author: JUSTICE STAMOS

text:
    CHARLES JAMES KALB, Plaintiff-Appellant and Cross-Appellee, v. THE VILLAGE OF OAK LAWN et al., Defendants-Appellees and Cross-Appellants.
    First District (2nd Division)
    No. 83—2754
    Opinion filed November 7, 1984.

      Le Roy W. Gudgeon, of Northfield, for appellant.
    Klein, Thorpe & Jenkins, Ltd., of Chicago (Patrick A. Lucansky and Thomas P. Bayer, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

This is a declaratory judgment action brought by plaintiff Charles Kalb, a retired member of the Oak Lawn fire department, for determination of the amount of accumulated unused sick leave benefits to which he was entitled at the time of his retirement. The village filed a motion to dismiss, which was denied, and a motion for summary judgment, which was granted. The trial court denied plaintiff’s cross motion for summary judgment and granted the village’s motion partially to strike portions of plaintiff’s affidavit in opposition to the village’s summary judgment motion. Plaintiff appeals the granting of summary judgment for the village. The village cross-appeals, alleging error in the trial court’s finding that firemen are entitled to accumulated unused sick leave benefits under the sick leave ordinance.

Plaintiff Charles Kalb was a full-time member of the Oak Lawn fire department from September 1961 until his retirement on October 1, 1981. The defendant village had enacted during this period several ordinances relating to “sick leave.” Plaintiff had, at the time of his retirement, accumulated more than 120 unused sick days and was therefore entitled, under village of Oak Lawn Ordinance 81 — 1—1, Regulation C, section 7(f), to be paid for accumulated unused sick leave of up to “120 days.”

On October 1, 1981, plaintiff received from the village a check for $13,056. This amount represented plaintiff’s unused sick leave and was computed based upon 120 days of accumulated sick leave at eight hours per day at $13.60 per hour. On October 2, plaintiff requested an additional $18,048, arguing that he should be compensated based on 120 days of accumulated sick leave at 24 hours per day at $10.80 per hour. Plaintiff also requested that the village release its original check for $13,056 as the undisputed amount.

On October 7, 1981, the village informed plaintiff that its ordinance contained no provisions for computation of unused sick pay on the basis of 24-hour days. The village also indicated that firemen may not be covered by the ordinance, and that the $13,056 therefore could not be released as the undisputed amount. Plaintiff returned the $13,056 check to the village and refused the village’s offers to return it to him.

On September 8, 1982, plaintiff instituted this declaratory judgment action, requesting $31,104. The trial court denied the village’s motion to dismiss, granted the village’s motion for summary judgment, denied plaintiff’s cross-motion for summary judgment, ordered certain provisions stricken from plaintiff’s affidavit in support of his motion for summary judgment and awarded plaintiff the sum of $13,056 with interest from October 18, 1983, the date of the court’s order. The trial court found that the village’s sick leave ordinance applied to firemen and that the payment should be computed on the basis of an eight-hour day.

Plaintiff appeals from the trial court’s order granting the village’s motion for summary judgment and striking portions of plaintiff’s affidavit. Plaintiff claims he should receive $31,104 with interest running from October 1, 1981. The village cross-appeals, arguing that the trial court erred in finding that the sick leave ordinance applied to firemen.

We initially note that it is clear from the language of the sick leave ordinance that the ordinance applies to firefighters.

The central issue raised by plaintiff on appeal is whether the trial court properly granted the village’s motion for summary judgment. Plaintiff argues that the trial court incorrectly construed the ordinance as providing for benefits based upon eight-hour days rather than upon 24-hour days. Plaintiff bases this assertion on the fact that,' as a fireman, he commonly worked on a 24-hour-on, 48-hour-off schedule, rather than the more conventional eight-hour-on, 16-hour-off schedule.

The trial court found the decision of this court in Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 420 N.E.2d 472, to be dis-positive of this issue. In Airdo, the plaintiff, a suspended firefighter, questioned the village’s interpretation of section 10 — 2.1—17 of the Illinois Municipal Code, which provided for suspensions “not exceeding 30 days without pay.” (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17.) The fire chief suspended the plaintiff for five days, and the plaintiff appealed the suspension to the village’s board of fire and police commissions, which approved the five-day suspension and added an additional suspension of “25 duty days.” Because plaintiff was scheduled to work a 24-hour-on, 48-hour-off shift, this language resulted in his suspension being effectively lengthened to 75 calendar days.

The circuit court subsequently reduced the period of suspension based upon its construction of the word “days” in section 10 — 2.1—17 as meaning consecutive calendar days, rather than scheduled “duty days.” We agreed with the circuit court’s decision, noting that “[i]n the absence of any differing indication, words of a statute are to be given their plain, ordinary and common meaning.” (Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569.) We also observed:

“The reading proposed by the Board also fails to comply with principles of reasonableness and fairness. Should the Board’s interpretation be accepted, the degree of punishment meted out to two suspended parties could vary in relation to the type of work schedules maintained by them, although the suspension terms were equivalent in the number of ‘days.’ Just such a result occurs here. Plaintiff works a 24-hour-on, 48-hour-off schedule. The Board proposes to suspend him for one ‘day’ for each 24-hour work period. Yet, had plaintiff remained on the 91/2 hour per day, 5-day per week schedule which he held at the time of the initial 5-day suspension, each ‘day’ of the additional 25-day suspension would have involved only one-third as much time, and presumably one-third as much pay as actually resulted. The legislature is presumed not to intend unjust, absurd, or unreasonable consequences in enacting legislation. [Citation.] The Board’s interpretation would result in such consequences. We therefore decline to accept it.” 95 Ill. App. 3d 568, 569-70.

The sick leave ordinance in the instant case provides for compensation for accumulated unused sick leave of “up to but not exceeding 120 days.” Under our decision in Airdo, the word “days” in the ordinance should be given its common meaning with regard to an employee day, eight hours. Plaintiff in the instant case performs 24 hours of work in a three-day period, as does anyone working on a conventional eight-hour per day schedule. It would be contrary to the rules of statutory construction, and common sense, to compensate plaintiff for more than eight hours for each of his 120 accumulated unused sick days.

Plaintiff’s contention that the trial court erred in striking paragraphs 12, 13, 14, 15, 17 and 19 from his affidavit in opposition to the village’s motion for summary judgment is without merit. The trial court found these paragraphs to be conclusory and irrelevant and ordered that they be stricken from the affidavit.

Under Supreme Court Rule 191(a), an affidavit in support of or in opposition to a motion for summary judgment “shall not consist of conclusions but of facts admissible in evidence ***” (87 Ill. 2d R. 191(a).) An examination of the paragraphs in question is necessary to a determination of their compliance with Rule 191.

Paragraphs 12-15 of the plaintiff’s affidavit relate statements made by others to the affiant. These paragraphs contain hearsay statements and do not meet the requirements of Rule 191(a). (See Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 804, 352 N.E.2d 310.) Paragraphs 17 and 19 were also properly stricken from the affidavit because they are plaintiff’s conclusions as to the proper calculation of the amount owed him by the village. (See Murphy v. Urso (1981), 88 Ill. 2d 444, 462-63, 430 N.E.2d 1079.) We therefore find that these paragraphs were properly stricken from plaintiff’s affidavit.

Plaintiff finally contends that the trial court erred in awarding interest on its judgment only from the date of the order instead of from the date of plaintiff’s retirement. However, in a situation such as that in the instant case, where the village tendered the $13,056 and plaintiff refused it, an award of prejudgment interest on the tendered amount is not warranted. East St. Louis & Interurban Water Co. v. City of Belleville (1935), 360 Ill. 490, 496, 196 N.E. 442.

The decision of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    HAROLD A. GARY, Plaintiff-Appellant, v. JOE ROTH TRUCK PARTS & SALES, INC., Defendant-Appellee.
    First District (1st Division)
    No. 83—2884
    Opinion filed October 29, 1984.

      Walter M. Ketchum, Ltd., of Chicago, for appellant.
    McLennon & Jackman, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Harold Gary, appeals an order dismissing with prejudice his proposed “Amendment to Complaint.” On appeal, plaintiff argues the trial court erred in holding the proposed amendment was barred by the statute of limitations.

We reverse and remand.

