author: JUSTICE STOUDER JUSTICE BARRY,

text:
      In re MARRIAGE OF WARREN ARTHUR SAPPINGTON, Petitioner-Appellant, and ANNA MARIE SAPPINGTON, Respondent-Appellee.
    Fourth District
    No. 4 — 82—0813
    Opinion filed April 9, 1984.
    BARRY, J., dissenting.
    Charles J. Gramlich, of Gramlich and Morse, of Springfield, for appellant.
    Edward Booth, of Greanias & Booth, of Decatur, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Sangamon County which declined to terminate the maintenance payments which plaintiff Warren Sappington was making to his former wife, Anna Marie Sappington.

After 30 years of marriage a judgment dissolving the marriage of the parties was entered on January 26, 1979. The judgment incorporated the separation agreement providing the plaintiff, Warren Sappington, pay monthly maintenance to Anna Marie Sappington, defendant, of $750. In October 1981, the plaintiff endeavored to terminate the maintenance payments under section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)), because the defendant was cohabitating with Lyle Montgomery on a resident, conjugal basis. Several hearings were held at which 11 witnesses testified. The evidence tended to show that Lyle “Archie” Montgomery has lived with Anna Marie since November 1979. The house which Anna Marie and Lyle occupy is the former marital residence of Warren and Anna Marie. It is a two-story house with three rooms and a bath on the second floor. Lyle Montgomery has access to the whole house. He helps mow the lawn, rakes leaves, patches the roof, fixes faucets and performs general maintenance about the house and has been doing those things since he has been there. He takes his meals there and sometimes takes his meals with Mrs. Sappington, who also cooks for him. She does his dishes and some of his laundry. He has his clothing there. He goes out socially with Anna Marie in addition to going to church with her. After church, Anna Marie and Lyle often eat at Bishop’s, a restaurant in Decatur. Lyle and Anna Marie have been many places together, including, but not limited to, Fairview Park, Republican Club, Blue Mill Restaurant, and Springfield, Illinois. They have taken two vacations to Florida together. While traveling to and from Florida, they occupied the same motel room and while they were in Florida, on each occasion they occupied the same room. He denied having a formal arrangement for the payment of expenses, but he maintained that he does pay for the privilege of living with Anna Marie. He says he pays part of the utilities and the paper boy in addition to bringing in food. They often shop for food and share expenses. He says he originally moved in to afford her protection. She was afraid of staying alone. They exchange gifts at Christmas and on birthdays. They commingle foods.

According to Lyle Montgomery, he has no interest in women and has been impotent for three or four years. He admitted, however, that he made no complaint about impotency until after the petition to terminate maintenance had been filed. It also appeared that Anna Marie took care of her own business affairs, had her own bank accounts in her name only and had not included Lyle in her will. According to her testimony, Lyle paid rent and attended social functions with her as a friend. Anna Marie and Lyle each denied having any sexual interest in the other and denied any sexual conduct toward the other, claiming instead their relationship was solely that of friends.

The court denied the request to terminate maintenance payments and this appeal follows.

This case involved the interpretation and application of section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)) which, in pertinent parts, provides:

“Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance,' or if the party receiving maintenance, cohabits with another person on a resident, continuing conjugal basis.”

On this appeal the plaintiff argues the term “conjugal” as used in the statute does not necessarily include sexual intercourse in the usual manner. Although stated as a separate issue, the plaintiff further argues that since sexual intercourse is not a necessary element of cohabitation on a conjugal basis, impotency does not prevent the application of the statutory terminating conditions.

The statute under consideration is of fairly recent vintage and has no antecedents which might afford some well-established meanings for the terms employed. In common and everyday parlance many of our expressions about marriage and sex are vague euphemisms. As is pointed out in the briefs, there are no committee comments regarding this section of the statute, so that in determining the intention of the legislature we do not have the benefit of any contemporaneous exposition.

According to In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, the addition to the statute terminating the recipient’s right to receive maintenance was enacted in response to the holding in Atwater v. Atwater (1974), 18 Ill. App. 3d 202, 309 N.E.2d 632. In Atwater the court held since Illinois does not recognize common law marriages, such a marriage by an alimony recipient did not terminate the right to receive alimony.

The plaintiff has directed our attention to several definitions of “conjugal” in support of his contention that neither a sexual relationship nor sexual intercourse is an essential element of the definition of the term. For example, Webster’s Third New International Dictionary defines conjugal “of or relating to marriage, the married state or married persons in their mutual relations; matrimonial; connubial.” From the failure of this definition and other similar definitions to include any mention of sex, sexual relationship or sexual intercourse, the plaintiff concludes that the sexual relationship is not an element of the conjugal relationship or conversely that the relationship can have a conjugal basis even though there is an absence of any sexual relationship. However, not cited by the plaintiff is the definition in Webster’s Third New International Dictionary of the term “conjugal rights” which are defined as “the sexual rights or privileges implied by and involved in the marriage relationship; the right of sexual intercourse between husband arid wife.” From the latter definition it would appear that “conjugal” refers primarily to the sexual relationship between parties.

According to In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 392 N.E.2d 764, and In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131, cohabiting on a residential continuing conjugal basis refers to the equivalent of a husband and wife relationship absent the legal formalization. While such a relationship may be subject to variation, the commonly accepted characterization of husband and wife does have a sexual component or basis. We believe that parties living together on a conjugal basis as described in the statute necessarily includes a sexual relationship. This view is supported by In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 405 N.E.2d 1156, which plaintiff believes was wrongly decided. However, we are not inclined to depart from our holding in McGowan and the cases cited therein.

The trial court in its order found, “There is no evidence of sexual intercourse between Anna Marie Sappington and Lyle Montgomery, nor does the evidence show any indication of attraction between them tending toward the establishment of a sexual relationship.”

Since the trial court found there was no sexual relationship between Anna Marie and Lyle, an essential element of a conjugal relationship, we find it unnecessary to decide in this opinion the nature and characteristics of a sexual relationship sufficient to meet the statutory condition.

The plaintiff has also argued that the evidence does establish a conjugal basis for the relationship between Anna Marie and Lyle, notwithstanding the trial court’s conclusion to the contrary. We disagree.

As a general rule, circumstantial evidence will suffice and specific eyewitness testimony will seldom be available. Nevertheless, after examining the evidence in some detail, we do not believe the trial court’s findings of fact are against the manifest weight of the evidence.

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

Judgment affirmed.

ALLOY, P.J., concurs.

JUSTICE BARRY,

dissenting:

I agree that the trial judge’s findings of fact do not appear to be against the manifest weight of the evidence. He indicated that he felt compelled and bound, and properly so, to follow the appellate case law in Illinois which interpreted section 510(b) to require proof of acts of sexual intercourse or the right to sexual intercourse. However, while refusing to terminate maintenance, the trial court found that Mr. Montgomery was not the renter that he and Mrs. Sappington claimed he was, and the trial court invited an appeal of his decision.

While I must admit that the presence or absence of sex is certainly relevant and material, I disagree with the majority holding that parties living together on a conjugal basis necessarily includes a sexual relationship between them. I am compelled therefore to consider all three of the appellant’s issues, which are:

(1) Whether the word “conjugal” as used in subsection (b) of section 510 necessarily includes sexual intercourse as classically defined;

(2) Whether an impotent male is capable of a conjugal relationship;

(3) Whether the finding of the trial court that a conjugal relationship did not exist is against the manifest weight of evidence.

I would rule that a conjugal relationship does not necessarily include sexual intercourse; that a male, if impotent, is capable of a conjugal relationship; and that the trial court did err in finding that a conjugal relationship did not exist.

The record reveals that Mrs. Sappington and Mr. Montgomery were older divorced adults without any family obligations, they had met some 12 years before, they attended singles dances subsequent to their divorces on some 20 occasions, they danced together, and ultimately Mr. Montgomery commenced residing in the marital residence acquired by Mrs. Sappington as part of her property settlement when she divorced. Mr. Montgomery took over use of the master bedroom and the two have lived there alone since, that is, for more than two years. Mrs. Sappington testified that she charged Mr. Montgomery $120 per month rent, but that she did not declare this amount as rental income on her income tax returns. Mr. Montgomery testified that there was no formal arrangement but that he paid in cash as necessary whenever bills came in. The record reflects their social activity together was unlimited and that there was no evidence of any intention of terminating the living arrangement. It appears that they did everything together as would a husband and wife, openly, and that in effect Mr. Montgomery replaced Mrs. Sappington’s former husband in and about the household. However, it appears they handled their own limited business affairs separately, and that neither is openly affectionate. (Mrs. Sappington’s daughter verified the latter about her mother.) Mrs. Sappington indicates that she enjoys social activity with female acquaintances outside the home, but both Mr. Montgomery and Mrs. Sappington admit that they do not date or socialize otherwise, except with each other. While admitting that they get along very well, they both testified, in opposition to any living arrangement, sexual relationship inference, that they have never slept in the same bed, even when occupying the same sleeping rooms to and from and while in Florida on vacations.

