author: PRESIDING JUSTICE WEBBER JUSTICE TRAPP,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEANNETTE M. MINNIS, Defendant-Appellant.
    Fourth District
    No. 4—82—0569
    Opinion filed September 30, 1983.

      TRAPP, J., concurring in part and dissenting in part.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted of the offense of murder (111. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)) by a jury in the circuit court of Champaign County. The State did not seek the death penalty and the trial court declined to impose an extended sentence which was argued by the State. After considering factors in aggravation and mitigation, presentence reports and the arguments of counsel, the court sentenced the defendant to 25 years’ imprisonment.

On appeal defendant has raised a variety of issues: (1) error by the trial court in excluding evidence of what has been called in the record the “battered woman syndrome”; (2) reasonable doubt; (3) misbehavior by a spectator; (4) improper closing argument by the prosecutor; (5) admission of inflammatory photographs; and (6) errors in the instructions. We regard the question of the battered woman syndrome as reversible error; the instructional issues contain error but not reversible error; and the other issues are without merit.

Since the question of reasonable doubt has been raised, a recitation of the facts as developed at trial is necessary. One pivotal fact which casts its influence over the entire record is that the body of the victim, Movina Minnis, defendant’s husband, was dismembered by the defendant, parts of it placed in plastic refuse bags and the bags deposited in garbage dumpsters in various locations around the city of Decatur. Some parts, namely the head and neck, upper torso, and the hands were never recovered. Defendant testified that she threw these into the Sangamon River at Decatur. The parties lived in Rantoul where, defendant testified, the death occurred.

The fact of dismemberment arose very early at the pretrial stage. Defendant filed a motion in limine to exclude the evidence. The State demanded its admission in order to establish consciousness of guilt on the part of the defendant. The trial court denied the motion.

The State filed a motion in limine to exclude evidence of the "battered woman syndrome.” It appeared that the defendant was ready to admit dismembering her husband, but claimed that she was a victim of this syndrome. The trial court indicated that evidence of the syndrome should be admissible in cases where the battered woman killed her husband in a nonconfrontational situation, the classic example being where a battered woman has killed her husband as he slept. The judge stated that he assumed the evidence would follow that pattern and denied the State’s motion, but cautioned that he might change his ruling. That is, in fact, what occurred.

At trial the People built a largely circumstantial case, coupled with certain admissions by the defendant, as their case in chief. Certain Decatur residents stated that they observed a black woman fitting defendant’s description place two garbage bags in the dumpster at their apartment house at about 1:15 p.m. on October 13, 1981. Their curiosity was aroused and when the garbage collector arrived a short time later, they asked him to open the bags. He did so and retrieved therefrom a black human leg. The Decatur police were immediately notified and instituted a systematic search of other dumpsters in the Decatur area. Six additional bags were discovered at four locations; these contained other body parts and one bag contained miscellaneous items: a dovetail saw, a hack saw, shower curtains and bathroom rugs, several pairs of plastic gloves, one right-hand vinyl glove, a woman’s caftan robe, and a pair of men’s swimming trunks. These items were identified as belonging to defendant and her husband. The lower torso was clothed in jockey shorts and the genitalia were present and unmutilated.

Other witnesses placed a brown van which matched the description of one owned by defendant and her husband and driven by a black woman in various locations about Decatur between 11 a.m. and 2:30 p.m. on October 13.

A pathologist assembled the body parts which had been found and performed an autopsy on October 14 at 6 a.m. From prior medical records obtained from Burnham City Hospital in Champaign it was later determined that the partial, dismembered body was that of Movina Minnis. The doctor was unable to determine the cause of death because anything involving the missing body parts, i.e., head, neck, upper torso, could have been the cause. He doubted that the dismemberment itself was the cause but could not rule it out completely.

It was likewise difficult to determine the time of death. Because there appeared to be no decomposition of the parts, he estimated that death had occurred within a 24- to 36-hour period prior to the autopsy and that dismemberment had occurred shortly afterwards.

A co-worker of Movina, Michael Simlin, testified that they both worked at Kraft Company in Champaign on the 3:30 p.m. to 11:30 p.m. shift, Monday through Friday. They also had a car pool arrangement, each driving alternate weeks. Simlin drove the week of Monday, October 5, through Friday, October 9. They were returning home on Friday, October 9, when Simlin’s car broke down about six blocks from Movina’s home. Movina walked home and returned in his van to give Simlin a ride home. The following morning, Saturday, October 10, Movina picked Simlin up and helped him to repair his car. He left about noon and asked Simlin to come to his house to watch television since he had no plans for the weekend. Simlin never saw Movina again.

The next week, October 12-16, it was Movina’s turn to drive. On Monday morning, October 12, at about 8 or 9 a.m., defendant appeared at Simlin’s house and stated that Movina would not be able to drive since he was ill with tonsillitis. According to Simlin, defendant appeared normal at that time. She appeared again at Simlin’s house on Wednesday morning, October 14, and reported that Movina’s condition was worsening; again, according to Simlin, she appeared normal. Later in the day she informed Simlin that Movina had been offered a job at the power plant in Clinton, and on Thursday, October 15, she informed Simlin that he had accepted the job at Clinton and would not be returning to work at Kraft in Champaign. She admitted to Simlin, upon his inquiry, that Movina had not given any notice to his supervisor at Kraft.

Certain employees of Kraft testified for the State. Movina’s supervisor stated that he had an outstanding attendance record and would always notify him if he were unable to come to work. He further stated that defendant called him and advised that Movina was ill with tonsillitis and would not be at work. This occurred on Monday, October 12. He asked to speak to Movina personally because of such a company policy regarding excuses, and asked that Movina call him later. That call was never made. Defendant called the supervisor again on Tuesday and Wednesday with the same information that Movina was too ill to come to the phone and talk; she also stated that he would probably not return to work until the following week. Movina never returned to work.

Kraft’s personnel clerk testified that defendant appeared at the company’s office on October 23 to turn in Movina’s uniforms and to pick up his payroll check for a one-week pay period which was still due to him. She refused to turn over the check until Movina had talked with his supervisor. Consequently, the check was not delivered to defendant. She also testified that Kraft was still holding a check for about $2,000 representing Movina’s contributions to an employee thrift plan. According to the clerk, defendant’s demeanor was cool and collected; she had known defendant as a former employee of Kraft.

A significant witness for the State was Diana Hinton. She testified that she was acquainted with both defendant and Movina, having met them at a homosexual bar in Champaign about two years prior to October 1981. Shortly after this first meeting, she had spent two weekends with the Minnises at their home during which the three of them had engaged in trilateral sexual conduct. Hinton stated that she felt Movina was not partial to this form of sexual encounter but that defendant was the moving party; she was also aware that defendant had been beaten by Movina and that their marital problems were the result of “Mo’s sexual preferences.”

Hinton saw defendant and Movina at the same bar on October 7, 1981, at approximately 1 a.m. She never saw Movina after that occasion, but she did see defendant there on October 11 from- about 11 p.m. to 1 a.m. Upon inquiry by Hinton, defendant stated that Movina had left her and gone to California with another woman. She stated that defendant’s conduct was nothing out of the ordinary.

On October 13 (the day on which the body parts were discovered) Hinton telephoned defendant at about 6:30 p.m. and arranged to meet her at the apartment of Athena Wade in Champaign. During the conversation defendant stated that she had spent the day visiting a friend in Decatur. After meeting at Wade’s, defendant and Hinton left, returned to defendant’s home, and there engaged in homosexual conduct at defendant’s instigation. At defendant’s invitation, Hinton lived with her from October 13 to November 2, 1981, and then returned home to live with her mother. After moving in with defendant, Hinton noticed that the bathroom rugs and shower curtains were missing and that all of Movina’s personal belongings were still in the house. During the same period defendant gave away Movina’s clothing and weight benches and had a bug shield labeled “Pleasure Pleaser” removed from the brown van; she explained that it reminded her too much of Movina and had “too much of a manly image.” Defendant also instructed Hinton that if anyone, particularly his family members, asked about Movina’s whereabouts, she was to say that he was not at home but would return “in a little while.”

Hinton’s testimony continued; on November 4 she, Athena Wade, and Carrie Starks had lunch together and began to voice doubts as to the whereabouts of Movina. Hinton had heard of body parts being discovered in Decatur and placed a telephone call to the Decatur police concerning the matter.

On November 6, 1981, the Decatur police obtained a search warrant for defendant’s home. The complaint for warrant, executed by Sergeant Donald Coventry, recites most of Hinton’s testimony as set forth above and also similar statements by Athena Wade concerning the presence in the home of Movina’s personal property; both Hinton and Wade stated to the police that the bathroom shower curtains and rugs were missing and that the bug shield had been removed from the van. The police, of course, had possession of the garbage bag containing the miscellaneous items, including shower curtains and rugs.

A service station attendant from a station in Rantoul testified that he had removed a bug shield from a brown van early in October 1981 at the request of a black woman. The shield bore the legend “Pleasure Pleaser.” A few days later he replaced a headlight in the same van for the same woman who explained that she had been stopped and given a ticket by the police for having only one headlight. A deputy sheriff testified that he had stopped defendant on October 15 at approximately 1:45 a.m. and had given her a warning ticket for having only one headlight. He stated that the van had no bug shield.