On February 26, 1980, plaintiff filed a four-count complaint against Joe Roth Truck Parts & Sales, Inc. (defendant), and Great Lakes Air Brakes, Inc. (Great Lakes). Basically, plaintiff’s complaint alleged that on June 15, 1979, defendant repaired a truck belonging to plaintiff. In the course of those repairs, defendant distributed to plaintiff a defective air brake manufactured by Great Lakes. On December 21, 1979, plaintiff was injured when the air brake exploded. Count I of plaintiff’s complaint sounded in negligence against defendant in performing the repairs to plaintiff’s truck. Count II sounded in strict liability in tort against defendant for distributing a defective air brake. Count III sounded in negligence against Great Lakes in manufacturing the air brake, and count IV sounded in strict liability in tort against Great Lakes for manufacturing a defective air brake.

On April 6, 1983, count II was dismissed with prejudice pursuant to section 2 of “An Act in relation to liability *** based on strict liability in tort” (Ill. Rev. Stat. 1981, ch. 110, par. 802). Plaintiff was granted 28 days to file an amended complaint. On July 19, 1983, plaintiff filed an amendment to his original complaint alleging a cause of action against defendant for breach of implied warranty in defendant’s sale of the air brake. (See Ill. Rev. Stat. 1983, ch. 26, par. 2— 315.) The trial court dismissed plaintiff’s proposed count V, holding it alleged a new cause of action barred by the applicable four-year statute of limitations. See Ill. Rev. Stat. 1983, ch. 26, par. 2 — 725.

The parties agree that plaintiff’s proposed amendment alleging a cause of action for breach of implied warranty is barred by the appropriate statute of limitations unless the amendment “relates back” to the time of filing the original complaint. The operative provision of the Code of Civil Procedure provides that an amendment can relate back to the filing of the original complaint if “it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set out in the original pleading ***.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(d)(5).

Thus, the issue before this court is whether the cause of action against defendant for breach of implied warranty arises out of the same transaction or occurrence as the causes of action based on negligence and product liability as set out in the original complaint. We believe that it does.

In Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64, the supreme court held that an amendment alleging a cause of action based on the Structural Work Act related back to the original complaint sounding in negligence. Similarly, in M.J. McCarthy Motor Sales Co. v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 725, 396 N.E.2d 1253, we held that the plaintiff’s amendment alleging a cause of action for fraud related back to the original complaint alleging unjust enrichment. Therefore, in McCarthy, we allowed a cause of action sounding in tort to relate back to the original cause of action sounding in contract. In McCarthy, we stressed that defendant could not claim surprise and prejudice at the newly alleged cause of action:

“Though recovery was based solely on the theory of unjust enrichment, the complaint sufficiently smacked of fraud so as to afford defendants a sufficient opportunity to investigate the factors upon which liability was based without being prejudiced by the filing of the second amendment to the complaint which alleged fraud and conspiracy to commit fraud.” 78 Ill. App. 725, 732.

In the case at bar, the original complaint and amendment alleged a common set of facts. Basically, plaintiff alleged that defendant performed repairs on plaintiff’s truck, that defendant distributed to plaintiff an air brake, and that the brake later exploded, causing plaintiff’s injuries. We believe the original complaint adequately informed defendant of facts upon which defendant could investigate the claim in the amendment. From the original complaint defendant realized that plaintiff was alleging the particular air brake was defective and exploded. Under such an allegation, defendant could certainly anticipate plaintiff could also allege the air brake was unfit for the particular purpose for which it was purchased.

Thus, the case at bar is inapposite from Smetzer v. County of La Salle (1977), 53 Ill. App. 3d 741, 368 N.E.2d 933, appeal denied (1978), 67 Ill. 2d 596. In Smetzer, plaintiff originally alleged employees of defendant negligently put salt on the road, causing plaintiff to slide out of control. Plaintiff proposed an amendment alleging employees of defendant were negligent in failing to cut weeds at the intersection. We disallowed the proposed amendment because it alleged totally different behavior by different people. Therefore, defendant could “properly claim surprise” at the new allegations. Furthermore, defendant was not alerted to preserve evidence which could aid its defense.

On the contrary, in the case at bar, once defendant was aware plaintiff was claiming negligence in repairs and a defect in the air brake, defendant would try to preserve the same evidence it would need to defend plaintiffs new claim of breach of implied warranty.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE DOWNING

text:
    HELEN SCHENKER, Plaintiff-Appellant, v. CHICAGO TITLE & TRUST COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—2558
    Opinion filed November 7, 1984.
    Dennis M. O’Brien, of Chicago, for appellant.

      Mark A. Stang, of Burke, Bosselman, Freivogel, Weaver, Glaves & Ryan, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Helen Schenker, asks us to review the trial court’s denial of her motion to vacate its earlier dismissal of her complaint with prejudice, or in the alternative, for leave to file a second amended complaint.

Plaintiff alleges the following facts in her amended complaint. Plaintiff was, prior to 1978 and until about April 15, 1980, the owner of the premises commonly known as 163 West Burton Street and 1447 North Wells Street in Chicago. Chicago Title & Trust Company, as trustee under trust No. 1073079, was the legal titleholder of property known as 170 West Burton Street, and David C. Eckles (hereinafter referred to as defendant), was the beneficiary of the trust. Beginning in late spring of 1978 and continuing into the summer of that year, defendant approached plaintiff for the purpose of requesting that he act as plaintiff’s agent in the care and maintenance of her properties. Defendant represented to plaintiff that he had great skill and experience in matters of real estate care and maintenance and knew that plaintiff was unskilled and inexperienced in these areas.

During this period of time, defendant was remodeling his aforementioned premises and engaged the same tradesmen and architect who were working on his property to work on plaintiff’s. Plaintiff alleged that defendant demanded and received credits or other payments from the tradesmen toward the remodeling of his property. Knowing that plaintiff’s husband was ill and that plaintiff had borrowed $100,000 for hospital bills and used her properties as collateral, defendant nonetheless directed the workers to “gut” her buildings under the pretext of converting the property into salable units even though plaintiff had no commitment for financing such an extensive conversion. In this regard, defendant acted without plaintiff’s knowledge or authority.

Plaintiff further averred that defendant knew that she had listed her property for sale at $295,000; however, as a result of defendant’s conduct, plaintiff lost rental income from her property and was forced to sell it to repay the loans and received only $125,000 as the sales price. Plaintiff claimed she had no adequate remedy at law.

In count I of her amended complaint, plaintiff averred that defendant acted as her agent. In count II, she claimed that a fiduciary relationship had been established between them. Plaintiff requested that a constructive trust be impressed on defendant’s real property in favor of plaintiff “for the money wrongfully diverted which was used to enhance and improve defendant’s property.” In count III, plaintiff alleged that defendant negligently failed to fulfill his fiduciary duties and prayed for a judgment against defendant in the amount of $190,000. In the final count, plaintiff claimed that defendant had made various representations to plaintiff which were false and known to be false by defendant and that a fraudulent scheme was perpetrated against plaintiff. Plaintiff paid over $20,000 to various tradesmen as a result of defendant’s fraud, and therefore requested exemplary damages of $200,000.

Plaintiff’s original complaint was filed on July 17, 1980, and survived defendant’s first motion to dismiss on November 18, 1980. Nearly three years later, in June of 1983, defendant’s motion to dismiss was granted. The trial court noted that plaintiff’s memorandum submitted to it contained assertions not found in the complaint and suggested that plaintiff incorporate these assertions so that the complaint comported with the memorandum. Plaintiff was granted leave to file a first amended complaint.

During argument on defendant’s motion to dismiss the first amended complaint, the trial court carefully reviewed each of the four counts, pointing out their deficiencies. Specifically, the court found that there were insufficient allegations to establish an agency relationship. Further, even if agency had been properly pleaded, the court noted that there was no allegation that the tradesmen worked to plaintiff’s detriment at defendant’s instigation. The court also concluded that plaintiff had not successfully pleaded facts which would establish a fiduciary relationship. In dismissing count II because of the deficiencies in pleading the existence of a fiduciary relationship, the court commented that it was not familiar with authority to support an action for negligent breach of a fiduciary duty. The court also struck count IV, which sounded in fraud, because the complaint did not allege with specificity to whom the fraudulent representations were made and the circumstances surrounding them. Further, the representations made by defendant were merely statements of opinion and not facts, and therefore were not actionable. The trial court dismissed plaintiff’s first amended complaint with prejudice on September 21,1983.