Though a sexual relationship and affection for each other was denied, every facet of a relationship necessary to circumstantially establish that sexual intercourse occurred was proved. Certainly sleeping in the same house for several years and in the same motel and vacation sleeping rooms necessitates a conclusion of a “conjugal” relationship beyond a mere platonic, pristine cohabitation of friends. (The evidence would be sufficient to prove adultery. See Cuneo v. Cuneo (1980), 80 Ill. App. 3d 141, 399 N.E.2d 1384.)

From this we can conclude that Mrs. Sappington and Mr. Montgomery established an ongoing relationship of “[cohabiting] with [each other] on a resident, continuing *** basis.” And, clearly there has been a substantial change in circumstances from those of Mrs. Sappington at the time of her divorce.

It is axiomatic that “the legislative branch in the exercise of its traditional authority [declares] public policy in the domestic relations field.” (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 61, 394 N.E.2d 1204, 1209.) Our resolution of the issues therefore turns upon the legislative intent by using the word “conjugal” with “continuing.” The only legislative history of section 510(b) herein involved is that it was passed by the legislature in 1977 and that it parrotted in part section 316(b) of the Uniform Marriage and Divorce Act, which Uniform Act reads:

“(b) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon [1] the death of either party or [2] the remarriage of the party receiving maintenance.” (Emphasis added.) (9A Uniform Laws Annotated 183 (1979).)

Section 510(b) as then enacted (and section 510(b) at the time the subject petition was filed in October of 1981), however did not include the emphasized introductory clause of the Uniform Act. Obviously it did not include the third terminating event involved in the instant case. The Illinois legislature then chose to mandate the third terminating event by adding: “[0]r if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1979, ch. 40, par. 510(b).

Firstly, it should be recognized that the elimination of the introductory clause attained the object of making terminating events mandatory. Secondly, as Justice Stouder in Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 416 N.E.2d 366, and Justice O’Connor in In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, have observed, the purpose of the inclusion of the “resident continuing conjugal cohabiting” terminating event was intended to reverse prior law which permitted maintenance payments to continue even though the recipient spouse had entered into a husband-and-wife-like relationship with another. While doing so it should be noted that the legislature did not repeal the statute against contracting common law marriages in Illinois. Nor did the legislature repeal the Illinois law which makes fornication a misdemeanor.

Exactly what did the legislature mean by including the word “conjugal” in section 510(b)? Black’s Law Fourth and Webster’s Third New International Dictionary definitions of “conjugal” are as follows:

“Of or belonging to marriage or the married state; suitable or appropriate to the married state or to married persons; matrimonial; connubial. Swanson v. Swanson, 20 A.2d 617, 618, 128 Conn. 128, 135 A.L.R. 349.” (Black’s Law Dictionary 374 (4th ed. 1951).)
“1: of or relating to marriage, the married state, or married persons in their mutual relations; MATRIMONIAL, CONNUBIAL ***
2: consisting of or based on the husband, wife, and their offspring as constituting the functional familial unit in a society *** contrasted with consanguine, compare FAMILY — con-ju-gali-ty.” (Webster’s Third New International Dictionary 480 (1976).)

Black’s definition of “Conjugal rights” is as follows:

“Matrimonial rights; the right which husband and wife have to each other’s society, comfort, and affection.” Black’s Law Dictionary 374 (4th ed. 1951).

Though I take issue with defining conjugal in the context of “rights,” as does the majority, even Black’s definition of “conjugal rights” limits the rights to a de jure marriage state, and it is also noteworthy that the definition does not include the word “sex,” nor does it include the right to sex. (Certainly there is no right whatsoever to sex outside of a de jure marriage.)

The above-recited modern recognized definitions of “conjugal” obviously assume only the de jure marital state. Our chore is to determine what the legislature meant by “conjugal” in a nonmarital setting for the purpose of adding another mandated automatically enforceable right to terminate maintenance. By adding the word conjugal the legislature meant to define something other than holding out as a husband and wife (as in a common law marriage), or something other than an open and notorious sexual relationship (as fornication). Obviously the legislature meant something less than a de jure marriage, and did not choose to use the term “defacto.”

Dr. Carol Moy, a professor of psychiatry and family practice at Southern Illinois University School of Medicine in Springfield, testified at the trial in this case. She counsels couples who are dissatisfied with their relationships and assists people in developing a conjugal relationship, including males who are impotent. She indicated that penile penetration is not the only form of sexual intercourse, that there are verbal and nonverbal ways of expressing sexuality. While indicating that a conjugal relationship does not necessarily involve sexual intercourse or sexual gratification, she defined a conjugal relationship as “a total family relationship *** between a male and a female [is] usually understood to be a relationship of two people living, functioning together in a mutually supportive atmosphere.”

The case law interpretations of the third terminating event of section 510(b) were commenced in the Illinois Appellate Court in April of 1979. They are:

In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131;

Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 392 N.E.2d 764;

In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469;

In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 405 N.E.2d 1156;

In re Marriage of Olson (1981), 98 Ill. App. 3d 316, 424 N.E.2d 386;

In re Marriage of Cohenour (1981), 101 Ill. App. 3d 362, 428 N.E.2d 195;

In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 444 N.E.2d 1369.

Except for Cohenour all involved short term or non-live-in or admitted sexual relationships. Cohenour is the only factually similar case.

In Cohenour, as here, we found that the maintenance recipient claimed physical impairment and did not seek employment. Like Mr. Montgomery, Mr. Escabedo in Cohenour contributed dollars rather freely to the Cohenour household expenses, and denied sexual activity with Mrs. Cohenour, which was verified by Mrs. Cohenour’s resident son, who was unfriendly to Mr. Escabedo. Mr. Escabedo also indicated that he had his own sleeping accommodation in the house, for a time in a basement room, and thereafter in the room relinquished by Mrs. Cohenour’s son. However, unlike the instant case, it does not appear that Mrs. Cohenour and Escabedo socialized together on an unlimited basis as here, nor did they vacation together. They of course denied any sexual relationship. In approving the trial court’s refusal to terminate maintenance we held that continuing sexual intercourse must be proved as occurring between the parties before the pertinent provision of section 510(b) is triggered, thereby eliminating the obligation to continue maintenance payments. We said “continuing sexual intercourse must occur between the party receiving maintenance and another party.” (In re Marriage of Cohenour (1981), 101 Ill. App. 3d 362, 365, 428 N.E.2d 195, 197.) Then we said “[t]he law requires either direct or circumstantial evidence of sexual conduct before maintenance payments can be terminated.” (101 Ill. App. 3d 362, 365, 428 N.E.2d 195, 198.) One fallacy of our reasoning in Cohenour is apparent. We erroneously equated sexual conduct with sexual intercourse. In addition, the facts presented in the instant case suggests that our ruling in Cohenour was overbroad, and though the proper result was reached, I would now state the applicable principles of law more narrowly. In fact, I believe the intent of the legislature has been misinterpreted by our various appellate decisions cited above. I believe there is no justification for equating sexual intercourse with conjugal, without reservation or exception.

Though sexual activity will normally be an element in a conjugal relationship, it would seem that there could be a conjugal relationship without sexual intercourse. Absence of intercourse in a marriage would not make a marriage nonconjugal. I doubt that the legislature contemplated that the consummation of the sex act was necessary to a conjugal relationship. Sexual intercourse as classically defined is sometimes impossible between partners, which we must assume was recognized by the legislature. Though the element of sex is certainly a factor to be considered, by my view it is not an essential ingredient and should not be a controlling factor. Whether partners avail themselves of the sexual aspect of cohabitation is a private matter in our society. Unless a crime is involved, the sexual activity need not be disclosed, and most times is not. (For that reason such conduct in a setting such as here is no more susceptible to direct, positive evidence than is adultery.) However, in the words of the appellant “like it or not Illinois is relatively straight-laced.” In Illinois when the public is even only indirectly affected the public policy in the domestic relations field is to condemn the activity. As I have heretofore indicated, fornication is a crime when the behavior is open and notorious, common law marriages are barred by statute, in 1977 the Illinois legislature added the additional maintenance terminating event here involved, and our supreme court, through Justice Underwood, while denying a “common law” wife’s claims, which were considered to perhaps be meritorious, said, “There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships.” (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 58, 394 N.E.2d 1204, 1207.) Obviously Illinois has a strong public policy in favor of encouraging marriage and regenerating morality, and it appears that the pertinent provision of section 510(b) is consistent with the public policy of Illinois which disfavors the creation of or continuation of rights which enhance nonmarital relationships. Hewitt.