A supervisor from Vetter Corporation in Rantoul testified that defendant had been employed there during the month of October 1981. She stated that defendant had told her she was a divorcee and that her ex-husband lived in California with their two children; also that she was dating a man who worked at Kraft Company on the second shift.

Athena Wade testified that she was a friend of defendant and on November 17 picked defendant up to take her for a drink. During the course of the conversation defendant stated to her that she had killed her husband by strangling him with some pantyhose while he slept. On cross-examination Wade admitted that defendant and Movina at one time invited her to participate “in a three-way” with them but that she had declined.

Deborah Lomax, a friend of defendant since high school, testified that defendant visited her home on November 4 and that her husband had inquired of defendant as to the whereabouts of Movina. The husband worked at Kraft Company. Initially defendant stated that Movina was working at the Clinton power plant but later stated that he had gone to California. Defendant returned the next day, November 5, to the Lomax home for another visit. At that time she stated that she was meeting a “new man in her life” and that this man was going to “do nice things for her and take her nice places.”

The police executed the search warrant on November 6. At about 9 or 9:30 p.m. on that date defendant called Lomax on the telephone and told her that the police were at her home. When Lomax asked what was wrong, defendant stated to her that she was “in a lot of trouble” because she had killed Movina.

During the same search, defendant made another telephone call which was overheard by an investigator from the Illinois Department of Law Enforcement. According to the investigator, defendant said, “Athena, girl, Mo’s dead, and I’m in a lot of trouble.”

Another officer from the Illinois Department of Law Enforcement described the bedroom in the Minnis home. He stated that it contained a king-sized waterbed with a wooden headboard but that the sides were padded “rather well.”

That was the State’s case. Defendant took the stand in her own behalf. She commenced by describing her marital problems with Movina which had their origin in her failure to bring enough women home for sexual encounters with him. She claimed that he had repeatedly subjected her to beatings on account of this. She stated that he wanted other partners because she was not pleasing him enough and that the other women were to teach her how. She approached other women regularly for the purpose and when they declined, Movina would beat her again because he felt she was not trying hard enough.

She then recounted her version of the events commencing with Movina’s return from work about midnight on Friday, October 9 through Saturday, October 10 as follows: she was asleep but he awakened her and told her that he had company. She got up, dressed, and went into the living room where Movina introduced her to his friend, Duane, who, he said, was a male prostitute. She sat on the floor watching television, while Movina and Duane went to Movina’s weight room. They returned shortly thereafter and placed a heavy set of barbells across her legs which were outstretched on the floor. She was unable to move. They then engaged in homosexual intercourse. Movina stated to her, “If you just do what you’re supposed to do, I wouldn’t have to do this.” After the unnatural act was completed, Movina removed the barbells and she fled to the bathroom to vomit. When she came out, she attempted to leave the house but was restrained by Movina. Both he and Duane then attacked her sexually and later Movina beat her and again sexually assaulted her. He then tied her to the knob on the bedroom door and left the house. He assigned as his reason that he was concerned that she would tell someone about the homosexual intercourse.

She was uncertain when he returned home, but when he did, he was still ranting and raving that she might tell someone about what had happened. He untied her and she went to the bathroom to bathe. He followed and pushed her head into the toilet and repeatedly threatened her with death. He then forced her to perform fellatio on the bathroom floor and next dragged her to the waterbed where he commenced having intercourse with her. He then began to choke her. Her testimony as to what then happened was:

“So, as he tried to choke me, I almost wanted to die. So, I don’t know where — where I got the strength, but I prayed, I prayed for the strength to get him off me just one more time. And all of a sudden, *** I just gave it all I had. And I kicked him off of me ***. I kicked him off with the pressure of my knees being to my chest ***. When I pushed him off, he fell back ***. And when he fell back, he just laid there. I laid there, too. I couldn’t even move. And I knew that if he got back up he was going to kill me, but I could not move.
* * *
I gave it all I had. If he comes back, I’m just dead. But he didn’t get up. And I got up, I went to the corner and I sat in it. That’s where I was always supposed to set when *** when I was on punishment or didn’t do anything he thought I was supposed to do. I was made to sit in that corner, to sleep in that corner.”

She remained in the comer for some length of time, believing that Movina was watching her. Finally, she got up and went to the bed and touched him; she then realized he was dead. She dragged the body to the bathroom and into the bathtub and then obtained some trash bags and a saw from the garage. She then became aware that it was Monday morning, so she went to Simlin’s house to tell him that Movina would not be driving to work at Kraft Company. She returned home and resolved that no one should ever know what had gone on that weekend; to that end, she decided to dismember the body.

Various parts were placed in the trash bags which were then loaded into the van; she then drove to Decatur and there conceived the idea of placing them in garbage dumpsters; this was done and some of the bags were thrown into the Sangamon River; after the bags were disposed of, she began driving and ended up in Chicago.

At this point the defendant’s testimony was interrupted while the trial court and counsel engaged in colloquy concerning the battered woman syndrome. The prosecutor argued that the defendant’s testimony indicated that the death was an accident and hence he objected to any evidence regarding the syndrome. The court disagreed and characterized the defendant’s case as a traditional self-defense one; he expressed doubt that there was anything relevant in the syndrome, since if the jury believed the defendant, no further explanation was needed.

Defense counsel argued that with the evidence of dismemberment before the jury, some explanation of it was necessary since such actions would not be comprehensible to the average juror. He stated, “The state of mind of the defendant at that time [the dismemberment] is crucial. If [the prosecution is] to be allowed to explore this through the dismemberment, we must have some way to deal with it.” He then moved for a mistrial and argued that on retrial the court should exclude all evidence of dismemberment and thereby eliminate the problem.

After extensive argument by counsel the court ruled that the evidence of the battered woman syndrome would not be admitted since it would be relevant only to the perception in the mind of the defendant at the time of the killing as to how a battered woman would perceive danger as being imminent even though her batterer was not then in a position to pose immediate danger. With respect to the argument that the syndrome evidence was necessary in order to deal with the dismemberment evidence, the court ruled that “the question of dismemberment has nothing whatsoever to do with the other issue, namely, the admissibility of the battered woman syndrome ***. [The dismemberment] is a factor which the jury can and should consider and literally has nothing whatsoever to do nor is it tied in any way with the battered woman syndrome."

It is thus apparent that the court ruled solely on the basis of relevancy; the State acquiesced in the ruling and offered no other basis for excluding the evidence. While the State argues on appeal that there was no foundation laid for the qualifications of the experts proffered by the defendant, as described below, this objection was not made at trial. The State was content with the trial court’s sua sponte ruling on the basis of relevancy.

Defense counsel then sought to make an offer of proof through the expert witness, Dr. Peg McMullen, concerning the applicability of the battered woman syndrome to the facts of this case. He was cut off by the court who said, “I will indicate I’m not too anxious to hear any testimonial offers. *** I think it would be really unnecessary plus a waste of my time in these proceedings ***. What I’m going to say is nothing that she could say would change the ruling. *** But there’s no need to actually hear the testimony because it would be much more time consuming.”

As a result of this ruling, defense counsel was limited to attaching to his post-trial motion two written reports of experts, Peg McMullen, Ph.D., a clinical psychologist, and Arthur Traugott, M.D., a psychiatrist; plus hospital records of the defendant taken upon two prior occasions.

Defendant’s testimony then resumed. She detailed her relationship with Movina and estimated that she had been subjected to a beating at least once a week; further, that Movina would not permit her to have any contact with her children from a prior marriage. She also testified concerning Movina’s alcohol and drug usage, stating that on October 10, 1981, the purported date of his death, he had been drinking and snorting cocaine, and had been using cocaine for about a year prior to his death. On cross-examination she admitted to having cashed a check made payable to her by the Kraft Thrift Plan in the amount of $848.46 on the morning of Friday, October 9, 1981. This had also been established in the prosecution’s case in chief. This led to some confusion as to the sequence of events. There had been evidence that Thursday was payday for Movina and that the events with the male prostitute and the events following occurred on payday; on this theory the defendant would have been tied up, as above described, all day Friday. Nonetheless, on redirect, she testified that she considered Friday as payday, and that the events began on Friday midnight and continued throughout the weekend. This became a subject of controversy on final argument.

A couple of actions by spectators in the courtroom during the defendant’s testimony have become the subject of further controversy. It appeared that a spectator was shaking her head in a negative fashion. The court removed the jury from the courtroom and then ordered the spectator removed; he then admonished the remaining spectators that no one was to make any gestures, statements, comments, or any other actions designed as a method of criticizing the defendant’s testimony. Later there was a similar happening. The court was advised that the jury had heard some derogatory statements concerning defendant’s credibility made by a spectator. Defense counsel then moved for a mistrial. The court commented that the spectator was “a none too impressive figure” and offered to inquire of the jury whether they had been influenced by the incident. Defense counsel opposed the procedure, stating that any inquiry would only heighten any potential damage. The court then denied the motion for mistrial.

