author: PRESIDING JUSTICE HARTMAN

text:
    DAVID BOFMAN, Adm’r of the Estate of Mark Bofman, Deceased, et al., Plaintiffs-Appellants and Cross-Appellees, v. MATERIAL SERVICE CORPORATION, Defendant-Appellee and Cross-Appellant.
    First District (2nd Division)
    No. 83—209
    Opinion filed June 26, 1984.
    Rehearing denied July 24, 1984.

      William D. Maddux & Associates and Peter Fitzpatrick & Associates, both of Chicago (William D. Maddux, Bruce M. Lane, Richard F. Lee, and Brendan J. Keleher, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (Stephen A. Milwid, Daniel I. Schles-singer, and Hugh C. Griffin, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

An action against defendant Material Service Corp. (MSC), for injuries sustained by plaintiffs Edwin Talbot and John Diacou and for the death of plaintiff’s decedent Mark Bofman in a boating accident on MSC’s property, resulted in the jury’s verdict for plaintiffs and its assignment of 82% comparative negligence to each of them. MSC cross-appeals from the denial of its motion for a directed verdict and for judgment notwithstanding the verdict.

The issues raised on appeal include whether: (1) plaintiffs were comparatively negligent as a matter of law; (2) the jury’s finding of comparative fault assigned to each plaintiff was against the manifest weight of the evidence; (3) the testimony of a witness regarding his alleged conversation with the boat’s occupants was erroneously admitted; (4) a certain jury instruction was erroneously given; and, (5) MSC’s motions for a directed verdict and for judgment notwithstanding the verdict should have been sustained, the last issue being raised on cross-appeal.

The record reveals the following evidence. The boating accident occurred within a sand and gravel “wet pit” operated by MSC near Morris, Illinois. Originally a dry gravel quarry, MSC created the wet pit in the mid-1950s by dredging a channel, one-quarter mile long, between 300 and 400 feet wide and 11 to 12 feet deep, connecting the pit to the Illinois River, which ultimately flows into the Mississippi River. The wet pit at the time of the accident was about two miles long, one-quarter to one-half mile wide, and varied between 10 and 20 feet in depth. The pit and channel contained 196,416,000 cubic feet, or 1,469,293,000 gallons, of water. Besides its sand and gravel business, MSC used the pit for a “fleeting operation,” allowing barge operators using the Illinois River to dock their barges for a daily fee.

Sometime before 1957, MSC partially submerged a 50- by 50-foot barge in the pit and affixed it to the bottom with pilings for use in its fleeting operation. After subsequent dredging around it, the barge was 200 to 300 feet from land. One corner of the barge jutted out of the water at an angle. At normal water levels it was two to three feet above the water; at other times it was completely submerged. Until two or three years before July 1974, the barge had been lighted. Neither the barge nor a buoy attached to it were illuminated nor treated with reflective paint thereafter.

MSC employees, Harry Petersen, operating engineer, and Richard Stephens, site superintendent, testified that MSC’s policy was to keep private boaters out of the pit. Toward this end, two 7- by 14-foot signs were posted on land on either side of the channel at its junction with the Illinois River, which read: “NO TRESPASSING/PRIVATE WATER AND LAND/VIOLATORS WILL BE PROSECUTED/MATERIAL SERVICE CORP.” Two similar signs were posted on land midway into the channel. No sign warned of the sunken barge or of any danger. There were no signs in the pit area. A small “no trespassing” sign was affixed to a movable pontoon gate, located one-half to two-thirds of the way into the channel, which blocked passage to the pit and was designed to keep out private boaters. Although kept closed during daytime weekends, the gate was left open at night to accommodate the MSC fleeting operation. Boaters and picnickers were customarily chased from the pit. Trespassers were never prosecuted, however. On Sundays, MSC generally had two men on duty patrolling the area in a tugboat, opening and closing the gate for commercial traffic, and keeping boaters out of the pit, but not the channel.

Stephens lived near the pit and heard motorboats operating there after dark. Kenneth Yard, who lived immediately adjacent to the pit, frequently saw private boats and water-skiers in the pit and heard such boats operating in the pit after dark. He regularly boated in the pit himself, but was never asked by MSC’s employees to leave. He sometimes saw boaters being “shagged out,” but only during working hours. Charles Swanson testified that he and others in his water-ski club often used the pit on weekends for boating, skiing and camping. He was never chased from the property.

At about noon on Sunday, July 14, 1974, Diacou, Bofman and Richard Votava met and launched Votava’s 17-foot fiberglass boat, equipped with a 150-horsepower engine, into the Illinois River at Morris. Talbot joined the group later in the afternoon. Votava had boated in the channel and pit area many times before; the others had never been there previously. The group spent the day boating, water-skiing, swimming and picnicking, primarily in the channel, along with numerous other boaters. The pontoon gate blocked the channel and MSC’s tugboat was observed on the other side of the gate. Diacou walked across the gate and noticed the men in the tug laughing at him. Vo-tava made “small talk” with them, but denied being warned to stay out of the pit. At about 7:30 p.m., the gate was opened. Votava piloted the boat into the pit at about 8 p.m. Darkness began to fall. The boat circled the pit but soon ran out of gas and stopped. The gas remaining in two gas tanks was combined and the engine was restarted about 20 minutes to one-half hour later.

The sky was still light in the west, but the water was quite dark. Running lights on the boat permitted it to be seen by others, but did not illuminate the water ahead. Votava sat in front and piloted the boat at speeds of 25 to 30 miles per hour. Bofman sat beside Votava. Diacou and Talbot were in the back. Talbot, sitting on the gunwale, tried to maintain a lookout and discerned a “dark object,” like a log, in the water ahead. Before he could say anything, the boat struck something and “stopped dead,” throwing its occupants forward. Diacou only remembered waking up on the barge and seeing the boat on the barge. Votava saw the barge when he first entered the pit, but not just before the impact, when he lost consciousness. All the occupants suffered physical injury; Bofman died by reason of his injuries three weeks later.

Van Petersen, MSC’s foreman, worked on MSC’s tugboat in the pit on the day of the accident. The vessel’s pilot was Frank Graves, who died prior to trial. They closed the gate in the morning and patrolled the area during the day, turning away private boats at the gate. He saw plaintiffs’ boat in front of the gate, recognizing it from having seen it lodged on the barge the following day. He conversed with two or three of the boat’s occupants, young men in swimming trunks, and told them he had orders to keep them “out of the dangers in the pit.” He could not recall the hour of the conversation, the color of the boat, or any physical characteristics of its occupants.

Plaintiffs filed a complaint on March 2, 1976, which contained counts in admiralty and premises negligence and in wilful and wanton misconduct, naming as defendants MSC and Votava. In 1977, Votava paid consideration to each of the plaintiffs in exchange for covenants not to sue. Consequently, plaintiffs’ first amended complaint filed on October 12, 1982, only named MSC as defendant. MSC’s answer placed the allegations at issue.

Prior to trial, which began on October 14, 1982, the circuit court allowed plaintiffs’ motions in limine for protective orders to exclude evidence relating to: the boating party’s ingestion of intoxicants; the use of excess speed in the operation of the boat prior to the occurrence; and Votava’s separate action against MSC. The court denied plaintiffs’ motion to exclude Van Petersen’s testimony relating to his alleged conversation with the boaters.

On October 28, 1982, the jury returned a general verdict in favor of plaintiffs, but reduced each of plaintiffs’ total damages by 82%, the degree of comparative negligence found attributable to plaintiffs and plaintiff’s decedent. A separate verdict awarded damages to Bofman’s estate to compensate it for funeral and burial expenses. The circuit court on December 28, 1982, allowed MSC’s post-trial motion and ordered setoffs of the jury’s award of damages by the amounts which Votava paid to plaintiffs in settlement of their claims against him.

I

Plaintiffs contend that they were not comparatively negligent as a matter of law because, first, their trespassing on defendant’s property was not, by itself, negligence. That issue is rendered moot because of the presence of other evidence arguably demonstrating some degree of negligence. Under the issues drawn by the pleadings and the issues instruction given, this could have included: plaintiffs’ failure to heed posted warning signs and to maintain a proper lookout.