Given what appears to be a rather clearly defined mandate and purpose to terminate future maintenance whenever the receiving spouse enters into a husband-wife-like relationship, and in view of the public policy as expressed by our supreme court and our statutory law, having carefully considered all of the evidence and circumstances, I would rule in favor of terminating maintenance here.

I would hold that when two parties, usually of the opposite sex, who are not closely related, reside together continuously for an extended period of time, pursuing life and functioning together, sharing financial and household responsibilities, in a warm, intimate, mutually supportive atmosphere, tantamount to that of husband and wife, then the relationship is presumed to be “[cohabitation] with another person on a resident, continuing conjugal basis,” whether sexual conduct is evidenced or desired.

Though stare decises would normally compel me to concur, I must dissent and depart from former opinions for the reasons indicated.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HUBERT ALMO a/k/a Herbie Almo, Defendant-Appellant.
    First District (4th Division)
    No. 81 — 44
    Opinion filed April 5, 1984.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M, Daley, State’s Attorney, of Chicago, for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

On appeal of his convictions for murder and armed violence defendant Hubert Almo contends: (1) the trial court erred in granting the prosecution two extensions beyond the 120-day period in which they would have otherwise been required to bring defendant to trial; (2) defendant’s guilt of murder was not established beyond a reasonable doubt; (3) defendant’s armed violence conviction should be vacated because it was based on the same physical act on which his murder conviction was based; (4) the trial court erred in not permitting defense counsel to impeach a prosecution witness concerning her prior omission of a material fact from a statement made to the police; (5) when the jury initially returned verdicts of guilty of murder and voluntary manslaughter the trial court erred in submitting new verdict forms to the jury rather than entering judgment on the voluntary manslaughter verdict; (6) defendant’s concurrent sentences of 30 years for murder and 20 years for armed violence were excessive; (7) assuming this court reduces defendant’s murder conviction to one for voluntary manslaughter, the prosecution also failed to prove defendant’s guilt on this charge; (8) a reduction of defendant’s murder conviction to one for voluntary manslaughter would require vacating his armed violence conviction because both convictions arose from the same physical act and because the armed violence statute should be construed as.precluding voluntary manslaughter as a proper predicate felony for armed violence.

We affirm defendant’s conviction and sentence for murder but vacate his conviction for armed violence and the sentence imposed for that offense.

At trial Sandy Russell testified that on March 9, 1979, she was visiting her boyfriend in the second-floor lounge of the YMCA then located at 826 South Wabash in Chicago. A man subsequently identified by other witnesses as the defendant came in and stood at a table where people were playing cards. Five to ten minutes later she heard a gunshot and took cover on the floor. When she got up she saw the defendant put a gun in his holster and walk casually out the lobby as though nothing had happened. She heard no loud noises before the shooting. Russell’s boyfriend testified to essentially the same facts except that he was not questioned about hearing any noises before the shooting.

Janie Boyd testified that at the time of the shooting she was in a library adjoining the second floor lounge. The victim, Rick Bynum, was sitting at a table in the lounge. Boyd heard a commotion in the lounge area and saw Bynum standing up and trying to pull the table up with him. She then heard a gunshot. Bynum ran into the library and fell to his knees. The defendant ran in behind him. With a gun in his hand the defendant stood behind Bynum and said “Get up you coward m— f- — , get up because I ain’t done anything to you yet.” Bynum remained on his knees and defendant walked away. Boyd testified that she could not hear any conversation from Bynum’s table before the shooting. She denied hearing defendant say anything else after the remarks she had testified about, but then admitted telling investigators that after the shooting she heard defendant yell that he had just shot someone. Boyd identified the victim as a security guard and testified that in her experience the security guards at the YMCA wore guns most of the time.

Chicago police officer Anthony Biamonte testified that he arrested the defendant as defendant walked toward the exit of the YMCA. Biamonte observed the handle of a gun sticking out of a holster clipped to defendant’s belt. The gun contained five live bullets and one spent one. Another police officer who searched the victim’s body in the YMCA library testified that no weapon was found on the victim.

Dr. Lee F. Beamer, a pathologist with the Medical Examiner’s office, examined the victim and testified that he died of a gunshot wound to the chest which lacerated his lungs and heart. The bullet had been fired from the victim’s side. According to Beamer the victim was between 25 and 30 years of age, six feet four inches tall, and weighed 213 pounds.

The defendant testified that he had lived at the YMCA since 1972 and worked there as a part-time security guard. He had previously been employed as an Andy Frain security guard in 1978 and was currently licensed to carry a gun. He was required to carry a gun while on duty as were all security guards at the YMCA.

In early 1979 Rick Bynum became a security guard at the YMCA. On March 7, 1979, Bynum approached the defendant in the YMCA cafeteria and told him to leave the premises after finishing his coffee. They argued and Bynum called the police and had defendant arrested for disorderly conduct. Defendant was released the next day and returned to the YMCA. Bynum told him he was being evicted and that although he could enter the first floor cafeteria, if Bynum caught him above the first floor he would blow his head off. Defendant testified that he was 49 years old, five feet nine inches tall, and weighed 160 pounds. Bynum was 28 years old, weighed 230 pounds, and was about six feet three inches tall.

The following evening defendant went up to the second floor where he customarily played cards. Bynum, who was sitting at a table, said, “Here, this nigger is here.” Defendant told him to leave him alone and Bynum replied, “What did I tell you.” Bynum told a woman sitting in front of him to move, pushed her out of her chair to the floor, and jumped up. Defendant testified that he shot once in an effort to defend himself. He then walked downstairs to the switchboard and called the police to report that he had shot someone. Defendant denied following Bynum or saying anything to him after the shooting.

Defendant testified that although he was not working as a security guard that day he was carrying a gun because he always carried one at the YMCA, having obtained permission to do so from the YMCA’s chief of security. Although Bynum was not working as a security guard that day defendant testified that all the previous times he had seen Bynum, Bynum was wearing a gun. When Bynum jumped up from the table the defendant could not see his right hand. Bynum had a reputation for violence and defendant had once seen him beat a blind man suspected of breaking into a hotel room.

I

We first consider defendant’s contention that the trial court erred in granting the prosecution two extensions of time beyond the 120-day period in which they would have otherwise been required to bring defendant to trial. On September 10, 1980, several days before the 120-day term was due to elapse, the prosecution filed a petition for an extension of time in order to obtain the testimony of Janie Boyd, who they alleged was a material and necessary witness. At the hearing on the motion the prosecution presented the testimony of David Ohlson, an investigator with the Cook County State’s Attorney’s Office. Ohlson testified to the efforts he had made to locate Boyd since April. He had contacted the post office, the Chicago Housing Authority, the Department of Public Aid, the telephone company, and county and Federal correctional officials, all without success. A record check with the police department was unsuccessful because he did not have enough information about the witness. He also left a subpoena for Boyd’s mother. Ohlson explained that the difficulty he had in locating Boyd and other witnesses was that they had all left the Wabash YMCA. In June he learned from the YMCA’s central office that the former manager of the Wabash YMCA was in Des Plaines. He contacted that manager but received no additional information. He also spoke to Boyd’s mother, who told him she had not seen her daughter in a long time.

Later in June, Ohlson obtained the names of three people who might have information but when he located them he did not learn anything new. In September Ohlson was told by the State’s Attorney’s office to drop every other case and concentrate on this one. He went back to Boyd’s mother, who admitted that Boyd had been living with her. She gave him Boyd’s telephone number and promised her cooperation. However Ohlson’s subsequent repeated efforts to telephone the mother were unsuccessful until the day of the hearing. She then told him she had seen Boyd the day before. Ohlson testified that he was continuing to observe the mother’s house.

On the basis of this information the trial court granted the prosecution a 30-day extension. At the end of that period the prosecution sought another extension in order to locate another witness, Charleston Curry. The prosecutor informed the court at the hearing on this motion that Curry had told police he had witnessed the shooting. According to the prosecutor Curry had moved out of the Wabash YMCA and had changed jobs several times. His former employers had been contacted and a check had been made at Curry’s father’s residence, all to no avail. However the prosecutor had been informed that Curry was training with the Marine Corps in Glenview. A sergeant there had refused to divulge Curry’s address and phone number, but the prosecutor informed the court that the sergeant would be subpoenaed. The prosecution was granted another extension on the basis of these representations.

Under the provisions of the speedy trial act an extension beyond the period in which a defendant must otherwise be brought to trial may be obtained if the court determines that the prosecution has acted diligently to obtain material evidence which there are reasonable grounds to believe may be obtained at a later date. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(c); People v. Antrim (1979), 67 Ill. App. 3d 1, 385 N.E.2d 5.) The determination of whether to grant such an extension is a matter for the trial court’s discretion which will not be disturbed on appeal absent a showing of abuse of that discretion. People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230.