After all the evidence was concluded, the State moved to admit its exhibits. These included six photographs of the dismembered body taken during the autopsy. Defense counsel objected. The objection was sustained as to two of them and overruled as to the other four, the court holding that they were probative of the question of defendant’s credibility of her version as to how she accomplished the dismemberment. A motion for mistrial based on the conduct of spectators was renewed and denied.

A conference on jury instructions was then held. Defense counsel tendered instructions on involuntary manslaughter and voluntary manslaughter as lesser offenses. The court refused the instruction on involuntary manslaughter and also refused defendant’s version of voluntary manslaughter which was taken from Illinois Pattern Jury Instruction (IPI), Criminal, No. 7.06 (2d ed. 1981); instead, the court gave the voluntary manslaughter instruction taken from the former 1968 edition of IPI Criminal. This will be discussed in more detail below.

Final arguments were heard, of which more is said below, and the jury returned a verdict of guilty of murder.

In our opinion the most significant issue in this case is the trial court’s handling of the battered woman syndrome. We are little concerned with the nature of that syndrome or its potential scope. We are greatly concerned that the defendant was deprived of her constitutional right to present a defense. The trial court, from his study of prior authorities and the legal literature on the subject, arrived at the fixed and immutable conclusion that the syndrome applies only to explain the woman’s conduct at the time of the victim’s death, not to events which transpire afterwards. On this basis he excluded the evidence as irrelevant as a matter of law and refused to listen to an offer of proof. This constitutes reversible error.

The syndrome is an emerging concept of very recent vintage; its defining characteristics have not yet been firmly established; for these reasons we are not inclined to be critical of the learned trial judge. Defendant concedes that the instant case is unique among the very limited number of eases dealing with the battered woman syndrome. Those courts which have allowed expert evidence on the syndrome have done so only for the purpose of explaining why the abuse a woman has suffered causes her to reasonably believe that her life is in danger and that she must use deadly force to escape her batterer. With respect to that aspect of its probative value, some courts have held it to be error to exclude expert evidence on the battered woman syndrome. (Ibn-Tamas v. United States (D.C. App. 1979), 407 A.2d 626; Hawthorne v. State (Fla. App. 1982), 408 So. 2d 801; Smith v. State (1981), 247 Ga. 612, 277 S.E.2d 678; State v. Anaya (Me. 1981), 438 A.2d 892; Mullis v. State (1981), 248 Ga. 338, 282 S.E.2d 334.) Other courts have refused to admit evidence on the syndrome. State v. Thomas (1981), 66 Ohio St. 2d 518, 423 N.E.2d 137; State v. Griffiths (1980), 101 Idaho 163, 610 P.2d 522; and Buhrle v. State (Wyo. 1981), 627 P.2d 1374.

The literature, too, is recent. Examples are: Eber, The Battered Wife’s Dilemma: To Kill or To Be Killed, 32 Hastings L. J. 895 (1981); Beyond the Juror’s Ken: Battered Women, 7 Vermont L. Rev. 1 (1982); The Admissibility of Expert Testimony on Battered Wife Syndrome: An Evidentiary Analysis, 77 Nw. U. L. Rev. 348 (1982). See also Annot., 18 A.L.R.4th 1153 (1982).

It is true that in nearly all the reported cases the syndrome evidence has been utilized, if permitted, as a form of self-defense in a confrontational situation; i.e., the battered woman kills her batterer during or immediately after an attack. However, the instant case is not an ordinary one. We agree that defendant’s testimony, if believed by the jury, clearly established that the force she used in throwing her husband off her body and in defending herself was reasonable under the circumstances, and thus expert testimony was unnecessary to explain it. However, her reasons for dismembering his body were very much at issue. The prosecutor used the dismemberment as substantive evidence to prove defendant’s consciousness of guilt. A defendant clearly has the right to introduce evidence to rebut the State’s evidence of consciousness of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) The State’s use of the dismemberment evidence rendered any explanation of it which would be consistent with innocence vital to the defendant’s case.

By ruling that expert evidence on the syndrome was irrelevant and by denying defense counsel his right to make an offer of proof, the trial court took much too narrow a view of the matter. We must of necessity, then, employ the reports attached to the post-trial motion. Dr. McMullen states that the defendant’s conduct both at the time of Movina’s death and afterwards was influenced by the fact that she was a battered woman. Dr. Traugott indicated an opinion that defendant’s decision to dismember her husband’s body was influenced by her emotional reaction to the shock of the situation, presumably including the abuse which defendant claimed to have suffered at the hands of her husband. She testified that she remembered thinking as she sawed his hands off, “At least he won’t beat me no more ***. I hated his hands. They hurt me so bad.” These reports make out a prima facie case of relevancy of the expert testimony. Whether it would be believed by a jury is beside the point. The defendant had a right to present evidence relevant to her explanation of her conduct, no matter how far-fetched it might appear to the average individual. We do not agree with the trial court that the dismemberment was an entirely separate and distinct issue. The State used it and exploited it thoroughly as it was entitled to do. By the same token, the defendant was entitled to rebut it if she could. The experts’ reports indicate that the syndrome might extend to the dismemberment and thus their testimony became extremely relevant.

The State does not argue otherwise. Instead, their principal argument is directed at the foundation; first, as to the qualifications of the experts, and second, as to the existence of the syndrome itself. The brief, but pointed, answer to that contention is that the State did not raise such an objection at trial. When the court announced that he was ruling on the basis of relevancy, the prosecutor said nothing more but was apparently content to ride along on that ruling. The reports in the record admittedly contain little information concerning the experts’ background and empirical studies, but the defendant should not be required to include in her offer of proof matters which were not contested. As to the second point, the trial court at its ruling on the motion in limine recognized the existence of the syndrome as sufficiently developed to warrant expert testimony. He changed his mind only because of the narrow view which he took of it. The defendant has provided the trial court and this court with a sufficient general understanding of the evidence she sought to introduce. She has demonstrated that the ruling was in error and that the evidence might have produced a different result at trial.

Defendant's second argument is that the State failed to disprove her claim of self-defense beyond a reasonable doubt. Although we have already held that the exclusion of the expert evidence on the battered woman syndrome is an error of sufficient gravity to warrant a new trial, it does not follow that the record as it appears without that evidence does not disclose that the State has sustained its burden of proof.

Defendant argues that the State relied heavily, almost entirely, upon her admission by conduct and her inconsistent statements concerning her husband’s whereabouts. However, the evidence was very much in conflict.

Defendant claimed that Movina died as a result of hitting his head on the bed frame after she pushed him off of her body during his attempt to strangle her and to force intercourse upon her. As against this contention is her statement to her friend Athena Wade, made after her arrest and release on bond, that she strangled him with a pair of pantyhose while he slept. There were additional admissions made to Wade and to Lomax by telephone during the police search of the house on November 6.

Other inconsistencies appear in the record. Defendant claimed that Movina threatened to kill her so that she would not reveal his homosexual activity. This appears rather vaporous in view of his frequenting a well-known homosexual bar. She also claimed to have received a severe beating just prior to Movina’s death, yet Hinton testified that during her homosexual encounter with defendant on the night of October 13, when they were both naked and the lights were on, she observed no signs of injury on defendant’s body. Defendant also claimed that the death occurred during an act of forced intercourse; yet the lower torso of Movina’s body was clothed when it was found. We need not reiterate the various accounts which defendant gave of Movina’s whereabouts during the days following October 10. They are set forth in detail above. These weigh heavily against her credibility.

Once a jury has decided the question of self-defense, a reviewing court will not disturb that finding unless upon the evidence no rational trier of fact could find guilt beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 317, 61 L. Ed. 2d 560, 572, 99 S. Ct. 2781, 2788.) We cannot so find on this record.

Defendant next argues that the actions of the spectators, as described above, and the subsequent denial of a mistrial deprived her of a fair trial. We do not agree.

The incidents appear to be relatively minor and certainly do not attain the extreme found in People v. Herbert (1935), 361 Ill. 64, 196 N.E. 821. In that case, during the examination of the defendant in a homicide trial, the victim’s widow stood up in the rear of the courtroom and shouted, “You dirty, lying thing, you! How dare you sit there and say that! You dirty liar!” The supreme court held that this was not grounds for mistrial.

In the first instance here, the court removed the spectator and cautioned those remaining against any such further conduct. In the second instance, the court offered to poll the jury, but the defendant declined the offer. The declaration of a mistrial for reasons of this kind is within the trial judge’s discretion because he is in the best position to assess potential prejudice. (People v. Holmes (1974), 19 Ill. App. 3d 814, 313 N.E.2d 297.) Here the trial judge found no prejudice and the defendant has failed to demonstrate that her motions for- mistrial were improperly denied.

Defendant’s next issue is that of improper closing argument by the prosecutor. The arguments, as might be expected in a case of this nature, were lengthy and heated. However, there was only one untimely objection made by the defendant after the jury had retired to deliberate and no mention of closing argument was made in defendant’s post-trial motions. We therefore consider the matter waived. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Defendant next argues that the trial court erred in permitting the jury to view photographs which she claims were gruesome and inflammatory; they were of the decedent’s body parts assembled in the autopsy room. Defendant argues that since she did not dispute the dismemberment, the photographs were not probative of any issue nor could they reflect upon her credibility.

