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    EMERSON LYLE, Plaintiff-Appellant, v. JOE SESTER, Defendant-Appellee.
    Second District
    Nos. 81-182, 81-307 cons.
    Opinion filed December 31, 1981.

      John P. Callahan, of Geneva, for appellant.
    William R. Ketcham, of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, of Elgin, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The plaintiff, Emerson Lyle, brought an action under the Structural Work A.ct (Act) (Ill. Rev. Stat. 1977, ch. 48, pars. 60-69) for injuries he sustained on August 16, 1978, when the scaffolding upon which he was working collapsed while he was framing the home of the defendant, Joe Sester. The court denied the defendant’s motion for a directed verdict at the close of the plaintiff’s case and similarly denied both parties’ motions for directed verdicts at the close of all the evidence. The questions of liability and damages under the Act were submitted to the jury, which rendered a verdict for the plaintiff and against the defendant in the súm of $15,000. The court then entered judgment on the verdict.

Both parties have perfected separate appeals, which have been consolidated for appellate review. On appeal, the plaintiff first contends that certain comments which defense counsel made during closing argument implied that the defendant was not insured and were prejudicial to the plaintiff on the issue of damages. Secondly, the plaintiff asserts that the verdict of the jury was palpably inadequate under the facts of this case and a new trial should be granted on the issue of damages. On the other hand, the defendant maintains on review that liability was improperly imposed upon him because he did not “have charge of” the work and was not guilty of a “wilful violation” of the Act’s provisions as those terms are used in section 9 of the Act (Ill. Rev. Stat. 1977, eh. 48, par. 69). Accordingly, he asserts that the trial court erred by not directing a verdict for him or entering a judgment notwithstanding the verdict in his favor as requested in his post-trial motion.

The testimony in this cause reveals that the defendant hired his brother, Gayle Sester, and the plaintiff, both of whom were journeymen carpenters, to frame the house which defendant was having constructed. When completed, the house would serve as the defendant’s residence. The carpenters were hired to construct the floor, exterior walls, and the roof of the structure. They were not involved with either the excavation and laying of the foundation or the concrete, brick, and plasterboard work, all of which the defendant hired someone else to perform.

The plaintiff, whom the defendant paid on a weekly basis, related that he knew the defendant was not a carpenter and that the defendant was relying on his expertise as a carpenter. He explained that the defendant appeared at the job site quite often, either in the morning, at noon, or after he finished working for the telephone company. In July of 1978, the defendant visited the work site almost daily. The defendant’s visits in the morning and at noon were confined to observing how the work was proceeding. When the defendant worked on the house at night and on the weekends, however, he helped the carpenters by nailing boards together for them. When the defendant came to the job site to help in the work, he sought the plaintiff’s advice regarding what work he could accomplish without getting himself in trouble or getting in the way of the carpenters. The defendant never interfered with the plaintiff’s work. Furthermore, the plaintiff knew what framing work had to be done and went ahead and did it. The defendant did not instruct him regarding how to do the work; did not tell him what tools and materials to use or what hours to work; and did not direct the order or manner in which the work was to proceed. The plaintiff supplied his own tools, and he and the other carpenter set their own hours.

The plaintiff further testified that he owned four blue brackets which the carpenters employed to support the scaffolding that they used while framing the house. The metal brackets were affixed to the wall studs by 16-penny nails which were nailed through the holes in the brackets. The nail holes on these brackets had notches to catch or secure the heads of the nails.

In addition to the blue brackets, the carpenters used a red bracket on the day in question to help secure the scaffolding to the north wall of the house. This bracket was also fastened by the use of 16-penny nails. The defendant purchased the red bracket, which the plaintiff believed was inferior in quality to the blue ones. According to the plaintiff, the red bracket was not as heavy as the blue brackets and had an extremely large nail hole at the top; this large hole, however, did contain a notch similar to those on the blue brackets. The plaintiff, who had seen such red brackets used on other jobs, recognized the difference in construction between the two types of brackets before they were affixed to the studs. The defendant’s brother nailed the red bracket to the wall stud. When the defendant first brought the red bracket to the job site, the plaintiff remarked that it was not as good as the blue brackets. In addition, the two carpenters expressed some concern among themselves regarding the use of the red bracket.

The plaintiff also stated that he did not get on a scaffold unless he was satisfied that it was safe, but admitted that he did not check the brackets before he stepped onto the scaffold on the day in question. If he would have inspected the red bracket to ascertain if it was properly fastened to the stud, he would have known what to look for. The plaintiff could not recall whether the defendant had anything to say about the use of the red bracket, but stated that he had never asked the defendant whether he (the plaintiff) should use the red bracket. He acknowledged, however, that the defendant had never told the carpenters where to use the scaffold and had not helped them put up the scaffold.

On August 16,1978, the defendant’s brother, Gayle Sester, nailed the five brackets to the studs on the north wall of the partially-constructed building. In particular, he placed a 16-penny nail in each small hole at the bottom of the red bracket and at least six of those nails in the larger hole at the top of the bracket. Once the scaffolding was erected, the carpenters stepped onto it and began to work alongside each other. The scaffold suddenly collapsed and both men fell 16 feet to the ground. The red bracket also fell to the ground while the nails which had been placed in the bracket’s top hole remained in the stud. The four blue brackets, however, stayed in place. Gayle Sester concluded that the top hole had been too large for the cluster of nails and the bracket had pulled over the top of those nails. Both carpenters stated that, in retrospect, a lag bolt should have been used to secure the red bracket to the wall stud.

Gayle Sester stated that the defendant was the general contractor on the job and usually came to the job site in the evenings to inspect the work which had been done during the day. While the defendant was not a carpenter and relied on the carpenter’s expertise, he nonetheless helped with the carpentry work. The defendant did the wiring and the plumbing work on the house. According to the witness, the defendant had never before attempted to build a house and had not worked for anybody as a carpenter, although he had some knowledge in the field of carpentry and had done some carpentry work on his own. Gayle and the plaintiff directed the defendant to purchase the red bracket involved in the accident.

Gayle did not believe his brother had any experience with or expertise concerning the construction or use of scaffolds and had never observed the defendant put up a scaffold. In addition, the defendant did not put up the scaffold in question; did not tell the carpenters how to construct or secure the scaffold; and did not inform them how to carry out the construction work. According to Gayle Sester, both he and the plaintiff, as journeymen carpenters, knew how to construct a scaffold and what to look for when building it, but the defendant, as a layman, did not have sufficient knowledge to know what to look for if he attempted to ascertain whether the brackets had been installed properly. Gayle was satisfied that the scaffold was safe before he got onto it.

David Aldridge, a journeyman carpenter, stated that the blue brackets were adequately secured by the use of 16-penny nails, because these brackets were able to slip onto the heads of the nails. By contrast, however, the red bracket should have been secured by something that had a head larger than a 16-penny nail, such as a lag bolt. In his opinion, a cluster of 16-penny nails placed in the top hole of the red bracket would be inadequate to support the bracket. He also rendered his professional opinion that a person who was not trained as a journeyman carpenter and who did not have the expertise of an experienced carpenter would not know what to look for in determining whether a support bracket had been installed properly and would not appreciate the effect of putting a cluster of nails into the large hole in the top of the red support bracket.

The defendant, who worked as a telephone switchman, related that he was not a carpenter, had not received any training as such, and had never worked for anybody in that capacity. He bought the original plans for the house, made changes in them, and designed the house. He wired the house and installed the plumbing himself, but hired others to do the rest of the work. Never having built or framed a house before, he. hired the carpenters to frame the house. He visited the job site almost daily to see how the work was progressing. He had the right to change things if they were not constructed in accordance with the plans, although there never was anything that needed to be changed.

In the evenings he helped the plaintiff and Gayle with the carpentry work, but the carpenters would tell him where they needed him. He asked the plaintiff’s advice regarding how things should be done, but the plaintiff never asked him for counsel regarding the performance of the carpentry work. In addition, the defendant did not tell the carpenters how or the order in which they were to perform their work; did not set the hours they were to work or assign them daily tasks; and did not tell the carpenters, who supplied their own tools, which tools to use or how to use them. He relied on their expertise as carpenters and never had occasion to refuse them any materials that they requested.

