text:
    MITCHELL J. MAZANEK, Plaintiff, v. ROCKFORD DROP FORGE COMPANY, Defendant and Third-Party Plaintiff-Appellee (General Electric Company et al., Third-Party Defendant-Appellant).
    Second District
    No. 83—1087
    Opinion filed March 14, 1985.

      James J. Reidy, Ltd., of Chicago, and John Patrick Healy, of Debruyne & Roman, P.C., of Rockford, for appellant.
    Frederic T. Brandt, of Rockford, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The plaintiff, Mitchell J. Mazanek, an employee of General Electric Company (GE), was injured in an electrical fire while cleaning a switchgear at a manufacturing plant of Rockford Drop Forge Company (RDF). GE had manufactured the switchgear and had sold it to RDF.

Mazanek brought a negligence action against RDF, seeking to recover damages for his injuries. RDF, in turn, filed a third-party action for indemnity against GE and one of its divisions, General Electric Supply Company (GESCO). The actions were tried simultaneously before a jury. During the trial Mazanek entered into an agreement with GE whereby, in return for $65,000 and a separate settlement of his claim against GE under the Workers’ Compensation Act, Mazanek agreed to indemnify GE for any judgment rendered against it in the third-party action. In the underlying negligence action, the jury returned a verdict in favor of Mazanek and against RDF in the amount of $540,000. In the third-party action the jury found that RDF was entitled to indemnity from GE, but that such indemnity had been limited by a service contract to the cost of cleaning the switchgear, or $2,721.22. Judgment was entered on these verdicts, and RDF appealed.

In Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 424 N.E.2d 1271 (Mazanek I), this court held that the $540,000 judgment in favor of Mazanek and against RDF should be reduced by $65,000 to reflect the money paid to Mazanek by GE under their settlement agreement. In all other respects that judgment was affirmed. Concerning the third-party action, this court held that the jury should not have been called upon to construe the service contract, and that the limitation of liability clause in the contract was inapplicable. The judgment in the third-party action was, therefore, reversed, and that action was remanded for a new trial. Both Mazanek and GE had argued that RDF was barred from any indemnity, as a matter of law, because RDF was guilty of active negligence. This court declined to address that issue, however, concluding that it did not have jurisdiction to do so because neither Mazanek nor GE had filed a cross-appeal.

On remand counsel for Mazanek entered his appearance as additional counsel for GE in order to protect Mazanek’s interests in the outcome of the third-party action. The matter was tried before a jury which found that RDF was entitled to indemnity from GE. Judgment was entered on this verdict in the amount of $646,950.28, representing the amount of the original judgment reduced according to this court’s opinion in Mazanek I, plus interest and costs. GE has appealed, bringing the case before this court for the second time.

GE reasserts the argument it made during the first appeal, that RDF is barred from recovering indemnity, as a matter of law, because it was guilty of active negligence. GE maintains, alternatively, that various trial errors require reversal and remandment for a new trial. Finally, GE contends that there was no proper statutory basis for the award of a certain portion of the interest included in the judgment. Under the view we take of this case, it will be necessary to address only the first issue.

RDF purchased the switchgear involved in this case, an AKD-5 Powermaster, from GE in 1962, and it was installed in RDF’s plant in 1963. The device was used to control the use of electricity in different locations in the plant. This control was achieved by circuit breakers which would trip open when too much current was drawn by the particular equipment involved. The circuit breakers were enclosed in compartments and were connected to stabs, or metal prongs, located at the back of the compartments. The stabs were extensions of bus bars which were located in separate bus compartments behind the circuit breaker compartments. Behind the bus compartments were the cable compartments at the back of the switchgear.

The switchgear was installed in the compressor room at RDF’s plant. The room was not free of dust, but neither was it excessively dusty. The parties presented conflicting testimony regarding whether the AKD-5 Powermaster, which was not “dust-secure” equipment, was appropriate for that location. In 1963 dust-secure switchgears were available from GE. Walter Fulton, RDF’s plant engineer from 1960 until 1977, testified that RDF selected the AKD-5 Powermaster for that location on the recommendation of Edmund Brown, an application engineer and sales representative for GE.

Along with the switchgear, GE provided RDF with a manual describing its construction and operation, and explaining installation and maintenance. The section on maintenance began as follows:

“A periodic maintenance schedule must be established to obtain the best service from the switchgear. An annual check and overall maintenance procedure for the switchgear devices and all connections, must be followed as a minimum requirement. Equipment subject to highly repetitive operation may require more frequent maintenance.

A permanent record of all maintenance work must be kept.” Underneath this introductory message there were separate headings for each of the different compartments of the switchgear. Under the heading “BUS COMPARTMENT” appeared the following entries, among others:

“a. Inspect the busses and connections carefully for evidence of over-heating or weakening of the insulating supports. * * *
c. Wipe and vacuum clean the busses and supports.”

RDF did not follow these instructions in the manual and did not perform any maintenance on the switchgear, either by itself or by an independent contractor, for a period of 10 years. At trial RDF presented evidence concerning the difficulty of performing the required maintenance procedures. Andrew Frank, a professor of electrical engineering at the University of Wisconsin who testified as an expert witness for RDF, stated that in order to safely clean and inspect the switchgear annually, RDF would have had to de-energize the switchgear for a period of two or three days per year. De-energizing the switchgear would have cut off all of the power from the manufacturing plant. Frank testified about various alternative designs for the switchgear which would have permitted safe inspection and cleaning without a complete cutoff of electrical power to all locations in the plant.

In April of 1973 RDF contacted GESCO to have the switchgear cleaned and inspected because RDF employees had noticed some dirt in one of the breaker compartments and dust on an insulator. Fulton testified that he was aware that if there was dust on the insulating supports in the bus compartments, the switchgear “would be a hazard.” He stated that it was obvious that such a situation would give rise to the possibility of an explosion caused by an electrical arc. Fulton testified that when he contacted GESCO in 1973 he told Mr. Osiers of GESCO that RDF would make a weekend available for the inspection and cleaning so that the switchgear could be de-energized while the work was performed. Osters responded that he had been informed by GE that it would not provide the service on weekends, and that its employees could work on switchgears whether they were energized or de-energized. RDF presented expert testimony to the effect that servicing the switchgear while it was energized was a violation of the National Electrical Safety Code and the instructions in the GE manual.

On July 12, 1973, a four-man crew from GE arrived at RDF’s plant and began work on the switchgear. Richard Ebert, one of the four men, was in charge of the work. Mazanek was the least experienced member of the crew. On that day, which passed without incident, they cleaned and inspected the circuit breakers and the breaker compartments, and on the following day that work continued. At one point, while Mazanek was wiping out the front of a breaker compartment with a rag, an explosion and fire occurred in the switchgear, severely injuring him. Mazanek sustained burns over 50% of his body and was permanently disabled. Mazanek was not wearing protective clothing at the time of the explosion. At trial RDF presented expert testimony regarding the availability of such clothing.

The explosion was caused by an electrical arc which originated on an insulating support in the bus compartment. The arc was able to occur because of an accumulation of dust on the support. Initially, the dust had given rise to a “tracking” phenomenon, in which current flowed from one bus bar to another through the dust on the insulating support. The arc was probably caused by a slight realignment of the track, which, in turn, was probably caused by the actions of the GE workers in the breaker compartment. Frank stated that the tracking could have existed for many months prior to the realignment and arc.

As noted above, GE contends that under the evidence recounted above, RDF is barred from recovering indemnity, as a matter of law, because RDF was guilty of active negligence. The industrial accident in this case occurred prior to our supreme court’s decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 374 N.E.2d 437, cert, denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849, which recognized a cause of action for contribution among joint tortfeasors based on the relative degree to which their conduct contributed to the plaintiff’s injuries, and prior to the adoption of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.), which implemented the Skinner decision. Accordingly, this case is governed by the common law as it existed prior to Skinner. Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 17; Ill. Rev. Stat. 1983, ch. 70, par. 301.

At common law there was no right of contribution among joint tortfeasors. In order to mitigate the harsh effect that could result from an inflexible application of that rule, the courts developed the theory of implied indemnity, under which indemnity was allowed where the conduct of the indemnitor was characterized as active negligence or the primary cause of the plaintiff’s injuries, and that of the indemnitee was characterized as passive negligence or the secondary cause. (Carver v. Grossman (1973), 55 Ill. 2d 507, 511, 305 N.E.2d 161.) There must have been a qualitative distinction between the negligence of the two tortfeasors if the action for indemnity was to succeed. (Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 208 N.E.2d 573.) Our supreme court noted in Carver that the terms active and passive negligence “have not obtained precise judicial definition,” but stated that “previous decisions fairly well delineate the areas wherein conduct may be termed active or passive negligence.” (Carver v. Grossman (1973), 55 Ill. 2d 507, 511.) If the third-party plaintiff was guilty of active negligence, he could not recover indemnity whether the third-party defendant’s negligence was active or passive. (55 Ill. 2d 507, 514.) The court in Carver also declared:

“[T]he facts of the case must clearly justify indemnification. If they do not, the net effect of the application of the implied indemnity theory will be not only to allow contribution but to permit the total shifting of responsibility to one negligent party while permitting the other to totally escape the responsibility for his negligent conduct.” 55 Ill. 2d 507, 512.