Plaintiffs insist that the foregoing facts show only the pilot’s negligence, not that of the passengers. Plaintiffs’ argument that no-trespassing signs bear little relationship to signs warning of existing danger finds support in Davis v. United States (7th Cir. 1983), 716 F.2d 418, 423, in which a no-swimming sign was held to be ineffective as a warning of submerged rocks to a diving swimmer. As to questions of lookout, however, whether plaintiffs should have insisted upon Votava’s operation of the boat in a manner which would have afforded a proper lookout (e.g., reduced speed in view of limited visibility), was a question for jury resolution. A vehicle operator’s negligence may not be imputed to the passengers (Andes v. Lauer (1980), 80 Ill. App. 3d 411, 414-15, 399 N.E.2d 990), yet a passenger must exercise such care as particular circumstances dictate (Hatcher v. New York Central R.R. Co. (1959), 17 Ill. 2d 587, 593-94, 162 N.E.2d 362). A passenger, aware of danger which the operator fails to guard against, without taking action to protect himself, may himself be deemed negligent (Flynn v. Chicago City Ry. Co. (1911), 250 Ill. 460, 465, 95 N.E. 449), a question of fact (Hatcher v. New York Central R.R. Co. (1959), 17 Ill. 2d 587, 162 N.E.2d 362; Street v. Finney (1973), 9 Ill. App. 3d 638, 642-43, 292 N.E.2d 553). “At precisely what point the duty arises to change from passive reliance [upon the operator’s control] to active protest is largely a factual question to be properly decided by the jury on the basis of available facts and circumstances.” (Pizano v. Trejo (1971), 2 Ill. App. 3d 944, 948, 274 N.E.2d 861, citing 8 Am. Jur. 2d Automobiles & Highway Traffic sec. 527. See also Hayes v. Alsburg (1978), 72 Ill. 2d 560, 566-67, 382 N.E .2d 239.) Here, the jury was properly given the question of each plaintiff’s comparative negligence. Davelis v. Central Engineering Co. (1980), 86 Ill. App. 3d 593, 596, 408 N.E.2d 218.

II

Plaintiffs next contend that the jury’s assignment of 82% comparative fault to each plaintiff was against the manifest weight of the evidence. The supreme court in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, established “pure” comparative negligence as the law of this State, requiring that plaintiff’s damages be reduced in proportion to his own degree of fault. Illinois Pattern Jury Instruction (IPI), Civil, No. A45.05 (2d ed. 1971), given in this case, mandated the jury to “[determine what proportion or percentage is attributable to that plaintiff or decedent of the total combined negligence of that plaintiff or decedent and the negligence or wilful and wanton conduct of the defendant and of all other persons whose negligence or wilful and wanton conduct proximately contributed to that plaintiff’s injury or decedent’s injury and death.” (Emphasis added.) The determination therefore requires consideration not only of plaintiffs’ and defendant’s fault, but that of nonparty tortfeasors as well. The instant jury was bound to consider the negligence of plaintiffs, MSC, and Votava, the pilot of the boat, in calculating the “total combined negligence.”

The jury’s finding, that each plaintiff’s fault comprised 82% of the “total combined negligence,” is unsupportable, when Votava’s conduct is considered. Votava, as pilot of the boat: brought the others into the pit area with him; had boated in the pit area on approximately 50 previous occasions; admittedly had spoken with MSC employees earlier who claimed to have warned against dangers in the pit; knew of the partially submerged barge and the dangers it posed; decided to enter the pit area despite questionable visibility; was responsible for the short supply of fuel; and controlled the speed and direction of the boat. Plaintiffs, as passengers who had never previously been in the pit area, one or more of whom had no conversations with MSC employees, could not possibly have been equally or more negligent than Votava, the boat’s pilot, under the evidence in this case.

Prior to the advent of comparative negligence, Illinois courts have held that a verdict will not be set aside as being against the manifest weight of the evidence unless all reasonably intelligent minds would reach a different conclusion (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 839, 383 N.E.2d 1242) or unless it is clearly evident that jurors have reached a wrong conclusion or an incorrect result (Rowlett v. Hamann (1969), 112 Ill. App. 2d 121, 251 N.E.2d 358; Cochran v. Parker (1968), 91 Ill. App. 2d 56, 233 N.E.2d 443). No reported case has been cited or found with respect to the standards of judicial review of a comparative negligence verdict in the Illinois State court system; this case therefore appears to be one of first impression.

Courts in other “pure” comparative negligence jurisdictions have expressed reluctance to interfere with a jury’s apportionment of fault in terms similar to Illinois courts in ordinary jury cases, but they have done so when such verdicts were deemed “against the weight of the evidence” (Lopato v. Kinney Rent-A-Car, Inc. (1979), 73 App. Div. 2d 565, 423 N.Y.S.2d 42; Mass v. Leinker (1975), 46 App. Div. 2d 383, 362 N.Y.S.2d 552); or “against the manifest weight of the evidence” (Diaz v. Certified Marine Industries, Inc. (Fla. App. 1977), 346 So. 2d 1211; Kinsey v. Kelly (Fla. App. 1975), 312 So. 2d 461); or against the “preponderance of the evidence” or “overwhelming weight of the evidence” or “palpably against the weight of the evidence” (Winstead v. Hall (1965), 251 Miss. 800, 171 So. 2d 354; Moak v. Black (1957), 230 Miss. 337, 92 So. 2d 845; Vaughan v. Bollis (1954), 221 Miss. 589, 73 So. 2d 160); or “clearly erroneous” (State v. Kaatz (Alas. 1977), 572 P.2d 775). (See also Am. Jur. 2d, New Topic Service, Comparative Negligence sec. 50 (1977).) The rule in “modified” comparative negligence States is little different. (See, e.g., Caldwell v. Piggly Wiggly Madison Co. (1966), 32 Wis. 2d 447, 459, 145 N.W.2d 745, 752 (“probable miscarriage of justice”); Smith v. Carriere (Minn. 1982), 316 N.W.2d 574, 575 (absence of evidence to reasonably support the jury's verdict). See also V. Schwartz, Comparative Negligence ch. 18 (1974).) We believe the manifest weight of the evidence standard should be applied to comparative negligence jury verdicts.

The jury in the case sub judice apparently misunderstood IPI Civil No. A45.05 and did not consider Votava’s negligence in its computation, or it improperly imputed Votava’s negligence to plaintiffs. In either event it is clear that the jury’s finding here that plaintiffs were individually chargeable with 82% comparative negligence was unreasonable, contrary to the manifest weight of the evidence, and the cause must be reversed. (McIntyre v. Belt Ry. Co. (1969), 105 Ill. App. 2d 45, 245 N.E.2d 94, appeal denied (1969), 40 Ill. 2d 580; see also Walls v. Hofbauer (1977), 45 Ill. App. 3d 394, 359 N.E.2d 1037.) The jury determination of the initial amount of plaintiffs’ damages shall stand. The circuit court is directed to grant plaintiffs a new trial limited solely to the issue of apportionment of negligence attributable to the plaintiffs or decedent of the total combined negligence of the plaintiffs or decedent and the negligence of the defendant and of all other persons whose negligence proximately contributed to plaintiffs’ injuries or decedent’s injury and death. IPI Civil No. A45.05.

Ill

Since this cause must be retried as directed above, certain issues alleged to have been erroneously decided may again arise and will be considered here.

Plaintiffs contend that they were prejudiced by the erroneous admission of Van Petersen’s testimony as to his alleged conversation with some of the boat’s occupants. Conversations otherwise material and relevant are competent and admissible provided the parties to the conversations are identified either by direct evidence or by surrounding facts and circumstances. O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 952, 364 N.E.2d 533.

Here, despite Petersen’s inability to positively identify which of the plaintiffs or decedent he spoke to, he identified them as two or three “younger” men in their twenties or older, in swimming trunks, who had been swimming and water-skiing, and were on the same boat he saw the following day lodged on the barge. Earlier, Diacou and Votava also testified to some interaction with the men on the tugboat, although each denied being warned to stay out of the pit area because of potential danger. Their testimony, together with Petersen’s positive identification of the boat, allowed the jury to believe that conversations took place. Petersen’s testimony was therefore properly admitted; any conflict as to its substance was for the jury to resolve. The absence in Petersen’s recall of the hour of the conversation and the color of the boat did not render his testimony incompetent. His observations need not have been positive or absolutely certain; it suffices that he had an opportunity to observe, recall and relate impressions from his observations. 2 Wigmore, Evidence sec. 658(b), at 894 (Chadbourn rev. 1979).