Furthermore, defendant had no experience in erecting scaffolds, did not know how to do so, and did not direct the use of the scaffolding used at the work site. Similarly, he did not inspect the scaffolding on this job or any other job and would not have known what to look for during such an inspection. He never stepped onto the scaffold in question, took no part in erecting it, and never saw it up on the north wall of the house before it collapsed.

The defendant bought the red bracket in question at the request of his brother Gayle two days before the accident. He had had no opportunity to use wall brackets and did not know the difference between the two different types of brackets used to fasten the scaffold, except that the red bracket was smaller than the blue one. When called as a section 60 witness, he stated that he did not know how or where the brackets should be installed or fastened to the wall. However, during cross-examination when he testified as his own witness, he admitted he knew how the blue brackets had been attached to the east wall because he had observed them there when he was on the scaffold helping the carpenters work. He could not remember, however, whether he had helped fasten the blue brackets to any of the walls. When he procured the red bracket, he did not notice the type of hole at the top of it. While admitting that the carpenters had made uncomplimentary comments regarding the'red bracket he had given them, he could not remember the substance of the remarks. Lastly, he was not present at the job site when the accident occurred.

In his cross-appeal the defendant contends that the trial court improperly denied his motions for a directed verdict and judgment notwithstanding the verdict because he (1) did not “have charge of” the particular operations which caused plaintiff’s injuries and (2) did not commit a “wilful violation” of the Act’s provisions governing the safe erection of the scaffolds.

As this court has recently commented, the goal of the Act is to provide workers in extrahazardous occupations with a safe place to work, and the courts will construe the Act liberally to carry out this purpose. (Crist v. Debron Corp. (1981), 96 Ill. App. 3d 668, 671; Hernandez v. Power Construction Co. (1976), 43 Ill. App. 3d 860, 865-66, aff'd (1978), 73 Ill. 2d 90.) The plaintiff, however, must establish an actual violation of the Act before he can recover. Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393.

Section 9 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 69) places civil liability for “wilful violations” of its provisions on any owner “having charge of” the erection of the building at the time of the plaintiff’s injury. (Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill. App. 3d 416, 419.) Thus, before civil liability can arise under the Act, the plaintiff must prove both that the defendant was in charge of the work and committed a wilful violation. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 574; Alfano v. Board of Trade (1979), 76 Ill. App. 3d 248, 250; Moore v. Clearing Industrial District, Inc. (1978), 64 Ill. App. 3d 391, 395-96; Getz v. Del E. Webb Corp. (1976), 38 Ill. App. 3d 880, 886.) It is well established that these issues are generally questions of fact to be resolved by the factfinder (Winter v. Davis (1980), 85 Ill. App. 3d 912, 915 (charge); Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App. 3d 526, 528 (wilful)), but the trial court may grant a directed verdict on these issues when there is insufficient evidence to create a factual question (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 9 (charge); see Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008, 1015 (wilful)). Another rule of long standing in this State is that motions for a directed verdict and judgment n.o.v. will not be granted unless the totality of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 8.) Under the Pedrick rule, then, the defendant is not entitled to a directed verdict or judgment notwithstanding the verdict if there is competent and •material evidence in the record that he had charge of the work and wilfully violated the Act’s provisions in a manner which contributed to the plaintiff’s injuries. See Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 572.

A wilful violation of the Act occurs when the owner knows á dangerous condition exists on a scaffold or, by the exercise of reasonable care, could have discovered the existence of such a dangerous condition. Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App. 3d 526, 528; Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008, 1015; Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 395-96; Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App. 3d 773, 775-76; Hernandez v. Power Construction Co. (1976), 43 Ill. App. 3d 860, 867, aff'd (1978), 73 Ill. 2d 90.

The cases cited above, among others, have delineated general guidelines regarding what evidence is sufficient to establish that the defendant has not met the Pedrick standard on the issue of wilful violation. For example, in Ewert the court concluded that a directed verdict was properly denied the defendant where (1) the industry safety standards recommended the use of a larger size anchor; (2) the defendant had the larger size on most of its windows; (3) the difference between the two types of anchors was apparent to the naked eye; (4) the defendant had inspected the building prior to purchasing it and had a maintenance department to supervise the repairs of the building; and (5) the defendant maintained it did not inspect the outside of the building and was unaware some of the anchors were undersize. (84 Ill. App. 3d 1008, 1015.) Again, in Kjellesvik a directed verdict and judgment n.o.v. were correctly denied because the absence of guardrails required under the Act was known to the defendant, who had field engineers at the work site prior to the accident. (73 Ill. App. 3d 773, 776.) Similarly, the defendant was not entitled to a directed verdict in Moore v. Clearing Industrial District, Inc. (1978), 64 Ill. App. 3d 391, 397, where the absence of guardrails and the scaffold’s failure to extend the full width of the work area could have been determined at a glance. Also, the defendant, who made regular inspections and was aware of every stage of the work, could have discovered the dangerous condition in the scaffold had its inspector visited the site to examine progress on the wall. In Hernandez, the trial court incorrectly directed a verdict in favor of a general contractor which had overall supervision of the construction project, had the responsibility to see that all scaffolding was properly erected and fastened and that work conditions were safe each day, had inspected the scaffold when it was originally constructed, and would point out any glaring errors he observed. (43 Ill. App. 3d 860, 867-68.) The plaintiff in Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 335-36, presented sufficient evidence on the wilfulness issue to make it error for the trial court to grant the defendant a judgment n.o.v. where the record showed that the “cherry pickers” were used in a dangerous manner and had defects, their unsafe use was discussed at a safety meeting, and the defendant’s field engineers were regularly on the premises. Of a similar nature are Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App. 3d 526, 529, and Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 516, cases in which the jury was correct in finding a wilful violation of the Act. In Katz, the fact that the scaffold was insufficiently braced should have been apparent to the defendant-general contractor upon general inspection; also, an agent of the defendant was present shortly before the accident, and the scaffold shook when he touched it. The defendant in Burke had knowledge of the use of the crane near the power lines, and its employees, who were monitoring the project at the time of the accident, knew of the danger and did nothing to alleviate the hazard.

When read together, the above cases reveal that a defendant fails to satisfy the Pedrick rule where there is competent evidence that the dangerous condition is apparent to or readily discoverable by the defendant or its representatives, or where the defendant either has overall supervision of the construction project and the responsibility to see that all scaffolding is assembled and fastened properly or fails to comply with well-known industry safety standards.

In the present case, the undisputed testimony established that the defendant, • although having some basic knowledge in the field of carpentry, was not a journeyman carpenter; had no experience in erecting scaffolds; did not know how to do so; did not direct the use of the scaffold employed at the work site; never stepped onto the scaffold used on the north wall; took no part in erecting it; did not see it up on the north wall of the structure before the scaffold collapsed; did not affix the red bracket to the wall stud; and was not present at the job site at the time of the accident. Similarly, the defendant stated he would not have known what to look for during an inspection of the scaffold to check for unsafe conditions. This view was corroborated by the testimony of two journeymen carpenters, witnesses for the plaintiff, who gave their opinions that the defendant, as a layman, did not possess sufficient knowledge to know what to look for if he had attempted to ascertain whether the support brackets had been installed properly and would not appreciate the effect of placing a group of 16-penny nails into the large hole at the top of the red support bracket. In addition, the defendant did not know the difference between the two different types of brackets used to secure the scaffold to the wall, except that the red bracket was smaller than the blue one. By contrast, however, the plaintiff, who had seen similar red brackets used on other construction projects, recognized the difference in construction between the two types of brackets before they were affixed' to the wall studs. Also, the. two journeymen carpenters whom the defendant employed stated that, in hindsight, they should have secured the red bracket with a lag bolt.