In support of its argument that RDF’s negligence was active, GE cites Topel v. Porter (1968), 95 Ill. App. 2d 315, 237 N.E.2d 711, and General Telephone Co. v. New Berlin Transit, Inc. (1984), 126 Ill. App. 3d 698, 467 N.E.2d 382. In our judgment, these cases are controlling, and they establish that, although GE was guilty of active negligence in the instant case, RDF’s negligence was also active.

Topel involved a freight elevator accident in a building occupied by Price Brothers, Inc., under a lease from Porter Realty Trust. Price Brothers had had a maintenance contract for the elevator with the Otis Elevator Company, but the agreement was cancelled six months prior to the accident. Shortly before the cancellation, Otis wrote to Price Brothers, recommending a test of the elevator’s safety device. The letter stated that it was advisable to perform such tests annually, and that no such test had been performed for a year. Price Brothers did not arrange for such a test.

Three months after the cancellation of its maintenance contract with Otis, Price Brothers made arrangements with Westinghouse Electric Corporation to repair the elevator’s drum. Employees of Westinghouse arrived to do the work three months later. In the course of repairing the drum, the employees secured the elevator on the fifth floor by means of a sling. While two of the employees were standing in the elevator the sling broke, and the elevator fell to the ground. The safety device, which would otherwise have prevented the fall, malfunctioned. Evidence was presented to the effect that Westinghouse was negligent in not requiring its employes to take additional precautions in securing the elevator on the fifth floor.

The injured employees sued Price Brothers to recover damages for their injuries, and Price Brothers brought a third-party action for indemnity against Westinghouse. Following a jury trial, the employees were awarded damages in their action against Price Brothers, and Westinghouse was required to indemnify Price Brothers. On appeal, the appellate court affirmed the award in favor of the employees and against Price Brothers, but reversed the judgment in the third-party action, holding that the negligence of Price Brothers was active. In support of this conclusion the court noted that Price Brothers supplied Westinghouse and its employees with an unsafe place to work and did not warn them of the possible dangers. The court also noted that Price Brothers had been explicitly informed of the need for a test of the safety device but failed to have it performed.

Similarly, in the instant case RDF had been informed of the need to “[w]ipe and vacuum clean the busses and supports” annually. It did not do so for 10 years despite the fact that, as stated by RDF’s plant engineer, it was obvious that an accumulation of dust in the bus compartments would give rise to the possibility of an explosion caused by an arc. As a result, RDF provided GE and its employees with an unsafe place to work. Under Topel such negligence is active. There is ample evidence that GE was also guilty of active negligence. As in Topel, there was evidence that the third-party defendant should have taken additional precautions to protect its employees while they worked on the machinery. The jury could also have concluded that GE should not have recommended the AKD-5 Powermaster switchgear to be used in the compressor room at RDF’s plant. As noted above, however, a party guilty of active negligence may not recover indemnity whether the other tortfeasor’s negligence was passive or active. Carver v. Grossman (1973), 55 Ill. 2d 507, 305 N.E.2d 161.

RDF disputes that the GE manual informed it of the need to wipe and vacuum clean the busses and supports annually. In support of this contention RDF refers to the following testimony of Professor Frank:

“Q. *** It [the manual] says ‘An annual check and overall maintenance procedure for the switchgear devices and all connections, must be followed as a minimum requirement.’ What do you understand the words ‘an annual check’ to mean in that context?
A. That is to see that the equipment is operational; that is, you go through the circuit breakers, you flip them on and off and see that they work. ***.”

Based on this testimony, RDF maintains that it was instructed only to check the circuit breakers annually. This argument overlooks the fact that Frank was only asked the meaning of the term “an annual check.” The manual stated that “[a]n annual check and overall maintenance procedure for the switchgear devices and all connections, must be followed as a minimum requirement.” (Emphasis added.) Moreover, as noted above, below this statement specific maintenance procedures were listed for the different compartments of the switchgear. Under the heading “BUS COMPARTMENT,” the manual stated, among other things, “Wipe and vacuum clean the busses and supports.”

RDF notes that in Topel the court stated that the third-party defendant’s duty to perform the work safely did not include the responsibility of checking the safety device. (95 Ill. App. 2d 315, 330.) In the instant case, however, GE was under a duty to inspect and clean the switchgear, and a proper inspection would have revealed the danger. RDF maintains that this distinction between Topel and the instant case indicates that its negligence was passive. We disagree. The distinction only involves the degree of culpability of the third-party defendant. At issue here is the nature of the negligence of the third-party plaintiff, RDF, and Topel establishes that it was active.

Our conclusion in this regard is reinforced by the other case relied on by GE, General Telephone Co. v. New Berlin Transit, Inc. (1984), 126 Ill. App. 3d 698, 467 N.E.2d 382. In that case the negligence of the third-party plaintiff, General Telephone, consisted of a failure to maintain certain telephone wire over a public street at a height of 18 feet. George Felty, who was employed as an electrical lineman for the N. G. Gilbert Corporation for the purpose of raising the wire, was injured when an oil circuit breaker which was being transported by truck, and upon which Felty was riding, collided with the telephone wire. Felty obtained a judgment against General Telephone and certain other parties, and General Telephone filed a third-party complaint against N. G. Gilbert Corporation and the other defendants in the original action. In its complaint, General Telephone alleged that N. G. Gilbert and the others supervised and directed the work involved when Felty was injured, and that the negligence of General Telephone was passive. The trial court dismissed the third-party complaint, and General Telephone appealed. The appellate court affirmed the dismissal, concluding that the failure on the part of General Telephone to maintain the wire at a sufficient height was active negligence. It is noteworthy that the injured party in General Telephone, like Mazanek in the instant case, was employed by the third-party defendant to remedy the condition which had become hazardous as a result of the negligence of the third-party plaintiff. Such facts do not convert what would otherwise be active negligence on the part of the third-party plaintiff into passive negligence. Under both Topel and General Telephone, RDF was guilty of active negligence. See also Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 405 N.E.2d 805.

The cases cited by RDF do not support a different conclusion. Several of the cases involve liability under the Structural Work Act for negligent construction of scaffolds. In those cases the negligence of the general contractor that failed to discover the defect was held to be passive as against the subcontractor that actually provided the laborers with the defective scaffold. (See, e.g., Gadd v. John Hancock Mutual Life Insurance Co. (1971), 5 Ill. App. 3d 152, 275 N.E.2d 285.) Those cases are distinguishable, because in the instant case RDF was not simply guilty of failing to discover a hazardous condition created by another party. The evidence shows that RDF’s negligence in failing for 10 years to clean the switchgear annually, as required by the manual, acted to create the hazardous condition.

RDF also relies on the case of Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 460 N.E.2d 28, which was recently affirmed by our supreme court in Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444. Simmons was also a case under the Structural Work Act, but it did not involve negligent construction of a scaffold. In Simmons the laborer was injured in a power plant owned by Union Electric Company when he fell from a ladder which had become covered with oil as a result of flooded conditions. The injured laborer had been sent to the plant by his employer, Sachs Electric Company, to remedy those conditions. Sachs was responsible for supervising the work of the injured laborer. A contract between Union Electric and Sachs required Sachs to take all appropriate safety precautions necessary or advisable for the prevention of accidents. Based on these facts, our supreme court concluded that Sachs’ failures were active when compared to Union Electric’s limited passive role. While there are similarities between Simmons and the instant case, there is a fundamental difference which we believe is controlling. In Simmons the liability of the passive tortfeasor under the Structural Work Act was based on the fact that it knew or should have known that the ladder was unsafe. It was not based on the theory that its negligence created the hazardous condition. In this respect, Simmons is like the other Structural Work Act cases discussed above. In the instant case RDF’s negligence acted to create the dangerous condition, and Topel and General Telephone establish that such negligence is active.

It is our view that the evidence in the instant case, when viewed in its aspect most favorable to RDF, so overwhelmingly establishes that - RDF was guilty of active negligence that no contrary verdict could ever stand. Accordingly, we reverse the judgment of the circuit court of Winnebago County, and remand this cause with directions that judgment n.o.v. be entered in favor of GE. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Reversed and remanded with directions.

HOPF and STROUSE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    ISABEL GALUSZYNSKI et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (2nd Division)
    No. 84—1224
    Opinion filed February 26, 1985.
    Goldberg & Goldberg, of Chicago (John B. Schwartz and Stephen J. Caron, of counsel), for appellants.
    James D. Montgomery, Corporation Counsel, of Chicago (Philip A. Bronstein and Jennifer A. Keller, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is a personal injury action brought by Isabel and Sylvia Galuszynski against the city of Chicago (city), seeking recovery for injuries suffered at the hands of burglars as the result of the city’s failure to promptly respond to plaintiff’s emergency call through the “911” emergency telephone system to the Chicago police department. Defendant moved to dismiss plaintiffs’ four-count complaint for failure to state a cause of action, and the trial court granted the motion. Plaintiffs appeal.