Plaintiffs argue that, even if Van Petersen’s testimony was admissible to show the knowledge of the potential danger on the part of Diacou, the only plaintiff acknowledging conversation with the men on the tug, the circuit court erred by failing to limit the application of this testimony to Diacou alone. Evidence which is competent as against one party but not another is admissible, provided the jury is instructed to consider such evidence for its proper purpose only. (Consolidated Ice Machine Co. v. Keifer (1890), 134 Ill. 481, 494, 25 N.E. 799; Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 279-80, 132 N.E.2d 788; Porro v. P.T. Ferro Construction Co. (1979) , 72 Ill. App. 3d 377, 382, 390 N.E.2d 958.) The challenged testimony was highly probative of, and therefore relevant to prove, plaintiffs’ knowledge of the dangers of the pit area; its prejudicial effect was an insufficient ground to exclude it entirely (see Bell v. City of Joliet (1980), 83 Ill. App. 3d 103, 106, 403 N.E.2d 740) and the circuit court did not abuse its discretion by admitting this testimony. (LeMaster v. Chicago Rock Island & Pacific Ry. Co. (1976), 35 Ill. App. 3d 1001, 1026, 343 N.E.2d 65. See also, Needy v. Sparks (1977), 51 Ill. App. 3d 350, 365, 366 N.E.2d 327; Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App. 3d 279, 286, 355 N.E.2d 547; 1 Wigmore, Evidence sec. 10a, at 674-80 (Tillers rev. 1983); Fed. R Evid. 403.) A party who seeks to limit such evidence to the announced purpose is obligated to request the appropriate limiting instruction, or will be deemed to have waived its objection. (Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948, 953, 397 N.E.2d 1235; Greig v. Griffel (1977), 49 Ill. App. 3d 829, 838, 364 N.E.2d 660; 1 Wigmore, Evidence sec. 13, at 697 (Tillers rev. 1983); McCormick, Evidence sec. 59, at 136 (2d ed. 1972).) Plaintiffs here did not request such an instruction and have waived its absence.

IV

Plaintiff Diacou alone argues that IPI Civil No. A45.05, the comparative negligence instruction, contains confusing language which prompted the instant jury to improperly impute to plaintiff the negligence of others. Counsel for Diacou objected only generally to the instruction because “comparative negligence [did not belong] * * * in the case.” An objection to an instruction “shall be particularly specified” (87 Ill. 2d R. 239(b)); failure to do so waives the objection for purposes of appeal. (Bean v. Norfolk & Western Ry. Co. (1980) , 84 Ill. App. 3d 395, 406, 405 N.E.2d 418.) Assuming, arguendo, that they had been properly preserved, his contentions must be rejected.

Diacou specifically assigns error to the provision in IPI Civil No. A45.05 which requires the jury to consider the negligence of “all other persons” in computing “total combined negligence.” First, he maintains that the jury should never have considered the negligence of nonparties, as this led to an improper imputation to plaintiff of negligence not his own. Consideration of the negligence of both parties and nonparties to an action is essential for determining liability commensurate with degree of total fault. If, as Diacou suggests, the conduct of Votava, a nonparty, were to have been omitted from this computation, the 82% negligence attributed to plaintiffs could not be said to have been manifestly erroneous.

Diacou argues further that taking into account the negligence of nonparties undermines the doctrine of joint and several liability, retained with respect to comparative negligence by the supreme court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 123, 454 N.E.2d 197. The purpose of considering the liability of nonparty tortfeasors is not, as Diacou suggests, to limit defendant’s share of responsibility, but to determine the extent of plaintiff’s responsibility for his own injuries. This is consonant with the mandate in Alvis v. Ribar (1981), 85 Ill. 2d 1, 25, that plaintiff’s damages under “pure” comparative negligence are to be “reduced by the percentage of fault attributable to him.” Defendants remain jointly and severally liable for that portion of damages for which each plaintiff is not responsible, regardless of whether some of those damages are attributable to a nonparty.

V

On cross-appeal MSC argues that a directed verdict or judgment notwithstanding the verdict should have been granted in its favor. MSC first contends that, as a matter of law, it was not liable on the counts alleging wilful and wanton misconduct.

An owner or occupier of land owes a duty to both trespassers and licensees to avoid wilfully and wantonly injuring them. (Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 212, 392 N.E.2d 768; Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 86, 343 N.E.2d 261.) Wilful and wanton misconduct does not require an owner to intend harm; notice to him of a condition on the property “which would alert a reasonable man that substantial danger was involved and that he failed to take reasonable precautions under the circumstances” is sufficient. (Beverly Bank v. Penn Central Co. (1974), 21 Ill. App. 3d 77, 82, 315 N.E.2d 110.) The existence of wilful and wanton misconduct is peculiarly a question of fact for a jury. (Delany v. Badame (1971), 49 Ill. 2d 168, 177, 274 N.E.2d 353; Murphy v. Jewel Companies, Inc. (1974), 24 Ill. App. 3d 1, 5, 320 N.E.2d 47.) Moreover, a directed verdict or judgment n.o.v. can be properly entered only if all of the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Under this stringent standard, the circuit court here properly submitted this question to the jury.

The evidence showed that MSC attempted to keep boaters out of the pit area by erecting “no trespassing” signs, operating a pontoon gate to block access to the pit, and ordering boaters to leave who did enter the pit. Other evidence, however, showed that the “no trespassing” signs were placed only in the channel, not the pit, and conveyed no warnings of danger. Although a buoy was affixed to the barge, neither was illuminated nor bore reflective paint. Defendant’s superintendent, who lived nearby, heard motorboats in the pit after dark, when the pontoon gate was left open. A neighbor saw many boaters in the pit by day and regularly heard them there by night. There was other testimony that boaters were permitted to use the pit even in the presence of defendant’s employees.

The failure of an owner or occupier of land to warn of a concealed dangerous condition of which he is aware constitutes wilful and wanton misconduct. (Latimer v. Latimer (1978), 66 Ill. App. 3d 685, 688, 384 N.E.2d 107.) In evaluating an owner’s duty to warn of a hidden danger, courts consider the likelihood and gravity of threatened injury, the burden imposed in guarding against the injury, and the consequences of placing this burden on the owner. (Smith v. Goldman (1977), 53 Ill. App. 3d 632, 634, 368 N.E.2d 1052.) MSC, through its site superintendent, was on notice that the pit was used at night by private boaters. The barge was not clearly visible after darkness fell. It cannot be said as a matter of law, therefore, that MSC’s efforts to warn of the danger were sufficient to overcome the jury’s finding of wilful and wanton misconduct. It was foreseeable that a boat might hit the barge at night and that the resulting injury would be great. In contrast, the burden imposed on defendant to prevent such harm, illuminating or marking the barge or buoy and erecting signs that warned of the danger, was slight.

In Davis v. United States (7th Cir. 1983), 716 F.2d 418, a swimmer was injured by subsurface rocks in the owner’s lake. The Seventh Circuit Court of Appeals found that the owner was guilty of wilful and wanton misconduct under Hlinois law. There, the owner’s maintenance of “no swimming” and “no diving” signs, as well as occasional efforts to verbally warn and expel swimmers, were found inadequate to warn trespassers of the hidden danger. In another Federal case considering Illinois law, cited by MSC, red and orange lights and signs, containing the words “restricted” and “danger” were found adequate to warn of the danger there, especially since plaintiffs’ decedents should have realized the substantial risk inherent in placing their boat in front of the gate of an operating dam. (Kohl v. United States (7th Cir. 1983), 712 F.2d 286.) The instant facts, more nearly paralleling those in Davis than those in Kohl, justified submitting the wilful and wanton misconduct counts to the jury.

VI

MSC further contends that because the pit did not constitute navigable waters of the United States as a matter of law, submission to the jury of counts in ordinary negligence, premised upon Federal maritime law, was error. According to applicable law,

"*** whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night ***.” (Emphasis added.) (33 U.S.C. sec. 409 (1976).)

Federal regulations, moreover, provide for liability to the public for damage caused by a wreck in navigable waters. (33 C.F.R. sec. 64.01 — 1(a) (1975).) The propriety of submitting the negligence counts to the jury thus turns on whether the pit can be characterized as navigable waters.

Waters are navigable and amenable to Federal regulations if they are subject to tidal fluctuations or have been, are, or in the future could be used for interstate transport or foreign commerce. (33 C.F.R. sec. 329.4 (1978); Kaiser Aetna v. United States (1979), 444 U.S. 164, 171 n.6, 62 L. Ed. 2d 332, 341 n.6, 100 S. Ct. 383, 388 n.6.) Inland waters not subject to tidal ebb and blow must be deep and wide enough to permit commercial vehicles to pass, in other words be “navigable in fact,” and must link up with an interstate navigable waterway. (See, e.g., National Wildlife Federation v. Alexander (D.C. Cir. 1979), 613 F.2d 1054, 1065-66; Minnehaha Creek Watershed District v. Hoffman (8th Cir. 1979), 597 F.2d 617, 621.) In the present case, evidence was adduced that the channel and pit were created, for the most part, by water diverted from the Illinois River, a navigable waterway. They are deep enough to accommodate commercial vessels and regularly do so. The record shows that, for a fee, MSC permitted barge operators plying the Illinois River to use the wet pit as a docking area for their barges. For purposes of Federal regulations, the channel and wet pit qualify as navigable waters. Cf. Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 392 N.E.2d 768.