The principles governing the matter are well known. Photographs depicting the condition of the decedent are normally admissible as probative of one or more issues in a homicide prosecution. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) The fact that they are gruesome is no bar to admissibility. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Likewise, it is no bar that they are cumulative to oral testimony covering the same issue. People v. Henenberg (1973), 55 Ill. 2d 5, 302 N.E.2d 27.

The photographs here were properly admitted to corroborate and explain the pathologist’s testimony concerning identification of the victim and the reasons why he was unable to make a sound medical determination as to the cause and time of death. Furthermore, they exhibit what appears to be a methodical dismemberment. This discredits defendant’s testimony that she committed the act in a Lizzie Borden-type of frenzy. The trial judge carefully considered all of the photographs and in fact rejected several of them. It was his discretion which is controlling. {Foster.) We cannot say that it was abused and the defendant has failed to demonstrate error.

Defendant’s final contentions relate to the manslaughter instructions: first, the refusal of the instruction on involuntary manslaughter, and second, the giving of a former IPI Criminal instruction on voluntary manslaughter.

As to the first, we find that it was properly refused. The gist of involuntary manslaughter is recklessness. (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) Under defendant’s theory of the case, the death was the result of either self-defense or an accident; if self-defense, it was intentional, not reckless; if an accident, she is not guilty of anything. There was no error in refusing the instruction on involuntary manslaughter as an included offense.

The second problem is much more complex. Defendant submitted a voluntary manslaughter instruction cast in the form of IPI Criminal No. 7.06 (2d ed. 1981) as follows:

“To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
First: that the defendant performed the acts which caused the death of Movina Minnis; and
Second: that when the defendant did so, (1) she intended to kill or do great bodily harm to Movina Minnis; or (2) she knew that her acts would cause death or great bodily harm to Movina Minnis; or (3) she knew that her acts created a strong probability of death or great bodily harm to Movina Minnis; and
Third: that when the defendant did so she believed that circumstances existed which would have justified killing Movina Minnis; and
Fourth: that the defendant’s belief that such circumstances existed was unreasonable; and
Fifth: that the defendant was not justified in using the force which she used.”

The State objected, but was properly overruled. The evidence was sufficient to warrant giving an instruction on voluntary manslaughter as an included offense. However, the court refused defendant’s instruction and gave its own instruction taken from IPI Criminal No. 7.06 (1968), as follows:

“To sustain the charge of voluntary manslaughter the State must prove the following propositions:
First: that the defendant intentionally or knowingly killed Movina Minnis; and
Second: that when the defendant did so she believed that circumstances existed which would have justified killing Movina Minnis; and
Third: that the defendant’s belief that such circumstances existed was unreasonable.”

The trial court’s theory apparently was that the revised 1981 instruction did not state the law. We disagree.

Section 9 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)) sets forth the mental states for murder: either the defendant (1) intends to kill or intends to do great bodily harm or knows that such acts will cause death, or he (2) knows that such acts create a strong probability of death or great bodily harm. In other words, he must act intentionally or knowingly.

Section 9 — 2(b) of the Code sets forth the mental state required for the form of voluntary manslaughter with which we are dealing. It states:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

In our opinion the legislature was simply using a shorthand method of reiterating the mental states for murder in the voluntary manslaughter section. We believe that the drafters of the revised IPI Criminal had this in mind when they made the change.

One author has characterized voluntary manslaughter as “murder plus extenuating circumstances.” O’Neill, “With Malice Toward None": A Solution to an Illinois Homicide Quandry, 32 DePaul L. Rev. 107 (1983).

Under Supreme Court Rule 451(a) (87 Ill. 2d R. 451(a)) it was the duty of the trial court to use IPI Criminal (2d ed. 1981) unless such an instruction did not accurately state the law. We believe that IPI Criminal No. 7.06 (2d ed. 1981) does accurately state the law and the court was in error for refusing it. Since the case must be retried, this error is not likely to happen again.

Because of the exclusion of expert evidence concerning the battered woman syndrome, defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded for new trial.

GREEN, J., concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

I concur in the conclusion that the trial court erred in excluding the expert testimony explaining the battered wife syndrome, but dissent from the opinion insofar as it approves or accepts defendant’s argument that such testimony is admissible to rebut the inference of guilt arising from the dismemberment of the body, and to rehabilitate defendant’s credibility upon her testimony that she killed Minnis in self-defense or by misadventure during a physical struggle.

Defendant’s brief takes the position that upon all of the evidence dismemberment was not the cause which occurred separately and subsequently to death and that the prosecution’s theory was that strangulation was the cause of death.

The full thrust of defendant’s argument upon the exclusion of this testimony is stated in the language of the brief:

“Having relied upon a defense of self-defense, the trial court’s ruling was prejudicial because the credibility of the defendant’s version of the events surrounding her husband’s death depended upon her ability to explain why she disposed of his body as she did.”

In People v. White (1980), 90 Ill. App. 3d 1067, 414 N.E.2d 196, defendant testified to shooting in self-defense as her live-in man was beating her. The trial court excluded defendant’s testimony concerning the syndrome over defendant’s argument that the testimony “*** had a direct bearing on the credibility of the defendant as regards her claim of self-defense.” (90 Ill. App. 3d 1067, 1072, 414 N.E.2d 196, 200.) The evidence was held to be irrelevant and immaterial for the reason that self-defense is determined by the trier of fact upon what transpired at the “particular instant” that death was caused. See also State v. Thomas (1981), 66 Ohio St. 2d 518, 423 N.E.2d 137.

Defendant’s motion in limine prior to trial recognized this rationale by her contention that dismemberment was irrelevant and immaterial because it was subsequent to the death. It is argued that the trial court would have admitted the testimony if the only evidence was that decedent Minnis was killed while asleep. Upon the event, defendant elected to testify that she killed by misadventure or in self-defense in the belief of imminent danger during a physical struggle and, in effect, abandoned the rationale of the battered wife syndrome. As in White, I do not agree that she can use the opinion evidence of the battered wife syndrome to support her credibility as to the testimony concerning a desperate struggle.

I agree that the testimony was admissible upon the sum of the reasons that the prosecution charged murder by strangulation or other unknown means, that some evidence of strangulation was introduced by the prosecution through a purported admission by defendant, and that the State strenuously argued that defendant was guilty of murder in a context which would require the jury to completely reject defendant’s testimony of a struggle which resulted in the death of the husband.

I agree that the evidence of the battered wife syndrome would be admissible if the jury accepted the theory of the prosecution that death was caused by strangulation or other unknown means while the victim was asleep and that since the jury was required to choose between the theory of the prosecution as to the cause of death and the defendant’s theory of the cause of death, the evidence concerning the syndrome would be relevant if the jury was persuaded that the victim died by strangulation or other unknown means.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARRISON JUSTICE JONES,

license: Public Domain

text:
    MICHELLE LEMINGS, A Minor, by and through Her Mother and Next Friend, Sandra Lemings, et al., Plaintiffs-Appellees, v. COLLINSVILLE SCHOOL DISTRICT NUMBER TEN et al., Defendants-(Metro East Disposal, Inc., Defendant-Appellant; Donald Delashmit, Defendant).
    Fifth District
    No. 82—549
    Opinion filed September 30, 1983.

      JONES, J., specially concurring.
    John H. Marshall, of St. Louis, Missouri, for appellant.
    Jack A. Strellis, of Waterloo, for appellees.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Defendant Metro East Disposal, Inc. filed an interlocutory appeal from an order overruling its motion to dismiss plaintiffs’ second amended complaint. The question, which was raised by the pleadings and certified by the trial court for appeal pursuant to Supreme Court Rule 308, is whether defendant’s motion to dismiss should have been sustained as a matter of law. For the following reasons, we affirm the trial court’s decision.

Plaintiffs’ second amended complaint alleged that on December 15, 1980, at approximately 3 p.m., 10-year-old Michelle Lemings attempted to cross Harvard Street in Madison County, Illinois. She left the State Park School grounds on her way to a girl scout meeting. The complaint further alleged that, as she moved past a trash dumpster owned and positioned on the school grounds by Metro East Disposal, Inc., she was struck and seriously injured by an automobile driven by defendant Donald Delashmit. In count III of the complaint against Metro East Disposal, Inc., the plaintiff stated the following:

“7. The defendant, Metro East Disposal, Inc., through its agents, servants and employees was then and there guilty of the following negligent act or omission, to wit: Having had knowledge or through the reasonable exercise of care would have knowledge that school children would be crossing at or near a dumpster placed at or near State Park School, failed to place the dumpster at a location where it would not act as a barrier and hinderance of the view of automobile drivers driving on Harvard Street, and/or in view of pedestrians, namely the plaintiff, crossing Harvard Street at or near State Park School.
8. As a direct and proximate result of the negligent act or omission of the defendant, the plaintiff, Michelle Lemings was permanently and severely injured in and about her body and has been incapacitated and will remain so for the duration of her natural life during all of which time she has and will incur great pain and suffering; further, upon reaching majority, the plaintiff, Michelle Lemings, will become liable for substantial medical expenses and expenses for the daily care of her being.”

Count VII of the complaint contained substantially the same allegations.