On January 24, 1984, at approximately 9:45 p.m., plaintiff Sylvia Galuszynski placed a call to the Chicago police department through the 911 emergency telephone system to report the presence of an intruder attempting to break into her home. An employee of the police department answered the call and, after obtaining the necessary information, informed plaintiff that police officers were on the way and advised plaintiff to “watch for the police.” However, police officers did not respond to plaintiff’s call until 10:10, 24 minutes after she placed the call. During this delay, armed intruders entered plaintiff’s home and attacked her and her mother, Isabel, injuring them. The intruders also stole money, jewelry and other personal property.

The city moved to dismiss plaintiffs’ complaint on the ground that section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act provided immunity for the city in the absence of a special duty owed to plaintiffs, and that plaintiffs had failed to plead the existence of a special duty.

The common law concept that, generally, a municipality is not liable for its failure to supply police protection is embodied in section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 4 — 102), which provides: “Neither a local public entity nor a public employee is liable *** for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.” It is well settled that the duty of the police is to preserve the well-being of the community at large, and that such duty is generally not owed to specific individuals. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214; Santy v. Bresee (1984), 129 Ill. App. 3d 658; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610.) This rule rests upon public policy considerations and “embodies the conclusion that a police department’s negligence — its oversights, blunders, omissions — is not the proximate or legal cause of harms committed by others.” Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610.

“To survive a motion to dismiss, it is not sufficient that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty, and facts must be alleged showing an omission of that duty and resulting injury.” (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 176, 446 N.E.2d 1183.) Thus, we must examine the instant complaint to determine whether plaintiffs have alleged sufficient facts from which the law will raise a duty and which will therefore support the cause of action in view of the tort immunity statute.

Plaintiffs’ complaint alleges that the city represented to the public that the purpose of the 911 emergency system was to serve as a means of contacting the police in emergency situations requiring immediate police response; that plaintiffs called the police department through the 911 system, reported a burglary in progress and were told to “watch for the police”; and that the city “carelessly and negligently” and “wilfully and wantonly” failed to dispatch police officers to plaintiffs’ home for 24 minutes, thereby allowing intruders to complete their forced entry of plaintiffs’ home and cause injury to plaintiffs. Plaintiffs contend that their complaint states a cause of action under the “special duty” exception to the general rule that municipalities are not liable for failure to exercise general police powers.

The general requirements of the “special duty” exception, whereby the police owe a special duty to an individual, rather than merely to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality. Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 172, 176, 446 N.E.2d 1183; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942; Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970, 414 N.E.2d 104.

In the instant case plaintiffs have satisfied the first three requirements. The complaint alleges that the city created and promoted the 911 emergency telephone number to permit faster police response to emergencies; that the plaintiffs were faced with an emergency and called the police through the 911 system; that the police department employee answering the call improperly classified plaintiffs’ situation as a “non-emergency”; and that this error resulted in a 24-minute delay on the part of the police department in responding to plaintiffs’ call. However, plaintiffs have made no allegations which lead to the conclusion that plaintiffs’ injuries occurred while plaintiffs were under the direct and immediate control of city police personnel.

In Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, the plaintiff was attacked, in the presence of police officers, by four persons whom the police had requested the plaintiff’s assistance in identifying. We reversed the dismissal of plaintiff’s complaint because the plaintiff had been “called into a position of peril by the police.” (71 Ill. App. 2d 373, 380.) However, in Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183, we affirmed the dismissal of plaintiff’s complaint. In Marvin, plaintiff was attacked by six youths in a subway station. A Chicago police officer patrolling the area chased the youths away but denied plaintiff’s request that the officer accompany plaintiff down to the platform, explaining that plaintiff “was going to be all right” because he would be using a different platform than the youths. When plaintiff descended to his platform, he found the youths waiting for him, and he was beaten and severely injured. We found that plaintiff had failed to allege that he was under the direct and immediate control of a police officer, stating: “The mere disjunctive allegation that the police officer ‘directed, permitted, or caused’ plaintiff to descend to the platform in question does not meet this *** requirement.” (113 Ill. App. 3d 172, 177.) We find that plaintiffs in the instant case have not alleged that they were under the direct and immediate control of city police personnel. Plaintiffs here were not “called into a position of peril by the police” as was the plaintiff in Gardner. Rather, plaintiffs’ situation in the instant case is more like that of the plaintiff in Marvin, where the plaintiff sought police protection which was not provided. In the instant case, plaintiffs’ complaint does not allege facts which show that plaintiffs were under the direct and immediate control of the police at the time their injuries occurred. Therefore, the trial court committed no error in granting defendant’s motion to dismiss for failure to allege the existence of a “special duty” to plaintiffs on the part of the police.

Plaintiffs cite the decision of the Appellate Division of the Supreme Court of New York in DeLong v. County of Erie (1982), 89 App. Div. 2d 376, 455 N.Y.S.2d 887, in support of their argument that the city should be held liable for its failure to promptly respond to an emergency call on the 911 system. The court in DeLong found that the defendant municipality had assumed a duty to the plaintiff by establishing a 911 emergency telephone number and affirmatively re-spending to a call for help made through that system. However, the decision in DeLong was not written with an eye toward the Illinois governmental tort immunity act or the Illinois decisional law regarding the “special duty” exception to the immunity afforded therein, and it is therefore not applicable to the issue presented by the matter now before us.

Plaintiffs argue that the “direct and immediate control” element of the “special duty” exception to the tort immunity act no longer exists. However, as has been noted above, in Marvin we held that the plaintiff failed to meet the requirements of the “special duty” exception solely because of his failure to satisfy the “direct and immediate control” requirement. (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 177; see also Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942.) Therefore, it is clear that the “direct and immediate control” element is still a part of the “special duty” exception to the tort immunity statute.

Plaintiffs also contend that section 15.1 of “An Act in relation to the designation of an emergency telephone number ***” (Ill. Rev. Stat. 1983, ch. 134, par. 45.1) provides for tort liability based upon “wilful and wanton misconduct” on the part of police officials in operating a telephone system. However, in order to find that such liability exists, we would have to find that section 4 — 102 of the tort immunity act was implicitly repealed by the enactment of section 15.1 of the telegraph and telephone companies act. Plaintiffs, however, have cited no authority for their argument. Consequently, because the repeal of a statute by implication is not favored, and “ ‘the clearest case possible must be made before [the] inference may properly be drawn that a later act, by implication, repeals an earlier one’ ” (Board of Commissioners v. County of Du Page (1982), 107 Ill. App. 3d 409, 412, 437 N.E.2d 923), we will not make such a finding here.

We therefore affirm the decision of the circuit court dismissing plaintiffs’ complaint for failure to state a cause of action.

Affirmed.

PERLIN and BILANDIC, JJ., concur.


author: JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEFFANI T. VOIGT, Defendant-Appellee.
    Third District
    No. 3—84—0287
    Opinion filed March 12, 1985.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Following an implied-consent hearing for the defendant, Steffani Voigt, the trial court ruled that the defendant’s drivers license would not be suspended. The State appeals. We reverse.

We note initially that the defendant has not filed a brief on appeal. Consequently, we address the issues here under the provisions of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

We note also that we do not have a verbatim transcript of the proceedings at the implied-consent hearing. Therefore, we base our review upon the proposed report of proceedings certified by the trial court under Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)).

At the defendant’s implied-consent hearing the State presented one witness, police officer Michael Kumer. Officer Kumer testified that on August 21, 1983, after he observed the defendant’s erratic driving and after the defendant attempted field sobriety tests, he arrested the defendant for driving while under the influence as defined by section 11 — 501 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501). Following her arrest, the defendant was transported to the East Peoria police department. At the police department, Officer Kumer informed the defendant that a refusal to submit to the breathalyzer test offered would result in a suspension of her drivers license. Kumer then asked the defendant if she wanted to take a breath test. The defendant responded that she would not take a test. At the close of Officer Kumer’s testimony the State rested.

Following Kumer’s testimony, the defendant moved for, and the court granted, judgment in the defendant’s favor. In granting the defendant’s motion, the court found that the defendant was arrested under section 11 — 501 of the Code for driving while intoxicated. The court also found that the arresting officer had reasonable grounds to believe that the defendant was driving a motor vehicle while under the influence of intoxicating liquor. Additionally, the court found that the defendant was not informed orally and in writing, as required by statute, that her drivers license would be suspended if she refused to complete the breath analysis requested. The court further found that the defendant was not properly requested to submit to the breath analysis. Lastly, the court found that the defendant did not refuse to submit to the breath analysis upon the request of the arresting officer.

On appeal, the State argues that the trial court’s judgment, based on its ruling that the defendant did not refuse to submit to a breath analysis as contemplated by the Code, is against the manifest weight of the evidence. We agree.

An implied-consent proceeding is civil in nature. At such a proceeding the State has the burden of proving the issues by a preponderance of the evidence. Final judgment for the defendant is appealable by the State and will be reversed on appeal if contrary to the manifest weight of the evidence. People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459.

Under section 11 — 501.1 of the Code, only three matters are at issue at an implied-consent hearing. Those matters are: (1) whether the defendant was lawfully arrested for an offense of driving or physically controlling a motor vehicle while under the influence of alcohol or other drugs; (2) whether the arresting officer had reasonable cause to believe the defendant was driving or in physical control of a motor vehicle while under the influence; and (3) whether the defendant refused to submit and complete a blood-alcohol test or tests upon request of a law enforcement officer. Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.1.