An instruction based upon Vaughn v. Vermilion Corp. (1979), 444 U.S. 206, 62 L. Ed. 2d 365, 100 S. Ct. 399, and upon Schulte v. Warren (1905), 218 Ill. 108, 75 N.E. 783, was given to the instant jury. In Vaughn, decided December 4, 1979, after Votava v. Material Service Corp., the United States Supreme Court remanded the cause for a fact determination as to whether the waterway there — a private canal system connected to navigable waters— was itself “navigable waters” accessible for public use. The court distinguished between channels built on private property with private funds in such a manner as to join existing navigable waterways, and those similarly built, but which also involved “the diversion or destruction of a pre-existing natural navigable waterway.” (Emphasis added.) (Vaughn v. Vermilion Corp. (1979), 444 U.S. 206, 208, 62 L. Ed. 2d 365, 368, 100 S. Ct. 399, 401.) The latter circumstance, if proven, would justify a finding that the channels were navigable waters, the public use of which could not be enjoined. In Schulte, our supreme court held that the owner of lands inundated by the Illinois River, the covering waters of which were of such depth and volume as to be navigable, retained ownership of the lands subject only to a public easement of navigation on the waters overflowing land permanently submerged. (Schulte v. Warren (1905), 218 Ill. 108, 118-22.) It cannot be said that the circuit court here erred by permitting the jury to determine whether the pit constituted navigable waters subject to the regulation that sunken vessels, such as the subject barge, be appropriately marked or illuminated. Accordingly, it also was not error to permit the jury to consider the negligence counts grounded in Federal law governing the use of navigable waters. Assuming, arguendo, that the negligence counts had been erroneously submitted, moreover, the properly submitted wilful and wanton misconduct counts otherwise support the general verdict returned by the jury.

MSC’s reliance upon DuPont v. Miller (1923), 310 Ill. 140, 145-46, 141 N.E. 423, is misplaced. In DuPont, the Illinois Supreme Court required clear and convincing evidence of dedication to the public of privately owned waters in order for such waters to be considered navigable. The appellate court in Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 392 N.E .2d 768, applied this test. The DuPont test is inapplicable here, however, for several reasons. First, in DuPont the waters involved were not subject to federal regulation. (33 U.S.C. sec. 27 (1976); Leitch v. Sanitary District (1938), 369 Ill. 469, 474-75, 17 N.E.2d 34.) Second, there was no issue in DuPont as to the application of Federal law or regulations, the court there specifically noting that waters within this State were subject “*** to the power of the Federal government to enact such legislation and make such regulations as relate to interstate commerce.” DuPont v. Miller (1923), 310 Ill. 140, 145.

From the foregoing, we affirm the judgment as to the liability of defendant. We are compelled to reverse and remand the cause for a new trial on the sole issue of comparative negligence. The amount of damages shall stand without the need for submission of such evidence.

Affirmed in part; reversed and remanded in part.

STAMOS and DOWNING, JJ., concur.

      The Seventh Circuit Court of Appeals has recently considered and reversed, in part, a comparative negligence judgment entered by the district court in Davis v. United States (7th Cir. 1983), 716 F.2d 418, applying Illinois law. The discussion there pertaining to judicial review of a trial court’s apportionment of fault postulated the rule that a court of review would reverse “if we have a firm conviction that it is wrong.” (716 F.2d 418, 430.) The two cases cited in support thereof, however, both involved jury verdicts. In Szarat v. City of Chicago (1983), 117 Ill. App. 3d 809, 454 N.E.2d 68, no standard was discussed.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    RICHARD GRUNSTEN, d/b/a Gane, Plaintiff-Appellee, v. WILLIAM H. MALONE, Defendant-Appellant.
    First District (3rd Division)
    No. 83—333.
    Opinion filed June 29, 1984.
    Rehearing denied August 20, 1984.

      Elliott, Carrane, Freifeld & Uruba, of Chicago (Thomas P. Aiello, of counsel), for appellant.
    Nisen, Elliott & Meier, of Chicago (Anthony Packard and Howard L. Gilberg, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, William H. Malone, appeals pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306) from the order of the circuit court of Cook County which set aside a jury verdict for plaintiff, Richard Grunsten, doing business as Gane, in the amount of $12,000 and ordered a new trial on the question of damages only. The issues presented for review are: (1) whether the circuit court clearly abused its discretion in granting a new trial based on its conclusion that plaintiff was denied a fair trial, and (2) whether the circuit court erred in granting a new trial on the issue of compensatory damages only.

Plaintiff brought this action against defendant, seeking damages for the loss of personal property and for the destruction of his business. Plaintiff’s fourth amended complaint contained four counts; however, only counts II and III are relevant to this appeal. Count II set forth a theory of trespass to land, in that defendant, as landlord, trespassed upon plaintiff’s business premises, destroying his personal property and damaging his business. This count prayed for compensatory damages in the sum of $225,000 and punitive damages in the sum of $225,000. Count III asserted a theory of liability based upon wilful and wanton negligence, and the prayer for relief of this count was identical to the prayer for relief contained in count II.

At the close of evidence, the circuit court determined that the evidence would not support an award of punitive damages and refused to allow that issue to go to the jury. The circuit court also granted plaintiff’s motion for a directed verdict on the issue of liability, finding that the evidence of liability was overwhelming. Thus, the only issue decided by the jury was the amount of damages.

The jury determined that plaintiff incurred damages in the amount of $12,000. Subsequently, plaintiff filed his motion for new trial alleging that plaintiff did not receive a fair trial. In its order granting plaintiff a new trial, the circuit court found that plaintiff did not receive a fair trial in the following respects:

“(a) counsel did not have sufficient time following the jury instruction conference to prepare for final argument;
(b) counsel did not have the opportunity to consider the instruction on the measure of damages as modified by the Court prior to argument; and
(c) based upon the evidence, the jury instructions did not sufficiently instruct the jury on compensatory damages.”

The circuit court’s order specifically found, however, that the award of the jury was not against the manifest weight of the evidence.

The circuit court’s order granting a new trial was based upon events which occurred after all the evidence was heard in the court below; however, certain events prior to that time are relevant. The case was assigned for trial on November 12, 1982. On that date, the trial judge stated to counsel for both parties that he wanted the trial in the instant case to be completed on or before November 24, 1982 (the day before Thanksgiving Day), because the court had already scheduled a trial for the following Monday. On Monday, November 15, 1982, the jury was selected. From Wednesday, November 17, 1982, until shortly after 12 o’clock noon on Wednesday, November 24, 1982, the parties presented evidence to the jury. During the afternoon of Wednesday, November 24, 1982, the circuit court held the jury instruction conference, and shortly thereafter, closing argument began.

The transcript of proceedings shows that on November 24, 1982, immediately following a noon recess, but before the jury instruction conference, plaintiff moved for a directed verdict on the issue of liability. Plaintiff’s motion was granted. At the instruction conference which followed immediately thereafter, defendant tendered the following instruction on the question of damages:

“You must fix the amount of money which will reasonably and fairly compensate the plaintiff for any of the following elements of damage proved by the evidence to have resulted from the conduct of the defendant.
If you find that all or some of plaintiff’s personal property was totally destroyed, the measure of damages is the reasonable value of such property at the time of destruction. If you find that all or some of plaintiff’s personal property was not totally destroyed but the damage was not capable of being repaired, the measure of damages is the difference between the fair market value of such property immediately before and the scrap value immediately after the damage. If you find that all or some of plaintiff’s personal property was not totally destroyed and was capable of being repaired, the measure of damages is the lesser of the reasonable expense of necessary repairs to the property which was damaged, or the difference between the fair market value of the property immediately before the occurrence and its fair market value immediately after the occurrence.
If you find that plaintiff lost profits in his business due to the acts of the defendant, the value of lost profits for a time reasonably required to allow plaintiff to set up his business again. The loss of profits is defined as the amount of gross income less the cost of doing business.
Whether any of these elements of damages has been proved by the evidence is for you to determine.”

Plaintiff objected to the third paragraph relating to lost profits. Defendant also tendered this instruction on the question of lost profits:

“Lost profits are compensable only so far as they are plainly traceable to natural consequences of the injurious act and may not be recovered when they are merely probable and speculative.”

Plaintiff did not tender any alternative instruction on the measure of damages.