The issue on appeal is whether plaintiffs’ second amended complaint states a cause of action against Metro East Disposal, Inc. Defendant contends that the alleged obstruction, the trash dumpster, created nothing more than a condition which made the accident possible. It maintains that the obstruction cannot be considered a proximate cause of the child’s injuries because the proximate cause was her own negligence and that of the driver of the automobile. Defendant therefore requests that this court reverse the trial court’s ruling and enter an order directing the trial court to dismiss Metro East with prejudice.

In response to the argument that defendant’s conduct was not the proximate cause of the accident, plaintiffs cite several cases in which proximate cause is discussed. Although the cases are factually dissimilar to the present case, the discussions contained therein are relevant to our determination. For example, Davis v. Marathon Oil Co. involved a suit by a gasoline delivery-truck driver against the owner of a service station, the station attendant and the oil company who owned and installed the gasoline pumps. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) The driver sued for injuries he received when a pump failed to shut off, spilling gasoline onto the pavement. Experts testified that the gasoline was ignited either by sparks from a space heater inside the station or by sparks passing between plaintiff and the nozzle of the pump. In deciding that Marathon could be held liable for its negligent installation of the pumps if the other intervening events were foreseeable, the court quoted from Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81:

“ ‘What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character an [sic] 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 this act. [Citations.] An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. [Citations.] What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. [Citation.]’ ” Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 394-95.

The same concept was applied in Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242, in which the supreme court held that the township was negligent for not trimming the branches at an intersection. It said the negligence was a proximate cause of the death of a passenger in an automobile which collided with another vehicle at the intersection. In spite of the jury’s special finding that the driver’s negligence was the cause of the passenger’s death, the Bentley court held that there “may be more than one proximate cause of an injury [citations], and that may well be the case here.” (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17.) It also cited Neering, for the proposition that

“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.” 83 Ill. 2d 10, 15.

This court recently discussed proximate and intervening cause, in the context of a premise liability suit. (Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 417 N.E.2d 148.) In Bah the plaintiff died from an overdose of pain-killers she took for relief from injuries received in a fall on defendant’s property. In deciding that a material question of fact regarding causation still existed, the court reversed a summary judgment granted in favor of defendant and stated that “ '*** it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.’ [Citation.] The intervention of a new, independent intervening cause does not necessarily relieve one of responsibility for a negligent act ‘when the intervening cause of an injury is of such a nature as could reasonably have been anticipated, ***.’ ” Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 271.

With these principles in mind, we reject defendant’s contention that its motion to dismiss should have been sustained as a matter of law. After careful examination of the pleadings, we agree with the trial court that the plaintiffs have stated a cause of action against defendant. The complaint alleges that Metro East had a duty to exercise reasonable care and caution for the safety of others. It alleges that this duty was violated by the placement of the dumpster in such a manner that it hindered the view of both pedestrians and drivers on Harvard Street. It states that, as a direct and proximate result of the negligent placement of the dumpster, the plaintiffs incurred severe and permanent injuries. As the court in Davis decided, the actual proximate cause of injury is a question of fact which must be determined by a jury after consideration of all the evidence. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 395.) We make no determination on the merits at this time. We hold merely that plaintiffs’ complaint is sufficient to state a cause of action.

Consequently, the order of the circuit court of Madison County denying defendant Metro East Disposal, Inc.’s motion to dismiss is hereby affirmed.

Affirmed.

KASSERMAN, J., concurs.

JUSTICE JONES,

specially concurring:

In holding that plaintiffs’ second amended complaint is sufficient to state a cause of action against defendant, Metro East Disposal, Inc. (Metro), the majority reaches what I believe to be the correct result in the case, but I respectfully disagree with the basis for its decision.

The issue on appeal is presented by Metro’s claim that its act in placing the dumpster was not the proximate cause of plaintiff’s injury and that its dumpster did nothing more than create a condition that made plaintiff’s injury possible through the independent negligent act of a third party, the driver of the automobile that hit the plaintiff. Metro contends that, as a matter of law, it cannot be held liable for plaintiff’s injury. Countering, the plaintiffs contend that the complaint is sufficient to raise a factual issue as to whether Metro’s actions in the case were a proximate cause of plaintiff’s injury and that the case against Metro thus cannot be concluded at the pleading stage as a matter of law.

Despite the arguments that have been framed and presented by the parties in terms of the issue of "proximate cause,” it seems obvious that the real contention of Metro is that the plaintiffs’ second amended complaint is insufficient to show that it was under any duty to take measures to guard against an injury to the plaintiff and that, accordingly, under any set of facts that might be disclosed by the evidence, there can be no liability imposed upon Metro for plaintiff’s injury. Could the majority have decided in this case that, as a matter of law, the injury plaintiff received was not the foreseeable consequence of Metro’s placement of the dumpster and, accordingly, could not have been the proximate cause of plaintiff’s injury? Yes, they could have, because the real issue in the case at this point is one of law for the determination of the court: was the plaintiff at the time of her injury, as shown by the facts alleged in her complaint, within the scope or range of protection of a duty owed by Metro to the plaintiff?

If the injury should have been “foreseen” by Metro, the majority writes, then the act of Metro in placing the dumpster was the “proximate cause” of plaintiff’s injury, and the case must go back for trial on the “foreseeability” issue. In my opinion, the majority should not have decided this case on the basis of “proximate cause” or its cousin, “creation of a condition,” or on the basis of the foreseeability” of the plaintiff’s injury by Metro.

The question of whether a duty exists in a particular case and the scope or range of protection thereof is a question of law. The terms “foreseeable” and “proximate cause,” however, are properly used with reference to questions of fact. Whether an injury was “foreseeable” is the test used by a jury to determine whether a defendant was guilty of a breach of duty (see Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307); whether a defendant’s conduct was the “proximate cause” of a plaintiff’s injury is the test used by a jury to determine whether there was a causal connection between a defendant’s conduct and a plaintiff’s injury. Nevertheless, Illinois courts regularly use the terms “foreseeable” and “proximate cause” to decide as a matter of law whether a plaintiff’s injury falls within the scope of a duty the defendant owed the plaintiff on the occasion in question. The use of the two terms in this way is unfortunate because it is misleading, tending to obscure the real issue — one of law, not of fact — the court has actually been asked to decide. When a court uses terms that refer to questions of fact to decide a question of law, vagueness, uncertainty, and misunderstanding are a sure consequence. The use of such fact-oriented terms as “proximate cause” and “foreseeability” to determine issues related to the scope of duty obscures the fact that the court is dealing with an issue of law and suggests that the scope of a duty is a question of fact for the jury when it is not. It is simply confusing to use the same terms that are commonly known to relate to questions for the trier of fact in order to determine the question of law of the scope of a duty.

It can be said with easy certainty that whether a defendant is under a duty to a plaintiff on a particular occasion is a question of law for the determination of the court alone, and a multitude of Illinois cases so hold without a contrary voice. (E.g., Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538; Mieher v. Brown.) In negligence cases in which Illinois courts have considered the existence, as distinguished from the scope, of a duty, there has been no difficulty in discounting the prominence of “foreseeability” and “proximate cause” and concentrating on policy considerations that underlie the finding of a duty.

“In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires— the assertion of a duty and its breach. [Citations.] ***
After the event, hindsight makes every occurrence forseeable, [sic] but whether the law imposes a duty does not depend upon forseeability [sic] alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.)

See also Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535 and the statement of Professor Leon Green used in Mieher v. Brown (1973), 54 Ill. 2d 539, 544, 301 N.E.2d 307, 309-10, a frequently quoted passage in Illinois duty cases.

But it is never a sufficient discharge of a court’s role in a negligence case to determine whether a duty exists. Equally important for the court, once a duty is found, is the determination of whether the injury complained of was incurred within the scope or range of protection afforded by that duty.

Restatement (Second) of Torts sec. 435(2) (1965), makes a pointed reference to the scope or range of protection of a duty owed and to the fact that it is for the determination of the court by viewing the event in retrospect.

“The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.
* * *
Comment on Subsection (2):
(c). Where it appears to the court in retrospect that it is highly extraordinary that an intervening cause has come into operation, the court may declare such a force to be a superseding cause. *** Analytically, the highly extraordinary nature of the result which has followed from the actor’s conduct (with or without the aid of an intervening force) indicates that the hazard which brought about or assisted in bringing about that result was not among the hazards with respect to which the conduct was negligent. *** Strictly, the problem before the court is one of determining whether the duty imposed on the actor was designed to protect the one harmed from the risk of harm from the hazard in question. *** However, courts frequently treat such problems as problems of causation. ***
d. Viewing after the event. *** The court’s judgment as to whether the harm is a highly extraordinary result is made after the event with the full knowledge of all that has happened. This includes those surroundings of which at the time the actor knew nothing but which the course of events discloses to the court. ***
e. It is impossible to state any definite rules by which it can be determined that a particular result of the actor’s negligent conduct is or is not so highly extraordinary as to prevent the conduct from being a legal cause of that result. This is a matter for the judgment of the court formulated after the event, and therefore, with the knowledge of the effect that was produced.” (Emphasis added.) Restatement (Second) of Torts sec. 435(2), Comments c, d, e, at 452-54 (1965).