Although the defendant admitted that he had been on a scaffold earlier during the work on the house and knew how the blue brackets were fastened to the studs, this evidence alone does not indicate that the defendant knew or, in the exercise of reasonable care, should have known of the unsafe manner in which the red bracket was fastened to the north wall. Apparently, the defendant did not know, prior to the accident, the manner by which the red bracket was affixed to the wall. Furthermore, even if he had been aware of how it was secured, this fact, by itself, would be insufficient to demonstrate that he should have known that it was fastened improperly, given both his lack of expertise and the fact that the blue brackets were also secured by the use of 16-penny nails. While the defendant testified that the carpenters had made uncomplimentary comments regarding the red bracket, and the plaintiff related that he had remarked, when the defendant first brought the bracket to the job site, that it was not as good as the blue brackets, there is no evidence in the record that the carpenters either informed the defendant or even suggested or intimated to him that the red support bracket was defective, inadequate or unsafe for the job, or otherwise inappropriate for the purpose of securing a scaffold. Rather, Gayle Sester was satisfied that the scaffold was safe before he got onto it, and the plaintiff stated that he did not stand on a scaffold unless he was certain that it was safe, although he did not inspect the brackets before he stepped onto the scaffold on the day in question.

The above evidence, when measured against the Pedrick standard and the principles of law governing liability under the Act for a wilful violation, causes us to conclude that the defendant was entitled to a directed verdict on this issue. The evidence overwhelmingly demonstrated, first, that the defendant did not know of the dangerous manner in which the scaffold was secured to the wall studs and, second, that he could not, by the exercise of reasonable care, have discovered the presence of the dangerous condition. To find a wilful violation here would place a heavy burden on a residential owner, such as the defendant, who hires ah independent contractor to work on his house. In effect, this court would be placing on the defendant an affirmative duty or obligation to inspect scaffolding, or have it inspected, so as to avoid possible civil liability. In the vast majority of cases, as here, residential owners lack the requisite knowledge and skill that is essential to construction operations and, accordingly, cannot be expected to enforce safety provisions about which they have no knowledge or do not understand; thus, they must rely, in appropriate circumstances, upon independent contractors, who are knowledgeable in the building trades, to perform their work properly and in a safe manner. See Comment, 1975 Ill. L.F. 393, 406-07; Buehler v. Toynan Construction Co. (1972), 52 Ill. 2d 214, 216-17.

With respect to the second issue which the defendant raises in his cross-appeal, it has been pointed out, and correctly so, that the statutory “having charge of” language has received many and sometimes ambiguous interpretations. (Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 1140, citing Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481.) Recently, this court has had occasion to review much of the jurisprudence governing a determination of whether a defendant had charge of the work under the Act. (See Crist v. Debron Corp. (1981), 96 Ill. App. 3d 668; Banwart v. Okesson (1980), 83 Ill. App. 3d 222; Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill. App. 3d 416.) Also, a discussion of recent supreme court cases which have addressed this issue appears in Greenstreet v. Deere & Co. (1980), 81 Ill. App. 3d 508, 513-16.

The phrase “having charge of” has not been defined in specific terms by Illinois courts, but rather has been referred to as a term of common usage and understanding. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323; Gruszeczki v. Acme-Cleveland Corp. (1979), 70 Ill. App. 3d 476, 480.) However, the court in Larson rejected the argument that the exercise of supervision and control of the work, or the right to do so, are essential ingredients for having charge; while they may be factors bearing on the ultimate question, they are not necessary or conclusive factors. At the same time the court stressed that “an owner must have some direct connection with the operations, over and above mere ownership or the employment of an independent contractor” before he could be found to be in charge of the work. (33 Ill. 2d 316, 322.) The Act, however, does not permit an owner who had control to escape liability because he has hired an independent contractor. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1960), 25 Ill. App. 2d 272, 283, aff'd (1961), 22 Ill. 2d 305.) In the final analysis, the question of whether an owner had charge involves an assessment of the totality of the circumstances and is determined not only from his contractual obligations but also from the surrounding circumstances and the role he actually assumed. Winter v. Davis (1980), 85 Ill. App. 3d 912, 916, and cases cited therein; Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 9-10; see Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 1139-40.

The courts have identified a number of factors which should be considered in determining whether the totality of the circumstances establishes that a party had charge of the work, including but not limited to: (1) supervision and control of the work, or the retention of the right to supervise and control it; (2) constant participation in ongoing activities at the construction site; (3) supervision and coordination of subcontractors; (4) responsibility for taking safety precautions at the job site; (5) authority to issue change orders; and (6) the right to stop the work. (Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 1147; Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 142, and cases cited therein.) In addition, the courts also consider ownership of the equipment used at the job site as well as the defendant’s familiarity with construction customs and practices. (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 10.) Another relevant consideration is whether the defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Winter v. Davis (1980), 85 Ill. App. 3d 912, 917.

Decisions addressing the circumstances under which a factual question is presented regarding whether a defendant owner has charge of the work are legion. For example, in Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 226-27, this court upheld the denial of the defendant’s motion for judgment n.o.v., holding that the defendant owner had charge of the work where he provided the scaffolding, assisted in assembling it, instructed the workers where to place it, and attempted to provide additional instructions to the workers. The defendant owner in Moore v. Clearing Industrial District, Inc. (1978), 64 Ill. App. 3d 391, 396 was not entitled to a directed verdict because it had charge of the work by virtue of its frequent inspections, the right to change work orders, the right to remedy deficiencies in the contractor’s performance and to terminate the contractor’s services for violation of its contract, which included requirements for compliance with applicable safety laws. The court concluded that the defendant’s influence on job site safety procedures was apparent.

In contrast to the above cases are Winter v. Davis (1980), 85 Ill. App. 3d 912, and Melvin v. Thompson (1963), 39 Ill. App. 2d 413; this latter case was discussed at length and distinguished in Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 225-26. The court in Winter v. Davis upheld the trial court’s granting of a directed verdict in favor of the defendant homeowner on the issue of having charge of thé work, while the court in Melvin v. Thompson affirmed the trial court’s award of summary judgment for the defendant owner on this question. The facts of the present case are most closely analogous to those presented to the court in Winter v. Davis. In some regards, however, the facts of this case are more compelling than those in Davis. One distinguishing factor, though, is that here, unlike the situation in Davis, the defendant was frequently present during the course of the work and participated to a limited extent in the framing activities at the job site, although not in a supervisory capacity. Without attempting to explicate here the facts of Winter v. Davis and Melvin v. Thompson, we say that the present case is closer to the situations involved in those cases than to the facts presented in Banwart v. Okesson and Moore v. Clearing Industrial District, Inc.

It is undisputed in the present case that the defendant, who hired independent contractors to frame his house, did not exercise supervision or control over the framing work and did not retain the right to do so. In addition, he did not direct the carpenters regarding the manner or order in which they should perform their work. As in Winter v. Davis, the plaintiff and the other carpenter here enjoyed a tremendous amount of autonomy on the job. Furthermore, defendant had no express responsibility for taking safety precautions at the work site and, due to his lack of expertise or extensive experience in construction matters, was not in a position to assure worker safety or prevent or alleviate either equipment deficiencies or improper work habits. Moreover, the defendant did not supply any of the tools or equipment used in the work, including the scaffold, except for the red bracket. However, this bracket, although smaller than the others, was not defective or inherently unsafe or unsuitable for the task of helping to secure the scaffold to the wall. Rather, it was the manner in which the carpenters affixed it to the wall stud which occasioned the accident. On the other hand, the defendant was present at the work site on a daily basis and also helped in minor ways with the carpentry work, although apparently under the supervision and direction of the carpenters. His main tasks, however, were confined to the electrical and plumbing work. While the defendant did check the progress of the work and had the right to make changes if the work was not constructed in accordance with his wishes, this action or right of action amounted to nothing more than the inherent rights of an owner to observe the course of the work, require contract compliance, and terminate unsatisfactory performance. See Winter v. Davis (1980), 85 Ill. App. 3d 912, 916; Jacobson v. 190 North State Street, Inc. (1971), 2 Ill. App. 3d 256, 260; Melvin v. Thompson (1963), 39 Ill. App. 2d 413, 417-18.

Based on the above evidence, we conclude, relying primarily upon Winter v. Davis, that the defendant was also entitled to a directed verdict or judgment n.o.v. under Pedrick on the “having charge of” the work question.

Since the defendant was entitled to a judgment n.o.v. in his favor, we do not reach the issues raised by the plaintiff concerning damages.