Plaintiff subsequently filed a motion to vacate this order, or in the alternative, leave to file a second amended complaint. In her motion, plaintiff contended that she had, in her proposed second amended complaint, rectified the deficiencies. In opposition to her motion, defendant argued that plaintiff had not offered any newly discovered material or had otherwise presented a valid reason for vacation of the dismissal order. In addition, defendant argued that a motion for leave to file an amended complaint is not a proper post-trial motion under section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203), formerly section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3).

The trial court ruled that it was satisfied that the complaint did not state a cause of action and that the proposed second amended complaint did not measure up to the cause of action that had been suggested by the court. The court also commented that it generally allows a litigant two attempts to properly plead a complaint, and if he cannot succeed in two attempts, then “it’s reasonable to assume he will never be able to plead properly.” The court then denied plaintiff’s motion to vacate, or in the alternative, for leave to file a second amended complaint, with prejudice. Plaintiff subsequently requested that her second amended complaint be included in the record on appeal, which the trial court denied. This court, however, allowed plaintiff to file for our review a supplemental record which contained the proposed second amended complaint.

The trial judge in this instance stated at the October 20 hearing that he was “satisfied today, as I was satisfied on September 21st, that this complaint did not and does not state a cause of action.” In its order of denial of plaintiff’s motion, however, the court merely stated that “it is hereby ordered that plaintiff’s aforesaid motion to vacate, or in the alternative for leave to file a second amended complaint, be denied with prejudice.” The order was silent of any language saying that the second amended complaint did not state a cause of action. Therefore, there is no formal order which dismissed the proposed complaint. In fact, the trial court refused to allow the proposed second amended complaint to be included in the record. For the reasons set forth below, we believe the court should have allowed plaintiff leave to file the second amended complaint.

It is recognized that the decision whether to allow an amendment to a complaint lies within the sound discretion of the trial court, and its decision will not be disturbed absent a showing of an abuse of that discretion. (Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 858, 392 N.E.2d 591, appeal denied (1979), 79 Ill. 2d 620.) A trial court’s power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205.) The test to be applied in this regard is whether a denial of the request to amend furthers the ends of justice. Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749, 431 N.E.2d 1175.

Ordinarily, an amendment should not be permitted to include matters which the pleader had full knowledge of at the time the original complaint was drafted and no excuse is presented for not putting its substance in the original pleading; however, an amendment will be allowed where justice is not served by denying leave to amend. (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617.) Further, doubts should be decided in favor of allowance of the amendment. Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617.

In view of the fact that the trial court stated that it generally allows a litigant two chances in which to properly plead a complaint, we do not feel that the court gave due consideration to the tendered second amended complaint in this case. While we recognize that a trial court may consider the efficacy of the claim in passing on a motion to amend and that it is proper to deny leave if the proposed amendment does not cure the defects (Cvengros v. Liquid Carbonic Corp. (1981), 99 Ill. App. 3d 376, 379, 425 N.E.2d 1050, appeal denied (1981), 85 Ill. 2d 577), we believe that the trial court’s somewhat summary disposition of plaintiff’s request to file a second amended complaint was improper. We do not believe a “two-attempts” policy is in the spirit of the prevailing attitude toward liberality of amendment. After reviewing the tendered complaint, we are of the opinion that it is sufficiently different from the previous complaint to justify further consideration of it by the trial court. In view of the fact the record is silent with respect to formal action on the proposed second amended complaint, we reserve any judgment on the adequacy of the proffered complaint. However, we hold that plaintiff’s request for leave to amend should have been granted.

For the foregoing reasons, the judgment of the circuit court of Cook County is hereby reversed and the cause is remanded for further proceedings in accordance with this decision.

Reversed and remanded.

HARTMAN, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    GIGI GORDON, Plaintiff-Appellee, v. THE CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2448
    Opinion filed October 30, 1984.

      Edward J. Egan and Joyce A. Hughes, both of Chicago, for appellant.
    Cooney and Stenn, of Chicago (Kevin J. Conway and Doris Adkins Carter, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant Chicago Transit Authority (CTA) liable in negligence for injuries sustained by plaintiff when she was assaulted, raped and robbed while a passenger aboard a CTA rapid transit train. CTA raises as issues whether the circuit court erred by: (1) denying CTA’s motion for a directed verdict; (2) giving plaintiff’s instruction on CTA’s duty of care; and (3) permitting testimony by plaintiff’s expert as to the ultimate issues in the case.

Plaintiff, 29 years old at the time of trial, testified that at about 7 p.m. on March 8, 1977, she boarded an eight-car southbound Howard North-South rapid transit “A” train at the Loyola station. She was sitting in the center of the third car when a young, muscular black man sat beside her, touched her legs, moved her dress up, and said vulgar things. She told him to get away and stood up to leave, which he physically prevented, saying he had a knife in his pocket. She again tried to stand but was forced to sit down, as he continued to play with her legs. He then grabbed her left arm, twisted it, and, after she screamed and tried to escape, he forced her into the unoccupied, unlighted motorman’s compartment at the end of the car. He unzipped her dress, touched her “everywhere,” and raped her. She screamed again. The rape continued until the train was close to the Belmont stop. She fought and struggled, but feared for her life. After the rape, he went through her purse, took her money, and told her to face the corner and not turn around until the Fullerton stop. When the assailant had gone, she ran through the cars to the front of the train, pounded on the motorman’s booth and, at Fullerton, the motorman escorted her from the train to the station ticket agent. She was taken to a hospital where she was examined, but was not admitted. She was given pills to take in the event of pregnancy.

On cross-examination, plaintiff stated that she has received no medical treatment since being examined at the hospital following the attack. From the time she entered the train that day, she never saw the conductor. She first noticed her assailant before the train stopped at Argyle. There were six to eight people in the car when she entered, and only when her assailant sat beside her did she notice they were gone. She did not see them get off. No other passengers were in the car during the attack.

The motorman of the train involved testified that when plaintiff approached him to report the rape, she was in tears but was not in disarray. He radioed his controller, who then called the ambulance and police. He escorted her from the train to the ticket agent. He later filed a report of the incident. He has been a motorman on the Howard line for 11 to 12 years, and this was the only rape reported aboard one of his trains. There are six “A” train stops between Loyola and Fullerton. The run between Wilson and Belmont takes approximately three minutes. “Trimming” a motorman’s cab refers to adapting it for passenger use by locking the door into the face of the train and letting the seat down. CTA required unused cabs to be trimmed and lighted.

CTA’s director of special investigations for security investigated CTA employees only and was not concerned with passenger safety. The uniformed personnel section of the department was responsible for plant and property maintenance and protection, not with passenger safety. The only relevant crime pattern statistics were maintained by the Mass Transit Unit of the Chicago police department (MTU). No CTA unit was responsible only for passenger protection. On cross-examination, the director noted that the MTU patrols rapid transit trains and platforms and investigates crimes on the rapid transit system.

Interrogatories were answered by CTA and read into the record. They detailed 21 reported criminal incidents occurring between March 8, 1976, and November 1, 1976, on the subject rapid transit line between the Loyola and Fullerton stops, involving crimes against persons. None involved a rape or attempted rape.

Plaintiff also presented the testimony of a witness who purported to be an expert on transit crimes. He had been a CTA transit security officer for 12 years and also a military and railroad policeman. He had attended numerous courses and conferences related to law enforcement and security and was personally acquainted with the CTA security system as it existed on the date of the subject incident. In his opinion, the list of 21 incidents provided by CTA in its interrogatory answer was incomplete. Prior to 1977, CTA did not analyze its own crime statistics, but maintained a chronological file of all incidents that came to its attention from police reports, security department reports, complaint letters, and employee reports, to serve as a source of information when passengers made claims against CTA. In his opinion, CTA has “the most complete information available to it, and if properly used, that information could be the best source of compiling crime analysis studies and determining what measures could be taken to prevent crime ***.” If the motor man’s cab had been closed and access to the compartment denied, “it would have eliminated a place of concealment for the offender and the crime would very likely not have been committed,” based upon his own knowledge of the CTA and on a 1972 study of CTA crime made by the Carnegie-Mellon Institute, which analyzed CTA crime and conditions and efforts being made to combat crime. The study, of which CTA was aware, recommended certain improvements, including the elimination of “hide architecture” by means of the “proper closure of unused motor man’s booths.” The Howard section of the North-South line has a high crime rate, and many crimes against persons occur between 5 and 10 p.m. By knowing where problems are, CTA could direct efforts at the most troublesome spots and times. Patrol activities and station checks could be directed on the basis of these statistics; this was not done, however. Passengers who are alone in cars provide a “high potential” for crime, and “[wjomen are particularly vulnerable.” The low volume of southbound travel at the time of the occurrence here, along with the use of an eight-car train, meant that passengers “will be widely scattered” and increased the possibility that passengers would be left alone in cars.