Some Illinois courts have recognized in express terms the function of the scope or range of protection of duty in a number of cases. The cases that follow are illustrative.

In Mieher v. Brown plaintiff’s decedent brought an action against the manufacturer of a truck for negligent design of the truck. The issue considered was the existence of a duty upon the manufacturer of the truck to design a vehicle with which it would be safe to collide. The court stated that “although foreseeability is generally accepted as the test to be applied by a jury in determining if a duty has been violated, in defining the scope of the duty, other elements must be considered by the court.” (54 Ill. 2d 539, 544, 301 N.E.2d 307, 310.) The court found the manufacturer not liable because the injury in issue was beyond the scope of any duty, citing section 435(2) of the Restatement.

Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, was an action for damages arising out of a negligent survey of real estate brought by a plaintiff who had no privity of contract with the defendant. The court abandoned any previously pertaining requirements of privity of contract, stating: “[Tjort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.” 43 Ill. 2d 54, 62, 250 N.E.2d 656, 660.

In Redarowicz v. Ohlendorf(1982), 92 Ill. 2d 171, 441 N.E.2d 324, plaintiff, the second owner of a home, sued the builder for allegedly improper construction. The complaint alleged theories of contract, tort, fraud and implied warranty of liability. Although the count for breach of an implied warranty of liability was held to be sufficient to allege a cause of action, the count in tort for negligence in construction was held properly dismissed. Citing Rozny v. Marnul, the court stated that the measure of liability in a tort action is based on the scope of the duty owed. However, the court declined to “discuss in detail the scope of the duty owed to this plaintiff” because a plaintiff cannot recover solely economic losses in tort.

First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326, French v. City of Springfield (1976), 65 Ill. 2d 74, 357 N.E.2d 438, and Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, state that the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence and that an injured party has a cause of action if he was intended to come within the scope of the protection afforded by the statute or ordinance. Although those cases involved duties that were created by statute or ordinance, the scope or range of protection of a duty arising from application of common law principles should receive similar consideration, for the principle is the same in both instances.

In Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, the plaintiff had been beaten by unknown men in the lobby of a building in a housing project. He brought suit for damages based on negligence against the owner of the project and against Wells Fargo, who furnished guard services for certain hours of the day pursuant to a contract with the owner. The court held that since the beating occurred 15 minutes after the time limitation for services provided in the contract, the complaint should be dismissed as to Wells Fargo. Although not expressly so stated, it is obvious that the court found plaintiff’s injuries in this negligence action to be outside the scope of the duty created by the contract.

In Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 441 N.E.2d 388, the plaintiff was a widow of a tavern patron who was killed, along with four children, after he drove away from a tavern in a drunken condition. Plaintiff’s action was for damages for negligence. The court held that “the scope of the duty created by an employee’s assisting an incapacitated patron into his car does not include the patron’s later acts off the premises.” 109 Ill. App. 3d 884, 888, 441 N.E.2d 388, 391.

Although, as we have just seen, some Illinois courts that have considered the scope of a duty have spoken expressly in terms of the “scope of the duty owed,” many courts that have considered the issue have not done so. The courts in some cases, to paraphrase comment c of section 435 of the Restatement (Second) of Torts set forth above, have considered the problem of the scope or range of protection of a duty in terms of causation, determining whether the defendant’s conduct was “foreseeable,” or the “proximate cause” of the plaintiff’s injury or whether the defendant merely “furnished a condition” by which the plaintiff’s injury was made possible through the intervening negligence of a third party. Two phrases that courts approaching the problem in terms of foreseeability commonly use are “simply foreseeable” and “reasonably foreseeable.” Any distinction in meaning between these two phrases is unexplainable. Yet, courts use the two repeatedly to determine whether a defendant’s conduct falls within the scope or range of protection required by a duty owed the plaintiff. If the harm to plaintiff was “reasonably foreseeable,” the defendant is subject to liability, provided that negligence and a causal relationship are established, and if the harm to plaintiff was “simply foreseeable,” no liability will attach to the defendant’s conduct, notwithstanding the fact that the defendant was under a duty to the plaintiff on the occasion in question. Illustrations for the foregoing analysis are easily found.

In Merlo v. Public Service Co. (1943), 381 Ill. 300, 45 N.E.2d 665, plaintiff’s decedents were killed by an electrical charge received when the boom of a crane came in contact with uninsulated overhead power lines of defendant power company. The court expressly found that the power company owed a duty to see that its wires were properly placed and insulated with reference to persons in places where they have a legal right to be, and the court also found that plaintiff’s decedents were rightfully and lawfully located at the time of the accident. Nevertheless, the court held as a matter of law that the acts of defendant power company in using uninsulated lines, and in permitting those lines to sag, were not the proximate cause of the deaths because defendant’s conduct only created a condition which made the accident possible through the intervening negligence of a third party. The court thus utilized a “no proximate cause” basis for its decision when there was simply no question at all that defendant’s power lines were a direct and undisputed cause of the deaths. Since the duty of defendant was present, it is obvious that the court used “no proximate cause” to express its decision that, as a matter of law, the deaths of the workmen were outside the scope or range of protection of the duty. The court’s decision was doubtless the consequence of the highly unusual and unexpected, that it to say, the “highly extraordinary,” nature of the accident.

Similarly, in Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497, plaintiff sued defendant railroad for injuries received in an assault in defendant’s station while she was awaiting the arrival of a suburban train. The court expressly found the defendant to be under a duty to safeguard plaintiff. Defendant argued that the assault was the intervening act of another and therefore its negligence was not the proximate cause of plaintiff’s injury. The court decided against the defendant on this issue with a discussion of what constitutes the furnishing of a condition and what constitutes proximate cause that has been quoted in many subsequent Illinois cases:

“It cannot be denied that if the negligence of the defendant only furnishes a condition and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of an injury. However, the rule is that the subsequent independent act, in order to break the causal connection, must be one, the intervention of which was not probable or foreseeable by the first wrongdoer. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The 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. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, [170 N.E. 247]; Hartnett v. Boston Store of Chicago, 265 Ill. 331, [106 N.E. 837, L.R.A.1915C, 460].) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; Pullman Palace Car Co. v. Laack, 143 Ill. 242, [32 N.E. 285, 18 L.R.A. 215].) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. (Wintersteen v. National Cooperage & Woodenward Co. 361 Ill. 95, [197 N.E. 578]; Sycamore Preserve Works v. Chicago & Northwestern Railroad Co. 366 Ill. 11, [7 N.E.2d 740, 111 A.L.R. 1133].) What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. Phillabaum v. Lake Erie & Western Railroad 315 Ill. 131, [145 N.E. 806].” (Emphasis added.) 383 Ill. 366, 380-81, 50 N.E.2d 497, 503-04.

This language was obviously used to express both the court’s decision that the scope or range of protection of the duty owed by defendant could extend to cover plaintiff’s injury and its opinion that the question of whether there was a causal relation (the proximate cause) between defendant’s negligence and plaintiff’s injury was a jury question.

In Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74, another frequently cited case for issues involving the scope or range of protection of duty, the court’s decision on the issue is needlessly and confusingly couched in terms of foreseeability and proximate cause. Those same terms are likewise referred to as questions of fact for a jury. There, a thief stole a parked taxi cab with its ignition key in place and, while in flight, hit plaintiff’s car and caused damage for which the cab company was sued. A provision of a statute regulating traffic on highways required persons who leave motor vehicles unattended to lock the ignition and remove the key. Thus, a duty was imposed by statute. The concern of the court in a lengthy review of issues and precedents was the scope or range of protection of the duty, though, as stated, it was not expressly so framed. “This [violation of the statute as prima facie evidence of negligence] in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist.” (2 Ill.

2d 74, 79, 117 N.E.2d 74, 78.) In other words, the injury must be received within the scope of the duty imposed by the statute. The court found that the scope of the duty imposed by the statute could include plaintiff’s damages by properly resorting to a consideration of policy matters attending the great increase in population, the number of vehicles and the increases of traffic-related injuries. It then stated: “We are here concerned only with the question as to whether or not this intervening force [the thief] is without or within the range of reasonable anticipation and probability.” (2 Ill. 2d 74, 82, 117 N.E.2d 74, 79.) The court used part of the above quotation from Neering and concluded with respect to the issue by stating:

“[W]e find no persuasive authority and no impelling reasoning for this court to hold, as a matter of law, that no actionable negligence can exist.
Questions of negligence, due care, and proximate cause are ordinarily questions of fact for the jury to decide.” 2 Ill. 2d 74, 83-84, 117 N.E.2d 74, 80.

The case of Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, involved an unusual, freakish accident in which plaintiff’s leg was impaled upon a stake or pipe in a parkway when he was thrown approximately 30 feet from the automobile in which he was a passenger and which had been involved in a collision with another automobile. The case involved a suit against the municipality that owned and maintained the parkway. The court discussed the question of duty and recited the excerpt from Professor Leon Green as used in Mieher v. Brown. The court then stated: “In addition, in determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, as the plaintiff contends; it must have been reasonably foreseeable.” (56 Ill. 2d 372, 375-76, 308 N.E.2d 617, 619.) The court quoted section 435(2) of the Restatement (Second) of Torts and held “that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to provide against his injury. ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146.)” (56 Ill. 2d 372, 377-78, 308 N.E.2d 617, 619.) The dissent in the Cunis case stated that there is no question that a municipality owes that duty to exercise ordinary care to keep its streets, sidewalks and parkways safe for use by persons who are themselves in the exercise of ordinary care. The dissent further stated that the majority had confused the questions of duty and foreseeability. The dissent argued that whether the defendant village failed to exercise ordinary care in permitting the pipe to remain in the parkway was a question of fact, as was the question of whether it was “reasonably foreseeable” that failure to do so might cause injury.