The judgment in favor of plaintiff and against the defendant in the amount of $15,500 is vacated, and judgment is hereby entered in favor of the defendant, and against the plaintiff and defendant shall have judgment for his costs.

Reversed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    ROBERT DUEWEL et al., Plaintiffs, v. LLOIL LAHMAN et al., Defendants-Appellants.—(KATHRYN DUEWEL, Plaintiff-Appellee.)—(CAROL LAHMAN, Plaintiff-Appellee, v. THE COUNTY OF KANE, Defendant-Appellant.— (LLOIL LAHMAN, Plaintiff-Appellant.))
    Second District
    No. 81-144
    Opinion filed December 29,1981.

      Robert Morrow, State’s Attorney, of Geneva (Linda Soreff Siegel, Assistant State’s Attorney, of counsel), for appellant County of Kane.
    George P. Lindner, of Aurora, for appellants Carol and Lloil Lahman.
    John P. Callahan, of Geneva, for appellee Kathryn Duewel.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Robert and Kathryn Duewel were driving north on Randall Road in Kane County about 7 p.m. on August 30, 1978. Lloil and Carol Lahman were driving east on McDonald Road, also in Kane County, at about the same time. Both couples were in their fifties; the weather was sunny and dry. The vehicles driven by the two men collided in the northbound lane of Randall Road where it intersects McDonald, the Duewels’ Mercury striking the right rear side of the Lahmans’ camper/van. The stop sign normally located on McDonald at the southwest corner of the intersection was missing, as was the “Stop Ahead” sign which would have been located on McDonald a distance to the west of the stop sign. The personal injury action brought by the Duewels against Lloil Lahman and the County of Kane, and the cross-claim brought by the Lahmans against the County of Kane were consolidated for trial. Robert Duewel was later allowed to withdraw as a plaintiff. Several amended complaints were filed, and motions to strike and dismiss filed by the county were denied.

A jury awarded judgment for plaintiff Kathryn Duewel against defendants Lahman and the County of Kane in the amount of “$27,500 each.” The jury awarded $10,000 to Carol Lahman against the County of Kane, and $75,000 to Lloil Lahman against the County of Kane. It also answered in the affirmative a special interrogatory on the issue of Lloil Lahman’s contributory negligence. Following post-trial motions, the trial court entered a $55,000 judgment for Kathryn Duewel jointly against defendants Lahman and the County of Kane and a $10,000 judgment for Carol Lahman against the County of Kane. Also,' because a special interrogatory supersedes a general verdict, the trial court vacated the $75,000 judgment for Lloil Lahman against the county. The County of Kane appeals the trial court’s denial of its motions for directed verdicts and judgment n.o.v. and the denial of its motion to strike and dismiss the complaint. Lahman appeals from the jury’s verdicts finding him guilty of negligence and contributory negligence, and from the denial of his post-trial motion.

At the outset we note the comparative negligence doctrine adopted in Illinois in Alvis v. Ribar (1981), 85 Ill. 2d 1 was not applicable to the instant case since the verdicts were returned prior to June 8,1981, which was the effective date of the comparative negligence doctrine.

We now address ourselves to the issues raised in the Lahman appeal. He contends the jury’s verdict against him as a defendant that he was negligent and its finding that he was contributorily negligent as cross-plaintiff were against the manifest weight of the evidence. The evidence was that Lahman was familiar with Randall Road and had even driven on it earlier in the evening. He was not familiar with McDonald Road, however, but testified he felt he was on a preferred highway. The last stop sign for eastbound traffic on McDonald was about 3/2 miles west of Randall Road at Corron Road. Lahman testified he did not recall the stop sign at Corron Road, nor the two stop signs before that one, but his wife testified they stopped for each stop sign. Traffic on several side streets intersecting with McDonald was stop-sign controlled. McDonald was a gravel road at the point Lahman first began traveling eastward on it, but it was paved for the majority of the distance he drove on it. McDonald Road was approximately 20 feet wide; Randall was 24 feet wide, also paved. Lahman testified he saw Randall Road when he was about 100 feet away from the intersection, but that he did not specifically remember physically looking to the left ór right or slowing down as he entered the intersection. He did not see the back of the opposing stop sign on McDonald across Randall Road. His wife testified that after the accident he had stated to a police officer that he was traveling about 55 miles per hour; his own earlier testimony was that he was going 30 to 35 miles per hour before the impact and at the time of the impact. Speed limits on both Randall and McDonald are 55 miles per hour. Neither he nor his wife observed any cars precede the Duewel car through the intersection, although there was testimony that two cars were traveling ahead of the Duewel car on Randall. He was driving a van, which testimony indicated would have placed his line of vision at about 5.54 feet up from the pavement whereas the line of vision in a passenger car is about 3.9 feet above pavement level. There was no evidence of sight obstructions which would have prevented him from seeing oncoming traffic on Randall. No skid marks were found at the accident scene; Mrs. Lahman testified they were about half way across Randall Road when they saw the Duewel car just before the impact.

When encountering an open intersection, a statutory duty is imposed on the driver of the vehicle to the left to yield the right-of-way to the driver on the right. (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—901(a).) This same duty is likewise imposed where the stop sign is missing, thus rendering the intersection an open one. (Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 1036.) Even if Lahman felt that he was on a preferred highway, there was clear testimony he was unfamiliar with that road; he did not know if it was such a highway. Although Lahman did not remember stopping, there was evidence McDonald Road traffic is stopped at three intersections to the west of its intersection with Randall. Although the testimony is not clear on this point, it appears that a number of subdivision streets which intersect McDonald and which were stop-sign controlled were “T” intersections rather than cross intersections. Under the circumstances and pursuant to statute, Lahman should have been prepared to yield to traffic from the right if necessary. The evidence that he did not see the Duewel car until just before it hit his van and the fact that no skid marks were found lead to the conclusion that he did not look to the right as he approached the intersection or that under the circumstances he was traveling too fast when he entered the intersection.

Smith v. Godin (1978), 61 Ill. App. 3d 480, cited by Lahman, is distinguishable. Although the defendant there was found not to be negligent as a matter of law, the evidence was that she had been through the intersection two or three times in the preceding six-month period and she had never observed a stop sign. Also, contrary to the instant facts, both parties in that case testified they kept a proper lookout for other traffic, and there were no inconsistencies in their testimony that they were traveling below the posted speed limit. Lesperance v. Wolff (1979), 79 Ill. App. 3d 136, is also distinguishable. The court there found the jury’s verdict that the plaintiff was contributorily negligent was manifestly unreasonable in view of the fact he would have had only one-to-two seconds to take the evasive action necessary to have avoided the accident. In the instant case, Lahman failed to exercise the necessary reasonable care before there was any need for evasive action. The jury expected Lesperance to exercise an impossible standard of care. Lahman, on the other hand, was only expected to exercise the standard of care of a reasonable person on an unfamiliar road.

We conclude the jury’s findings of negligence and contributory negligence were not against the manifest weight of the evidence.

Lahman next contends the jury’s verdict and answer to the special interrogatory were against the manifest weight of the evidence because his conduct was not the proximate cause of the injuries; rather, it was the failure of the county to replace the stop sign which was the proximate cause. (See Buckley v. City of Chicago (1954), 3 Ill. App. 2d 39, and Johnston v. City of East Moline (1950), 405 Ill. 460, wherein the cities’ negligence in failing to maintain respectively a stop sign and traffic signals was held to be the proximate cause of the plaintiffs’ injuries.) In its appeal, the county also raises the proximate cause issue, contending its action could not have been the proximate cause because it had no duty to the plaintiffs since there was no actual or constructive notice of the defect. See Wilsey v. Schlawin (1976), 35 Ill. App. 3d 892, wherein the court held the evidence failed to establish the public entity had the statutorily required notice, consequently no duty could have been breached, and no liability obtained, therefore the entity’s actions were not the proximate cause.

In the alternative, the county argues that even if it did have a duty to the plaintiffs, its actions were not the proximate cause, but merely created a condition making an injury possible. (See Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, wherein the court held the facts stated in the complaint were insufficient to state a cause of action against the township since its allegedly negligent act merely furnished a condition making the plaintiff’s alleged injuries possible and were not the proximate cause thereof.) The following discussion is a joint consideration of the issue of proximate cause in light of both Lahman’s and the county’s appeal.