Defendant contends that the prosecution failed to establish the materiality of either witness or due diligence in seeking to locate them. Defendant correctly notes that no testimony was elicited at the first hearing concerning the materiality of Janie Boyd’s testimony. But defendant’s prior action of listing Boyd as a potential witness established that materiality for purposes of the speedy trial act. (People v. Antrim (1979), 67 Ill. App. 3d 1, 385 N.E.2d 5.) Certainly on the issue of due diligence the testimony of Investigator Ohlson was sufficient to establish that the prosecution had exercised diligent efforts to locate Boyd.

The materiality of Charleston Curry, who was also listed as a potential witness by the defense, was also established by the prosecutor’s representation that Curry claimed to have been an eyewitness to the shooting. And again the court was informed of the specific efforts made by the prosecution to locate this witness who had moved from his last known residence and who had changed jobs several times. On the basis of the information communicated to the trial court we find no abuse of discretion in the granting of the two extensions of time.

II

We find no merit to defendant’s contention that based on the evidence the prosecution did not prove him guilty of murder beyond a reasonable doubt. The jury was not required to believe the defendant’s claim that when he shot Rick Bynum he believed he had to act to defend himself. Defendant admitted that Bynum was not working as a security guard that day. He never claimed to have seen a weapon in Bynum’s hand that day and no weapon was found on Bynum’s body after the shooting. It is undisputed that it was the defendant who approached Bynum as Bynum was playing cards. None of the prosecution’s witnesses reported hearing the statements attributed by defendant to Bynum just prior to the shooting. Janie Boyd’s account of the shooting suggested that Bynum was trying to shield himself with the table when he was shot. Her account of defendant’s actions immediately after the shooting was also a matter which the jury could take into consideration in determining the credibility of defendant’s account of the shooting. Under these circumstances the jury was not required to accept defendant’s exculpatory version. (People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281.) Nor do we find the evidence of defendant’s guilt of murder so improbable as to raise a reasonable doubt as to his guilt. Accordingly we will not set aside the jury’s verdict on that basis. People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.

III

The prosecution does concede, however, that defendant’s conviction for armed violence must be vacated because it was based on the same physical act upon which defendant’s murder conviction was based. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

IV

Defendant also contends that the court erred in preventing the impeachment of Janie Boyd as to an alleged prior omission of a material fact. The alleged omission arises from a police report prepared by homicide investigator John Byrne, who testified at trial that he had interviewed Boyd after the shooting. Although that report has not been included in the record on appeal it was undisputed at trial that the report included no mention of the statement which Boyd had testified hearing defendant make to Bynum after the shooting. In a side-bar conference during the cross-examination of Boyd defense counsel stated that he intended to ask Boyd whether she told the investigator of this statement. The following colloquy then occurred:

“The Court: That would not be proper impeachment
[Defense counsel]: That is impeachment by omission, when she talked to the investigator—
[Prosecutor]: How do you impeach her from what the investigator puts in his report? It is not her report, it is a summary.
[Defense counsel]: If she said that she told him that.
[Prosecutor]: Then you have no problem.
[Defense counsel]: Then we can put him on to say that either she did—
The Court: But that is the investigator that is not here. You can’t impeach her.
[Defense counsel]: All right.”

Following this, defense counsel made no attempt to question Boyd concerning whether she reported the statement to the investigator, even though he was permitted to impeach her representation that she heard him make no other statement by eliciting her admission that she had told the investigators that she heard defendant yell that he had just shot someone. Under these circumstances we do not find that defense counsel was prevented by the court from questioning Boyd about making the statement to Investigator Byrne. Defense counsel simply abandoned this line of questioning. Thus, when defense counsel subsequently attempted to cross-examine Byrne about whether Boyd ever mentioned the statement to him the trial court correctly sustained the prosecution’s objection on the ground that defense counsel had failed to lay the foundation for the impeachment by first questioning Boyd about making such a statement to Byrne. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) Defense counsel did not contend at that time that the court had barred him from eliciting such foundation testimony, nor in his extensive motion for a new trial did he cite this ruling as a ground for reversal. Under these circumstances we find that the trial court acted properly in barring this line of questioning because of the failure to establish a proper foundation for impeachment.

Y

We next consider defendant’s contention that when the jury initially returned verdicts finding defendant guilty of murder and voluntary manslaughter (as well as armed violence) the court should have vacated the murder verdict and entered judgment on the voluntary manslaughter verdict rather than ordering the jury to deliberate further.

After the jury had commenced its deliberations the court received the following question from the foreman of the jury:

“Do we have to find innocent or guilty on all three charges, or are two enough?”

After consultation with both defense counsel and the prosecutor the court, with the agreement of both parties, sent a written response to the jury which in pertinent part stated:

“If you find the defendant ‘guilty’ of the murder charge then you need not return a verdict on the voluntary manslaughter charge. If you find the defendant ‘guilty’ of the voluntary manslaughter charge then you need not return a verdict on the murder charge.”

After further deliberation the jury returned guilty verdicts for murder, voluntary manslaughter, and armed violence. Over the objections of defense counsel the trial court then determined that it would submit new verdict forms to the jury for murder and voluntary manslaughter. The court also amended its prior instructions to the jury so as to more clearly indicate that a finding of guilty of one of those crimes precluded a guilty finding on the other. The instructions as amended stated:

“If you find the defendant ‘guilty’ of the murder charge then you must not return a verdict on the voluntary manslaughter charge. If you find the defendant ‘guilty’ of the voluntary manslaughter charge then you must not return a verdict on the murder charge.” (Emphasis added.)

The jury subsequently returned a verdict of guilty of murder.

In asserting that these actions by the trial court were erroneous the defendant relies primarily on People v. Stutter (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593. In Stutter the jury ■ returned verdicts of guilty of murder and voluntary manslaughter and the trial court vacated the voluntary manslaughter verdict and entered judgment on the murder verdict. On appeal the trial court was ordered to reduce the murder conviction to one for voluntary manslaughter. The appellate court stated that by returning a verdict of guilty of manslaughter the jury had necessarily found that the defendant had Relieved, albeit unreasonably, that he was justified in shooting the victim in self-defense. In so holding the court relied on its finding that a verdict of voluntary manslaughter was compelled by the evidence which established that the victim was armed, prone to violence, and had struck the defendant with a beer bottle just prior to the shooting. In the instant case we have determined that the evidence amply supported defendant’s conviction for murder.

Also in Stutter the court noted that the jury instructions listing the elements of murder omitted the requirement that the jury find that the defendant did not believe that circumstances existed which justified his use of force. This element was included in the Illinois Pattern Jury instructions for use in a murder case in which a defendant claimed to have acted in self-defense. (Illinois Pattern Jury Instructions (IPI), Criminal, No. 27.01 (1968).) This element has been omitted in the current IPI Criminal edition. (IPI Criminal No. 27.01 (2d ed. 1981).) The Stutter court concluded, without referring to any other instructions in the case, that by omitting this element the trial court permitted the jury to conclude that a finding of voluntary manslaughter also supported a finding of murder. In the case at bar that element was also omitted (without objection) from the instruction listing the elements of murder. But we cannot conclude that the jury was necessarily led to believe that a finding of voluntary manslaughter would also support a finding of murder. The jury was also given an instruction derived from IPI Criminal No. 2.01 (1968), stating that the crime of murder included the crime of voluntary manslaughter. This was technically correct, as the statute defines an included offense as one which:

“(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 2— 9(a).)

However the instruction may well have led the jury to conclude that a finding of murder would also support a finding of voluntary manslaughter because the latter was “included” in the crime of murder. Thus when the jury returned verdicts of guilty of voluntary manslaughter and murder the court was faced with conflicting verdicts and no justifiable basis for determining which verdict should control. The court then acted in a manner which serves to completely distinguish this case from Stuller: it permitted the jury to clarify the ambiguity by resubmitting the verdict forms for murder and voluntary manslaughter, with instructions that defendant could only be found guilty of one of those two charges.

A jury’s finding does not become a verdict until accepted by the court and entered of record. (People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626; People v. Harrison (1982), 106 Ill. App. 3d 341, 435 N.E.2d 1211.) Thus in a civil context it has been held that a trial court may properly require the jury to reconsider inconsistent findings prior to recording and discharge. (Roth v. Meeker (1979), 72 Ill. App. 3d 66, 389 N.E.2d 1248; Miller v. Pillsbury Co. (1965), 56 Ill. App. 2d 403, 206 N.E.2d 272, aff’d on other grounds (1965), 33 Ill. 2d 514, 211 N.E.2d 733.) Defendant has presented us with no authority suggesting that judges in criminal cases do not possess the same power to seek clarification of conflicting jury findings. Indeed, our supreme court has emphasized the importance of the trial court ascertaining whether a verdict reflects the jurors’ intent, noting that upon finding that a juror did not agree with a verdict the court was authorized to require the jury to return for further deliberations. People v. Kellogg (1979), 77 Ill. 2d 524, 397 N.E.2d 835.