On cross-examination, the above witness testified to the operations of the MTU. He admitted that he personally has a lawsuit pending against CTA, and had been previously involved in several suits against CTA in his capacity as recording secretary for the Amalgamated Transit Union.

A clinical psychologist and professor in the department of neurology and psychiatry at Northwestern University Medical School testified for plaintiff. He initially examined plaintiff at the request of her attorney on December 10, 1981, after she had been subjected to a battery of psychological tests. In his opinion, there was a “significant effeet upon her intellectual functioning of the presence of a very high level of anxiety, agitation *** an almost panic-like quality.” Plaintiff’s view of the world as an “assaultive, threatening, attacking, power,” left her “depressed, despondent, dispirited.” These psychological effects are such as would have resulted from her 1977 attack on the train. He found her condition to be “a chronic debilitating anxiety reaction, secondary to the CTA train assault in 1977.” This condition would affect her throughout her life; her prognosis was “guarded,” as it was unlikely that she would return to her pre-1977 state.

The CTA conductor on the third or fourth car of the subject eight-car train on March 8, 1977, testified for CTA. Plaintiff, who came from the “rear cars,” approached him and said, “I have been raped.” He said nothing; she turned from him and went to the motorman in the first car. She looked “fine” to him. “[Ejverything was normal” prior to her report. He saw no suspicious person on the platform or train. There had been nothing unusual with anybody getting on or off the train. He was not equipped with a radio; if anything was wrong, he would go to the motorman, who would make the call. He had been trained to assist “people in distress.” He was not supposed to leave his position while the train was in operation; the only time he goes from car to car is at the main station when changing signs on the train.

A Chicago police detective investigated the instant rape and robbery report. At the hospital, plaintiff told him she didn’t want to cooperate with police or take part in an investigation to apprehend the offender.

The director of service for the CTA, a CTA employee for 32 years, testified that he is responsible for the ongoing operation of all buses and trains. The CTA Howard-Englewood-Jackson, or North-South, line averages between 100,000 to 200,000 passengers per day. CTA rules provide that a conductor must be positioned between the third and fourth cars of an eight-car train. From this position, the conductor can see the “yellow safety stripe” on the platform which indicates that the doors of the train can be safely opened. A conductor is responsible for passengers entering and leaving the train, and “for the assistance that he can give to a passenger, or for any unusual occurrence ***.” The normal running time from Wilson to Belmont is 3V2-41/2 minutes. All CTA employees are responsible “to give safety to passengers, regardless of what position they’re in.” It was not the conductor’s job, however, to walk through the train to patrol for criminal activity, which would not be feasible and would violate CTA rules. The CTA security department protected CTA property and employees; security provided by riding the trains was the responsibility of MTU.

The Chicago police commander who in 1977 headed the special operations group, which included the MTU, testified for the CTA. The MTU consisted of about 300 police officers responsible for providing safety and security to the patrons and employees of the CTA. The MTU operated by maintaining fixed posts at certain rapid transit stations, having uniformed officers ride various trains and check platforms and train conditions, and maintaining a technical undercover operation wherein officers act as “decoys” to catch criminals. From 1974 through 1977 the MTU kept internal records relating to crime on the CTA, in order to determine resource allocation. People were put where they were most needed. While he commanded the MTU, no rapes on a moving train on any line were reported prior to March 8, 1977. He was also unaware of the commission of any crime in an unoccupied motor man’s booth.

A clinical psychologist testified for the CTA that he reviewed plaintiff’s clinical psychologist’s testing of plaintiff and found “quite a few deficiencies.” Specifically, he questioned the fact that the psychological evaluation was not done over a longer period of time. On the basis of the tests given her, it would be impossible to render an opinion with any degree of scientific accuracy as to plaintiff’s psychological impairment.

The jury returned a verdict in plaintiff’s favor, assessing her damages at $200,000. Judgment was entered on the verdict on June 29, 1983. Defendant’s timely post-trial motion was denied on September 12, 1983. This appeal followed.

I

CTA initially contends that the circuit court erred in denying its motion for a directed verdict, since the evidence did not show that CTA reasonably could have foreseen that a passenger would be raped aboard a moving rapid transit train. As a common carrier, CTA is bound to exercise a high degree of care toward its passengers and is responsible to prevent injuries to them which reasonably could have been foreseen and avoided; CTA is liable for an assault or other misconduct by one passenger which injures another where it has reason to anticipate the misconduct but fails to exercise the degree of care and vigilance practicable under the circumstances to prevent the injury. (McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 285, 371 N.E.2d 625, quoting Watson v. Chicago Transit Authority (1972), 52 Ill. 2d 503, 505, 288 N.E.2d 476.) To establish reasonable foreseeability, more than the mere possibility of an occurrence must be shown. Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907, 398 N.E.2d 1007.

The record reveals that passenger volume was low at 7 p.m. on the subject CTA line. In view of CTA’s use of eight-car trains at that hour, it was reasonably foreseeable that an assailant and victim could be left alone in a car and that few, if any, other passengers would enter the car at three consecutive stations, as happened here. CTA rules required conductors to remain at certain fixed positions and not to patrol the train, thus rendering the possibility of an attack on an isolated passenger more likely. At the time of the incident, CTA was aware that many crimes against persons take place on the rapid transit trains between 5 and 10 p.m. A witness testified that the subject line sustained a high crime rate. This was buttressed by evidence that, between March and November 1976, 21 crimes against persons were reported on this same route. Although none of these crimes was a rape, many of the victims were women. Also significant was the fact that CTA knew, or should have known, that a motorman’s booth opened for passenger use provided a place of concealment which increased the opportunities for criminal activity. Crime statistics were at CTA’s disposal which could have provided a basis for an effective deployment of resources and personnel to prevent transit crimes against persons.

In Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497, plaintiff was assaulted, robbed, and raped while waiting for a train at the carrier’s suburban train station. Evidence showed that the station, near a “hobo jungle,” was frequented by vagrants and other “undesirable characters.” Although plaintiff had previously complained to the carrier’s agents about this problem, the carrier did not assign an attendant to the station. No evidence was presented that any prior rapes or other criminal activity had taken place at the station. Nevertheless, the supreme court found that the carrier reasonably should have anticipated the possibility of an attack from the condition it permitted to exist at and around its station (383 Ill. 366, 377), and upheld plaintiff’s judgment, finding that it was for the jury to determine whether defendant anticipated, or should have anticipated, the attack (383 Ill. 366, 375). Significantly, the carrier’s duty to a passenger on the station premises was the exercise only of ordinary care, whereas the duty to a passenger on a train, as here, is the highest degree of care for her protection. (383 Ill. 366, 374.) In Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 376 N.E.2d 680, plaintiff passenger was robbed and beaten on defendant carrier’s elevated train station after he had alighted from a train at 3 a.m. No CTA agent or employee was then on duty. Crime statistics admitted into evidence showed that three robberies had taken place at that station and two adjacent stations over a one-year period. The appellate court affirmed the judgment for plaintiff, noting that “[kjnowledge of conditions which are likely to result in an assault upon a passenger, or which constitute a source of potential danger, imposes the duty of active vigilance on the part of the carrier’s agents and the adoption of such steps as are warranted in the light of existing hazards.” 59 Ill. App. 3d 997, 1000.

By virtue of the evidence in the present case, when considered together with the above-cited authorities, the circuit court properly submitted the question of CTA’s liability to the jury. Despite the absence of evidence indicating that prior rapes had occurred aboard moving rapid transit trains, there was sufficient evidence to support the conclusion that CTA, by reason of the physical conditions conducive to passenger isolation and the prior pattern of criminal activity aboard its trains, should have anticipated the potential danger of such an attack and taken measures to minimize the risk.