Whether the defendant was informed that her privilege to drive would be suspended if she refused to submit to the blood-alcohol tests or tests requested is not an issue at an implied-consent hearing. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1(c); People v. Honaker (1984), 127 Ill. App. 3d 1036, 469 N.E.2d 1120.) Furthermore, subsequent to the January 1, 1982, effective date of Public Act 82 — 311’s amendment to section 11 — 501.1 of the Code, there is no requirement that a person arrested for driving under the influence be informed in writing of the consequences of her refusal to submit to a blood-alcohol test. Compare Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1(a).

We find that the trial court’s finding that the defendant did not refuse a blood-alcohol test upon request of Officer Kumer, and its consequent judgment for the defendant, were contrary to the manifest weight of the evidence. The evidence is uncontroverted that Officer Kumer warned the defendant of the suspension consequences of one’s failure to submit to a breathalyzer test. The evidence is also uncontroverted that Officer Kumer then asked the defendant if she wanted to take a breath test and that the defendant said she would not take a test. Every indication of the evidence is that the defendant knowingly refused to submit to a breathalyzer test after a proper request from a law enforcement officer.

Accordingly, the judgment of the circuit court of Tazewell County is hereby reversed. The cause is remanded to that court for further proceedings consistent with this decision.

Reversed and remanded.

STOUDER and BARRY, JJ., concur.


author: JUSTICE SCOTT

text:
    GLENN MULLIGAN, Plaintiff-Appellant, v. VILLAGE OF BRADLEY et al., Defendants-Appellees.
    Third District
    No. 3—84—0201
    Opinion filed March 6, 1985.
    John Bernard Cashion, of Chicago, for appellant.
    Alan F. Smietanski, of Berz & Smietanski, of Kankakee, and William W. Kurnik, of Kurnik & Cipolla, of Arlington Heights, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Glenn Mulligan, appeals a decision of the circuit court of Kankakee County which dismissed his complaint against the village of Bradley and Kenneth Hayes, president of the board of trustees, following plaintiff’s termination as village administrator.

Plaintiff’s complaint was in four counts and sought damages for breach of contract, malicious prosecution, and a civil rights violation for being deprived of a “property right” in his employment position and that his firing was politically motivated.

The claims of malicious prosecution and the alleged civil rights violations were dismissed by the circuit court for failure to state a cause of action.

The circuit court then granted the village’s motion for judgment on the pleadings with respect to plaintiff’s claim for breach of contract.

The factual background for the complaint is derived, in part, from the minutes of the meetings of the village board.

On October 8, 1979, Mulligan, as president of the board of trustees of the village of Bradley, appointed trustee Novak as chairman of a committee of the whole, to study the question of whether there was a need for a full-time employee to look into the village business and to look out for the general growth and well-being of the village.

In the interim between the October 8 meeting and the next regular meeting of the board of trustees on October 29, 1979, Mulligan discussed the necessity of creating a new position of village administrator with committee chairman Novak and other members of the board of trustees. Mulligan not only urged the board members to vote in favor of creating the position of village administrator, but to vote in favor of offering the position to him.

The October 29 meeting commenced with Mulligan presiding as village president. Novak reported that although they had interviewed other candidates for the position as village administrator, they had decided to offer the position to village president Mulligan.

A resolution was read and approved which created the new position of village administrator. Four trustees voted in favor of the resolution and two trustees voted against it. Mulligan did not vote. A motion was then made to offer the contract to Mulligan. The motion passed five to one, with Mulligan abstaining. Mulligan offered his resignation as village president, which was accepted by a unanimous vote of the trustees. Mulligan accepted the position of village administrator for a period of three years commencing November 1, 1979, up to and including October 31, 1982. No appropriation ordinance was ever made to pay the $27,000 per year salary and annual 7% pay raises.

The position of village administrator involved soliciting and assisting the relocation of business entities into the village of Bradley. Hayes, who had been Mulligan’s former political adversary in the village, became president of the village board. The contract provided that either party to the agreement could terminate it by 30 days’ written notice during the first year, 60 days’ written notice the second year, and 90 days’ written notice the third year. There was no provision in the contract that it could only be terminated “for cause.”

On May 4, 1981, Hayes fired Mulligan after a hearing. Thereafter, Mulligan was subpoenaed to testify before the grand jury of Kankakee County. Mulligan alleged that Hayes instigated the criminal proceedings without probable cause and with malice. The grand jury returned a “No Bill,” and Mulligan filed suit against the village of Bradley and Hayes on the grounds enumerated above.

In granting a judgment on the pleadings to the defendant village with respect to plaintiff’s allegation of a breach of contract, the circuit court held that the plaintiff’s agreement with the village was void and unenforceable for two reasons. First, the court believed that section 8 — 1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 1—7) prohibits the making of a contract unless an appropriation has been made concerning the contract. Second, the court indicated that in its opinion, the contract was void and unenforceable because it violated both section 3 of “An Act to prevent fraudulent and corrupt practices ***” and section 3 — 14—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 102, par. 3; ch. 24, par. 3 — 14—4), which both prohibit an elected or appointed official from having an interest in a contract upon which he may be called upon to vote or when the consideration of the contract is paid from the public treasury.

We believe that there exists ample evidence in the record which supports the decision of the circuit court in declaring the contract in question to be void and unenforceable on the basis of plaintiff’s conflict of interest. Nor are we deterred from such a conclusion by the grand jury’s refusal to return an indictment, since there existed alternative authority to declare the agreement null and void without the necessity of finding a criminal violation had occurred (i.e., Ill. Rev. Stat. 1979, ch. 24, par. 8 — 1—7; Hogan v. City of Centralia (1979), 71 Ill. App. 3d 1004, 390 N.E.2d 595 (purported two-year contract for chief of police held to be void ab initio without a proper budget being passed)).

We also believe the circuit court properly dismissed plaintiff’s complaint with respect to his allegations of malicious prosecution.

The plaintiff has contended that he was entitled to recover damages for the tort of malicious prosecution where a grand jury merely investigates a complaint. In Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229, our supreme court held that one of the essential elements of a cause of action for malicious prosecution concerns whether the facts show “the commencement *** of [a] *** criminal or civil judicial proceeding by the defendant ***.” 82 Ill. 2d 40, 45, 411 N.E.2d 229, 232.

We do not believe that the mere presentation of evidence to a grand jury constitutes “the commencement of a criminal or judicial proceeding” within the meaning of Joiner. Section 111 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 1) provides that a prosecution is commenced by a complaint, an information, or an indictment.

Dean Prosser has noted in his Law of Torts 836 (4th ed. 1972):

“The proceeding must, however, have been commenced. It is not enough that a mere complaint has been made to the proper authorities for the purpose of setting prosecution in motion, where no official action ever has been taken *** a grand jury which refuses to indict ***.”

Finally, section 2 — 16 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 16) provides:

“ ‘Prosecution’ means all legal proceedings by which a person’s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information ***.” (Emphasis added.)

Plaintiff’s final allegation that he was denied his civil rights to due process of law when he was deprived of a hearing before an impartial hearing officer and that he had a “property right” in his employment must also be rejected.

As previously noted, since the employment contract was void, plaintiff was precluded from having a “property interest” in a void contract. Furthermore, the plaintiff’s employment contract was not limited to termination for cause. The only protection afforded by the agreement was a mere notice requirement and as such did not create a “property interest” protected by either 42 U.S.C. sec. 1983 (1976) or the fourteenth amendment. Daleanes v. Board of Education (1983), 120 Ill. App. 3d 505, 457 N.E.2d 1382; Hayward v. Henderson (9th Cir. 1980), 623 F.2d 596.

Plaintiff’s allegation that the termination of his employment was “politically motivated” raises the question of whether the position of village administrator is one that can be terminated for political considerations alone.

Our courts have uniformly held that persons in policy-making positions can be dismissed for political considerations, since to hold otherwise would saddle existing administrations with political adversaries occupying positions from which they could thwart or hinder the implementation of new or different idealogies presumably called for by the electorate. Elrod v. Burns (1976), 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673; Branti v. Finked (1980), 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287.

The employment agreement here enumerates plaintiff’s general supervisory powers as village administrator. Our review of the agreement leaves little doubt that the village administrator of the village of Bradley has been given broad discretion and latitude to be utilized in the implementation of wide-ranging policies and goals and that more than mere ministerial competence is required for the position. Stegmaier v. Trammell (5th Cir. 1979), 597 F.2d 1027.

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

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FAYSOM, Defendant-Appellant.
    First District (2nd Division)
    No. 83—565
    Opinion filed February 26, 1985.
    Rehearing denied April 1, 1985.

      Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Donna B. More, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of murder, armed violence, unlawful restraint, and pandering, and he was sentenced to concurrent terms of imprisonment of natural life for murder, 15 years for armed violence, and three years for pandering. On appeal, defendant raises issues involving prosecutorial misconduct during final argument, failure to suppress certain evidence, an improper jury instruction on accountability, his sentence, and his conviction of armed violence, based on unlawful restraint.