It is readily apparent from reading the Cunis case that the majority did indeed find a duty upon the part of the village and that that duty was as expressed by the dissent. It is also apparent that the court found that the highly unusual circumstances of plaintiff’s injury cast it beyond the scope or range of protection of the duty and, accordingly, the court held that the village was not liable as a matter of law. Had the court drawn a line of demarcation between duty and scope of duty, and shown its determination with regard to that scope, the dissent would have had little to write about for there would have been no question that the court was dealing with a question of law and not one of fact.

In Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93, plaintiff had been injured as a result of a gasoline explosion and fire at a service station. These occurred when gasoline overflowed during a filling operation and was apparently ignited by a pilot light from a heater. The court found a duty present by virtue of a statute which regulated the storage, transportation and sale of gasoline. But even without the statute there would have been no question that a duty would also have been imposed under common law principles. The principal issue in the case seemed to be whether the plaintiff’s injury was received within the scope or range of protection of defendant’s duty to protect others while making, or receiving, deliveries of gasoline. The issue was presented when defendant argued that, as a matter of law, its negligence was not the cause of plaintiff’s injury. The court quoted the “proximate cause” discourse from Neering that is set forth above and went on to state:

“Defendant has cited cases in which a defendant’s negligent conduct was determined as a matter of law not to have proximately caused the resulting injuries. [Citations.] We emphasize, however, that each case must turn on its own facts. Defendant remains liable for its negligence if the intervening event [in this case, the pilot light inside the station which served to ignite the gasoline] was foreseeable. Moreover, to escape liability, defendant must demonstrate that the intervening event was unforeseeable as a matter of law. This we cannot conclude. Proximate cause is ordinarily a question for the jury to decide.” (64 Ill. 2d 380, 395, 356 N.E.2d 93,100.)

The court in its discussion of proximate cause was obviously deciding as a matter of law that plaintiff’s injuries were received within the scope or range of protection of defendant’s duty and recognizing negligence and causal relation as jury questions. There was certainly no question that defendant’s conduct was a cause of plaintiff’s injury. The “proximate cause” concern can be related only to the issue of the scope of the duty.

In Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203, plaintiff was riding atop a truck hauling a large circuit breaker. He was knocked to the ground and injured by a line that General Telephone Company had strung across the street. The Merlo case, which had also involved low hanging power lines, was not followed. The court stressed its remark in Davis v. Marathon Oil Co. that each case must turn upon its own facts and noted that in Merlo the wires were suspended over an ordinarily untraveled parkway whereas in Felty the wire was suspended over a public street. The court used a quotation from Merlo:

‘[I]t [proximate cause] can only be a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. ***’ ” (71 Ill. 2d 126, 130, 374 N.E.2d 203, 204.)

Then, in the first sentence following the quotation the court said: “In subsequent cases this court has repeatedly stated that the question of proximate cause is ordinarily a question for the jury.” (71 Ill. 2d 126, 130, 374 N.E.2d 203, 205.) The court concluded that the jury might decide that if a cable were negligently placed below the minimum height over a roadway, it was foreseeable that someone would run into it. Thus, the court found a duty present, and its real concern was whether the scope of that duty would extend to plaintiff’s unusual injury. It held as a matter of law that it would so extend and left it to a jury to determine negligence and causation.

In Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, plaintiff was injured while standing at the rear of his stalled car, which was hit by another automobile. Plaintiff’s car had come to a stop beneath street lights placed and maintained by the city, but at the time of the accident the lights were not working and it was “pitch dark.” The court readily found that the city was under a duty at the time of the accident. Defendant then claimed that the absence of artificial lighting was not the proximate cause of plaintiff’s injury. The court cited Cunis v. Brennan and Neering v. Illinois Central R.R. Co. as a basis for its finding that proximate cause is a jury question. As in numerous other cases, the court had actually decided as a matter of law that plaintiff’s injury had been received within the scope or range of protection of the defendant city’s duty and that questions of negligence and causation were for the jury.

A large number of cases from the appellate court could be added to those discussed above, but considerations of length of the opinion prevent any further discussion. However, there are three appellate court cases sufficiently similar to the case at bar to be instructive.

In the case at bar it is relatively easy to determine that Metro did have a duty to the plaintiff when it placed its dumpster in such a position that it, at least allegedly, interfered with plaintiff’s vision of oncoming traffic as she crossed the street. That duty is explained in Restatement (Second) of Torts sec. 368, at 268 (1965):

“Conditions Dangerous to Travelers on Adjacent Highway A possessor of land who creates or permits to remain thereon an *** artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.”

Thus, the duty owed by Metro to the plaintiff in this case was to place the dumpster so as not to interfere unreasonably with plaintiff’s vision of oncoming traffic as she crossed the street. However, the duty question could not be put to rest by the court until it also determined that the duty imposed extended to the plaintiff under the facts alleged in plaintiffs’ complaint. No duty ever found to exist in a negligence case is unlimited in its application. It cannot be applied to protect a plaintiff under any and all circumstances. (See Restatement (Second) of Torts sec. 435(2) (1965).) Accordingly, as a part of the duty issue, a plaintiff must show, and the court must determine, not only that a defendant owed a duty of protection to the plaintiff but also that plaintiff was within the scope or range of protection of that duty under the facts of the case.

As in the instant case, the three appellate court cases just referred to expressly rely on section 368 of the Restatement, quoted above, as expressive of the duty involved and serve to illustrate the issue regarding the scope or range of protection of duty.

In Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, 150 N.E.2d 643, the trial court had discussed a complaint that alleged that defendant

landowners erected and maintained a row of concrete posts abutting and in close proximity to a highway at a point where the highway made a sharp turn and that the posts therefore posed a danger to persons using the highway and caused injury to plaintiff. As in the case under consideration, the defendant landowners filed a motion to dismiss in which they contended that their actions did nothing more than furnish a condition by which the injury was made possible. The court said that this contention was “tantamount to contending that the complaint shows upon its face that the acts of the appellees were not the proximate cause of the injury to the plaintiff.” (17 Ill. App. 2d 463, 469, 150 N.E.2d 643, 646.) The court concluded on the point by stating: “We have carefully examined the complaint in this case and are of the opinion that the complaint brings this cause of action within the application of the general rule above noted [section 368 of the Restatement (Second) of Torts].” (17 Ill. App. 2d 463, 469, 150 N.E.2d 643, 646.) It can be seen that the court was not talking about proximate cause as a factual issue at all. It decided as a matter of law that the defendant landowners did owe a duty to plaintiff under the facts alleged and that the plaintiff was within the scope or range of protection of that duty. The case was remanded for a trial at which a jury would determine whether the defendants were negligent and whether their negligence in fact contributed to cause plaintiff’s injury.

In Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519, plaintiff brought an action against Commonwealth Edison Company (Edison) and others for the death of plaintiff’s intestate in a one-car accident in which the decedent’s car left the highway and struck a utility pole of Edison that was located 12 to 16 feet from the road. The trial court granted summary judgment to Edison on the pleadings and exhibits, finding that “the accident was not reasonably foreseeable on the part of Edison and it therefore breached no duty.” (97 Ill. App. 3d 721, 722, 423 N.E.2d 519, 520.) The appellate court decision properly related that the determination of the question of duty is a question of law for the court. “While the existence of a legal duty is ordinarily considered in terms of foreseeability, the duty is not bottomed on foreseeability alone,” the court said, “Other factors to be taken into consideration, besides the foreseeability of the possible harm, are the likelihood of injury from the existence of a condition, the magnitude [of the burden] of guarding against it, and the consequences of placing the burden upon the defendant. [Citation.]” (97 Ill. App. 3d 721, 724, 423 N.E.2d 519, 521.) The court noted that Edison’s duty was expressed by the Restatement (Second) of Torts sec. 368, and found that sufficient facts were presented by the exhibits to enable the court to determine as a matter of law whether a duty existed. The court then applied the facts to the law (sec. 368) and found that no duty existed because it was not

“reasonably foreseeable to Edison under the facts here that the decedent would deviate from the road as he did as a normal incident of travel. While it is foreseeable that any driver could, for any number of reasons, leave the paved highway surface, it must be reasonably foreseeable to create a duty.” 97 Ill. App. 3d 721, 726, 423 N.E.2d 519, 523.

The court cited Curds v. Brennan for the statement that “ ‘[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable ***; it must have been reasonably foreseeable. ***’ ” (97 Ill. App. 3d 721, 724, 423 N.E.2d 519, 521.) The court concluded that no duty existed because it was not “reasonably foreseeable” to Edison that this particular type of accident would occur. Thus, the court made the duty determination on the basis of a distinction between “simply foreseeable” and “reasonably foreseeable.”