II

CTA next assigns error to the circuit court’s giving plaintiff’s instruction No. 14 on duty of care as follows:

“The Defendant, CTA, has the duty to exercise the highest degree of care consistent with the type of vehicle used and the practical operation of its business as a common carrier by elevated train to protect its passengers while they were on its train from assault, injury and abuse from fellow passengers, of which it knew, or should have anticipated, from facts and circumstances known to it.
Since that obligation cannot be delegated to another,- it is not a defense for the CTA that another person, including the City of Chicago Police Department, failed to protect the CTA’s passengers while they were on the CTA train from assault, injury and abuse from fellow passengers, of which the CTA knew, or should have anticipated from facts and circumstances known to it.
Now, when I use the term ‘cannot be delegated’ in these instructions, I mean that the duty must be performed by the CTA and cannot be left to some other person, including the City of Chicago Police Department.”

CTA urges that this instruction contravenes Supreme Court Rule 239(a), which provides that, where applicable, Illinois Pattern Jury Instructions (IPI) are to be used and non-IPI instructions, if appropriate, must be “simple, brief, impartial, and free from argument.” (87 Ill. 2d R. 239(a).) The foregoing instruction was taken, in part, from IPI Civil No. 100.03 (2d ed. 1971). It is improper to give a non-IPI instruction where an IPI instruction on the same subject is available. (Seibert v. Grana (1968), 102 Ill. App. 2d 283, 285, 243 N.E.2d 538.) Where a “unique factual situation or point of law” is presented, a non-IPI instruction may be given if it is carefully evaluated for its accuracy and its effect on the jury. (Dezort v. Village of Hinsdale (1979), 77 Ill. App. 3d 775, 777, 396 N.E.2d 855.) Although an instruction accurately states the law, it may not be given if it is misleading or argumentative. Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 592, 392 N.E.2d 70.

As noted, the first paragraph of the given instruction is actually IPI Civil No. 100.03. The subsequent paragraphs, however, are non-IPI and cover a subject matter, delegation of duty, not available as an IPI instruction. These paragraphs accurately state the law with respect to the nondelegability of a common carrier’s duty to its passengers. (See Stewart v. Beegun (1970), 126 Ill. App. 2d 120, 127, 261 N.E.2d 491; Cobb v. Marshall Field & Co. (1959), 22 Ill. App. 2d 143, 153-54, 159 N.E.2d 520.) CTA concedes that its legal duty of care is nondelegable, but insists that these paragraphs are argumentative in that they constitute a “negative” instruction which singles out a particular item of evidence — testimony regarding the MTU — for comment. (See Heep v. Mason (1968), 100 Ill. App. 2d 142, 147-49, 241 N.E.2d 196.) In the case CTA cites, however, the “negative” instruction, properly refused by the court there, specifically would have urged the jury to entirely disregard a particular item of evidence. (Heep v. Mason (1968), 100 Ill. App. 2d 142, 241 N.E.2d 196.) Here, by contrast, the jury was not instructed to entirely disregard evidence concerning the MTU, but only that such evidence was not a defense; the jury was thus free to consider this evidence for all other purposes for which it was probative.

CTA also suggests that plaintiff’s instruction No. 14 was improper because the subject evidence was “injected” into the case by plaintiff. MTU was initially mentioned during the direct examination of one of plaintiff’s witnesses, who testified that the only crime pattern statistics relating to mass transit were kept by the MTU. CTA, however, went considerably beyond such incidental reference and cross-examined this witness regarding the purposes and functions of the MTU. CTA subsequently expanded upon this theme during its direct examination of the MTU police commander at the time of the instant attack. The nature and scope of the evidence adduced by CTA relating to the MTU could have given the jury the impression that MTU’s efforts met CTA’s duty of care toward its patrons. Amplification of the IPI instructions was appropriate under the circumstances. (See Lay v. Knapp (1981), 93 Ill. App. 3d 855, 857-58, 417 N.E.2d 1099.) A non-IPI instruction, nearly identical to that given here, was found proper in Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 684, 418 N.E.2d 1079. In that case, the verdict favored defendant manufacturer who had tendered the objectionable instruction. The appellate court there held that the instruction correctly stated Illinois law; it did not indicate whether the instruction was unduly argumentative. The present instruction correctly stated the law, was not argumentative, and was necessitated by the circumstances of the case. We find no error.

Ill

CTA’s final point addresses the proposition that the circuit court committed reversible error by permitting plaintiff’s transit police witness to testify as an expert. CTA failed to object at trial to this witness’ qualification as an expert, thereby waiving error in this regard for purposes of appeal. (Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 45-46, 250 N.E.2d 796, cert. denied (1970), 398 U.S. 950, 26 L. Ed. 2d 290, 90 S. Ct. 1868; People v. Davis (1984), 123 Ill. App. 3d 349, 354-55, 462 N.E.2d 824.) Notwithstanding this waiver, the witness was sufficiently qualified.

His testimony related to the profession of public transit security, his knowledge of which certainly exceeded that of the average juror. His years of experience as a transit security officer, railroad and military policeman and police dispatcher, as well as his training in these fields, qualified him to render an opinion on the subject of rapid transit security. (See Allen v. City of Ottawa (1980), 80 Ill. App. 3d 1032, 1035, 400 N.E.2d 629; First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 422 N.E.2d 188.) His testimony, that industry standards had been developed with respect to mass transit and that transit security was a “well developed specialty” with clearly defined standards and objectives, established a foundation for the admission of his opinion testimony.

CTA maintains that the expert’s testimony lacked a proper foundation in that it was based on a report not admitted into evidence and with which, in any event, the witness disagreed. The witness’ opinion, that “the crime would very likely not have been committed” if the motorman’s cab had been closed, was based on his own knowledge of the CTA and on a 1972 study of the CTA made by the Carnegie-Mellon Institute, however. As to use of the Carnegie-Mellon report, on cross-examination counsel for CTA himself extensively quoted statistics from this same report which tended to favor CTA’s position.

CTA also argues that the witness based his opinion on the list of crime incidents reported from March 1976 to October 1976, with some of which he disagreed. In Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, the supreme court adopted Rules 703 and 705 of the Federal Rules of Evidence. Rule 703 permits an expert to testify to an opinion not based on any facts in evidence, so long as the facts are customarily relied on by experts in the field to form opinions; Rule 705 allows an expert to render an opinion without disclosing the underlying facts, unless required to do so by the court or on cross-examination. Here, the basis of the expert’s opinion was disclosed on direct examination. The witness’ disagreement with portions of the report did not render his opinion without foundation. There is no requirement that experts accept statistics, reports, or the conclusions of others on an “all-or-nothing” basis when formulating their own opinions. The nature of the disagreement with the report was stated by the witness, who said further that his opinion was based on his own knowledge and experience. The opinion testimony was properly admitted, as a foundation therefor had been established.

CTA next urges that the opinion testimony, to the effect that the crime would not have been committed if the cab had been closed, went to the ultimate issue of CTA’s liability, which did not require the testimony of an expert, citing Arnold N. May Builders, Inc. v. Bruketta (1978), 60 Ill. App. 3d 926, 929, 377 N.E.2d 579. Opinion testimony as to the ultimate issue is admissible in Illinois; however, a stricter standard of admissibility applies. As the appellate court stated in Bruketta, “a shifting standard of admissibility must be applied as the opinion evidence shifts from answering questions on the outer rim of relevance toward answering the question at the central hub of the controversy.” (60 Ill. App. 3d 926, 930-31.) CTA contends that testimony relating to the open motorman’s cab providing a place of concealment and thereby increasing the likelihood of criminal activity was a conclusion properly left for the jury to draw from factual evidence which was not complex or difficult to understand. A trial court is afforded “a wide area of discretion in permitting expert testimony which would aid the triers of fact in their understanding of the issues even though they might have a general knowledge of the subject matter.” (Stanley v. Board of Education (1973), 9 Ill. App. 3d 963, 974, 293 N.E.2d 417.) Here, plaintiff’s witness was qualified as an expert on mass transit security by virtue of his knowledge, training, and experience; his opinion, though arguably “obvious,” dealt in part with train equipment and architecture which could have shed some light on the factual matters in evidence and thereby assisted the jury in its consideration of the issues. There was no error in permitting this testimony.