On the morning of October 9, 1981, 13-year-old Nicole Lee’s nude body was discovered near a loading dock at 4223 West Lake Street in Chicago. Clothing and “drag marks” were found nearby. The victim had been shot three times; in the left chest, the right abdomen, and under the right armpit. The first two wounds had muzzle imprints, indicating that the gun and the skin were in contact; the third wound also resulted from a bullet fired at close range. According to the medical examiner, death was caused by bullet wounds of the chest and abdomen, with penetration of the heart and liver. No vaginal trauma was found. The victim was last seen alive by her mother on October 6, 1981, who reported her to the police as a runaway at that time. Defendant was arrested on November 2, 1981, and subsequently charged in connection with the homicide.

At trial, Karen Brandon, who was charged with murder, pandering, unlawful restraint, and armed violence, testified that she made an agreement with the State’s Attorney’s office, whereby the murder charge would be reduced to concealing a homicidal death in exchange for her truthful testimony at defendant’s trial. In June 1981, she was 16 years old and lived with her five-month-old child and her mother in a housing project. She was introduced to defendant, who persuaded her to have sex with men for money. He instructed her what to do. Defendant took her and her friend Sheila Wilson out every night. She was to give all her money to defendant.

On October 6, 1981, she and defendant were in the area of Sheridan and Broadway.. At about 11 p.m., they met Nicole Lee near the rapid transit station and, after about 30 minutes, they all took a train and bus to a restaurant at Cicero and Roosevelt. Brandon went out to “work” from the restaurant. When she returned, defendant said that Nicole “was ready to work.” Both women did so: Nicole had two “dates” that night; Brandon had about eight. Brandon, Nicole and defendant went to a hotel for the night. Defendant had sex with both women. The following day, they walked around, with defendant “showing off” his “two ladies.” Later they went to “work.” Brandon had seven or eight “dates,” and Nicole had one, because “she really didn’t want to date.” The next day defendant took the girls to Cicero and Roosevelt in his brother’s car to “work.” Nicole said she didn’t want to do so because she was sick. Nicole and defendant argued for quite a while. Brandon went on “dates”; Nicole did not. Defendant became very angry. At about 1 a.m. on October 9, Brandon finished “working.” Eventually, they drove to a dark alley on Lake Street. Nicole was in the back seat and Brandon in the front passenger seat. Defendant told Nicole “he didn’t like anyone to play with him.” He stopped the car. He ordered Nicole to take off her clothes, pointing a gun at her. She complied. He told her, “Show me your heart.” When she did so, he shot her. Nicole told him to take her to a hospital and that she would make him money. He shot her again, in the lower stomach. She was still alive, pleading with him, when he shot her a third time. She said nothing more.

Defendant got out of the car, opened the back door, and dragged Nicole out to a nearby loading dock. He told Brandon to wipe the blood off the back seat, which she did, using Nicole’s panties. She passed the victim’s clothing out the window and he put them by her body. Brandon and defendant spent the night at a hotel. The next day, they went to a gas station, where he took out the back seat, looked for spent shells, and threw them away. She was present when he later gave the gun to “Uncle Jimmy” to sell. She did not know Jimmy’s last name. When arrested on November 2, 1981, along with Sheila Wilson, she told police what happened, knowing that defendant was in custody at the time.

On cross-examination, Brandon testified that she told police the same story she related in court. She admitted that she told Sheila Wilson that she and defendant had each shot Nicole two times. This was a “lie,” however. After she was arrested, she said defendant alone had shot Nicole and has been “sticking to that ever since.” When she spoke to police on October 31, prior to her arrest, she denied that she or defendant were involved in the homicide. She later made a statement to an assistant State’s Attorney, in the presence of a court reporter.

Also testifying at trial was Jimmy Gibson, defendant’s cousin. He spoke to defendant and Brandon in his home in the middle of October 1981, when defendant wanted to sell him a gun. He and defendant then went to the Jones Restaurant; defendant went inside with the gun, and returned with $90 and no gun. Defendant gave Gibson $15. On cross-examination, Gibson stated that Brandon initially had the gun when they came to his home and gave it to defendant. LaMan Wilson testified that in October 1981 defendant came to the Jones Restaurant. Wilson gave defendant $90 for a gun. The police came in two weeks later, and he gave them the gun.

A Chicago police mobile unit technician “processed” the car allegedly used by defendant on October 9, 1981. He found a bullet hole in the rear seat and a fired bullet under the seat. A Chicago police firearms examiner tested the gun recovered from LaMan Wilson and compared test-fired bullets with bullets recovered from the car and Nicole Lee’s body. He concluded that all were fired by the same weapon. Defendant presented the testimony of a Chicago police crime lab microanalyst, who examined vaginal swabs taken from the victim’s body, finding no evidence of spermatozoa.

Herbert Faysom, defendant’s father, testified that he first saw Brandon during March or April 1981 at the Yellow Cab Company, where both he and defendant worked. She was there so frequently that he had defendant fired for “bringing girls on the job.” In his home one day, he saw that Brandon had a gun in her purse. He asked her why she kept it, and she told him she needed it when she works. When he found out what sort of work she did, he put defendant out and did not allow either of them to come to his home. He identified the gun in evidence as the one he saw in Brandon’s possession. He never saw defendant with a gun. The defense rested.

Defendant was found guilty and sentenced, as noted above. After his motion for a new trial was denied, defendant brought this appeal.

I

Defendant contends that he was denied a fair trial because of various instances of prosecutorial misconduct during final argument. He first cites the prosecutor’s references to the victim’s family to the effect that the family of the victim will be thinking about this tragedy through endless sleepless nights and daylight hours. He further noted that the thoughts of those who participated in the trial will be like a few drops in Lake Michigan when compared to the grief of the family of Nicole Lee who, because she refused to work as a prostitute, was eliminated, creating a legacy that the victim’s family will live with.

Suggestions that a jury consider the victim’s family as a material factor in its deliberations is improper and prejudicial (People v. Dukes (1957), 12 Ill. 2d 334, 340, 146 N.E.2d 14; People v. Starks (1983), 116 Ill. App. 3d 384, 389-90, 451 N.E .2d 1298), as is argument intimating that the victim’s family deserves the jurors’ sympathy (People v. Gregory (1961), 22 Ill. 2d 601, 605-06, 177 N.E.2d 120; People v. McLean (1971), 2 Ill. App. 3d 307, 312-13, 276 N.E.2d 72). Here, defendant’s objections were overruled and the prejudicial effect exacerbated. (People v. McLean (1971), 2 Ill. App. 3d 307, 276 N.E.2d 72.) The State may comment unfavorably on the evil effects of crime and urge a fearless administration of the law (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739); however, no such remarks which include references to the victim’s family are permissible.

Defendant next urges that the prosecutor improperly related facts not in evidence and expressed his personal opinion regarding defendant’s guilt and Karen Brandon’s credibility. The prosecutor, in discussing the “deal that was cut with Karen Brandon,” told the jury, over defendant’s overruled objection, that based on information and evidence, two people were involved in this death, and it would be next to impossible to prove either one guilty without the help of one of them, of which they informed their superiors at “the top.” Upon defendant’s further objection, the court in a sidebar advised the prosecutor not to testify or inject his own credibility into the case. The court then admonished the jury to disregard the prosecutor’s remarks concerning the “arrangement.”

References in argument to matters outside the record are improper (People v. Bitakis (1972), 8 Ill. App. 3d 103, 106, 289 N.E.2d 256); however, the prosecutor has a right to comment on the evidence and reasonable inferences that can be drawn therefrom even if detrimental to defendant (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322, 379 N.E.2d 847). Here, the State’s “deal” with Brandon, alluded to repeatedly during her testimony, was known to the jury. The prosecutors’ discussions with their supervisors had not been presented at trial, and were therefore impermissible, but the court’s subsequent instruction to the jury to disregard this comment served to cure any prejudice accruing to defendant. People v. Meares El (1980), 83 Ill. App. 3d 31, 41, 403 N.E.2d 547; People v. Lindsay (1978), 67 Ill. App. 3d 638, 654, 384 N.E.2d 793.

Defendant also asserts that the prosecutor injected his personal opinion of Brandon’s credibility by telling the jury that he didn’t like Karen Brandon and he didn’t expect the jury to like Karen Brandon either, he was grateful to her and not ashamed of her as a prosecutor, she represented the best thing that this case or any crime could have, she represented the best evidence known in the law, an eyewitness, and she was the only person that was available during this case to tell the jury what happened and exactly how Nicole Lee met her death.

A prosecutor may not give his personal opinion of a witness’ credibility, nor pledge his reputation on such credibility. (People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256.) Here, however, the prosecutor was not personally “vouching” for Brandon’s credibility; rather, he was arguing on the basis of the evidence adduced that, as an eyewitness, her account of the crime should be accorded considerable weight. In any event, defendant did not object to these remarks, either at trial or in his post-trial motion, thereby waiving his objection to any error in this regard. People v. Turk (1981), 101 Ill. App. 3d 522, 530, 428 N.E.2d 510.

Defendant also complains of further argument concerning the “deal” that had to be made with Brandon in order to effectively prosecute the defendant; however, the “deal” had been fully ventilated before the jury. Further, remarks complained of by defendant, that he was the “shooter” who was “in control,” were not improper and were supported by the evidence. The prosecutor here was not expressing his personal and unsupported opinion of defendant’s guilt. See People v. Black (1925), 317 Ill. 603, 619, 148 N.E. 281. See also People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629.