In this cause we find that the court acted properly in resubmitting verdict forms for murder and voluntary manslaughter after the jury returned inconsistent findings of guilty on both charges. We also find that the court’s instructions to the jury accompanying these resubmitted forms served to clarify any confusion in the instructions. In determining whether a jury has been properly instructed on the law the instructions are to be read as a whole. (People v. Kolep (1963), 29 Ill. 2d 116, 193 N.E.2d 753; People v. Bergeron (1973), 10 Ill. App. 3d 762, 295 N.E.2d 228.) Thus although certain isolated instructions may have given the jury the impression that a finding of murder would support a finding of voluntary manslaughter, or vice versa, the court’s instructions informing the jury that a guilty verdict on one excluded a finding of guilt on the other, coupled with the complete and accurate instructions listing the elements of voluntary manslaughter, served to fully inform the jury of the applicable law.

Defendant has also contended that the court erred in not resubmitting to the jury verdict forms on armed violence. We do not find this to have been necessary, as it was clear that the jury had concluded that defendant had committed one of the offenses forming the predicate felony for that offense. However as we have already noted, that conviction must be vacated because it was based on the same physical act as defendant’s murder conviction.

VI

We find no merit to defendant’s contention that his sentence for murder was excessive. The sentence imposed was well within the legislative guidelines. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8— 1(a)(1).) The record establishes that the trial court considered the circumstances of the crime as well as defendant’s lack of any criminal convictions for almost 20 years prior to the offense. We find no basis for concluding that the trial court abused its discretion and therefore will not disturb the sentence imposed. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Because of our disposition of these issues we need not address the remainder of defendant’s contentions.

Defendant’s conviction and sentence for murder are affirmed. His conviction and sentence for armed violence are vacated.

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE JOHNSON

text:
    JAMES R. WALSH, Plaintiff-Appellant, v. RICHARD FANSLOW et al., Defendants (Julian Golding et al., Defendants-Appellees).
    First District (4th Division)
    No. 83 — 413
    Opinion filed April 12, 1984.

      Sidley & Austin, of Chicago (Chester J. Maciorowski, Michael R. Blankshain, and Richard O’Malley, of counsel), for appellant.
    Berman, Fagel, Haber, Maragos & Abrams, of Chicago (Joel A. Haber, Alvin D. Meyers, and Steven J. Teplinsky, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

On July 24, 1980, plaintiff, James R. Walsh, a real estate broker, filed a complaint against Julian Golding, Marvin Robinson, Maurice Harris, the Austin-Madison Industrial partnership, and Richard Fanslow, defendants. Fanslow is not a party to this appeal. Hereafter, the term “defendants” does not include Fanslow, who will be referred to as Fanslow.

The trial court dismissed plaintiff’s fourth amended complaint as to defendants. The fourth amended complaint contained amendments to counts II and III. Count I of the complaint which stated a cause of action against Fanslow for a breach of a real estate broker’s contract between plaintiff and Fanslow was allowed to stand. Counts II and III specifically related to defendants and not to Fanslow. The issues on appeal are (1) whether count II of the fourth amended complaint states a cause of action for intentional interference with a contractual relationship and (2) whether count III states a cause of action for conspiracy to interfere with a contractual relationship.

We reverse.

Count I of the two-count complaint filed on July 24, 1980, alleged that in December 1976 plaintiff was contacted by a real estate broker from Applegate Reason and Company regarding an open listing for sale of some property owned by Fanslow. The property consisted of two buildings located in Morton Grove, Illinois. Plaintiff alleged that he had discussions with Fanslow on numerous occasions in December 1976 and January 1977. Plaintiff said that he and Fanslow made an oral agreement to pay Walsh 10% of the purchase price, less the mortgage, if plaintiff procured a buyer who was ready, willing and able to buy the property. Plaintiff further alleged that he was the procuring cause of the sale of the property and that Fanslow breached their agreement by refusing to pay the commission due. Plaintiff demanded judgment against Fanslow in excess of $15,000 for his commission, plus interest and costs.

Count II of the complaint concerned defendants Golding, Robinson, Harris, and the Austin-Madison partnership. On September 3, 1980, defendants filed a motion to strike count II of plaintiff’s complaint on the ground that it was legally insufficient in that it failed to state facts sufficient to state a cause of action.

On January 9, 1981, the trial court granted defendants’ motion to strike count II and allowed plaintiff 28 days in which to amend count II of the complaint. On February 6, 1981, plaintiff filed his first amended complaint. On March 4, 1981, defendants filed a motion to strike plaintiff’s amended count II on the ground that it failed to state a cause of action.

On May 6, 1981, the trial court granted defendants’ motion to strike plaintiff’s amended complaint. On June 9, 1981, plaintiff filed his second amended complaint which contained a third count.

On January 12 and July 27, 1982, the trial court granted defendants’ motions to dismiss plaintiff’s second and third amended complaints, respectively, on the ground that the counts did not state a cause of action against defendants for either intentional interference with a contractual relationship or for conspiracy to interfere with a contractual relationship.

On August 24, 1982, plaintiff filed his fourth amended complaint. Summarily, plaintiff’s fourth amended complaint charged that plaintiff and Fanslow had an oral contract by which Fanslow employed plaintiff to procure a purchaser ready, willing and able to purchase the property within a reasonable time, at a reasonable price, upon reasonable terms. Plaintiff was to receive 10% of the purchase price, less the mortgage, as commission for procuring a purchaser.

Plaintiff alleged that in January 1977 he informed defendant Robinson that he (plaintiff) was the real estate broker for the property and gave Robinson information concerning the property. Plaintiff alleged that he fully performed his agreement and was the procuring cause of the sale which eventually took place.

Further, count II charged that defendants knew of the real estate contract between plaintiff and Fanslow and that they then conspired to deprive plaintiff of his commission by concealing the purchase from him. After the purchase, in an effort to conceal it, defendants conveyed the property to the defendant partnership of which Golding, Robinson and Harris are general partners. As a direct result of defendants’ wrongful acts, plaintiff charged that he was deprived of his commission. He asked that judgment be entered for a sum in excess of $15,000 for his commission, plus interest and costs.

Count III of the fourth amended complaint realleged some of the charges made in count II. Summarily, count III charged that the defendants and Fanslow conspired in a fraudulent, malicious, and wrongful way to purchase the property without plaintiffs knowledge, and that they concealed the purchase for the purpose of depriving plaintiff of his commission.

Further, defendants conveyed the property to the partnership in order to conceal their wrongful acts and deprive plaintiff of his commission. The purchase price paid by defendants was believed by the plaintiff to be $2,000,000. Plaintiff asked for judgment in excess of $15,000 for his commission, plus interest and costs.

Defendants filed a motion to dismiss plaintiff’s fourth amended complaint. The motion asserted that count II of plaintiff’s fourth amended complaint lacked factual statements to support a cause of action for intentional interference with a contractual relationship. Further, there were no facts which alleged a valid and enforceable contract between plaintiff and Fanslow; neither were there facts which alleged an actual and intentional breach of contract. Defendants’ motion to dismiss went on to say that the allegations against the defendant partnership were insufficient because the partnership was not formed until after the contract to purchase the property. Furthermore, counts II and III of plaintiff’s fourth amended complaint are the same, and failure of count II necessarily strikes count III.

On January 18, 1983, a hearing was held on defendants’ motion. At the hearing the trial court stated that plaintiff had failed to establish that there was a duty owed which had been breached. Defendants’ motion to dismiss counts II and III of plaintiff’s fourth amended complaint, with prejudice, was granted and this appeal was brought. Count I which concerns only Fanslow was allowed to stand and was pending in the trial court at the time of this appeal.

Defendants’ first argument is that count II of the fourth amended complaint was properly dismissed because plaintiff did not allege facts showing a valid and enforceable contract between himself and Fanslow, nor that defendants had knowledge of such a contract. Neither did plaintiff allege facts showing that defendants intentionally induced Fanslow to breach any existing contract he had with plaintiff. Plaintiff’s complaint did not show wrongful conduct by defendants and, furthermore, the complaint was based on conclusions rather than facts. Defendants conclude that plaintiff’s complaint is insufficient to support any cause of action against them. We do not agree.

Illinois courts have long held that maliciously causing a breach of contract terminable at will is actionable as a civil wrong. (Getschow v. Commonwealth Edison Co. (1982), 111 Ill. App. 3d 522, 529, 444 N.E.2d 579, 584.) To state a cause of action for the tort of intentional interference with a contractual relationship, the following elements must be pleaded: the existence of a valid and enforceable contract between the plaintiff and another; defendant’s awareness of the contractual relation; intentional and unjustified inducement of a breach of the contract; a subsequent breach by the other caused by defendant’s wrongful conduct; and damages. Getschow v. Commonwealth Edison Co. (1982), 111 Ill. App. 3d 522, 529.