CTA also claims prejudice through testimony that CTA’s doing or not doing certain things would have made a “difference” insofar as the attack was concerned. In Champion v. Knasiak (1974), 25 Ill. App. 3d 192, 201-03, 323 N.E.2d 62, relied upon by CTA, the appellate court held opinion testimony that a driver there “could have” avoided the subject accident by turning his vehicle was improperly admitted. There, however, the questioned testimony was that of a 15-year-old lay eyewitness stating his conclusion on a “crucial ultimate fact” and was unresponsive. (Champion v. Knasiak (1974), 25 Ill. App. 3d 192, 203; see also La Salle National Bank v. First City Corp. (1978), 58 Ill. App. 3d 575, 577, 374 N.E.2d 913.) Here, by contrast, the witness had been properly qualified as an expert. His opinions were not objectionable simply because they related to the ultimate facts at issue. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. (1971), 49 Ill. 2d 118, 120-22, 273 N.E.2d 809; First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 422 N.E.2d 188.) Moreover, expert opinion testimony which is speculative or premised upon facts assumed to be true is admissible. (Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504; Presswood v. Morris (1979), 70 Ill. App. 3d 513, 517-18, 388 N.E.2d 844.) The testimony here was properly admitted.

In conclusion, it must be noted that although some of the expert’s testimony bordered upon being inadmissible, it cannot be said that the circuit court, endowed with wide discretion in this regard, erred in admitting it. In any event, the most significant evidence of foreseeability — -the surrounding facts and circumstances which did or should have alerted CTA to the danger of such an attack — was presented independently of this witness: the length of the train; CTA rules relating to the responsibilities of conductors and motormen; the physical characteristics of “trimmed” motormen’s booths; and the prior record of criminal incidents on the subject rapid transit line. CTA’s argument that affirmance of the judgment here would be tantamount to making CTA an insurer of the safety of its patrons must be rejected. Sufficient evidence existed to permit the jury to consider whether CTA should have anticipated the instant attack from the particular circumstances in this case of which it was or should have been aware.

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

Affirmed.

STAMOS and BERLIN, JJ., concur.

      The witness, Timothy O’Mahoney, also acceptably testified as to the incidence of on-board CTA crime in McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 284, 371 N.E.2d 626.


author: PRESIDING JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER MOORE et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—803
    Opinion filed November 8, 1984.

      James J. Doherty, Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant Christopher Moore.
    Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant Albert Wooden.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Eddie A. Stephens, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendants, Christopher Moore and Albert Wooden, were convicted of armed violence, voluntary manslaughter, and concealment of a homicidal death. The trial judge imposed respective sentences of 12 and 18 years for armed violence, and seven-year extended terms for concealment of a homicide.

On appeal, defendants assert as reversible error (1) the denial of their motions for severance, (2) the trial court’s admonition prohibiting Wooden from discussing specifics of his testimony with counsel during three brief recesses from trial, and (3) the imposition of extended-term sentences for the lesser offense of concealment of a homicidal death.

The State, based on the holding of the Illinois Supreme Court in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, acknowledges that armed violence may not be predicated on voluntary manslaughter and concedes that the armed violence convictions should be vacated.

We affirm in part, reverse in part, and remand for resentencing. BACKGROUND

The facts and events leading up to defendants’ convictions were adduced at trial from the following testimony:

The State called as its first witnesses Deborah Brandon, James Banks, and Bryant Ware, all of whom live in the vicinity of Langley and Champlain streets, defendant Wooden’s neighborhood, in Chicago. The testimony given by these three witnesses was corroborative.

The witnesses testified that on the night of December 12, 1980, sometime between 11:30 p.m. and midnight, they chanced to be present in the alley that adjoined Langley and Champlain streets, commonly used as a short-cut by neighborhood residents. While in the alley, each observed defendants, whom they knew as Moore and Wooden, attempting to load a large plastic bundle onto the trunk of a car. Banks testified that the plastic in which the bundle was wrapped was thick “like plastic you put in a window.” Brandon testified that she had known defendant Wooden all her life and had known defendant Moore for approximately four years. Upon seeing the men in the alley, Brandon greeted Moore, and he returned her greeting.

The witnesses testified further that after defendants attempted to balance the bundle on the closed car trunk, they started to drive away, but the bundle fell to the ground. This scenario was repeated several times until the men finally abandoned their efforts, left the bundle lying in the alley, and drove away. Ware stated that after the car drove off, he saw Wooden walk through a gangway back towards his house.

Each of the witnesses returned to the alley the following morning, after learning that the plastic bundle contained the battered body of a neighborhood child, 14-year-old Gregory Grigsby. Brandon and Ware spoke to investigators present at the scene. Brandon told investigating officer Detective John Doty that she had known the victim since he was a child and that he had lived in the same block as defendant Wooden. She reported what she had witnessed in the alley the previous night and gave the investigator defendants’ names.

Witness Ware also told Detective Doty what he had witnessed the night before and provided him with the name of defendant Moore. Ware testified that he had been with the victim earlier the previous evening at Ware’s house, but that they had split up upon leaving. Ware stated that the victim had known defendant Wooden and had known where Wooden lived.

Witnesses Ware and Brandon testified that they subsequently and independently viewed several lineups at police headquarters, out of which they separately identified defendants Moore and Wooden as two of the men present in the alley on the night of the crime.

The State also called as its witness Officer Adolph Alessia, who testified that on December 13, 1980, at approximately 7:30 a.m., he and his partner were on patrol when they received a call of a “man down” in the alley of South Langley Street. When the officers arrived at the scene, they observed what appeared to be “a set of legs sticking out from plastic.” Officer Alessia described the plastic as clear and thick, like something that would be used to seal a window. Upon closer examination of the plastic bundle, Officer Alessia determined that it contained a body, blood, and brain matter.

Officer Alessia further testified that he observed what appeared to be drag marks or blood leading to 6412 South Langley, defendant Wooden’s residence. Officer'Alessia and three other police officers followed the trail of drag marks and observed a large blood spot on the walkway leading to the back porch of defendant Wooden’s house. The officers observed a piece of brain matter next to the blood spot and bloodstains on the stairs of the porch. The officers knocked on the back door of Wooden’s house and, receiving no response, circled around to the front. They observed that all of the first-floor windows in the front of defendant’s house were broken out and had been replaced with a thick plastic, plastic similar to that in which the victim’s body had been wrapped.

Defendant Wooden opened the front door in response to the officers’ knocking. Officer Alessia testified that Wooden consented to the entry. Officer Alessia stated that he observed piles of the same thick, clear plastic, like that in which the body had been found, lying around Wooden’s house. After asking if he could look around, Officer Alessia entered the kitchen, saw a door leading into the basement, and went downstairs.

Once inside the basement, the officer noticed that the floor was wet with puddles of standing water. He also noticed what appeared to be blood and brain matter on the side of a washer and on the floor. Wooden was placed under arrest, read his Miranda rights, and taken to police headquarters. Officers James May and James Mykowski, present with Officer Alessia at the scene of the arrest, corroborated Alessia’s testimony.

Detective Sidney Rahim Sharif testified that on December 14, 1980, he interviewed Wooden at the Third District police station. Wooden indicated that he had concealed in a bag a knife which the victim had used to try to injure him. Wooden instructed the officers where to go to find the bag, and Sharif signed Wooden out and drove him to the site. En route, Wooden told Sharif that he had not intended to kill anyone but that the victim had a knife. Wooden said he, defendant Moore, and a third man were drinking beer in Wooden’s kitchen when Wooden heard a sound in the front of his house. Wooden told his friends to be quiet, because he thought someone was breaking into the house. Wooden and his friends then moved toward the front of the house, a chase ensued, and the victim ran into the basement. Wooden and his friends, picking up objects along the way, pursued the victim into the basement. Wooden picked up a table leg with a nail protruding from its base, and he and the others chased the victim around the basement, striking him with these various objects at every opportunity. Wooden struck the victim repeatedly with the table leg, knocking him to the ground and striking him every time he managed to get up. When the victim finally ceased to get up again, Wooden realized the victim was seriously injured.

Upon realizing the serious condition of the victim, Wooden and the others decided to take the victim’s body out of the house. They wrapped the body in thick plastic, carried it outside, and placed it on the closed trunk of a car. After the victim’s body repeatedly fell off the top of the trunk, defendant Wooden and the others abandoned their efforts, and Wooden returned home.

Detective Sharif continued to testify that Wooden directed him and his partner to a place near a fence in the alley behind Wooden’s house. Wooden told Sharif that that was where he had left the plastic bag filled with bloody clothing, the table leg with which he had struck the victim, and the knife the victim had allegedly possessed. The officers recovered the bag, which contained all the items except the knife. The officers returned Wooden to the station and interviewed him again.