Defendant next contends that the prosecutor improperly defined reasonable doubt and minimized the State’s burden of proof by telling the jury that reasonable doubt was no mystery, not a magic formula, not a secret equation that only lawyers know about, but translated into two words, “common sense,” and what makes sense given the facts.

It is improper for counsel to define “reasonable doubt” for a jury. (People v. Garcia (1981), 103 Ill. App. 3d 779, 784-85, 431 N.E.2d 1234; People v. Jenkins (1980), 89 Ill. App. 3d 395, 398, 411 N.E.2d 1047.) Although here the prosecutor improperly equated reasonable doubt with “common sense,” these remarks, viewed in context, did not directly impugn the reasonable-doubt standard and do not merit reversal. See People v. Smith (1981), 93 Ill. App. 3d 1133, 1139, 418 N.E.2d 172; People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127; People v. Cartalino (1982), 111 Ill. App. 3d 578, 589, 444 N.E.2d 662.

Defendant urges that the prosecutor in rebuttal shifted the burden of proof to defendant by telling the jury that, to find defendant not guilty, it would have to believe that Brandon was the killer, citing United States v. Vargas (7th Cir. 1978), 583 F.2d 380, United States v. Phillips (7th Cir. 1975), 527 F.2d 1021, and People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432. Defendant cannot claim error, however, where the prosecutor’s remarks are in reply to and were invited by defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180; People v. Hudson (1981), 102 Ill. App. 3d 346, 351, 430 N.E.2d 51.) Defendant’s cross-examination of Brandon, his attempt to attribute a motive to her, his emphasis upon her prior statement that she had shot the victim, and his attempts to show that the gun had been in her possession until it was sold by defendant, support the theory that Brandon was the killer. The physical evidence linked defendant and Brandon to the crime; the automobile, the gun, and the bullets. Defendant could hardly have argued that he was elsewhere when it took place. Although the prosecutor’s remarks were improper, under the circumstances they were harmless.

Defendant also insists that he was prejudiced when the prosecutor repeatedly argued that Brandon’s testimony was credible because she told the same story to police after her arrest. As a general rule, a witness’ prior consistent statement is inadmissible to corroborate his testimony at trial, except where such statement is used to refute a charge of recent fabrication or a contention that the witness had a motive to testify falsely and the prior statement was made when the motive did not exist. (People v. Emerson (1983), 97 Ill. 2d 487, 500-01, 455 N.E.2d 41; People v. Clark (1972), 52 Ill. 2d 374, 389, 288 N.E.2d 363; People v. Tidwell (1980), 88 Ill. App. 3d 808, 810-11, 410 N.E.2d 1163.) Brandon’s prior statements to authorities, both consistent and inconsistent, were almost exclusively the subjects of defendant’s cross-examination of her. The jury thus became familiar with the substance of these statements principally through defendant’s own efforts. The prosecutor argued in essence that the prior consistent statements were made after defendant was arrested; because Brandon had less to fear at that time, these statements were more credible than earlier inconsistent ones, when defendant was still at large. This argument, based on matters in the record, was entirely proper.

Defendant’s final contention in this regard is that the cumulative effect of the foregoing errors prejudiced his right to a fair trial. (See People v. Whitlow (1982), 89 Ill. 2d 322, 341; People v. Ray (1984), 126 Ill. App. 3d 656, 663, 467 N.E.2d 1078; People v. Starks (1983), 116 Ill. App. 3d 384, 395-96.) Certain remarks made here were improper; however, on balance, defendant was not thereby deprived of a fair trial. In view of the compelling evidence of defendant’s guilt, the remarks could not have been a material factor in his conviction nor would the verdict have been different in their absence. (People v. Panczko (1980), 86 Ill. App. 3d 409, 413, 407 N.E.2d 988.) At worst, any error here was harmless (see United States v. Hasting (1983), 461 U.S. 499, 508-12, 76 L. Ed. 2d 96, 105-08, 103 S. Ct. 1974, 1980-82; People v. Reese (1984), 121 Ill. App. 3d 977, 986-87, 460 N.E.2d 446), especially since the jury was properly instructed not to consider argument as evidence and to disregard any argument not based on the evidence (see People v. Rowe (1983), 115 Ill. App. 3d 322, 328, 450 N.E.2d 804; People v. Smith (1982), 111 Ill. App. 3d 895, 906, 444 N.E.2d 801).

II

Defendant next assigns error to the circuit court’s failure to suppress evidence allegedly obtained though certain statements made by defendant in violation of his fifth amendment right to remain silent.

Prior to trial, defendant filed motions to suppress statements, quash arrest, and suppress evidence. At a subsequent suppression hearing, testimony showed that defendant was arrested at about 3:45 a.m. on November 2, 1981, when he made inquiries at the police station about Karen Brandon and Sheila Wilson. Upon being advised of his Miranda rights, defendant said he would “think about” talking to police. He was then left alone in an interrogation room until 3 p.m., when he was taken to another room and confronted with Brandon, who was told by police to repeat her story which had implicated him. Defendant responded by saying, “It didn’t happen that way.” Upon his return to the first room he made an oral statement to an assistant State’s Attorney, but refused to give a written statement. On the basis of this evidence, the circuit court found that defendant did not voluntarily relinquish his Miranda rights, as his statements were the result of “coercion and intimidation by sudden accusation without notice.” The court allowed defendant’s motion to suppress his post-arrest statements but did not rule on his motion to suppress the pistol, allegedly recovered by exploitation of these suppressed statements.

During trial, defendant renewed his motion to suppress the use of the pistol and any testimony concerning it. At a hearing on this motion, Detective Cornelius Johnson testified that he was asked by the assistant State’s Attorney who had taken defendant’s post-arrest statement where the weapon was. Johnson asked defendant, who then told him that Brandon had it, but had given it to her mother. Johnson related that Brandon claimed defendant gave the gun to his cousin, who sold it to someone on 16th Street. Defendant then admitted he sold the gun and took the police to his cousin, Jimmy Gibson, who, in turn, directed them to LaMan Wilson, who had the gun. The circuit court allowed the gun to be introduced at trial, along with testimony regarding it, reasoning that the recovery of the weapon was “motivated by the conversation that these officers had with Karen Brandon.”

Defendant urges application of the “poisonous tree” doctrine, under which, assuming the primary illegality of official action, the question is whether particular evidence was found by exploitation of this illegality or by “means sufficiently distinguishable to be purged of the primary taint.” (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417; People v. Wilson (1975), 60 Ill. 2d 235, 237-38, 326 N.E.2d 378; People v. Althide (1979), 71 Ill. App. 3d 963, 969, 389 N.E.2d 240.) The court’s action here was proper, however, under the Suprfeme Court’s recently-announced “inevitable discovery” exception to the exclusionary rule. Under this exception, if the State can establish by a preponderance of evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means, it may be used against the accused. (Nix v. Williams (1984), 467 U.S. 431, 444-45, 81 L. Ed. 2d 377, 387-88, 104 S. Ct. 2501, 2509.) In the case sub judice, Brandon told police that defendant gave the gun to his cousin “Jimmy,” who, in turn, sold it to a man on 16th Street. Based upon evidence that the cousin was Jimmy Gibson and that he, not defendant, directed police to LaMan Wilson and the gun, the circuit court reasonably could have concluded that the weapon ultimately or inevitably would have been discovered, based on Brandon’s assertion alone.

Admission of the challenged evidence was harmless in any event. In considering whether the erroneous admission of evidence requires reversal, reviewing courts must look to the entire record to determine whether the evidence reasonably affected the findings of the trier of fact and should not disturb the judgment where defendant’s guilt was proved beyond a reasonable doubt. (People v. Wilkes (1971), 2 Ill. App. 3d 626, 634, 276 N.E.2d 761.) Although the weapon and testimony concerning it were significant, the key evidence here was Brandon’s eyewitness testimony, which by itself would have been sufficient to support the verdict.

Ill

Defendant maintains that the court erred by giving Illinois Pattern Jury Instruction, Criminal, No. 5.03 (2d ed. 1981), stating the law of accountability, when no substantive evidence supported a finding of guilt on this basis.

Although the submission of an instruction in the absence of supporting evidence is error (People v. Banks (1962), 26 Ill. 2d 259, 262, 186 N.E.2d 338; People v. Shackles (1977), 44 Ill. App. 3d 1024, 1026, 358 N.E.2d 1329), even slight evidence of accountability will justify giving such an instruction (People v. Ong (1981), 94 Ill. App. 3d 780, 785, 419 N.E.2d 97; People v. King (1980), 88 Ill. App. 3d 548, 554, 410 N.E.2d 1070). Evidence showing that defendant acted as principal and also assisted others in the commission of the offense authorizes the giving of instructions based on both principal and accountability theories. People v. Williams (1981), 97 Ill. App. 3d 394, 405, 422 N.E.2d 1091; People v. Calderon (1981), 98 Ill. App. 3d 657, 661, 424 N.E.2d 671.