Construing the complaint liberally with a view to doing substantial justice between the parties (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)), we must decide if, under the facts alleged and all reasonable inferences that could be drawn therefrom, there was demonstrated any possibility of recovery under the theory alleged; if so, the complaint should not have been dismissed. Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 554, 405 N.E.2d 1093,1098.

With regard to the first two elements of the tort of intentional interference with a contractual relationship, paragraphs 3, 4, 5 and 10 of count II of the fourth amended complaint alleged that plaintiff and Fanslow had entered into an oral contract. According to the terms of that contract, plaintiff was to procure a purchaser for Fanslow’s property who was ready, willing and able to purchase within a reasonable time, at a reasonable price, and upon reasonable terms. In return for his service, plaintiff was to receive a commission of 10% of the purchase price less the existing mortgage.

Further, plaintiff alleged that he informed defendant Robinson, who informed defendants Golding and Harris, that plaintiff was Fanslow’s real estate broker for the sale of the property. Plaintiff showed the property to defendants Robinson and Golding and supplied them with information concerning the property. Some of the transactions were carried out in the presence of Fanslow’s secretary. It could reasonably be inferred from these facts that plaintiff was acting as Fanslow’s broker and that defendants were aware of it.

With regard to the third, fourth and fifth elements of the tort, plaintiff alleged in paragraphs five, 10 and 11 of the fourth amended complaint that although defendants knew of his brokerage arrangement with Fanslow, they induced Fanslow to deal directly with them. Plaintiff alleged that as a result of the defendants’ inducement, Fanslow did in fact deal directly with them thus breaching his contract and depriving plaintiff of his commission.

As the court did in Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093, we also find that plaintiff’s complaint though no model of pleading, sufficiently stated a cause of action for intentional interference with a contractual relationship.

Defendants’ argument that the trend of Illinois courts is to “tighten up pleading standards,” and their reliance on Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976, is based on the premise that plaintiffs complaint in no way stated a cause of action. Our foregoing discussion makes it clear that we reject defendants’ argument.

Similarly, we reject defendants’ contention that there was no valid and enforceable contract between plaintiff and Fanslow. It is well established that no particular form of words is necessary to engage the services of a real estate broker. (Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App. 3d 315, 323, 314 N.E.2d 361, 367.) All that is required is action by the broker with consent of the principal; consent may be oral, written or implied by the conduct of the parties. 20 Ill. App. 3d 315, 323.

Here, the complaint alleged sufficient facts to establish that there was indeed a brokerage contract between plaintiff and Fanslow. We find persuasive plaintiff’s argument that the complaint alleged the terms of the contract with sufficient specificity to establish a binding real estate broker’s contract. (See Yoder v. Rock Island Bank (1977), 47 Ill. App. 3d 486, 362 N.E.2d 68; Miller v. Bloomberg (1975), 26 Ill. App. 3d 18, 324 N.E.2d 207.) We hold that count II of plaintiff’s fourth amended complaint stated a cause of action for intentional interference with a contractual relationship.

Defendants next contend that count III of the fourth amended complaint does not state a cause of action for conspiracy to intentionally interfere with a real estate brokerage contract. They argue that plaintiff alleged no facts which could be considered wrongful and in furtherance of the conspiracy. Further, they reassert their argument that there was no valid contract; therefore, there could be no breach of conspiracy to cause a breach.

We have rejected defendants’ contention that there was no valid contract between plaintiff and Fanslow. Plaintiff argues persuasively that his complaint contains sufficient allegations to allow his claim to proceed. “ ‘By its very nature, a conspiracy, if one exists, normally precludes the one who is its object from being in a position to charge, with complete particularity, the details of the conspiracy.’ ” (Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 667, 344 N.E.2d 805, 816.) A conspiracy is rarely susceptible of direct proof; instead, it is established from circumstantial evidence and inferences drawn from evidence, coupled with commonsense knowledge of the behavior of people in similar circumstances. 36 Ill. App. 3d 654, 667.

In our opinion, plaintiff alleged facts sufficient to state a cause of action for conspiracy. It could reasonably be inferred that a conspiracy existed based on plaintiffs allegations, namely, secret meetings, defendants’ knowledge of plaintiffs status as broker, the manner in which the property was conveyed and subsequent conduct of the defendants.

In light of the allegations made by plaintiff, the existence of a conspiracy was a question for the trier of fact. (Blivas & Page, Inc. v. Klein (1972), 5 Ill. App. 3d 280, 286, 282 N.E.2d 210, 215.) Therefore, count III of plaintiff’s fourth amended complaint should not have been dismissed.

For the reasons stated, we hold that plaintiff’s fourth amended complaint was sufficient and should not have been dismissed. Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded with directions that the complaint be reinstated.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE WILSON

text:
    LAUREN M. PELL, Plaintiff-Appellee, v. VICTOR J. ANDREW HIGH SCHOOL et al., Defendants (AMF, Inc., Defendant-Appellant).
    First District (5th Division)
    No. 82 — 2539
    Opinion filed April 6, 1984.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom, James E DeNardo, and Shaun McFarland, of counsel), for appellant.
    Michael J. McArdle, of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an appeal by defendant AMF, Inc. (AMF) from the entry of judgment in the circuit court of Cook County on a jury verdict for plaintiff Lauren M. Pell for permanent injuries plaintiff sustained during gym class while performing a somersault off a trampoline manufactured by AMF. Prior to trial, plaintiff and defendants School District 230 and Victor J. Andrew High School entered into a settlement agreement for $1.6 million. Thereafter, the jury awarded plaintiff $5 million against AMF on the theory of strict liability, which amount was set off by the $1.6 million settlement figure and .resulted in a final judgment against AMF for $3.4 million. Ill. Rev. Stat. 1981, ch. 70, par. 302(c).

On appeal, AMF contends that the trial court erroneously failed to direct a verdict in its favor or to grant its motion for judgment notwithstanding the verdict because (1) AMF cannot be held liable for failure to provide warnings and instructional materials to either of the other defendants; (2) because the proximate cause of plaintiff’s injury was the school district’s wilful and wanton misconduct in failing to properly instruct and supervise plaintiff in the use of the trampoline; and (3) because plaintiff’s knee condition was the proximate cause of her injury. AMF contends further that the trial court erred (4) in refusing to allow AMF to present evidence on the issue of plaintiff’s comparative negligence; (5) in admitting exhibits that dealt with full-size trampolines; (6) in refusing to admit two of AMF’s exhibits, and (7) in finding that plaintiff’s settlement with the school district was made in good faith. For the reasons hereinafter set forth, we affirm.

On December 29, 1980, plaintiff, a 16-year-old sophomore and beginner gymnast at Victor J. Andrew High School, was injured as the result of a somersault she performed on a product manufactured by AMF, called a mini-trampoline or trampolette (mini-tramp). This equipment consists of a 37-inch, square-shaped metal frame holding a “bed” of polypropylene fabric with rubber cables which lace the “bed” to the frame. Two adjustable metal leg sections can be used to set the frame at any angle or to fold the equipment flat.

The mini-tramp was sold to School District 230 with a heat-laminated caution label affixed to the bed which stated:

“Caution. Misuse and abuse of this trampoline is dangerous and can cause serious injuries. Read instructions before using this trampoline. Inspect before using and replace any worn, defective, or missing parts. Any activity involving motion or height creates the possibility of accidental injuries. This unit is intended for use only by properly trained and qualified participants under supervised conditions. Use without proper supervision can be dangerous and should not be undertaken or permitted.”

When the mini-tramp was assembled by a faculty member at the high school, the bed was placed so that the caution label was on the bottom, facing the floor, as opposed to the top where it would be visible to a performer. There were printed warnings also on the frame of the mini-tramp; however, they were covered by frame pads on each of the four sides.

On the day of the injury, plaintiff had first performed two somersaults off the mini-tramp. Both of the school’s coaches, Charlene Nutter, the varsity gymnastics coach, and Cathi Miles, were present in the gymnasium. Miles, who worked primarily with the freshmen and sophomore students, witnessed plaintiff’s third somersault from a distance of approximately 10 feet. Plaintiff testified that she took a few running steps up to the mini-tramp and jumped onto the bed. When she went into the air, at the point when her feet were straight up and down above her, plaintiff said she felt a sharp pain in her knee and was unable to properly complete her somersault. She collapsed onto a nearby mat, severing her spine.

Plaintiff then filed a cause of action against Victor J. Andrew High School, School District 230, Crown Mats, Inc., and AMF. As previously explained, a pretrial settlement between the high school and school district resulted in their dismissal and rendered moot portions of counts I and II of plaintiff’s complaint; plaintiff also dismissed Crown Mats, Inc., because of insufficient evidence.