In order for a negligent act to be the proximate cause of an injury,

“[t]he injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.” Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380.

The negligence of a defendant will not constitute a proximate cause of a plaintiff’s injuries if some intervening act supersedes the defendant’s negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 111-12.) Stated another way, the intervention independent concurrent or intervening forces will not break the casual connection if the intervention of such forces was itself probable or foreseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381.) There may be more than one proximate cause of an injury. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23.) “Where injury or damage is-caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is the proximate cause of the injury or damage.” Naslund v. Watts (1967), 80 Ill. App. 2d 464, 470.

Our review of the record here causes us to conclude that the negligence of both Lahman and the County of Kane caused the accident, therefore, the negligence of each is the proximate causé. Its so concluding, we necessarily reject the county’s argument that it had no duty because it lacked either actual or constructive notice that the sign was missing in sufficient time to replace it. Its contention in this regard was based on section 3—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 3—102). That section provides in pertinent part:

“(a) * 9 * [A] local public entity 0 0 0 shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time 0 * * to have taken measures to remedy or protect against such condition.
(b) A public entity does not have constructive notice * * * if it establishes either:
(1) The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate * * *; or
(2) The public entity maintained and operated such an inspection system with due care and did not discover the condition.” Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a)(b).

It has been conceded that the county had no actual notice of the defect. The three witnesses who testified they saw the sign down during the day of the accident did not report it. Further, the police activity log for the day before and the day of the accident shows no report of the missing stop sign until 7:47 p.m. when the accident was reported. The County Highway Department was advised, and the sign was replaced at approximately 10 p.m. that evening. Generally, whether a defect has existed a sufficient length of time prior to the injury for the public entity to be deemed to have constructive notice is a question of fact for the jury. Livings v. City of Chicago (1975), 26 Ill. App. 3d 850.

The county argues the evidence failed to show either (1) knowledge of the defect on the part of any county agency that could have been imputed to the county, or (2) failure of the county to exercise reasonable care in inspecting for missing traffic control signs, or (3) knowledge of the defect on the part of the county due to the mere passage of time. The county relies heavily on Wilsey v. Schlawin (1976), 35 Ill. App. 3d 892, in support of its position that the county had no notice of the defect by virtue of mere passage of time and that, as a matter of law, the 8/2 hours the sign was missing was too short a period of time for notice to be imputed. We find Wilsey eminently distinguishable from the case at bar, however. The Wilsey court disregarded evidence in an improperly admitted police report that the stop sign had been knocked down two days before the accident. Thus, the only other evidence of notice was the testimony of the public works superintendent that the sign was up the day before the accident. The court there found:

“On the basis of this testimony, which was unrebutted, we fail to see how the Village knew or should have known that the stop sign was inoperative in sufficient time to take remedial measures.” 35 Ill. App. 3d 892, 896.

Our review of the record in the case at bar shows there was considerably more evidence presented here, not wholly rebutted by the county, which, if believed by the jury, was sufficient to show actual knowledge of the defect on the part of county employees which could thereby be imputed as constructive notice to the county. (See Doyle v. Teas (1843), 5 Ill. 202, 243 (actual notice to an agent is constructive notice to the principal).) One of the witnesses subpoenaed by plaintiff Duewel who testified the sign was missing at about 2 or 3 p.m. on the day of the accident, also testified he saw at least one big tractor mower, possibly more than one, mowing the grass on the shoulder along Randall Road at McDonald. There was also testimony from the County Highway Maintenance foreman that only Kane County was responsible for mowing this area of grass, and that usually four tractor mowers are used when mowing, two mowers on each side of the road. Although the county characterizes the maintenance foreman’s testimony as “completely rebutting” the testimony of this witness, we find the record reflects the foreman s testimony was very general and ambiguous in nature, and conclude that the task of assessing the credibility of the witnesses and the weight to be assigned to their testimony belonged to the jury.

In essence, the foreman’s testimony was that he believed the “second mowing” of the season began on August 9, 1978; that Randall Road is “one of the first roads we mow”; that “Randall Road would be mowed in approximately three or four days after we start mowing”; and that “the only thing we would have [to show whether or not grass was cut on a particular day such as August 30,1978] is our mowing policy” which “is set up with the Conservation Department, and we mow the same roads every year in the—I would say in the same sequence.” In our view, this testimony could easily have been construed by the jury as reflecting the usual or normal procedures adhered to by the county and thus not conclusive on the question of whether the county mowing crew was present at the intersection on the day in question. We believe the evidence was sufficient to allow the jury to conclude that the county had constructive notice of the defect. Further, the evidence justified a finding by the jury that the defect was discovered in sufficient time to allow the county to remedy the defect. The maintenance foreman testified that the highway department employees receive written instructions regarding signs that are down or missing. Under these instructions, the employees are instructed to watch specifically for stop signs that are down and, if one is encountered, to either repair it immediately or wait there and flag traffic until someone can get out with the material to repair the sign. (Emphasis ours.) Thus, the “sufficient time” necessary to remedy the defect, or to prevent injury therefrom, was negligible since immediate repair or at least warning to motorists was possible and, in fact, written highway department policy. Additionally, the county presented evidence showing that the inspection and maintenance work performed by its one-man sign crew in patroling 330 miles of county roads was supplemented by the highway crews, the sheriff’s deputies, environmental and zoning department personnel, all of whom were instructed to be on the watch for signs that were down or missing. Considering this evidence in light of the testimony that Randall Road is the busiest county highway on the west side of the Fox River, that it is used frequently by county vehicles, and that the missing stop sign was undiscovered and unréported for at least 8J2 hours, the jury could well have found the inspection system was reasonably adequate, that the dangerous condition therefore would have been or should have been discovered, and that the failure to so discover the defect was the result of a lack of due care in the operation of the county’s inspection system. After reading the record and viewing the photographs of the intersection, we are of the opinion that the county should have foreseen the failure of Lloil Lahman, without the benefit of the stop sign, to recognize other indications of an approaching hazard. See Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 15.

Such prescience on the part of the county does not, however, relieve Lahman of liability for his own negligence. The fact he did not see the plaintiff’s car until impact and the lack of skid marks at the accident scene indicate he was not aware of, nor was he prepared to yield to, traffic from the right although it was his statutory duty to be thusly aware and prepared at what appeared to be an open intersection. His unfamiliarity with McDonald Road required at least the usual amount of caution, if not more, despite his feeling he was on a “preferred” highway. He had to stop for at least three stop signs while traveling eastward on McDonald before it intersects with Randall Road. Certainly he knew, even if subliminally, that he would eventually encounter Randall Road again, since he had traveled on it earlier on his trip westward. In sum, applying either the manifest weight of the evidence or the Fedrick test, we believe the evidence clearly supported the jury’s verdict that both Lahman and the County of Kane were negligent. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.

Lahman also requires this court to reconsider its position expressed in Jenkins v. Bobrowicz (1981), 97 Ill. App. 3d 526, and, citing the appellate court’s opinion in Albaugh v. Cooley (1980), 88 Ill. App. 3d 320, urges the special interrogatory be set aside inasmuch as it is unconstitutional. Jenkins, decided by this court prior to the supreme court’s review of the appellate decision in Albaugh, found section 65 of the Civil Practice Act was constitutional. (Ill. Rev. Stat. 1979, ch. 110, par. 65.) That section provides:

“§65. Verdict—Special interrogatories. Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to • submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.”

The supreme court’s opinion later issued in Albaugh found it unnecessary to consider the constitutionality of section 65, since it observed it has long held that “ ‘[t]he generally prevailing rule is that an inconsistent special finding controls a general verdict, even in the absence of express statutory provision.’ ” (Albaugh v. Cooley (1981), 87 Ill. 2d 241, 251-52.) No reconsideration of this court’s decision in Jenkins is warranted.