The defense theory throughout trial, meriting submission of this instruction, was that Brandon had shot the victim, as shown by defendant’s cross-examination of Brandon and his reference to her prior statement that she was the shooter, his cross-examination of the medical examiner, which suggested that the victim had been shot from the passenger side of the car, occupied by Brandon, and the testimony of defendant’s father that he had seen Brandon, not his son, with the murder weapon. In any event, submission of the instruction here does not merit reversal. Even an inappropriately given accountability instruction does not constitute reversible error where, as here, sufficient evidence was adduced from which the jury could find defendant guilty as principal. (People v. Andrews (1981), 95 Ill. App. 3d 595, 598, 420 N.E.2d 509; People v. Lusietto (1976), 41 Ill. App. 3d 205, 208, 353 N.E.2d 385.) Any error in giving the instruction, therefore, would have been harmless.

IV

Defendant next insists that his natural life sentence was excessive, in that the court considered aggravating factors not supported by the record while failing to consider mitigating factors.

The determination of a sentence is within the discretion of the trial court and should not be altered absent a showing that such discretion was abused. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) A proper sentence should take into account both the seriousness of the offense and the rehabilitative potential of the offender. (Ill. Const. 1970, art. I, sec. 11; People v. LaPointe (1982), 88 Ill. 2d 482, 493, 431 N.E.2d 344.) Although not required to specify for the record the process by which a sentence was determined (People v. LaPointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344), it is an abuse of discretion for a court to fail to adequately indicate on the record that it considered the proper sentencing criteria (People v. Rickard (1981), 99 Ill. App. 3d 914, 918-19, 425 N.E.2d 1317). In this connection, section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections provides that, if the court finds that the murder of which defendant was convicted was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty,” it may sentence him to a natural life term of imprisonment. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1) and (b).

At sentencing, defendant’s mother and father testified that they would provide their son a home if he was released. Defendant told the court that he would like to return to school. The pre-sentence report reflected his graduation from high school, a history of employment, no juvenile court record, and a single prior conviction for criminal damage to property in 1978 resulting in a sentence of one year’s probation. Nevertheless, the court found no mitigating factors. Noting that defendant shot the victim after she begged for help, he found the offense “brutal and heinous *** of a behavior indicative of wanton cruelty and atrocious immorality.” Based upon this finding, and its clear evidentiary support in the record, it cannot be said that the instant sentence was excessive.

This case, however, has an unusual aspect which requires further comment. Defendant was sentenced on February 16, 1983. He filed a notice of appeal on March 8, 1983, amended on May 3, 1983. Three months later, on August 24, 1983, the circuit court sua sponte vacated the life sentence and imposed a 70-year sentence, observing that it “might have been unduly influenced *** by the loss of life, the death of a young girl,” and stating that defendant was then 22 years old and “ought to have some hope of some day having his freedom.” On October 5, 1983, after the State filed in the supreme court a motion for leave to file a petition for mandamus, which that court later denied, the circuit court vacated its August 24 order and reinstated the natural life sentence. The court put on record the bases for its sentence reduction for the benefit of review. Among the reasons given were: Defendant’s age; the absence of prior felony convictions; defendant’s record of a minor misdemeanor conviction; defendant’s confession, which it found indicative of remorse and a desire to reform; the first sentence having been based, in part, on an unsupported inference that defendant knew that the victim was 13 years old; an unsupported inference that defendant introduced the victim to prostitution; and a comparison of the instant case to several others, which it thought involved equal or more heinous offenses, for which defendants received lesser sentences.

The State has filed a motion to strike those portions of the record on appeal involving the August 24, 1983, and October 5, 1983, hearings. This motion was taken with the case, and in a separate order is denied. The State points out that the circuit court lacked jurisdiction to modify the sentence 30 days after its imposition (People ex rel. Carey v. Rosin (1979), 75 Ill. 2d 151, 157-58, 387 N.E.2d 692; People v. Hills (1980), 78 Ill. 2d 500, 508, 401 N.E.2d 523) and that this court’s jurisdiction extends only to proceedings which took place before the notice of appeal was filed and served, limiting the scope of review to the judgment specified in the notice (People v. Carter (1980), 91 Ill. App. 3d 635, 638, 415 N.E.2d 17).

Generally, an appellate court has no jurisdiction to review a circuit court’s actions subsequent to the filing of the notice of appeal; yet, there is some authority for a reviewing court’s consideration of matters occurring after such filing in certain instances. In People v. Kline (1981), 99 Ill. App. 3d 540, 425 N.E.2d 562, aff’d in part & rev’d in part on other grounds (1982), 92 Ill. 2d 490, the appellate and supreme courts considered defendant’s sentence in light of sentences imposed on codefendants after defendant’s notice of appeal was filed. More nearly apposite in People v. Novak (1967), 84 Ill. App. 2d 276, 228 N.E.2d 139, in which the appellate court took judicial notice of a letter written by the trial judge, relating the reasons why he would reduce defendant’s sentence if he had authority. The appellate court, accordingly, reduced the sentence. We find no basis in the circumstances of this case to do so here. The finding of exceptionally brutal and heinous behavior indicative of wanton cruelty was supported here by eyewitness testimony depicting the victim, forced to disrobe and to identify her heart as the target for defendant who shot her there; the victim, still alive, pleading that she would go back to work as a prostitute and make money for defendant if she were taken to a hospital, and defendant shooting her again in response; and the victim’s continued plea for life after the second shot struck her body, once again thereafter being shot by defendant. The allegedly mitigating factors of supportive parents, work history, previous record, or misconceptions of the victim’s age or her introduction to prostitution have little bearing on the brutality and heinousness of defendant’s acts and afford no basis upon which to interfere with the original sentence imposed.

V

Defendant’s final contention, that his conviction for armed violence based on the underlying felony of unlawful restraint was improper, is conceded to be meritorious by the State. (People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.) Defendant’s armed-violence conviction must be vacated. People v. Alexander (1983), 118 Ill. App. 3d 33, 38, 454 N.E.2d 691.

For the foregoing reasons, the convictions and sentences must be affirmed except for the conviction and sentence for armed violence, which are vacated here. 87 Ill. 2d R 615(b)(1) and (4).

Affirmed in part; vacated in part.

STAMOS, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    BANK OF VIOLA, Plaintiff, v. ROBERT D. STALEY, Defendant-Appellant (The Estate of Clarence W. Staley et al., Defendants-Appellees).
    Third District
    No. 3—84—0444
    Opinion filed March 12, 1985.
    Karl Bredberg, of Aledo, for appellant.
    Robert L. Ellison and William G. Gillies, Jr., both of Klockau, McCarthy, Ellison & Rinden, of Rock Island, for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Mercer County ordering the plaintiff, Bank of Viola, to pay to Loren L. Staley and Richard L. Staley, as co-executors of the estate of Clarence W. Staley, the proceeds of three bank accounts. The accounts were in the names of the appellant, Robert D. Staley, and the decedent, Clarence W. Staley, as joint tenants. The appellant and the executors are sons of the decedent who were interpleaded by the Bank of Viola to settle their claims to the accounts.

The appellant contends that the joint tenancy creates a presumption of a gift from the decedent to the appellant as the surviving joint tenant and that the executor’s evidence failed to rebut the presumption of donative intent. We affirm.

An instrument creating a joint account in accord with statute (111. Rev. Stat. 1981, ch. 76, par. 1 et seq.) establishes a presumption of donative intent which can be overcome only by clear and convincing evidence that a gift was not intended (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587). At trial, the executors argued that the joint accounts were created not as a gift to the appellant, but for the convenience of the decedent, whose health was declining rapidly.

Friends of the decedent testified as to his failing health, memory lapses and his preoccupation with putting his financial affairs in order. Two months before his death and one month before the accounts were transferred, the decedent gave the appellant a power of attorney with respect to all of his bank accounts. This placed the appellant in a position of influence over the decedent and permitted the appellant to provide for decedent’s living expenses.

The evidence shows that one month before the decedent’s death, around the time when the accounts were transferred, the decedent was under heavy medication for pain. When the accounts were transferred, only the appellant signed the joint account agreements on the signature cards. Although the decedent’s signature also appeared on each card, it had been placed there when the accounts were first opened. The decedent never re-signed the cards.

At trial, a bank employee testified that when she asked the decedent whether his checking account was to be changed, the decedent responded, “No, I just want Robert to have the savings and the C.D.” On cross-examination, the employee admitted having stated in a discovery deposition that it was the appellant who had answered by saying, “No, I just want the savings and certificates.”

The following day, the decedent and the appellant returned to the bank and the appellant asked a bank employee to add language to the signature cards creating a right of survivorship. The decedent retained the passbooks.

The total value of the accounts is $46,917.53. The rest of the decedent’s estate is worth approximately $32,000. This discrepancy in value, along with the fact that the decedent retained the passbooks, indicate that the accounts were not created with donative intent. (In re Estate of Guzak (1979), 69 Ill. App. 3d 552.) Although retention of the passbook and the discrepancy in values alone are not clear and convincing evidence of a lack of donative intent, we believe that the record as a whole clearly and convincingly rebuts the presumption of donative intent. The circumstances surrounding the transfer of the accounts indicate that the joint tenancy was created at the appellant’s direction and that the decedent may not have fully understood the nature of the transaction. Considering the state of decedent’s health, his silent and passive acquiescence to the transfer, the appellant’s position of influence and the decedent’s mental state, it is clear that the joint accounts were established for the convenience of the decedent and were not intended as a gift to the appellant.