It is somewhat ironic that in the last paragraph of its opinion, expressed as dicta, the court set forth reasons that fully explain the true basis of its determination and the proper reasoning process to be followed in determining the existence as well as the scope or range of protection of duty:

“The question of whether a legal duty exists must also be analyzed in view of the public policy favoring placement of utility poles along highway right-of-ways, and the State practice of regulation and approval of such placement. Electric poles are erected and maintained along most roads and streets in this state for a necessary public benefit. Generally, location of these poles in medians or on public right-of-ways adjacent to a road does not impose liability upon a utility company unless the placement creates a hazard for vehicular travel in the ordinary course of travel. (See Shapiro v. Toyota Motor Co. (1978), 38 N.C. App. 658, 248 S.E.2d 868; Simpson v. City of Montgomery (1968), 282 Ala. 368, 211 So. 2d 498.) Aware of the undesirable consequences that would flow from imposing a duty upon Edison under the facts of this case, we decline to do so.” (97 Ill. App. 3d 721, 727, 423 N.E.2d 519, 523.)

In short, utility poles placed 12 to 16 feet from the traveled portion of a highway as a matter of law do not impose an unreasonable burden upon travelers’ use of a highway.

The same court that decided the Hoffman case had before it later another case of similar nature but with facts of a more compelling nature, Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62. In Boylan the plaintiff was a passenger in an automobile who was injured when that automobile collided with another at an intersection and then had a secondary impact with a utility pole situated from six to 12 inches from the traveled portion of the highway. Plaintiff’s suit was brought against the driver of the other automobile and against the City for its breach of duty in failing to remove trees and bushes near the intersection, which obstructed the view of approaching drivers, and for negligently permitting the placement of a utility pole in a dangerous position near the highway. The complaint also named as defendants the Commonwealth Edison Company (Edison) and Bell Telephone Company (Bell), which were charged with negligence in the placement and maintenance of the utility pole. The trial court granted motions to dismiss the counts of the complaint directed to the City, Edison and Bell for failure to state a cause of action. The appellate court predictably placed heavy reliance on its decision in the Hoffman case, but very obviously ran into a great deal of difficulty in dealing with the fact that here the utility pole involved was only six to 12 inches from the traveled portion of the highway, whereas in the Hoffman case it had been 12 to 16 feet from the traveled portion of the highway. As in Hoffman, the question was whether the alleged facts showed the defendants to be under a duty to the plaintiff and whether the plaintiff’s injury was within the scope or range of protection of that duty. Again, the court advanced dual reasons for its decision to affirm the dismissal of all counts against the city, Edison and Bell. The court quoted section 368 of the Restatement (Second) of Torts as expressive of the duty owed. In this case, however, the court, as the first-stated basis of its decision, quoted as “particularly relevant” their dicta from Hoffman regarding the fact that the question of whether a legal duty exists must be analyzed in view of the public policy favoring placement of utility poles along highways. Such statement would have been sufficient reason to hold that the City, Edison and Bell owed no duty to plaintiff, and it would have been unnecessary to consider whether plaintiff’s injuries were within the scope or range of protection afforded by a duty. However, the court went on with an analysis of duty and the scope thereof based on the facts of the case.

“It is common knowledge that vehicles collide in roadways and on occasion leave the roadway and strike a utility pole or tree adjacent to the roadway. However, for a duty to third persons to be imposed upon those who erect and maintain such utility poles, there must be a reasonable anticipation of such deviation from the roadway as a normal incident of travel.” (103 Ill. App. 3d 335, 346, 431 N.E.2d 62, 70-1.)

Despite the fact that the complaint alleged that the utility poles lining North Avenue (the locale of the pole involved here) had been continually subjected to collisions with automobiles, the court found that the complaint did not allege sufficient facts to “create such a duty” because it did not allege that the particular pole in question had been previously struck by automobiles and did not attempt to correlate the conditions that led to the striking of other utility poles with the conditions that led to the striking of this particular pole.

The Boylan case furnishes a good example of the difficulty that can arise when duty and scope of duty are discussed in terms of foreseeability of harm. The factual application made by the court found no such foreseeability in harm to a motorist from a utility pole placed almost upon the traveled portion of the highway. It leads to a strained and tortured result. Almost certainly there was foreseeable harm, as almost any jury would have found. The court should have stopped its reasoning with the statement that duty arises from policy decisions, and as a matter of policy, entities that erect and maintain utility poles adjacent to highways come under no duty with regard to travelers upon the highway who are injured by the placement of such poles. There would have been no reason, then, to consider the scope or range of protection of any duty.

It should be said that other courts could very well have reached a contrary conclusion in the Boylan case upon the basis of the same policy matters discussed there. Cf. Kubala v. Dudlow.

The case under consideration presents issues for determination of the court that are similar to those in Kubala, Hoffman and Boylan. Those issues are whether defendant was under a duty and whether plaintiff’s injury was incurred within the scope or range of protection of that duty. The majority concluded not only that defendant was under a duty but also that plaintiff’s injury was incurred within the scope of the duty. However, it did so by analyzing duty and its scope in terms of proximate cause and foreseeability. Such an approach is unreliable and misleading because it does not focus on the true basis for the determination of duty and its scope or range of protections.

Although the trial court and the majority opinion have approached the issues of the case upon the basis of foreseeability, proximate cause and the furnishing of a condition that provided an occasion for an accident through the independent, intervening negligence of a third party, I nevertheless believe that their underlying and unexpressed process of reasoning and decision went something like the following.

There is a policy against blocking streets from the full vision of pedestrians who use streets in a normal manner. The reason is that streets are, at best, places of danger because of automobile and truck traffic, and pedestrians are at a continual disadvantage because of the size and speed of the vehicles on the street. It is generally not an unreasonable burden upon individuals, companies or other entities to avoid placing obstacles near a street so as to block or impede the vision of pedestrians. These policy matters are expressed in section 368 of the Restatement (Second) of Torts, and accordingly there is no question that the defendant here was under a duty to this plaintiff as imposed by law.

The next compulsory question is, was the injury plaintiff received, as disclosed by the facts alleged in the complaint, within the scope or range of protection of the duty? If the dumpster had been placed on a street on the other side of town, or on another street a block away from plaintiff’s accident, or on the same street but a block away from plaintiff’s accident, the accident plainly would not have been within the scope of the duty. It would be a ridiculous notion to suggest it, and no one ever would do so. If the dumpster had been on the same street but 300 feet distant from the scene of plaintiff’s accident, there still would have been little question that the accident was not within the scope or range of protection of the duty. At a distance of 300 feet, however, the factors that enter into the process for determining the scope of the duty begin to surface. It might cross the mind of an able and aggressive attorney that the dumpster could have had something to do with plaintiff’s accident. That attorney would add the defendant as a party and press his case, although perhaps with little expectation of success. Little would be required for a defendant to evade responsibility for the accident, for it would be obvious that at a distance of 300 feet the dumpster in all likelihood could not have contributed to the cause of the accident. The court would consider the matter with some care but probably decide that, as a matter of law, the defendant was not liable for plaintiff’s injury, i.e., plaintiff’s injury was received outside the scope or range of protection of the legal duty of the defendant. At distances between 300 feet and 50 feet, different judges might reach different conclusions as to whether plaintiff’s injury was received within the scope of the duty owed. But if the dumpster were 50 feet, or less, from the scene of plaintiff’s accident, plaintiff’s attorney would join Metro as a party-defendant as one at least partially responsible for plaintiff’s injury and press his case with vigor and insistence. In defense, the defendant would say, “It’s just a condition.” The court would give careful consideration to the matter and probably conclude that, as a matter of law, plaintiffs injury was incurred within the scope or range of protection of the duty imposed by law upon the defendant. As the case goes to trial and sufficient evidence is produced by both sides to get beyond the Pedrick motions, the court will have performed its proper role in the case by ruling on the matters of law presented to it. The jury will then be called upon to perform its role in the case by deciding three factual issues:

(1) Was defendant negligent, i.e., should defendant have foreseen that by placing its dumpster at the chosen site the plaintiff might be injured on this occasion;
(2) Was defendant’s negligence the proximate cause of plaintiff’s injury. “Proximate cause” is properly used at this juncture to denote causation or causal connection (see Illinois Pattern Instructions (IPI), Civil, No. 15.01 (2d ed. 1971)); and if (1) and (2) are answered in the affirmative:
(3) Was plaintiff injured, and the nature, extent and dollar value thereof.

In most negligence cases the determination of the presence of a duty comes relatively easily because most injuries fall within previously recognized areas of the law where a duty has been found to exist, and available precedents serve as a ready guide. But the principal difficulty with duty obviously comes with the question of its scope or range of protection. That is readily apparent from the cases. Issues regarding the scope or range of protection could be disposed of with greater ease and understanding if a court would in express terms merely state that an injury was or was not inflicted within the scope or range of protection of a duty owed by a particular defendant to a particular plaintiff. That issue is resolved by the court by viewing the incident after the fact and determining as a matter of law whether the injury received by the plaintiff was so extraordinary and unusual that the defendant should not have been required to guard against it. It is another question of policy.