted upon to be present at work on a regular basis.
3. The absences resulting from medical problems and/or occupational injuries, when combined with unrelated absence from work or tardiness, demonstrate to management that there is reason to doubt the employee can be counted upon to be present at work on a regular basis.”

The statute, in pertinent part, states as follows:

“(h) It shall be unlawful for any employer *** to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.” Ill. Rev. Stat. 1989, ch. 48, par. 138.4(h).

Plaintiffs, along with numerous other employees, have received written reprimands for excessive absences, warning them that continued absences could result in discipline. Plaintiff Melton also received a five-day suspension due to excessive absences that allegedly included absences arising out of his seeking medical treatment for occupational injuries covered by the Act. However, some of the written reprimands given to other employees expressly mentioned that CIPS would not take disciplinary action at the time of the reprimand because the absences arose primarily out of occupational injuries.

Plaintiffs sued CIPS, claiming that the excessive absence policy threatens retaliatory discharge for making workers’ compensation claims and requesting $15,000 compensatory and $1 million punitive damages per plaintiff. Plaintiffs alleged that the policy threatens disciplinary action, including discharge, for making workers’ compensation claims for occupational injuries and receiving treatment for those injuries.

Plaintiffs argued to the trial court that they properly stated a cause of action under Kelsay against CIPS for threatening retaliatory discharge. The trial court disagreed and granted defendant’s motion to dismiss on the pleadings. Plaintiffs make the same argument on appeal.

The standard of review on appeal from a grant of a motion to strike or dismiss a complaint is whether the complaint alleged facts which sufficiently state a cause of action. (Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 388 N.E.2d 217.) An appellate court may not consider the merits of the case (Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 432 N.E.2d 1188), but should interpret the facts in a light most favorable to the nonmoving party. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.

II. No Cause Of Action Exists For Threatened Retaliatory Discharge

In Kelsay, the Illinois Supreme Court recognized a cause of action for retaliatory discharge when an employer fires an employee for making a workers’ compensation claim under the Act. In Kelsay, a manager at Motorola had warned plaintiff that, although Motorola would compensate her for her occupational injury, Motorola had a strict policy of firing any employee who made a claim under the Act. When plaintiff filed her claim, Motorola paid it but fired her. The court held that the public policy embodied in the Act authorized a cause of action for retaliatory discharge when an employer fires an employee for making a claim under the Act. Kelsay, 74 Ill. 2d at 180-81, 384 N.E.2d at 356-57.

Since then, courts have narrowly interpreted this cause of action. See Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354, 1356 (“Contrary to plaintiffs’ assertion *** this court has not *** ‘rejected a narrow interpretation of the retaliatory discharge tort’ and does not ‘strongly support’ the expansion of the tort”); Scheller v. Health Care Service Corp. (1985), 138 Ill. App. 3d 219, 225, 485 N.E.2d 26, 30 (refusing to expand the retaliatory discharge tort to cases of “constructive discharge,” using Barr as authority for narrowly interpreting the tort); Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529-30, 519 N.E.2d 909, 911 (quoting Scheller’s narrow interpretation of Barr approvingly); see also Gonza lez v. Prestress Engineering Corp. (1990), 194 Ill. App. 3d 819, 823-24, 551 N.E.2d 793, 797-98 (refusing to extend the tort to cases where an employer fires an employee for filing a false workers’ compensation claim).

In Hinthorn (119 Ill. 2d at 529, 519 N.E.2d at 911), the supreme court stated the Kelsay cause of action as follows: “[a] plaintiff states a valid claim for retaliatory discharge only if she alleges she was (1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy.” The very title of the tort and the first element listed in Hinthorn facially limit the tort to cases where an employer discharges an employee.

Further, courts have implicitly rejected the notion that threats to discharge, discipline, or other coercion short of discharge can provide the basis for a claim under Kelsay. This court has rejected the “constructive retaliatory discharge” claim of an employee who voluntarily quit her job because (she asserted) her employer harassed her for providing information to the State Department of Personnel. (Scheller, 138 Ill. App. 3d at 224-25, 485 N.E.2d at 29-30.) Subsequently, in Hinthorn, the supreme court held that a coerced resignation in lieu of being fired constitutes a discharge. (Hinthorn, 119 Ill. 2d at 529-32, 519 N.E.2d at 911-12.) However, the court in Hinthorn seemed to indirectly approve of our analysis in Scheller when it wrote the following: “We agree that plaintiff has sufficiently alleged that she was discharged, but wish to make abundantly clear that we are not now endorsing the constructive discharge concept rejected by the appellate court in Scheller.” (Hinthorn, 119 Ill. 2d at 530-31, 519 N.E.2d at 912.) We view the threatened retaliatory discharge theory as further removed from the tort of retaliatory discharge than the constructive discharge theory rejected expressly by Scheller and indirectly by Hinthorn. Therefore, a plaintiff must allege a coerced resignation or actual discharge — and not merely a threat to discharge or discipline short of discharge — in order to state a valid claim for retaliatory discharge.

In the present case, plaintiffs have not alleged that CIPS fired any of the plaintiffs — nor, indeed, any of its other employees— under the excessive absence policy. Thus, the analysis of plaintiffs’ claims need not go beyond the first element of the retaliatory discharge cause of action; without alleging a discharge, the plaintiffs have failed to state a cause of action.

By bringing this appeal, plaintiffs essentially ask us to expand the notion of retaliatory discharge to cases where the employer merely threatens discharge or, alternatively, where the employer takes disciplinary action short of discharge, such as the suspension of one of the plaintiffs in this case. However, plaintiffs make this request in the wrong forum. Plaintiffs should address the change in the law they propose to the institution in this State charged with making public policy: the Illinois General Assembly. As an alternative to legislative action, plaintiffs could address their proposal to the Illinois Supreme Court. However, we do not believe it appropriate for this court to create the new tort of threatening retaliatory discharge.

III. Conclusion

We hold that the retaliatory discharge tort recognized in Kelsay and Hinthorn does not extend to threats of discipline or even actual discipline short of discharge. Therefore, we affirm the trial court’s dismissal.

Affirmed.

GREEN and KNECHT, JJ., concur.