Lahman next asserts the county’s counsel was allowed to improperly ask the deputy who had responded to the accident call whether any tickets were issued as the result of the accident. The record indicates, however, that Lahman did not object to this line of questioning, although plaintiff Duewel did, and the objection was sustained. Further, Lahman’s counsel himself later asked the officer whether he issued a ticket to Lahman in such a manner as to suggest to the jury that a ticket had not been issued. An objection by the county to this question was sustained, however, before the officer actually answered. In our opinion, Lahman has waived this issue due to his failure to object, and no reversible plain error cognizable under Supreme Court Rule 615(a) is apparent. Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).

The jury’s original verdict for Duewel against defendants Lahman and the County of Kane recited judgment was in the amount of “$27,500 each.” This judgment was later modified by the trial court after post-trial motions to $55,000 jointly against the defendants. Lahman argues it is well established that the jury is not to apportion damages between defendants sued jointly. Further, he argues that it is unclear whether the jury meant to award $27,500 or $55,000. Thus, he asserts it was error for the trial court to make the judgment a joint one for $55,000 and that remandment for a new trial is warranted under the authority of Michels v. Bezley (1957), 12 Ill. App. 2d 456, and Stoewsand v. Checker Taxi Co. (1947), 331 Ill. App. 192. Notably, defendant County of Kane does not challenge the modification of the award. Plaintiff Duewel argues the court acted within its authority in entering the joint judgment for $55,000, citing Evans v. Nixon (1974), 16 Ill. App. 3d 312. Although section 50(5) of the Civil Practice Act authorizes the court to correct a jury verdict to conform to its intent (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)), we agree with Lahman’s assertion that the trial judge acted improperly in entering a joint judgment against the defendants for $55,000. The record shows the verdict form signed by the jury read as follows:

“We, the jury, find in favor of the plaintiff KATHRYN DUE-WEL and against both defendants.
We assess plaintiff’s damages in the sum of $27,500 each.”

It thus appears that the jury’s emphasis was not on assessing the plaintiff’s damages but, rather, its emphasis was on the degree of liability of each of the defendants. Such an attempt to apportion was clearly improper. Had the jury not felt compelled sua sponte to apportion the liability between the two defendants, plaintiff’s damages may have been assessed much differently. For this reason, we conclude the cause must be remanded for a redetermination of plaintiff Duewel’s damages.

The county raises a third issue in addition to those discussed above along with the issues raised by Lahman. This is, whether the court erred in denying its motions to strike and dismiss the complaints for their failure to state a cause of action against the county. Its contention in this regard is based on the failure of the complaint to allege filing of the statutorily required notice to the County Superintendent of Highways and the State’s Attorney. (Ill. Rev. Stat. 1979, ch. 121, par. 383.) When the requisite notice is not served, the action is barred. (Ill. Rev. Stat. 1979, ch. 121, par. 384.) If the superintendent cannot be liable, the county cannot be liable:

“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” Ill. Rev. Stat. 1979, ch. 85, par. 2—109.

Plaintiff Duewel counters that the superintendent was not a named defendant, nor is there any statutory requirement that he be named individually in every suit against the county that has to do with the highways. In response, the county argues it is not the failure to name the county superintendent of highways as a defendant that bars the action, it is the failure to serve him with notice that bars the action. The county’s argument is patently without merit. The statute only requires notice when any civil action is about to be commenced “against any County Superintendent of Highways.” (Ill. Rev. Stat. 1979, ch. 121, par. 383.) The instant suit was not filed against the superintendent; it was filed against the county, and the county does not contend that notice to it was in any way deficient.

Accordingly, the judgment of the circuit court of Kane County for Kathryn Duewel jointly against the defendants for $55,000 is reversed and remanded for a redetermination of damages; the judgment for Carol Lahman for $10,000 is affirmed; and the judgment setting aside the $75,000 verdict for Lloil Lahman is affirmed.

Judgment affirmed in part and reversed and remanded in part.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA E. MAKES, Defendant-Appellant.
    Second District
    No. 80-226
    Opinion filed December 31, 1981.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Joshua Sachs, of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel),' for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a jury trial, defendant, Lynda E. Makes, was found guilty of felony theft (Ill. Rev. Stat. 1975, ch. 38, par. 16—1(a)), and sentenced to two years’ imprisonment. Defendant now appeals and alleges that (1) the 30-month delay between her arrest and the State’s filing of an information deprived her of her constitutional right to a speedy trial; (2) the trial court erred in denying her motion to suppress her confession and failed to require production of all material witnesses thereto; and (3) the two-year prison sentence imposed was an abuse of discretion.

As this appeal involves only pretrial and sentencing issues, we summarize just those facts relevant for an understanding of the case. On February 10,1977, defendant was confronted by Officers Velón and Kant of the Glen Ellyn police department at her place of employment, the Du Page Travel Bureau, Inc., on suspicion of theft. After she allegedly admitted her involvement in the theft of money from that travel agency, defendant was arrested, administered Miranda warnings, and taken to the Glen Ellyn police station. At the police station, defendant was questioned further by Officers Kant and Velón. At trial, Officer Velón testified that when questioned, defendant admitted “issuing airline tickets and receiving money for the airline tickets that she had issued, but had not returned the money to Du Page Travel and in fact she had kept the money * * Later on the day of defendant’s arrest, Peggy Malcolm, defendant’s employer at the Du Page Travel Bureau, signed a complaint for theft against defendant. Defendant was released on bond on February 11,1977. At a hearing on March 15,1977, probable cause was found and bond was continued. The record also makes reference to an investigation by the Du Page County grand jury conducted in August and September of 1977, although the details of such investigation are not of record and the defendant was not indicted.

On August 14, 1979, defendant and a co-defendant, who was later severed from this case prior to trial, were charged by information with theft of approximately $15,000 from the Du Page Travel Bureau. Defendant was arraigned on September 17,1979. Several continuances, agreed to by both parties, followed. On January 28, 1980, defendant filed a motion to dismiss the information on speedy trial grounds which was denied by the trial court after hearings consisting of arguments by counsel on January 30, and February 1, 1980. Also, although the court, without a hearing, originally denied defendant’s motion to suppress her confessions filed on February 4,1980, as it was untimely, the court later held a hearing on the “voluntariness” of the confessions on February 7,1980, just prior to trial. The court ruled the statements admissible. Defendant was subsequently found guilty and, following a sentencing hearing, was sentenced to two years in the Department of Corrections.

At trial, the State’s first witness, Peggy Malcolm, testified that she had hired the defendant in August of 1976. Malcolm had performed an audit of the travel bureau’s books and discovered that defendant had issued airline tickets for which the bureau had not received payment. She reported her discovery to the Glen Ellyn police on February 10,1977, and later that day she signed a complaint against defendant for theft. She also testified that on February 17,1977, defendant telephoned her and offered to make restitution.

Officer Robert Velón of the Glen Ellyn police department was the only other witness called by the prosecution. Velón was contacted by Peggy Malcolm on February 10, 1977, and subsequently he and Lieutenant Kant went to the Du Page Travel Bureau in order to speak with the defendant. Defendant admitted her involvement in the theft, was placed under arrest, and was taken to the Glen Ellyn police station where Officers Kant and Velón conducted an interview. Defendant then proceeded to describe the nature of her involvement in the offense. Essentially she admitted she would issue an airline ticket to an individual, receive money for it, and keep the money.

The witnesses for the defense were Harold Rubin, Leslie Lev, and the defendant in her own behalf. Rubin testified that although he did not know the defendant, he had on one occasion purchased two airline tickets from Lev at 6% less than the face value of the tickets. On direct examination of Leslie Lev, Lev invoked his privilege against self-incrimination in response to nearly every question. The trial court later granted the State’s motion to strike the testimony as it was not probative.

Defendant testified that she had met Lev in a lounge in Naperville and he later contacted her and requested that she procure airline tickets for him at a discount. Defendant initially refused but later complied after numerous calls and threats of bodily harm from Lev. Defendant indicated that on several occasions Lev or a companion had struck her. She testified that Lev would pay only a portion of the face value of the ticket and occasionally would not pay anything. Her defense was that she acted under compulsion.

The State recalled Officer Velón as a rebuttal witness. Velón stated that, during his conversation with defendant at the Glen Ellyn police station, she admitted that she had been fired from the Hinsdale Travel Agency “for doing the same thing she had done at the Du Page Travel.”