Before ruling on the instructions relating to the issue of damages, the trial judge inquired of counsel as to how much time was needed for closing argument. Plaintiffs counsel responded: “We don’t see more than 20 minutes total time, direct and rebuttal. I hope I can do less than that.” Plaintiff’s counsel did not object at this time that he did not have sufficient time to prepare for closing argument. The trial judge then stated that there would be a recess so that he could review a case relevant to the proposed damages instructions. The judge told defense counsel that as soon as he ruled on the instructions, defense counsel should “make the [telephone] call [to his office to have the instructions retyped as modified] and get it down [to the court] while you are arguing; okay?” Plaintiff’s counsel did not object to this procedure and never stated that he needed a copy of any modified instruction to prepare for closing argument.

After the short recess, plaintiff renewed his objection to the “lost profits” paragraph of defendant’s damages instruction. Pursuant to this objection, the circuit court struck that paragraph. The circuit court also refused to give defendant’s proposed instruction on lost profits, finding that the jury was sufficiently instructed on the issue of damages. After ruling on the instructions, the trial judge stated: “We will proceed in five minutes with the final arguments, no extensions.” At this time, plaintiff did not object to either the time allowed to prepare for closing argument or to the lack of opportunity to review the jury instruction on the issue of damages as modified by the circuit court.

During the recess before closing arguments, defendant’s counsel informed the court that there was no instruction going to the jury with regard to damages for either lost profits or destruction of plaintiff’s business. Defense counsel then resubmitted his original damages instructions. Plaintiff’s counsel responded:

“We have not tendered anything as an alternative. We believe we have had expert testimony on the value of the business from both sides here.
I don’t think an instruction by the Court would be proper on the methods, any one of several methods that may be used to valúate the business, then which one would be proper in the situation here? I think that is a matter for the jury’s consideration.
You are saying that the business was irrevocably lost to the plaintiff and that he is entitled to compensation for it. The method of valuation, I think, is a matter for the jury to determine.”

The trial judge then repeated his finding that the jury was sufficiently instructed. Immediately following this ruling, the court directed counsel for both parties to proceed with closing argument. Again, plaintiff’s counsel did not object to either the lack of time to prepare for final argument or the lack of time to consider the modified damages instruction prior to closing argument.

The $12,000 verdict and the order granting plaintiff’s motion for new trial followed.

In Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268, our supreme court described the great deference which is generally given to decisions of trial judges in granting or denying motions for a new trial. The court stated:

“A court on review will not reverse the trial court’s decision to grant a new trial merely because it would have come to a different conclusion on the facts. [Citations.] The decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown. [Citations.] In determining whether that discretion was abused, the reviewing court will consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial.” 83 Ill. 2d 545, 548-49; see also Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500.

The circuit court found that the award of the jury was not against the manifest weight of the evidence, and neither party argues on appeal that the jury’s award of damages was not supported by evidence. Accordingly, in determining whether the circuit court clearly abused its discretion in allowing plaintiff’s motion for new trial, we must consider whether plaintiff was denied a fair trial.

We address each of the “errors” relied upon by the circuit court in support of its finding that plaintiff did not receive a fair trial to determine whether any of these “errors” or the cumulative effect of them denied plaintiff a fair trial.

The first reason given by the circuit court for ruling that plaintiff did not receive a fair trial is that counsel did not have sufficient time following the jury instruction conference to prepare for closing argument. The parties agree that the limitation and placement of closing argument is within the sound discretion of the circuit court. (See Schmidt v. Blackwell (1973), 15 Ill. App. 3d 190, 199, 304 N.E.2d 113; Hansell-Elcock Foundry Co. v. Clark (1905), 214 Ill. 399, 415, 73 N.E. 787.) Thus, the circuit court, in effect, found that it had abused this discretion.

We would agree that the circuit court was in a better position than this court to determine whether it had abused its discretion with respect to the limitation and placement of closing argument. (Hansell-Elcock Foundry Co. v. Clark (1905), 214 Ill. 399, 415, 73 N.E. 787; see McElligott v. Illinois Central R.R. Co. (1967), 37 Ill. 2d 459, 468, 227 N.E.2d 764.) However, its finding that plaintiff was denied a fair trial because of insufficient time to prepare for closing argument cannot be sustained on this record. First, neither plaintiff’s counsel nor defendant’s counsel requested additional time following the instruction conference in order to prepare for final argument. Moreover, the record does not show how plaintiff was prejudiced by not being given additional time to prepare for closing argument. Plaintiff contends that he was unduly hampered in making his closing argument; however, he fails to state what points or what testimony he was unable to discuss in closing argument because of the alleged insufficient time to prepare. The record on appeal shows that in closing argument plaintiff’s counsel discussed lost profits and the value of plaintiff’s business. In addition, we note that at the oral argument of this case in this court, counsel for plaintiff stated that if he had more time to prepare for closing argument he may not have said anything differently. Since we are unaware of any points or testimony that plaintiff’s counsel was unable to discuss in his closing argument, we cannot say that plaintiff was prejudiced due to the alleged insufficient time to prepare for closing argument. (See Schmidt v. Blackwell (1973), 15 Ill. App. 3d 190, 199.) Accordingly, the circuit court’s finding of lack of time to prepare for closing argument is not supported by the record and cannot be the basis for granting a new trial.

The second reason given by the circuit court for granting a new trial is that plaintiff’s counsel did not have the opportunity prior to closing argument to consider the instruction on the measure of damages as modified by the circuit court. At the outset we observe that the parties do not dispute that prior to the instruction conference a copy of defendant’s original damages instruction was given to plaintiff’s counsel. Plaintiff argues that his trial counsel did not receive a copy of the modified damages instruction prior to closing argument and that if his counsel had received a copy, his counsel would have had the opportunity to object to the absence of an instruction on the issue of lost profits, or alternatively, to limit his closing argument to the damages instruction actually given.

At the outset, we observe that plaintiff’s counsel never made a request in the court below for an opportunity prior to closing argument to review the damages instruction as it had been modified by that court. Further, the circuit court’s modification of defendant’s proposed damages instruction, which eliminated the paragraph concerning lost profits, was made pursuant to plaintiff’s own objection. In addition, during the recess immediately prior to closing argument, plaintiff’s counsel, in response to an argument by defendant’s counsel that there was no jury instruction concerning damages for lost profits or destruction of plaintiff’s business, argued in favor of the circuit court’s modification of defendant’s proposed damages instruction. Under these circumstances, we are of the opinion that the lack of opportunity prior to closing argument to consider the damages instruction as modified cannot be said to have denied plaintiff a fair trial, and, therefore, cannot support the granting of a new trial.

The third basis given by the circuit court for finding that plaintiff did not receive a fair trial is that the jury instruction did not sufficiently instruct the jury on compensatory damages. According to plaintiff, the central dispute of the trial involved the amount of damages for lost profits and the value of plaintiff’s business, yet the instructions presented to the jury failed to mention that portion of plaintiff’s claim. However, plaintiff never tendered any jury instructions on these issues. (See 87 Ill. 2d R. 366(b)(2)(i).) Moreover, under the facts of this case it would be manifestly unfair to allow plaintiff a new trial upon the ground of inadequate instructions on the issue of damages. At trial, plaintiff argued in favor of the circuit court’s modification of defendant’s damages instruction, despite defendant’s contention that if the instruction were given as modified, there would be no jury instruction concerning damages for lost profits or destruction of plaintiff’s business. In essence, the jury was instructed as plaintiff desired. In Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500, our supreme court stated:

“The rule is well settled that a party may not assert error on the basis of instructions which he has caused to be given to the jury. [Citations.] The rationale of this rule is obvious. It would be manifestly unfair to allow one party a second trial upon the basis of error which he injected into the proceedings.”

This fairness rationale is applicable to this case.

The appellate court’s opinion in Onderisin v. Elgin, Joliet & Eastern Ry. Co. (1959), 20 Ill. App. 2d 73, 77-78, 155 N.E.2d 338, supports this conclusion. In that case, the court stated:

“The purpose of the conference [on instructions] is to afford counsel an opportunity to object to or correct erroneous instructions. As officers of the court, counsel have a duty to cooperate with the trial judge to the end that the jury may be properly instructed. Enlightened trial practice does not permit counsel under the guise of trial strategy to sit idly by and permit instructions to be given the jury without specific objection and then be given the advantage of predicating error thereon by urging the error for the first time in a post-trial motion.”

Plaintiff, at the very least, acquiesced in the decision to give the modified damages instruction, and under the facts of this case may not complain, either in his motion for new trial or on appeal, of defects in this instruction. See Delany v. Badame (1971), 49 Ill. 2d 168, 178, 274 N.E.2d 353; Commissioners of Lincoln Park v. Schmidt (1941), 375 Ill. 474, 476-77, 31 N.E.2d 969; Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 387, 428 N.E.2d 190; Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, 1022, 355 N.E.2d 214; Lewis v. Hull House Association (1975), 25 Ill. App. 3d 617, 621, 323 N.E.2d 600.