Counts III, IV, VII, and VIII of plaintiff’s complaint alleged that AMF’s mini-tramp was not reasonably safe for its intended use; that AMF failed to adequately warn or advise plaintiff that use without a harness, safety belt and supervision by a trained instructor would result in severe injury and that AMF carelessly and negligently failed to provide a support harness or restraining device to prevent improper landing. Plaintiff further alleged that as a direct and proximate result of the defect in the mini-tramp, plaintiff landed on her neck, severed her spine and was permanently paralyzed.

In reply, AMF filed affirmative defenses asserting that (1) plaintiff had assumed the risk of injury because she knew of the condition of the mini-tramp and the dangers involved in using it, and (2) that any verdict against AMF must be reduced by the percentage of plaintiff’s contributory negligence.

Plaintiff then filed a motion in limine to preclude AMF from presenting evidence that her conduct contributed to cause her injury. Granting the motion, the court reasoned that although it would allow AMF to offer evidence of plaintiff’s negligence, it would “wait and see what happens” before deciding whether to give a comparative negligence instruction to the jury.

The record shows that during the trial of this matter, plaintiff and AMF called many witnesses to testify, including high school coaches, the president of AMF and one of its vice-presidents, as well as gymnastic experts and physicians. Because of the lengthy proceedings, we will address AMF’s argument at the outset and refer to the pertinent testimony only as we deem to be necessary.

At the close of all the evidence, the question of comparative negligence was again addressed during a post-trial discussion on jury instructions, where the court determined that “*** this case really turns on proximate cause. *** I am taking the view [that] this is not an appropriate case for application of the principles of comparative negligence.” The court once again reiterated its reasons for not instructing the jury on comparative negligence, stating that there had been absolutely no evidence of assumption of the risk as well. The jury was thereafter given an instruction on strict liability. It returned a verdict against AMF and assessed plaintiff’s damages at $5 million. Following the entry of judgment on this verdict, AMF appealed.

Opinion

Initially, AMF maintains that the trial court erred in failing to direct a verdict in its favor or to grant its motion for a judgment notwithstanding the verdict because it cannot be held liable, as a matter of law, for failing to provide warnings and instructional materials for using the mini-tramp since the school district as well as the high school had all of the appropriate instructional materials. We find this reasoning unpersuasive, however, because it misstates the central issue presented to the trier of fact, which was the unreasonably dangerous condition of the mini-tramp which, plaintiff alleged, existed because AMF failed to adequately warn of the equipment’s propensity to cause severe spinal cord injuries if used for somersaulting without a safety device operated by a trained instructor.

Warnings must be adequate to perform their intended function of risk reduction. Warnings may be inadequate, however, if they: (1) do not specify the risk presented by the product; (2) are inconsistent with how a product would be used; (3) if they do not provide the reason for the warnings; or (4) if they do not reach foreseeable users. Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 206, 454 N.E.2d 210; Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 221, 412 N.E.2d 959; Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026,1029, 366 N.E.2d 144.

Considering these principles, in our opinion there was sufficient evidence in the instant case from which the jury could conclude that AMF’s warnings were ineffective. First, the warnings did not specify the risk of severe spinal cord injury which would result in permanent paralysis during somersaulting off the mini-tramp if performed without a spotter or safety harness. Charlene Nutter, head coach at the high school, testified that she did not know that the mini-tramp had any more risk involved in it than did any other gymnastic equipment and had she known, she would have taken precautions.

Coach Cathi Miles was also unaware of any rule that somersaults should not be performed on a mini-tramp without a spotter or overhead mechanical safety belt, although she had used the safety harness with a larger (full-size) trampoline as well as the mini-tramp.

In addition, the jury could have reasonably determined that the warnings were inadequate because their location was inconsistent with the equipment’s use. Plaintiff presented evidence that the assembly instructions failed to specify that the warning label should be placed in such a manner that it would be clearly visible to a gymnast. As a result, the warning label on the “bed” was placed underneath, facing the floor. The warnings on the sides of the metal frame were also ineffective because they were covered by frame pads.

In addition, because there was evidence that AMF had regularly participated in the United States Gymnastic Safety Association (USGSA), the jury could have easily concluded that AMF was familiar with the warnings that that association recommended which were that the labels should explain the reason for a warning and should be clearly visible to a mini-tramp user. AMF, however, failed to present evidence that anyone from the high school had attended a trampoline safety certification clinic. In fact, Mike Jacki, a vice-president at AMF, explained that AMF’s certification program had been discontinued because of lack of funds. Thus, the jury in this case, which examined the mini-tramp from a distance of a few feet, was able to determine whether AMF’s warnings were adequate. We are convinced that this determination was correct.

AMF next contends that the trial court erred in failing to issue a directed verdict or judgment notwithstanding the verdict because the proximate cause of plaintiff’s injury was the school district’s failure to provide plaintiff with proper gymnastic instructions in the safe use of the mini-tramp. We cannot agree:

In a strict liability action, a manufacturer may remain a contributing cause of an injury if the intervening acts or omissions of others were foreseeable. (Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App. 3d 420, 426, 420 N.E.2d 262.) Foreseeability means that which is objectively reasonable to expect, not what might conceivably occur. (Williams v. RCA Corp. (1978), 59 Ill. App. 3d 229, 231, 376 N.E.2d 37.) This is ordinarily a question of fact for the jury. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13, 310 N.E.2d 1.) Liability will also attach if the defendant’s conduct contributed in whole or in part to the injury, so long as it was one of the proximate causes. Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 88, 199 N.E.2d 769.

In the case before us, there was sufficient evidence to support a finding that it was objectively foreseeable that mini-tramp users such as plaintiff would not always be under the direct supervision of a coach and that neither a gymnast nor a coach would have sufficient knowledge of the dangers of the mini-tramp because the warnings were inadequate. As we have previously explained, plaintiff submitted ample evidence which.strongly suggested that AMF’s warnings were inadequate. Additionally, the record shows that both Larry Fie and Mike Jacki testified that coaches were not “told to put the kids in harnesses if they’re using a mini-tramp to avoid crippling injuries from doing a somersault.” In our judgment, therefore, the trial court could not have directed a verdict for AMF since the evidence, when viewed in a light most favorable to the nonmovant, plaintiff, demonstrated that (1) the absence of direct supervision was reasonably foreseeable, and (2) that AMF’s failure to adequately warn of the risk of serious injury was a proximate cause of plaintiff’s injury. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Accordingly, the trial court’s denial of AMF’s motion will not be disturbed.

Next, as an alternative to the preceding argument, AMF maintains that plaintiff’s “idiosyncratic” knee condition was the proximate cause of her injury and that because this condition was unforeseeable, AMF did not have a duty to warn or to protect plaintiff against the danger of performing on the mini-tramp with such a condition. AMF relies on our recent decision in Presbrey v. Gillette Co. (1982), 105 Ill. App. 3d 1082, 435 N.E.2d 513, where we reversed the trial court’s decision in favor of the plaintiff after determining that plaintiff’s evidence failed to show that the defendant’s product (deodorant) contained an ingredient to which a substantial number of the population was allergic. We found instead that the proximate cause of the plaintiff’s injury was due to the plaintiff’s idiosyncratic reaction or allergy to the product and not to the company’s failure to warn of a defect. 105 Ill. App. 3d 1082, 1094.

In the case at bar, however, plaintiff testified that her knee had never been such a problem for her that she could not practice gymnastics, although it had been “locking up” on her during her diving (swimming) practice in her freshman year. Unlike the plaintiff in Pre sbrey, therefore, whose unusual susceptibility was a successful defense to liability because the manufacturer did not know and had no reason to know that a small minority of the users of its product was allergic to an ingredient in the product, the jury in the instant matter could reasonably determine that plaintiff’s injury was not caused by any unusual propensity on her part. Thus, even if AMF had known of plaintiff’s “knee condition,” it would not be absolved of the duty to adequately warn users of the high risk of injury associated with the mini-tramp.

AMF next contends that the trial court’s refusal to give several of its jury instructions improperly precluded the jury from considering the percentage of contributory negligence attributed to plaintiff. It maintains that because plaintiff was aware of her knee condition and knew that a safety harness and spotters were available to assist her, the jury could have found that plaintiff’s failure to request her coach’s permission to somersault without a spotter or harness was a proximate cause of her injury. The court’s failure to give a comparative negligence instruction precluded the jury from making this determination, AMF asserts. This contention cannot prevail.

In Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, our supreme court upheld the principle that contributory negligence is not a defense in a strict product liability tort action. Comparative fault is applicable to strict liability cases, the court determined, but only insofar as the defenses of misuse and assumption of the risk are concerned. Moreover, these defenses no longer preclude recovery in such actions. Thus, once a defendant’s liability is established, and where both the defective product and the plaintiff’s misconduct contribute to cause the damages, the comparative fault principle will operate to reduce the plaintiff’s recovery by that amount which the trier of fact finds him at fault. 97 Ill. 2d 104,119.