At this subsequent interview, defendant Wooden related yet a different version of the events leading up to the homicide. He told Detective Sharif that he had suspected the victim of having burglarized his home on prior occasions and that he had therefore been waiting and watching to see if the victim would return. When the victim did come to Wooden’s house on the night of the homicide, Wooden told his friends to be quiet and allowed the victim to enter the house. Once the victim was inside, defendant and the others chased him into the basement, picking up objects as they went. Inside the basement, defendant and his friends struck the victim repeatedly. Wooden and the others chased the victim behind a furnace and struck him until he finally fell to the ground. Defendant then told Sharif the sequence of events involved in attempting to transport and finally abandoning the victim’s body.

On redirect examination, Detective Sharif testified that in the first conversation with Wooden, Wooden said he had come home and found defendant Moore and the third party had killed the victim. Sharif further stated that when Wooden was confronted with a conversation Sharif had had with defendant’s common law wife which was inconsistent with Wooden’s earlier story about his family being home on the night of the incident, Wooden merely shrugged and admitted that he had lied.

Detective John Doty testified that on December 13, 1980, he interviewed defendant Wooden at Area One headquarters. Wooden first denied any knowledge of Gregory Grigsby’s death. He then stated he would tell the truth about the incident. In the first version Wooden related to Detective Doty, he stated that he came home on the night of December 12 to find defendant Moore and another friend, who was washing a jacket. They told Wooden that “a bastard had just entered [his] house” and took him to the basement to view the victim’s body. They then attempted to dispose of the body, ultimately abandoning their efforts and leaving it in the alley.

The next time Doty interviewed Wooden, it was in the presence of Assistant State’s Attorney Arthur Hill. At that interview, Wooden gave the same account of the incidents that he had given Doty earlier. Doty testified that at no time during any of the versions Wooden related did he mention that the victim had a knife.

Doty testified further that on December 15, 1980, he was informed by radio that defendant Moore had been arrested and that the car that was involved in the crime had been located. Doty drove to the reported location and observed the Buick that had been used in the attempt to transport the victim’s body. Doty met with defendant Moore and informed Moore that he had been implicated by Wooden in Grigsby’s death. Doty testified to his interviews with Moore.

In Doty’s first interview with Moore, Moore stated that he, defendant Wooden, Wooden’s wife and another man were sitting around Wooden’s house drinking when they found that the victim had entered thé house. Defendant Wooden began to strike the victim with a hammer and the victim fled to the basement, pursued by the other men. Moore stated that Wooden and the other man continued striking the victim while Moore remained at the top of the basement to get his car. He took the body to the backyard and placed it on the trunk of his car. At that time Moore observed people coming through the alley, and he drove off.

Detective Doty testified to a second interview with defendant Moore, at which Assistant State’s Attorney Arthur Hill was also present. The story Moore related at this second interview was different from the first version of events. Moore stated that he, Wooden, and a third man were inside Wooden’s house when they heard and saw three people on Wooden’s front porch. Moore and the others turned out the lights and waited until the victim entered the house through the front window. Once the victim entered the house, the defendants and the other man went into the living room and began striking the intruder. The victim fled to the basement, and the others followed him downstairs. As the victim was running around the furnace, the man caught him and attempted to tie him to a post with an electric cord. The victim broke from them and tried to escape, but Moore struck him with a shoe. After the victim was dead, they went out and got the car and attempted to transport the body.

After a lineup was conducted in which Moore was identified by witnesses Brandon, Ware, and Banks, and was informed that he had been identified, Moore was interviewed by Doty and Hill a third time. At this third interview, Moore gave a third account of the events that resulted in Grigsby’s death. He stated that the victim came to Wooden’s house and was admitted by Wooden. Moore told Doty that Wooden and the victim talked and then went down into the basement. Moore stated that he then heard a fight coming from the basement, and he went to investigate. Once in the basement, Moore saw Wooden chasing the victim around the furnace and striking him with a knife and a hammer. Moore and the other man then joined in the chase, telling the victim to stop. The pursuers then attempted to tie the victim to a post. At that time, all of the men were striking the victim, Wooden with a knife and a hammer, Moore with his fists and a shoe, and the third man with a stick. All three men then pulled the victim out from under the laundry tray. Moore stated that the knife with which Wooden had been striking the victim had broken, and Wooden told Moore to pass him another knife. Wooden’s girlfriend gave the knife to Moore, who passed it to the third man, who in turn passed it to Wooden. When they thought the victim was finally dead, they wrapped his body in the thick plastic, washed their clothing, and carried the body from the house.

Detective Doty further testified that the rear door to the basement in Wooden’s house was nailed shut, leaving the stairway up to the house as the only exit. Doty also testified that he had found the basement in great disarray, splattered with brain matter and blood, and wet from being recently washed down.

Assistant State’s Attorney Arthur Hill corroborated the testimony of Doty and Sharif.

Defendant Wooden then testified that on the evening of December 12, 1980, he was sitting in his kitchen with defendant Moore and another man, drinking liquor. He believed his wife and kids were upstairs. While sitting in the kitchen, he heard someone “bothering the Venetian blinds” on the living room window. He stated that he had been burglarized some two days before. He listened quietly while the “bothering” continued. He then went to the front of the house to see what was happening and saw someone standing in the living room. When the intruder saw Wooden, he ran into the kitchen and down into the basement. Wooden followed him. Inside the basement, Wooden turned on the lights and announced that whoever was there should come out. Defendant Moore and a third man followed behind Wooden. The basement was dimly lit and filled with clothes drying on the clotheslines. Wooden began going through the hanging clothes, looking for the victim. He saw the feet of the victim when defendant Moore warned that the victim had a knife. Wooden saw the knife one time. The victim made motions toward Wooden with the knife. Wooden then picked up some objects from the floor and started throwing them at the victim. Wooden again told the victim to come out and, getting no response, continued to hit him with the benailed table leg. Wooden stated that he was fearful the victim would attempt to grab or cut him. Wooden testified that the other two men were also throwing things at the 'victim. Wooden continued to strike the victim with the table leg until the victim fell to the ground. The victim got up and ran behind the furnace. Wooden assumed that the victim still had a knife but he did not see it. Wooden went behind the furnace to get the victim out, continuing to strike him with the table leg. He, defendant.Moore, and the third man were all hitting the victim. The victim finally fell out from behind the furnace and did not get up again. The victim appeared to be dead, and Wooden then recognized him as Gregory Grigsby. Defendant then wrapped the body in sheets and plastic and carried it upstairs and out of the house.

Once in the alley, Wooden saw some witnesses coming out of the gangway. After attempting to transport the body on the trunk of the car, Wooden abandoned the effort and went back to his house, where he commenced to wash down the basement. He put the table leg, the knife used by the victim, and some bloody clothes in a plastic bag and put the bag outside by a fence in the alley. When asked about the absence of the knife from the retrieved plastic bag, Wooden testified that he thought he put the knife in the bag but that it could have cut through the bag because the bag was made of “thin plastic.” He testified, however, that the plastic was the same thick, industrial type that the officers had found lying in piles around his house. Wooden admitted that he had seen the victim with a knife only once and that he did not know whether the victim had dropped the knife at some point during the struggle.

Dr. Joanne Richmond performed the autopsy on the 14-year-old victim. Among other details, Dr. Richmond testified that the victim had a six-inch by four-inch laceration on the side of his head, under which his skull had been fractured. Much of the victim’s brain had been lost through this gaping wound. The victim also had a five-inch laceration on the back of his head and three other lacerations on the other side of his head. He also had a wound on the back of his neck, consistent with having been struck by a knife. He had multiple abrasions and bruises all over his body, consistent with defensive wounds. The cause of death was cranial cerebral injury due to a beating.

A bench trial was held in the circuit court of Cook County, and defendants Moore and Wooden were convicted of armed violence, voluntary manslaughter, and concealment of a homicidal death. They were sentenced, respectively, to 12- and 18-year terms for armed violence, and each was sentenced to a seven-year extended term for concealment of a homicide. They now appeal their convictions and sentences.

OPINION

I

The first claim of error raised on appeal is that the trial court abused its discretion in denying defendants’ motions for severance. Defendants specifically claim that the court erroneously considered an element of Moore’s confession in finding defendant Wooden guilty and that the evidence was so voluminous and complex as to mandate separate trials. The State refutes this argument by pointing out that the trial court repeatedly and explicitly informed defendants, both prior and subsequent to any testimony being given, and particularly with reference to the statements of defendant Moore, that any statements made by codefendants would be considered only in connection with the case of the declarant. Such admonitions are supported by the record and prevent us from finding that’ the trial court abused its discretion in denying severance.