We also conclude that the cumulative effect of the “errors” found by the circuit court did not deny plaintiff a fair trial, and we hold that the circuit court’s decision to grant a new trial was a clear abuse of discretion.

Plaintiff contends that we cannot find a clear abuse of discretion here because the trial court may act sua sponte to order a new trial. He relies on Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191. In that case our supreme court stated: “[T]he role of a trial judge is not that of a presiding officer or an umpire, and *** he is responsible for the justice of the judgment that he enters.” (33 Ill. 2d 103, 106.) His position, in essence, is that the power of a trial judge, in passing on a motion for a new trial, is broader than that of a reviewing court. Without deciding this issue, we observe that the discretion of a trial judge is not unlimited, but must be exercised reasonably. (Commissioners of Lincoln Park v. Schmidt (1941), 375 Ill. 474, 477.) In our opinion, this was not done in the case at bar.

Since we conclude that the circuit court clearly abused its discretion in granting plaintiff a new trial, we need not address the issue of whether the circuit court erred in granting a new trial on the issue of compensatory damages only. Accordingly, the order of the circuit court granting a new trial is reversed, and the cause is remanded with directions to enter judgment on the verdict.

Reversed and remanded, with directions.

RIZZI, RJ., and McNAMARA, J., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE ROBINSON, Defendant-Appellant.
    First District (1st Division)
    No. 83—279
    Opinion filed June 25, 1984.

      James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Freddie Robinson was found guilty of attempted armed robbery, residential burglary, home invasion and unlawful restraint. Defendant was sentenced to concurrent terms of imprisonment of 10 years for attempted armed robbery, residential burglary and home invasion, and three years for unlawful restraint. Defendant appeals.

On appeal, defendant contends (1) the trial court erred in submitting to the jury a police photo book containing defendant’s picture; (2) his conviction for residential burglary must be vacated because it is an included offense of home invasion; and (3) the prosecutor’s comments during closing argument deprived him of a fair trial.

The complainant, Leslie Wilson, testified that on May 18, 1982, at 11:15 p.m., she entered the vestibule of her apartment building at 550 West Brompton in Chicago. As she stood by her mailbox, defendant entered the vestibule, removed a gun from his pocket and demanded Wilson’s money and valuables. Wilson offered to give defendant her money, but defendant said he wanted to go inside. Wilson unlocked the door to the stairway and proceeded to her second floor apartment. Defendant followed, pressing a gun to Wilson’s back. Wilson hesitated as she entered her apartment and defendant placed the gun to her head. They had taken three or four steps into the apartment when Wilson pushed defendant’s arm away and began screaming. Defendant slapped Wilson, told her to stop screaming and fled.

Wilson phoned the police. After police officers arrived, she gave Officer Mills a description of her assailant. On May 24, 1982, she spoke to Detective Baldree about the incident. On June 3, 1982, she viewed five or six photo albums given to her by Baldree and identified defendant. On June 18, 1982, she identified defendant in a lineup.

Officer Warren Mills testified that Wilson gave him a description of the offender shortly after the incident occurred. He also spoke to Mr. Stroud, who saw defendant leave the building. Stroud and Wilson gave similar descriptions. Detective William Baldree testified that Wilson viewed five or six photo albums at the police station on May 24, 1982, and selected a photograph of defendant. Baldree also conducted the lineup at which Wilson identified defendant.

Defense witness Steven Stroud testified that on the evening of May 18, 1982, he heard a woman screaming and saw a man walking quickly from the apartment building at 550 West Brompton. The man aimed a gun at Stroud when Stroud approached him. In December 1982, Stroud viewed photographs of the lineup at which the complainant identified defendant. Stroud did not choose defendant as the man he saw walking from the building. At trial, he was unable to say whether defendant was the man he saw on the day of the crime.

During trial, the State introduced photographs of the apartment building courtyard, the doorway, vestibule and stairway landings. Also introduced were photos of the victim’s apartment, the police album containing defendant’s picture, and a photo of the lineup. The State requested that all the exhibits be submitted to the jury to use during deliberations, and the court granted the request over defendant’s objections.

On appeal, defendant first contends the trial court erred in allowing the police photo album containing defendant’s picture to be submitted to the jury. He maintains the evidence had no probative purpose and was suggestive of other unrelated crimes.

The decision to submit exhibits to the jury is within the discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. (People v. Cross (1981), 100 Ill. App. 3d 83, 426 N.E.2d 623.) While “mug shots” suggest other criminal activity, they may nonetheless be admitted where they are probative of the issue of defendant’s identity and the manner in which an identification is made. (People v. Dean (1981), 99 Ill. App. 3d 999, 426 N.E.2d 279; People v. Woodruff (1978), 62 Ill. App. 3d 949, 379 N.E.2d 907.) In Dean, the court found police photos particularly probative where the defense was based on misidentification.

Here, the “mug shot” book was used during direct and cross-examination of the victim and Detective Baldree. There was extensive testimony regarding defendant’s appearance on the day of the crime, and defense counsel conducted a detailed cross-examination of the victim on this matter. In fact, when the victim testified she did not notice scars on defendant’s face and chest, defense counsel asked defendant to show her the scars. Additionally, defendant’s sole witness testified to his inability to identify defendant in the lineup photo. Clearly, the defense was based on misidentification and identification was a primary issue. The probative value of the “mug shot” book outweighs any prejudicial effect, and we therefore find no abuse of discretion in submitting the book to the jury.

Second, defendant contends that his residential burglary and home invasion convictions arose from the same act and that his conviction for residential burglary must be vacated. He relies on People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011, as support for his contention. In Jones, however, the State agreed to vacate a burglary conviction. In analyzing the issue, the court merely noted that both burglary and home invasion require proof of entry as the physical act and that under People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, and People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, only the home invasion conviction could stand. Later, in People v. Rathgeb (1983), 113 Ill. App. 3d 943, 447 N.E.2d 1351, the same district which rendered the Jones decision held that burglary was not an included offense of home invasion because burglary required proof of a more culpable mental state. The decision in Rathgeb is consistent with the prior decision from this district in People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074. In addition to noting the difference between the mental state required for burglary and home invasion, the court in Pavic recognized it would be possible to commit home invasion without committing burglary and concluded that burglary was not an included offense of home invasion.

In this case, defendant was charged and convicted of residential burglary. As in burglary, this offense requires proof of entry, “with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1983, ch.38, par. 19 — 3(a).) Home invasion does not require proof of this same intent. Because residential burglary requires proof of an element not necessary for proof of home invasion, it cannot be an included offense. (People v. Rathgeb (1983), 113 Ill. App. 3d 943; People v. Pavic (1982), 104 Ill. App. 3d 436.) Furthermore, section 12— 11(a)(2) of the Criminal Code of 1961, upon which defendant’s home invasion charge was based, requires proof of a threat or use of force against the person in the dwelling. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11(a)(2).) Thus, the same acts did not give rise to the convictions at issue. Accordingly, we affirm defendant’s conviction for residential burglary.

Third, defendant contends the prosecutor’s comments during closing argument deprived him of a fair trial.

Defendant argues that comments regarding a telephone conversation between Wilson and Detective Baldree were improper. Neither witness testified to the content of the conversation, but the prosecutor asked the jury to infer the matters which may have been discussed. We agree that this comment was improper because it suggests that evidence which was inadmissible could be inferred and considered by the jury. People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

Defendant also complains of several comments which were personal attacks on defense counsel. The prosecutor accused defense counsel of speaking “in forked tongue” and of “using tricks, using gimmicks to get her client to beat this rap.” He also commented on the attempt to discredit Wilson’s identification of defendant and stated “she may be small, and she may be a woman, but she’s a pretty dirty trial lawyer.” These comments disparage the integrity of defense counsel and have been condemned consistently by the courts in this State. (People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298, 1305.) They are irrelevant to any issue in the case and only serve to inflame the jury.

The next assignment of error concerns the prosecutor’s comment during rebuttal on the State’s burden of proof. He noted that the State deals with the standard of proof beyond a reasonable doubt every day, that “it is not a magical or scientific concept” and that “it is the same standard used in a shoplifting case ***.” In People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301, comments similar to these were held to be within the bounds of proper and legitimate argument, and we find no prejudice arising from this argument. People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, cited by defendant, is distinguishable because the prosecutor therein stated “we don’t have a burden.” Here, the State did not make such a blan-tantly erroneous statement and did not minimize its burden of proof.

Finally, defendant contends the prosecutor relied on evidence not proved during trial when, during rebuttal, he made the following argument:

“If there is anything that Leslie [Wilson] said at the preliminary hearing, in those 20 pages, you betcha the defense attorney would have brought it out. But Leslie’s testimony was consistent before you, as it was on the day of the preliminary hearing.”