Defendant first contends that the 30-month delay between her arrest and the filing of the information deprived her of her constitutional right to a speedy trial. In criminal prosecutions, the accused has a constitutional right to a speedy trial. (U.S. Const., amend. VI.) This Federal constitutional right has been made applicable to the States through the due process clause of the fourteenth amendment. (Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988.) We must also note that we are not herein concerned with the Illinois statutory right to a speedy trial since the defendant was not in custody (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(a)), nor did she demand trial (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(b)).

The right to a speedy trial attaches when a criminal prosecution has begun, such as by arrest, on the charge for which the accused is subsequently prosecuted. (Dillingham v. United States (1975), 423 U.S. 64, 46 L. Ed. 2d 205, 96 S. Ct. 303; United States v. Marion (1971), 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455.) In the present case, the defendant complains of a post-arrest, pre-information, delay. In Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, the Supreme Court articulated a four-point balancing test to be applied to determine if the right to a speedy trial has been violated. The court must balance the length of the delay, the reason for the delay, the defendant’s assertion of the right, and prejudice resulting to the defendant from the delay. (407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) The length of the delay is the triggering mechanism; until there is some delay which is presumptively prejudicial, there is no need to inquire into the other factors. (407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) We regard the 30-month delay in the present case sufficiently lengthy to warrant inquiry into the other factors that go into the balancing test. See People v. Harflinger (1977), 49 Ill. App. 3d 31, 34, 363 N.E.2d 875.

The State suggests as a reason for the delay in the present case that there was a grand jury investigation to determine if others might be brought to trial for the same offense and that the State wanted to wait until such time that it felt it could prove its case beyond a reasonable doubt. Our careful examination of the record indicates that subsequent to the defendant’s arrest on February 10, 1977, the grand jury did conduct hearings into this matter in August and September 1977. However, the record is simply devoid of any indication of what caused the subsequent delay to August 14,1979, when the information was filed. Nor is it shown in the record what evidence the State was collecting during this period which necessitated the delay, as the State suggests in its brief. We therefore reject the State’s contentions as having no basis in the record. The State also argues that it had been conducting ongoing plea negotiations with the defendant. While it does appear that plea negotiations were undertaken, this occurred after the 30-month delay and took place between the time of arraignment on September 17, 1979, and the time trial began. Nevertheless, we do not ascribe to the State a deliberate attempt to delay the trial in order to hamper the defense, but rather, it appears to result from the more neutral reason of negligence. Although such negligence is not to be condoned, it is weighed less heavily against the State compared to an intentional delay. (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182; People v. Woods (1979), 78 Ill. App. 3d 431, 437-38, 396 N.E.2d 1204.) While such unexplained lengthy delays are usually counterproductive to our judicial process and have been condemned by reviewing courts (see People v. Joseph (1975), 33 Ill. App. 3d 315, 320, 337 N.E.2d 110; People v. Gray (1972), 7 Ill. App. 3d 526, 532, 288 N.E.2d 26), we must consider that delay as it relates to the other two factors in the balancing test.

The next factor to be given consideration is the defendant’s assertion of his speedy trial right. Defendant made no mention of this right until five months after the information had been filed. The Supreme Court in Barker emphasized the fact that a defendant’s failure to assert the right will make it difficult to prove that he was denied a speedy trial. (407 U.S. 514, 532, 33 L. Ed. 2d 101, 117-18, 92 S. Ct. 2182, 2193.) We do not view defendant’s failure to demand a speedy trial as totally dispositive of the issue here since no information had yet been filed against her, and thus, she could not have been certain that prosecution for the offense was imminent. However, defendant had been arrested and a complaint for theft had been signed by her employer, Peggy Malcolm, on February 10, 1977. On February 15,1977, a preliminary hearing was held and probable cause was found. Defendant did not choose to demand a speedy trial at that time nor at any time thereafter until January 28, 1980. Although the information had not yet been filed, defendant could have demanded a speedy trial as soon as she was placed on bail. (People v. Sharos (1974), 24 Ill. App. 3d 265, 268, 320 N.E.2d 351.) Moreover, the same counsel represented the defendant during this entire period of time, and no request for a speedy trial was made. This can be indicative that the defendant did not want a speedy trial. (See Barker v. Wingo (1972), 407 U.S. 514, 534-36 33 L. Ed. 2d 101, 119-20, 92 S. Ct. 2182, 2194-95.) No question is raised as to the competency of trial counsel. Under these circumstances, although we do not view her failure to demand trial as fatal to her claim, it is a factor to be weighed against her. (People v. McCord (1978), 63 Ill. App. 3d 542, 545-46, 379 N.E.2d 1325; People v. Harflinger (1977), 49 Ill. App. 3d 31, 35-36, 363 N.E.2d 875; People v. Joseph (1975), 33 Ill. App. 3d 315, 320, 337 N.E.2d 110.) Our conclusion that defendant acquiesced in the delay is reinforced by defendant’s express disavowal of the right when later questioned by the presiding judge at her arraignment on September 17, 1979. When asked if she was invoking her speedy trial right then, counsel for defendant responded, “not at this time.”

We next consider whether defendant was prejudiced by the delay. When arguing her motion to dismiss, defendant alleged prejudice in that she was unable to locate a material defense witness, Leslie Lev. This does not concern us on appeal, however, since Lev was ultimately present at defendant’s trial. Defendant now alleges that she was prejudiced in that, during the delay, Lieutenant Kant of the Glen Ellyn police department, a material witness to defendant’s confession, left the State. During the hearings on defendant’s motion to dismiss the information, defendant never raised Kant’s absence as a basis for prejudice. Assuming, arguendo, that this has been properly preserved, there is no showing that Kant’s absence was prejudicial to the defendant. Although we will more fully discuss this later in our opinion as it relates to defendant’s second assertion of error, there is no indication that Kant’s testimony would be favorable to the defendant in her defense. Also, we question whether Kant’s absence from the State at the time of trial is even relevant on this issue since the record indicates that Kant retired from the police force and moved to Florida as early as May of 1977, before most of the complained-of delay had transpired.

The court in Barker stated that prejudice to the defendant should be assessed in light of the interests which the right to a speedy trial was designed to protect, namely: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. (407 U.S. 514, 532, 33 L. Ed. 2d 101, 118, 92 S. Ct. 2182, 2193.) We do not believe that any of these interests are existent under the facts in the present case. Defendant was not incarcerated during the delay; her anxiety, although a very subjective factor, should have been minimal since no information or indictment had been filed; and Lieutenant Kant’s absence did not impair defendant’s case. The absence of a showing of prejudice which was in any way significant in the outcome of this case is a counterbalancing factor which outweighs the deficiency of the 30-month delay. See Barker v. Wingo; People v. Woods (1979), 78 Ill. App. 3d 431, 439, 396 N.E.2d 1204; People v. Neafus (1976), 39 Ill. App. 3d 365, 369, 353 N.E.2d 68; People v. Joseph (1975), 33 Ill. App. 3d 315, 320, 337 N.E.2d 110.

The cases relied upon by defendant, People v. Yaeger (1980), 84 Ill. App. 3d 415, 406 N.E.2d 555, and People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815, are inapposite. While these cases were decided in favor of the defendants on speedy trial violations, they involve a distinctly different problem than the case at bar. In those cases the issue was prejudice caused by a delay from the time of indictment to the time of arrest without notice of the charge to the defendant. Here, we are not faced with that issue as the defendant had notice of her crime on February 10, 1977.

After balancing the four factors articulated in Barker v. Wingo, we find that defendant was not denied her constitutional right to a speedy trial since there was no showing of an intentional delay by the State, defendant made no assertion of her speedy trial right, and the delay did not result in any demonstrated prejudice to the defendant. We are not unmindful or unconcerned about the unexplained 30-month delay here, but upon balancing all the pertinent factors we are convinced that defendant’s constitutional right to a speedy trial was not violated, and that our ruling is consistent with the rationale in similar decisions finding no speedy trial violation. (See People v. Woods (1979), 78 Ill. App. 3d 431, 396 N.E.2d 1204 (27-month delay); People v. McCord (1978), 63 Ill. App. 3d 542, 379 N.E.2d 1325 (30-month delay); People v. Cannes (1978), 61 Ill. App. 3d 865, 378 N.E.2d 552 (19-month delay); People v. Ward (1977), 49 Ill. App. 3d 780, 364 N.E.2d 708 (20-month delay); People v. Harflinger (1977), 49 Ill. App. 3d 31, 363 N.E.2d 875 (34-month delay); People v. Neafus (1976), 39 Ill. App. 3d 365, 353 N.E.2d 68 (26-month delay); People v. Joseph (1975), 33 Ill. App. 3d 315, 337 N.E.2d 110 (28-month delay).) Thus the trial judge did not err in refusing to dismiss the information on this basis.