In the case at bar, AMF failed to establish that plaintiff’s alleged negligence rose to the level of misuse of the mini-tramp or that she assumed the risk of injury. Rather, we are of the opinion that the evidence showed that because the warnings as well as any other information AMF provided about the mini-tramp were ineffective and failed to warn that use of the equipment without a safety device and proper supervision could result in permanent injury, plaintiff was unaware that somersaulting off of this product could result in serious injury. Furthermore, because there was no evidence that plaintiff had used the mini-tramp for a purpose that was neither intended nor reasonably foreseeable, AMF’s allegation of misuse of the product will be rejected. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425, 261 N.E.2d 305.

We further note that the Coney decision mentioned above was recently applied by this court in a strict liability action where the defendant alleged, like AMF in the case at bar, that the comparative fault principle should apply to all aspects of plaintiff’s culpability, including the plaintiff’s alleged contributory negligence. (See Simpson v. General Motors Corp. (1983), 118 Ill. App. 3d 479, 455 N.E.2d 137.) Again, as we decided in Simpson, we reject this contention since permitting the ordinary contributory negligence of a plaintiff to reduce damages in strict liability actions would frustrate the policy considerations underlying this tort theory. In such actions, the focus is on the design and performance of the product and the plaintiff is relieved of the burden of proving negligence. (118 Ill. App. 3d 479, 482-83.) Moreover, a consumer’s unobservant or inattentive failure to discover or guard against a defect is not a damage reducing factor. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119, 454 N.E.2d 197.) The trial court’s ruling, which denied AMF’s request for a contributory negligence instruction, will therefore prevail. •

Next, it is urged that the trial court erroneously admitted evidence pertaining to full-size trampolines. A mini-tramp differs from a full-size trampoline in size, purpose and function, AMF contends, even though the definition of both pieces of equipment is the same. (A “bed,” secured on a metal frame, suspended by springs with pads that cover the springs and frame.) We cannot agree.

First, the record shows that the trial court denied AMF’s motion in limine to preclude any evidence pertaining to full-size trampolines because it “[did not] have enough information *** to determine whether there was a substantial difference between a full size and mini-trampoline.” The court further ruled that AMF should object during trial and that the court would rule accordingly.

The testimony reveals that the court’s ruling, based on its uncertainty as to the definitional difference between the two types of equipment was correct because of the conflicting evidence presented during trial on this point. One of AMF’s vice-presidents, Larry Fie, first testified as an adverse witness under direct examination by plaintiff that because of certain qualifying language, the 1977 definition by the American Society for Testing and Materials (ASTM) of a trampoline did not apply to a mini-tramp. That definition, which Fie read into evidence, states as follows:

“trampoline — a propelling device activated by jumping, upon which gymnastics are performed; alternatively, a propelling device that is used to increase the height of a jumping activity. It is a total system made up of the following integral parts: *** frame *** bed *** suspension system *** frame pads ***.”

Under further testimony, however, Fie agreed that the ASTM standards did apply “to this [mini] trampoline but excludes certain things from it.” Thus, Fie testified that the ASTM standards, at least in part, did apply to the mini-tramp. He also testified that the lighting recommendations in the ASTM standards applied to all trampolines, including the mini-tramp. AMF’s objection on the grounds of relevancy was overruled. Fie further testified that the mini-tramp which was exhibited before the jury was listed in AMF’s catalogue under the heading “Trampoline.” He stated, “I’m not saying people don’t call it a trampoline, but a trampoline is a continuous bounce device.” Plaintiff then presented testimony by gymnastic expert Jeff Austin, who said that the ASTM definition did apply to mini-trampolines.

Because there was conflicting evidence throughout the trial of this case as to whether the definition of a full-size trampoline also applied to a mini-tramp, it was well within the court’s discretion to admit relevant evidence concerning both kinds of equipment as such evidence clearly showed that neither the ASTM nor AMF in its equipment catalogue specifically defined a mini-tramp. Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556, 356 N.E.2d 779.

As far as the other exhibits pertaining to full-size trampolines which the trial court admitted, which included instructions for proper display of trampoline cautionary statements and trampoline care and maintenance, for the foregoing reasons we do not believe that the court’s decision was in error. Moreover, if in any instance AMF was harmed, it was not prejudiced thereby and neither was the outcome of the case unduly affected. Needy v. Sparks (1977), 51 Ill. App. 3d 350, 372, 366 N.E.2d 327.

Further challenging the trial court’s evidentiary rulings, AMF asserts that the court erroneously refused to admit company records showing the contents of a mass mailing in 1977 to all of the school districts in the United States. This mailing contained the ASTM rules for trampolining, warning labels, safety rules, safety charts and a letter to the school district administrators advising them to evaluate their programs and to make sure their equipment was properly used. We cannot agree with AMF’s contention.

First, AMF’s exhibit No. 3, a letter from another manufacturer of athletic equipment (Nissen) which was addressed to Larry Fie, was properly determined by the trial court to be inadmissible as a business record of AMF. The court stated that such evidence was one of Nissen’s business records but that as to AMF, the letter was a hearsay document. See Benford v. Chicago Transit Authority (1973), 9 Ill. App. 3d 875, 877-78, 293 N.E.2d 496, where the court determined that just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business.

Additionally, the court questioned the relevancy of the letter since it merely stated that 15,170 mailings were made to school superintendents but did not indicate whether the mailing had included plaintiff’s high school.

AMF’s exhibit No. 4 was the actual mailing package referred to in the letter to Fie. Stating that there was no evidence that the particular gymnastic rules poster in the package was posted at plaintiff’s high school, the court determined that the poster was inadmissible but that AMF would be allowed to introduce evidence as to whether the poster had been delivered to the school. The record then shows that AMF responded that it could prove that the poster had in fact been delivered. When the trial resumed, Mike Jacki testified accordingly. The poster was then admitted without objection. In our opinion, the trial court’s well-reasoned decision on this issue was correct.

AMF’s final contention is that plaintiff’s pretrial settlement with the school district for $1.6 million does not bar AMF from filing a separate contribution action against the district because the settlement amount fails to reflect the district’s pro rata share of liability and because the settlement agreement was not made in good faith. We cannot agree.

The record shows that during a pretrial discussion on this issue, after the court determined that the settlement was made in good faith, it informed AMF that it would issue a ruling, when presented, on AMF’s third-party action against the school district. Whether AMF filed such an action, the court ruled, either “now or in the future *** [was] up to [AMF].”

The problem before us, however, is that AMF neglected to file such an action while this matter was being litigated before the trier of fact. Having failed to do so, AMF is now barred from seeking contribution against the school district. The question of contribution among tortfeasors was specifically addressed in our recent decision, Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 246, 446 N.E.2d 1271, and applies with equal force to the case at bar.

In Tisoncik, we interpreted the enforcement provision of the Illinois Contribution Act to mean that a contribution claim may be asserted by a separate action before or after payment by a codefendant to the injured party where no suit is pending which was initiated by the injured party. When there is a pending action, however, the contribution claim should be asserted by counterclaim or by a third-party claim in that action. (113 Ill. App. 3d 240, 255.) As specifically stated in the Act, “A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 70, par. 305.

Applying this reasoning to the facts of the instant case, we find that because AMF did not assert a counterclaim for contribution in the pending action below, it now does not have standing to appeal the dismissal of the other joint tortfeasors.

We further believe that AMF’s contention that the settlement was not made in good faith is without merit. The record reveals that there was a lengthy discussion on this issue, which AMF presented before the court for a second time in a post-trial motion. We have reviewed these proceedings and, in our judgment, the court properly determined after hearing argument by counsel for plaintiff, the school district and AMF that “*** simply because [plaintiff] made a good settlement without somebody else and then seeks more money from [AMF] because [plaintiff] is in a better bargaining position doesn’t make it a bad faith settlement. *** I’m going to make a finding that there is no evidence of bad faith that would justify a fact hearing.” We are convinced that this decision was correct. Moreover, our research has failed to uncover any authority in Illinois requiring a separate evidentiary hearing to specifically address the question of whether a settlement agreement was made in good faith. We therefore conclude that the court did not act arbitrarily in determining that the settlement was equitable.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County will be affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

      We disagree with plaintiff’s contention that AMF has waived several issues for our consideration because they were neither presented during trial nor in a post-trial motion. The record shows that these issues were presented by AMF in several of its written motions submitted during the pendency of this case. Plaintiff’s contention therefore cannot be sustained.

      During argument on AMF’s motion in limine to preclude evidence pertaining to full-size trampolines, AMF emphasized that a full-size trampoline is used for repetitive bouncing and that the risk of injury relates to coming off the trampoline onto the floor or coming down onto the trampoline itself. A mini-tramp is a single rebound device and is used as a vaulting board. The performer bounces once and is propelled onto a mat.