There is no evidence in the record that the preliminary hearing testimony was consistent with Wilson’s trial testimony. The State never introduced the transcript of the preliminary hearing to show such facts even though defendant used the transcript during cross-examination of the complainant. We find that this part of the prosecutor’s argument was improper because it was based on facts not in evidence. People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

This court deals regularly with issues regarding improper and prejudicial prosecutorial comments and the frequency with which such conduct occurs is disturbing. Apparently, some prosecutors have not heeded the warnings of this court and persist in engaging in whatever conduct they believe will assure convictions. However, the manner in which a case is tried is as important as the outcome of the trial. Disparaging remarks and improper arguments only serve to disgrace the attorney making the remarks, tarnish the reputation of the office, and increase the possibility of reversal.

In determining whether the comments in this case warrant reversal and a new trial, we must consider whether they prejudiced the jury and constituted a material factor leading to conviction. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) After reviewing the evidence, we find that the comments did not contribute substantially to the verdict. The complaining witness had ample opportunity to view the accused and positively identified him three times. Each objection to improper arguments was sustained and the jury was instructed to consider only the properly admitted evidence. We are also influenced greatly by the following comment of the trial court in ruling on defendant’s motion for a new trial:

“That woman was one of the best witnesses that I have ever heard or seen in a court, and I have been here hundreds of times. She was extremely good.
* * *
She was extraordinarily good. And that’s a matter for the jury to determine. She was precise, her memory was good. Everything about her was compelling. And that’s why he got convicted.”

For these reasons, we find that reversal and a new trial are not required.

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

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE JIGANTI

text:
    McDONALD’S CORPORATION, Plaintiff and Counterdefendant-Appellee, v. VITTORIO RICCI CHICAGO, INC., Defendant and Counterplaintiff-Appellant.
    First District (4th Division)
    No. 83—1222
    Opinion filed June 28, 1984.
    Siegan & Weisman, Ltd., of Chicago, for appellant.
    Levy & Erens, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

Vittorio Ricci Chicago, Inc. (Ricci), leased the premises at 734 North Michigan Avenue, Chicago, from McDonald’s Corporation (McDonald’s). The lease provided that Ricci had the right to assign the lease under certain conditions and Ricci claims that it was damaged when McDonald’s wrongfully failed to consent to a proposed assignment. McDonald’s responds that Ricci was in default for more than 30 days and that consequently, under the terms of the lease, Ricci had no right of assignment. Ricci replies that McDonald’s induced it to wait beyond the 30-day default period and therefore McDonald’s is estopped from asserting that provision of the lease. McDonald’s counters that the default issue had been previously and finally adjudicated in the first part of the bifurcated trial for rent and possession. The trial court granted McDonald’s .motion for summary judgment on one count and its motion to dismiss the other. Ricci appeals. On appeal McDonald’s raises a procedural matter as a preliminary issue and contends that we should not reach the substance of Ricci’s appeal.

The original lease was entered into in 1978. There had been some disagreement, so an amended lease was entered into on August 7, 1980. At that time the facade of the premises was being remodeled. Because of this, the lease provided that June and July rent would not be due until the remodeling was completed. Also, rent was abated from August 1, 1980, until the remodeling was completed.

On October 1, 1980, John L. Henning of McDonald’s sent a letter to Allen J. Bodner, Ricci’s agent, stating that the facade had been completed on September 30 and that therefore the deferred rent for June and July was now due, as was the October rent. Ricci failed to pay the rent, thereby placing it in default. According to the lease, Ricci had the right to cure the default within 30 days but that if the default continued beyond the 30 days, McDonald’s had the right to terminate the lease. Also, Ricci could not exercise its right of assignment while it was in default. Ricci did not tender the rent until November 5, 1980, more than 30 days after it was due. What transpired between October 1 and November 5, 1980, forms the basis of Ricci’s claim that McDonald’s induced its conduct and is thereby estopped from asserting the 30-day default provision.

On November 26, 1980, McDonald’s filed an action for possession and for unpaid rent alleging that Ricci defaulted on the lease by not paying its rent. Ricci filed its answer and two affirmative defenses alleging that written notice of default was not sent and that work on the facade was not completed. Ricci also filed a counterclaim, the claim on appeal here, seeking damages for McDonald’s wrongful failure to consent to the assignment. The trial court severed McDonald’s rent/possession action from Ricci’s counterclaim. On June 15 and 16, 1981, the court presided over the rent/possession trial. On June 30, 1981, the trial court found that in fact notice had been given and that the facade was substantially completed. Therefore, the court concluded that Ricci was in breach of the lease agreement for failure to pay the rent and it entered judgment in McDonald’s favor for the unpaid rent and for possession. Although notices of appeal were filed by Ricci, Ricci did not follow through with them. Consequently, they were dismissed for want of prosecution.

McDonald’s preliminary contention that this court should not reach the substantive issues raised by Ricci in this appeal is based on the procedural history following the rent/possession judgment. After the judgment only the Ricci claim for damages was still pending. McDonald’s then filed a motion to dismiss that claim for want of prosecution on May 6, 1982. The motion was denied on July 20, 1982, but McDonald’s at that hearing requested leave to file a motion for summary judgment. The court gave McDonald’s 10 days, until July 30, 1982, to file its motion and also required Ricci to respond by August 20, 1982, to not only the motion for summary judgment, but also to the previously filed motion to dismiss one of the two counts of Ricci’s claim for damages. The court set a hearing on the motions for September 16, 1982. Ricci failed to respond to either the motion for summary judgment or the motion to dismiss.

On the hearing date of September 16, 1982, Ricci presented to the court a motion requesting an extension of time to file a responsive pleading. The trial judge entered an order which denied Ricci’s motion to extend the time. It further entered a judgment order which granted both McDonald’s motion for summary judgment on one count of Ricci’s claim and its motion to dismiss the other count of Ricci’s claim. That order was entered on September 17, 1982. There is no report of proceedings from the hearing on that date.

Within 30 days, Ricci filed a petition to reconsider which alleged that Ricci’s counsel was not able to complete the responsive pleadings due to being engaged in other matters. Attached to the petition was a proposed response to McDonald’s motion for summary judgment and also a response to McDonald’s motion to dismiss the other count of Ricci’s claim. The response to the motion for summary judgment raises the question of whether McDonald’s conduct induced Ricci to wait beyond the 30 days, therefore estopping McDonald’s from pleading that issue. The trial court heard the petition. At that time, counsel for Ricci stated that at the time his response was due, August 20, 1982, he was otherwise engaged and could not make a motion for a continuance because the trial judge was not sitting. Counsel further explained that he spoke to the clerk in the trial judge’s courtroom. The clerk told him that all motions of an emergency nature would be heard by a judge who was handling the trial judge’s call, but that for a motion for an extension of time, counsel would have to come in on the date that the trial judge was actually sitting. Counsel also pointed out to the court that he was filing his responses together with his petition to vacate. The trial judge stated that he understood and that he had read and reread the case over and over again, and that it seemed to him that whatever complaint Ricci had against McDonald’s had been adjudicated in their rent/possession hearing. The court stated that the reason for finding that Ricci’s claim had already been adjudicated was that the order in the rent/possession hearing made the finding that Ricci was in default on the lease and that therefore Ricci could not take advantage of the right of assignment. Thus, the court concluded that McDonald’s could not have wrongfully failed to consent to an assignment.

McDonald’s argues that Ricci’s attempt to appeal the issues of summary judgment and dismissal is an effort to raise matters in the appellate court which he failed to properly bring before the trial court. In McDonald’s view the only issue that this court should consider is whether the trial court properly denied Ricci’s motion to extend the time to file a response to McDonald’s motions for summary judgment and dismissal. McDonald’s contends that Ricci’s allegations then were found to be inadequate. Citing Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 398 N.E.2d 1114, McDonald’s states that the trial court must do substantial justice and that due diligence is a factor in substantial justice. Considering the procedural history described, McDonald’s contends that Ricci’s conduct was not in fact due diligence.

We believe that the substantive issues were raised in the trial court and are properly before this court on review. The trial court considered those issues in ruling on the petition to reconsider. Ricci’s petition to reconsider addressed not only the issue of the court’s refusal to extend the time to allow it to file the response to McDonald’s motions, but also its petition to reconsider was directed to the substance of McDonald’s motions, that is, that Ricci was in default. The court’s remarks indicate that it considered Ricci’s essential contention that the default had been induced by McDonald’s conduct, but that it believed that this argument was unavailing because the court had previously ruled in the rent/possession trial that Ricci was in default and that Ricci did not appeal from those rulings. Consequently, in the court’s view, the ruling on the default was final and the finding of default precluded Ricci’s claim for damages.