Defendant next contends that the trial court erred in refusing to suppress her confessions. The only persons present at the time of defendant’s confessions were Officers Kant and Velón of the Glen Ellyn police department. Velón was present and testified at the hearing on the voluntariness of the confession. However, Kant was not available. Although defendant testified that Lieutenant Kant was the only one with her at one point in the travel agency when she alleges certain promises were made to her, it is clear from the record that her actual confessions as testified to by Velón were made when both officers were present.

It is well established that when the voluntary nature of a confession is brought into question by a motion to suppress, it is the duty of the State to produce all material witnesses connected with the taking of the statement or explain their absence. (People v. Harper (1967), 36 Ill. 2d 398, 401, 223 N.E.2d 841; People v. Lewis (1979), 75 Ill. App. 3d 259, 279, 393 N.E.2d 1098.) We believe that Kant’s absence was adequately explained in the present case. Officer Velón testified that Kant had retired from the police force and moved to Florida in May of 1977. The absence from the State of a material witness has been held to be an adequate explanation of that witness’ failure to appear and testify regarding the voluntariness of a confession and not to constitute reversible error. (People v. Carter (1968), 39 Ill. 2d 31, 37, 233 N.E.2d 393; see also People v. Woods (1979), 78 Ill. App. 3d 431, 443-44, 396 N.E.2d 1204.) Also, defendant did not file her motion to suppress until February 4,1980. This and a prior oral motion to suppress were denied without presentation of evidence as they were considered to be untimely since brought on the eve of trial. This can hardly be considered adequate notice to the State in order to make Kant available. The trial date had been set for February 4 and actually began on February 7. The court did allow the motion to suppress to be heard after selection of the jurors and prior to the beginning of the State’s case on February 7. It was at that time that defendant objected to Kant not being present to testify. Under these circumstances, and in view of the nature of the alleged promises as discussed below, we believe that the State adequately fulfilled its obligation in this regard and no reversible error occurred. See In re Lamb (1975), 61 Ill. 2d 383, 391-92, 336 N.E.2d 753; People v. Woods.

Defendant further contends that the trial court erred in not suppressing her confession since testimony at the hearing established that the confession followed a promise of leniency proposed to her by Lieutenant Kant. At the hearing on February 7, 1980, defendant testified that Kant told her “that he would see to—to a fair trial for me if I—if I, you know, if I gave certain information” and “[t]hat things may go easier if I do involve or if I do tell certain happenings and people involved.” Generally, an offer of leniency is a factor to be considered in determining the voluntariness of a confession. (People v. Bell (1977), 50 Ill. App. 3d 82, 88, 365 N.E.2d 203.) However, we do not view these alleged statements as promises of leniency. In People v. Hartgraves (1964), 31 Ill. 2d 375, 202 N.E.2d 33, cert. denied (1965), 380 U.S. 961, 14 L. Ed. 2d 152, 85 S. Ct. 1104, our supreme court ruled that a police officer’s statement to the defendant that “ ‘[i]t would go easier for him in court if he made a statement’ ”, was in no way a direct promise of leniency. The court stated that a mere suggestion of the advisability of making a statement does not in itself render a confession involuntary. (31 Ill. 2d 375, 381, 202 N.E.2d 33.) Although when the involuntariness of a confession is alleged, the burden of proving the opposite is on the State (Ill. Rev. Stat. 1979, ch. 38, par. 114—11(d)), an examination of the transcript of the hearing on this issue indicates that the State carried its burden. Officer Velón testified that the defendant willingly conversed with him after she had been arrested and informed of her Miranda rights. Also, there is no suggestion in the testimony of defendant that the remarks of Lieutenant Kant had induced her in any way into giving her confessions. We agree with the Hartgraves court that a statement that “things may go easier” is not a direct promise of leniency. Also, we do not view Kant’s promise of a fair trial to be coercive as to make the confession involuntary or the product of an overborne will. The trial court’s determination as to the voluntariness of a confession will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) Viewing the totality of the circumstances in this case, we cannot say that the trial court’s decision in this regard was manifestly erroneous.

Finally, defendant contends that the trial court abused its discretion by imposing a sentence of two years in the Department of Corrections. At defendant’s sentencing hearing held on March 19, 1980, she elected to be sentenced under the current sentencing statute rather than the one which was in effect at the time of the commission of the crime. Under the current law, felony theft is a Class 3 felony and one of the sentencing alternatives is imprisonment for a determinate term of not less than two years and not more than five years. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(6).

Defendant testified at the sentencing hearing that she presently resides with Gary Miller and for the last two years has taken care of Miller’s seven-year-old son. She indicated that she planned to marry Miller and that she was 4)i months pregnant at the time of the hearing. Defendant has never been convicted of a criminal offense other than the present one. Since February of 1977 she had not been arrested for any criminal offense. Defendant also indicated that she borrowed $15,400 from Gary Miller’s parents in order to make restitution for her crime. At the time of the hearing, defendant had an unpaid $55,000 mortgage on her home and still owed $9,000 in auto payments.

The record in the present case indicates that defendant was involved in the commission of a similar offense at another travel agency prior to her employment at the Du Page Travel Bureau. No criminal charges were filed against defendant, and she has apparently made restitution to the victim. The trial court apparently relied to some extent on this information when it found that “defendant has a history of prior delinquency or criminal activity.” In this we find no error. Our supreme court has recently stated that “a trial judge may, * * *, properly receive proof of criminal conduct for which no prosecution and conviction ensued.” (People v. La Pointe (Docket No. 53840, filed November 13, 1981),_Ill. 2d_,_N.E.2d__) Although the court noted that the trial court must exercise care to insure the accuracy of the information and to be sensitive to the possibilities of prejudice if inaccurate information is considered, we do not view this as a problem here. Officer Velón testified at trial that defendant had admitted to her involvement in the previous incident. Also, during the sentencing hearing defendant’s attorney acknowledged that defendant had made restitution for “whatever” occurred at the other travel agency. Thus, we do not believe that the accuracy of the information was seriously in doubt.

Defendant also argues that the trial, court abused its discretion in view of the prosecutor’s recommendation that work release may be appropriate. It should be noted that, during the hearing, although the prosecutor made reference to “a term of probation” or “some kind of work release,” it is not clear from the record whether or not this was an affirmative recommendation for sentence. Even if we construe it as such, a prosecutor’s sentencing recommendation is not binding on the trial court. People v. Pahlman (1977), 51 Ill. App. 3d 879, 885, 366 N.E.2d 1090.

Although this court can reduce the sentence imposed on a criminal defendant (Ill. Rev. Stat. 1979, ch. 110A, par. 615), sentencing is a matter well within the trial court’s discretion, and its sentencing decision will not be altered upon review absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) As the court stated in People v. Perruquet, “the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” 68 Ill. 2d 149, 154, 368 N.E.2d 882.

In the present case, the trial court considered the appropriate statutory factors in aggravation and mitigation (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—5—3.1, 1005—5—3.2), and, as required by statute (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—1), the court found that imprisonment was necessary for the protection of the public and that probation or conditional discharge would deprecate the seriousness of the offender’s conduct and be inconsistent with the ends of justice. Under these circumstances, where the trial court considers all of the relevant statutory factors, there is evidence that defendant has committed a similar offense previously, and the trial court finds she shows no remorse for her actions, we do not find an abuse of discretion when the court imposed the minimum sentence of imprisonment for the crime involved. See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 301 N.E.2d 300.

Accordingly, the judgment of the trial court is affirmed in all respects.

Affirmed.

SEIDENFELD, P. J., and NASH, J., concur.