A final issue to be resolved is whether the testimony of a witness for the executors was barred by the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201). The wife of one of the executor’s brothers was permitted to testify as to conversations she had with the decedent which were relevant to his mental capacity. The Dead Man’s Act applies to cases where the representative of a decedent is suing or defending and prohibits an adverse party or an interested party from testifying on his own behalf concerning a conversation with the deceased. Here, the executors are defending as the decedent’s representatives. The witness is an interested party because she is the spouse of one who is related to the decedent and who stands to benefit from the estate. However, the witness was not called to testify on her own behalf but was called in support of the estate’s claim to the accounts. Hence, she testified on behalf of the estate. Such testimony is not barred by the Act.

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

Affirmed.

SCOTT and WOMBACHER, JJ., concur.


author: PRESIDING JUSTICE WHITE

text:
    ELAINE PENKAVA, Plaintiff-Appellant, v. FRANCIS KASBOHM, Adm’r of the Estate of Dr. George Rezek, Deceased, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 84—892
    Opinion filed February 27, 1985.

      Scott D. Hammer, of Fraterrigo, Best & Beranek, of Chicago, for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Michael C. Kominiarek, Russell P. Veldenz, and Zane D. Smith, of counsel), for appellee Francis Kasbohm.
    Cassiday, Schade & door, of Chicago (Bradford D. Roth and Bernice Jacobs, of counsel), for other appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

On February 10, 1983, plaintiff, Elaine Penkava, instituted the present action for medical malpractice against defendants, Francis Kasbohm, administrator of the estate of Dr. George Rezek, deceased, Northwest Hospital, and Sandra Hon, a registered nurse at Northwest Hospital.

Plaintiff’s amended complaint alleged that: (1) on May 22, 1975, Dr. George Rezek, assisted by registered nurses Wanda Klas, Sandra Hon and E. Kim, performed a total hysterectomy on plaintiff at Northwest Hospital; (2) during the course of surgery two foreign objects, one plastic and one metallic, were introduced and allowed to remain in plaintiff’s body; (3) following surgery defendants failed to advise plaintiff that said objects were left in her body, and (4) plaintiff discovered the presence of the objects in October 1982, when plaintiff became ill due to the formation of a large abdominal mass around the foreign objects.

Plaintiff’s amended complaint was dismissed by the circuit court of Cook County pursuant to section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). We first consider the propriety of the dismissal of plaintiff’s claims against Northwest Hospital and the estate of Dr. Rezek.

Section 21.1 of the Limitations Act provides:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, 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.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 83, par. 22.1)

Plaintiff instituted the present action for medical malpractice on February 10, 1983, more than seven years after the foreign objects were allegedly introduced and allowed to remain in her body.

Section 21.1 was amended in 1976 to provide a four-year limitations period for medical malpractice actions. Plaintiff maintains that section 21.1 should not be applied retroactively to bar her cause of action. Prior to the 1976 amendment, the period of limitations for medical malpractice actions based upon the introduction of foreign objects into a patient’s body during the course of any treatment or operation was 10 years. An amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 230, 447 N.E.2d 408; Anderson v. Wagner (1979), 79 Ill. 2d 295, 323, 402 N.E.2d 560.) The amendment to section 21.1 shortening the period of limitations to foui; years became effective on September 19, 1976. We therefore determine whether plaintiff had a reasonable time after September 19,1976, in which to bring her cause of action.

The foreign objects were allegedly introduced into plaintiff’s body during the course of surgery on May 22, 1975. Applying the four-year limitations period to that date, plaintiff had until May 22, 1979, to bring her action.

We find that plaintiff had a reasonable time after September 19, 1976, in which to bring her action. (See Anderson v. Wagner (1979), 79 Ill. 2d 295 (eight-month period held reasonable); Burgdorff v. Siqueira (1982), 109 Ill. App. 3d 493, 440 N.E.2d 920 (91/2-month period reasonable); Baker v. Allen (1982), 104 Ill. App. 3d 1055, 433 N.E.2d 1032 (eight-month period reasonable).) Accordingly, the amendment to section 21.1 may be applied retroactively to bar plaintiff’s cause of action.

Plaintiff maintains that retroactive application of section 21.1 to bar her cause of action deprives her of property without due process of law. We reject this argument in light of our supreme court’s holding in Anderson that retroactive application of section 21.1 is not violative of due process. The court reasoned:

“ ‘Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment.’ [Citation.]” (.Anderson v. Wagner (1979), 79 Ill. 2d 295, 311.)

Further:

“[T]he reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. We have noted above that various reports, commissions, and authors recommended that the ‘long tail’ exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. The 4-year limit of our present statute follows the recommendations of the Medical Injury Reparations Commission contained in its report to the Governor and the 79th General Assembly cited above. This recommendation was made following extensive hearings by the Commission. Our 4-year time limit is also within the general area of limits that had been set by other States. Some are shorter than ours, and some are longer. It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.” Anderson v. Wagner (1979), 79 Ill. 2d 295, 312.

Plaintiff next maintains that her action was timely under the discovery rule. The discovery rule provides that a party has two years to file an action measured from the date that the party knows or reasonably should have known both that he suffers an injury and that it was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Smith v. Kurtzman (1982), 106 Ill. App. 3d 712, 714, 436 N.E.2d 1.) In the context of a medical malpractice action, however, that rule is circumscribed by the outside four-year limitations provision of section 21.1. (Smith v. Kurtzman (1982), 106 Ill. App. 3d 712, 714.) A late discovery of her injury will not avail plaintiff where her action was filed after expiration of the four-year limitations period.

We conclude that plaintiff’s claims against Northwest Hospital and the estate of Dr. Rezek are barred by section 21.1 of the Limitations Act.

We next consider the propriety of dismissal of plaintiff’s claim against Sandra Hon, a registered nurse at Northwest Hospital. Plaintiff contends that nurses are not included within the scope of section 21.1 and thus expiration of the four-year limitations period of that section does not bar her action against Nurse Hon. We agree. Section 21.1 provides:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State *** shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury or death ***.”

Nurse Hon is neither a physician nor a hospital; consequently, plaintiffs claim against Nurse Hon is not covered by the limitations period of section 21.1.

Nurse Hon argues that “hospitals are, by their very nature, dependent on nurses and other medical personnel to carry out their policies, procedures and daily affairs in caring for their patients.” Nurse Hon concludes that the term “hospital” should be understood to include the nurses who staff it. We disagree. Section 21.1 was amended in 1983 to read:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State *** shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury or death ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 110, par. 13-212.)

Section 21.1 would not have been amended to include registered nurses were nurses encompassed within the meaning of the term “hospital.” Our reading of section 21.1 is supported by our supreme court in Anderson. The court, in its review of statutes of limitations pertaining to medical malpractice actions, observed:

“The various statutes differ in both length of time within which suit must be filed and the types of medical personnel or entities affected by the statute. A number of statutes apply to all ‘health care providers,’ comprehensively covering all medical malpractice actions. *** Other statutes attempt to enumerate specific groups of medical personnel or facilities; although not applying to all ‘health care providers’ or health facilities, they, nonetheless, cover a broad spectrum. *** However, another group of statutes provides protection to a very limited group of medical personnel or facilities and usually excludes nurses and a substantial body of medical personnel and health-care facilities that could be involved in malpractice litigation. The Illinois statute falls into this group. *** Protection is afforded by our statute only to physicians and hospitals.” Anderson v. Wagner (1979), 79 Ill. 2d 295, 308-10.

We conclude that plaintiffs claim against Nurse Hon is not barred by the limitations period of section 21.1.

Section 21.1 being an exception to the personal injury statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 15), we next determine whether plaintiff’s claim is barred by that statute. The personal injury statute of limitations provides:

“Actions for damages for an injury to the person *** shall be commenced within two years next after the cause of action accrued.” (Ill. Rev. Stat. 1977, ch. 83, par. 15.)

Nurse Hon contends that plaintiff’s cause of action accrued on the date of surgery, and therefore plaintiff’s claim was barred on May 22, 1977. We disagree. We are of the opinion that the present case is appropriate for application of the discovery rule which allows a party to sue within the statutory period computed from the time the party knows or reasonably should have known both that an injury occurred and that it was wrongfully caused. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156; and see Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40, 262 N.E.2d 450.) We note that, in the present case, the passage of time has done little to increase the problems of proof and that such problems are outweighed by the hardships to this plaintiff. Rozny v. Marnul (1969), 43 Ill. 2d 54, 70, 250 N.E.2d 656.

The question of when a party knew or reasonably should have known both of an injury and its wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.) At this stage of the pleadings we cannot determine whether the parties genuinely dispute the date when plaintiff knew or reasonably should have known of her injury. We therefore remand the matter for proceedings consistent with this opinion.

For the aforementioned reasons, the order of the circuit court of Cook County dismissing plaintiff’s complaint is affirmed as to the claims against Northwest Hospital and the estate of Dr. Rezek, and reversed and remanded as to the claims against Nurse Hon.

Affirmed in part; reversed and remanded in part.

McNAMARA and McGILLICUDDY, JJ., concur.