A trial court is clothed with substantial discretion in ruling on a motion for severance. (People v. Peterson (1982), 108 Ill. App. 3d 856, 439 N.E.2d 1103.) Its exercise of discretion will not be reversed absent a finding of abuse. (People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) An accused does not have a right to be tried separately from- his codefendants when charged with offenses arising out of a common occurrence (People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148); thus, as a general rule, defendants jointly indicted are to be jointly tried. People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911.

An exception to this general rule of joint trials exists where the defenses of codefendants are so antagonistic that a fair trial can be achieved only through severance, or where one defendant has made an out-of-court statement that inculpates another defendant and such statement is likely to be admitted, into evidence. (People v. Sanchez (1982), 110 Ill. App. 3d 893, 443 N.E.2d 252.) This latter situation, commonly referred to as a Bruton problem (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620), is what defendants here claim as error.

As this court has previously noted, Bruton concerned itself with the limitations on the ability of a jury to restrict their consideration of inadmissible, inculpatory evidence, not with the ability of an experienced trial court judge. (People v. McNeal (1977), 56 Ill. App. 3d 132, 371 N.E.2d 926.) A trial judge, sitting as the trier of fact, due to his particular training and experience, is generally believed to have a greater ability to restrict his use of improper evidence and to consider only competent evidence. (People v. McNeal (1977), 56 Ill. App. 3d 132, 371 N.E.2d 926.) This increased capacity to “compartmentalize his consideration of evidence” suggests that the denial of a motion for severance by a trial judge, sitting as the trier of fact in Bruton types of situations, does not deprive the defendant of a fair trial. People v. McNeal (1977), 56 Ill. App. 3d 132, 138, 371 N.E.2d 926, 931-32.

Here, prior and subsequent to any testimony being given concerning the statements of defendant Moore, the learned trial judge admonished defendants that any statements made by a codefendant would be considered as applicable only as to the declarant. In reference to Moore’s statement, at the time it was admitted into evidence the trial judge specifically stated that it would not be considered as to defendant Wooden. In addition, the State, in closing argument, acknowledged that any statements of the defendants, to the extent that they differed, were “useable only against the declarant in each case.”

The issue, as phrased by the trial court, after it explicitly declared that it had no intention of allowing a Bruton violation, is whether the court could find beyond a reasonable doubt that the evidence before it, excluding Moore’s statement, was adequate to support a conviction. The experienced trial judge found that it was. Our careful review of the record and the overwhelming amount of testimony adduced at trial convinces us that the trial court, in denying defendants’ motion for severance and in finding defendant Wooden guilty beyond a reasonable doubt, excluding the Bruton statement, did not err.

II

Defendants next claim as error the trial court’s admonition to defendant Wooden not to discuss specifics of his testimony with his attorney during three brief recesses from trial. Defendant claims he had a right to consult with counsel, not just on matters of strategy but on his testimony as well. The State, on the other hand, argues that the trial court acted properly in directing defendant not to discuss specifics of his testimony with his attorney during the two 10-minute recesses and the lunch break where defendant (1) did not object, (2) neither requested nor indicated a need to confer with counsel, and (3) was not prejudiced due to the brevity of the recesses involved. Because the error as claimed potentially threatens a substantial right of the accused, we will consider the issue under the doctrine of plain error. People v. Sparkman (1979), 68 Ill. App. 3d 865, 386 N.E.2d 346.

As the State readily acknowledges, a defendant’s right to effective assistance of counsel may not be denied. (U.S. Const., amend. VI.) The issue here is whether a trial court’s admonition to a defendant still subject to cross-examination, warning him not to discuss the specifics of his testimony with his attorney during three brief recesses, when no such discussion has been requested, no legitimate need for it has arisen, and defendant has been informed that he may consult with counsel on all other matters, constitutes a denial of an accused’s sixth amendment right. Our reading of the applicable law persuades us that defendant’s rights have not been violated.

Relying on Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96, and People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496, defendant urges that the limits the trial court placed on his right to confer with his attorney denied him effective assistance of counsel. A similar argument was made in People v. Seider (1981), 98 Ill. App. 3d 175, 423 N.E.2d 1217, in which defendant was instructed by the court not to discuss his testimony with “anyone” during a short recess. The Seider court, after finding that the issue had been waived, distinguished Geders and Noble as follows:

“Unlike Geders v. United States and People v. Noble, wherein the defendant was prevented, over defense counsel objection, from consulting with his attorney during an overnight recess, defense counsel in the instant case never requested or indicated a need to confer with defendant. Nor did defendant request to consult with counsel. Additionally, the recess was not overnight but rather a “short” break between direct and cross-examination.” People v. Seider (1981), 98 Ill. App. 3d 175, 189, 423 N.E.2d 1217, 1227.

Similarly, in People v. Pendleton, the appellate court held that an attorney may consult with a witness regarding his testimony even after the witness is placed on the stand, “provided a legitimate need arises for such a discussion.” People v. Pendleton (1979), 75 Ill. App. 3d 580, 594, 394 N.E.2d 496, 507.

The supreme court in Noble explicitly stated that it did not mean to imply that a trial court may never, under any circumstances, impose limited restrictions on a defendant’s freedom to consult with counsel. People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96.

The circumstances of the instant case justified the trial court’s imposition of limited restrictions on defendant Wooden’s right to consult with counsel. Here, defense counsel neither requested nor indicated a need to confer with defendant Wooden, nor did defendant Wooden request to consult with counsel. The trial court specifically and repeatedly told Wooden that he could discuss with his attorney things other than his testimony. The recesses involved were of very brief durations, and, following the lunch recess, the court, after asking defendant if he had spoken to his attorney and learning that he had not, sua sponte and over the State’s objection, allowed defendant to meet with counsel, alone, behind the closed doors of the conference room. Under these particular circumstances, we find that the limited restrictions imposed on defendant by the trial court did not constitute a denial of defendant’s effective assistance of counsel.

Ill

As their final claim of error, defendants contend that the trial court erred in imposing extended-term sentences for their convictions of concealment of homicidal death when that offense is a lesser offense than voluntary manslaughter, of which defendants also stand convicted. Relying on the Unified Code of Corrections, section 5 — 8— 2(a) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a)) and People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, defendants assert that an extended-term sentence may only be imposed for the most serious class of offense of which the offender is convicted. In the recent consolidated case People v. Jordan (1984), 103 Ill. 2d 192, the Illinois Supreme Court interpreted section 5 — 8—2(a) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a)) of the Unified Code of Corrections. That interpretation supports defendants’ position.

Section 5 — 8—2(a) provides, in pertinent part:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a).

Section 5 — 8—2(a) was first considered by our supreme court in People v. Evans (1981), 87 Ill. 2d 77, 87-88, 429 N.E.2d 520, 525, in which it was stated:

“When section 5 — 8—2(a) is read in conjunction with section 5— 5 — 3.2, it is clear from the plain language of the statutes that the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. ***
We recognize that the present legislative scheme could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense.”

In Jordan, the supreme court found that Evans was dispositive of the issue and explained as follows:

“As stated in Evans, the plain language of section 5 — 8—2(a) requires that, when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class and only if that offense was accompanied by brutal or heinous behavior.” People v. Jordan (1984), 103 Ill. 2d 192, 206.

Here, defendants were convicted of armed violence, voluntary manslaughter, and concealment of homicidal death. The State concedes that the armed violence convictions, because they were predicated on voluntary manslaughter, must be vacated. (People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48.) Defendants, therefore, stand convicted of voluntary manslaughter and concealment of homicidal death. Voluntary manslaughter is a Class 1 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(c).) Concealment of homicidal death is a Class 3 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 3.1.) Under the supreme court’s interpretation of the extended-term statute (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 8—2(a)), where, as here, defendants have been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class. Because concealment of homicidal death is not within the most serious class, namely Class 1, imposition of an extended-term sentence for conviction of this lesser offense was improper. The sentences imposed for this offense must therefore be reduced.

For the reasons stated herein, we affirm defendants’ convictions for voluntary manslaughter and concealment of homicidal death, vacate defendants’ armed violence convictions, vacate the sentences imposed for the convictions of concealment of homicidal death, and remand for re-sentencing.

Affirmed in part, vacated in part, and remanded.

JOHNSON and ROMITI, JJ., concur.