Turning to the substantive issue, Ricci contends that it presented an issue of an inducement by McDonald’s to waive the 30-day default period; consequently, the trial court improperly granted summary judgment. McDonald’s position is that the trial court’s ruling in the rent/possession case that Ricci was in default is the law of the case. Since Ricci is in default, McDonald’s has no duty to consent to the assignment.

The rule of the law of the case is a rule of practice, based on sound policy that, where an issue is once litigated and decided, that should be the end of the matter and the unreversed decision of a question of law or fact made during the course of litigation settles that question for all subsequent stages of the suit. (Gertz v. Robert Welch, Inc. (7th Cir. 1982), 680 F.2d 527, cert, denied (1983), 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233; Barrett v. Baylor (7th Cir. 1972), 457 F.2d 119.) The trial court order becomes the “law of the case” only if there is a final and appealable order. (Arnold Schaffner, Inc. v. Goodman (1979), 73 Ill. App. 3d 729, 392 N.E.2d 375.) In the instant case the trial court has already determined in the action for rent and possession that Ricci was in default on the lease. That order was a final and appealable order from which no appeal was perfected. Since it was decided that Ricci was in default, then it follows that he has no right to assign the lease. This is the law of the case. Therefore, Ricci can have no claim for damages for McDonald’s failure to consent to the assignment. Accordingly, the trial court was correct in finding for McDonald’s.

Based on the foregoing, we affirm the trial court’s decision.

Judgment affirmed.

LINN, P.J., and ROMITI, J., concur.


text:
    CECIL NEWELL, Plaintiff-Appellee, v. JESSE J. CORRES, M.D., Defendant-Appellant.
    First District (2nd Division)
    No. 83—2340
    Opinion filed June 26, 1984.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Kevin J. Glenn, and Katherine S. Dedrick, of counsel), for appellant.

      Ernest K. Koehler, of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

In an action for medical malpractice, the circuit court directed a verdict as to liability in plaintiff’s favor, upon which a comparative negligence verdict favoring plaintiff was reached. Judgment was entered and defendant appeals.

Defendant raises as issues whether: he is entitled to judgment n.o.v. or a new trial based upon evidence relating to proximate cause; and plaintiff’s alleged refusal to submit to the accepted medical treatment for his jaw fracture is a circumstance affecting the applicable standard of care.

At trial, plaintiff called defendant as an adverse witness under section 2 — 1102 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1102.) Defendant, a specialist in plastic and general surgery, testified that on August 24, 1980, he saw plaintiff at Engle-wood Hospital, where he had been admitted the previous day with a fractured and malaligned left lower jaw. Defendant spoke to him for about 20 to 30 minutes and explained two alternative treatments for his injury. The first involved the use of arch bars, which are braces affixed to the teeth of the upper and lower jaw and then fastened together, bringing the teeth into normal occlusion (bite) and thereby aligning the fracture. Plaintiff said he didn’t want his mouth to remain shut for the six weeks required if arch bars are applied. Defendant then explained the alternative treatment, whereby the fracture would be realigned and the fractured bone wired together surgically; if sufficiently stable, braces would not be needed. Plaintiff requested the alternative treatment.

According to defendant, arch bars, because they could be used with “no cutting” and are the “least invasive care,” are the best form of treatment. The alternative method was acceptable provided the patient is kept in the hospital for one week, so that some bone healing can begin, and is closely supervised upon discharge. The alternative treatment permits the patient to open and close his mouth, and the jaw is thereby subject to reinjury; therefore, the patient needs to be “good” and must be “talk[ed] to.” The written consent to the operation, signed by plaintiff, was for both “[pjossible open or closed reduction of fracture of left mandible,” because arch bars would have to be applied if the stability of plaintiff’s jaw after surgery proved unsatisfactory.

Defendant testified that he performed the operation on August 25, 1980, using 26-gauge surgical wire. The operation record notes, however, that 28-gauge wire was used. Surgical wire is classified according to tensile strength; 22-gauge wire is stronger than 28-gauge wire. The next day he examined plaintiff and found his occlusion good. At 5 a.m. on August 28, a nurse at the hospital called defendant informing him that plaintiff was signing himself out of the hospital against medical advice. Defendant advised the nurse to tell plaintiff to call him the next day, but plaintiff failed to do' so.

Called as an expert witness by plaintiff, Dr. Norman Trieger, doctor of medicine and dentistry and an oral surgeon, examined plaintiff on November 3, 1980. For patients with jaw fractures who have an adequate number of teeth, such as plaintiff, the “major effort” is to use closed reduction, specifically the application of arch bars, which are “the accepted and best medical approach to a fractured mandible.” The next step, if closed reduction alone is insufficient, is open reduction “used in conjunction with the arch bars.” In light of plaintiff’s refusal of arch bars, the “best and most applicable” treatment would have been open reduction with wire fixation, along with a “lingual or plastic splint,” because “you have to support that [open reduction with wire fixation] with something else.” Had defendant used arch bars here, the subsequent displacement of the fracture would not have occurred. The treatment provided by defendant — open reduction using 26- or 28-gauge wire without arch bars — “is really not the standard of care” and subsequently “led to further problems including the need for further surgery.” The treatment was inadequate to counteract heavy muscle forces, especially in a young, healthy male such as plaintiff with his degree of fracture.

Plaintiff, 28 years old at the time of trial, testified that on August 22, 1980, his jaw was broken when several men mugged him. He was admitted to Englewood Hospital the next day. Following his admission, defendant spent two to three minutes with him and told him an operation would be required to treat him. On cross-examination, plaintiff acknowledged that in his deposition he had said this meeting lasted 10 minutes. Defendant did not ask plaintiff then whether he wanted his mouth wired shut nor did he mention braces or arch bars. He also did not state how long plaintiff would remain hospitalized. Although his jaw was painful after the operation on August 25, the pain increased during the next two days. On August 27, the swelling of his face had increased, and he unsuccessfully tried to contact defendant through the nurses. On August 28, plaintiff signed a release form to check himself out of the hospital and went straight home to bed. He felt worse the next day, which was Friday. On Saturday, August 30, his father drove him to Cook County Hospital, where he was examined and X-rayed and told to return the following Tuesday to the oral surgery clinic. He remained at home all weekend and returned on Tuesday, September 2, to Cook County Hospital. He was advised then that “it would be very dangerous” for him to go back out in the street. He nevertheless went out, returning that evening, when he was admitted to the hospital. He did not object when told his mouth would be wired shut, and arch bars were put into his mouth. Upon his discharge from the hospital a week later, he felt “[l]ike a new per-. son.” About a month afterward, his jaw became swollen and he returned to Cook County Hospital, where he was again operated on, remaining there for a week.

The evidence deposition of Dr. Steven J. Traub, who in September 1980 was chief resident in oral and maxillofacial surgery at Cook County Hospital, was read into the record. He saw plaintiff initially on September 2, 1980, following his admission to the hospital. He diagnosed that plaintiff’s fracture was displaced because of improper realignment of the bones; he disagreed with the Cook County Hospital radiologist’s report which noted that the fracture appeared in “good position.” He operated on plaintiff and found fracture displacement. Plaintiff was readmitted to Cook County Hospital on October 8, 1980, with a jaw abscess caused by infection of the fracture area. The abscess was surgically drained; six days later, another operation was performed to remove the surgical wires as a potential source of infection. Dr. Traub speculated that plaintiff’s fracture could have been displaced after his release from Englewood Hospital, because “the fact that *** [plaintiff] wasn’t put in intermaxillary fixation [arch bars] leads to the most probable cause.” The generally accepted procedure for jaw fractures is “maxillary and mandibular arch bars, followed by manipulation of the jaw into proper occlusion, and then in-termaxillary fixation.” In plaintiff’s case, the correct treatment would have been to apply arch bars, X-ray the jaw, and then decide whether open reduction was also required. When asked what he would do if a patient refused arch bars, Dr. Traub replied, “I’d advise him to get somebody else to take his case.”

Dr. Charles Janda, plastic surgeon and licensed dentist, testified as defendant’s expert. After reviewing plaintiff’s medical records and presuming his refusal of arch bars, Dr. Janda was of the opinion that, under the circumstances, defendant’s treatment of plaintiff was “adequate.” Although Dr. Janda would have used a wire thicker than 26-gauge, he felt it was “adequate enough wire to do the job.” On cross-examination, he conceded that the procedure used was not the standard of care for fractured jaws in Cook County. For patients with teeth, the standard of care requires the use of arch bars, “the ideal way to do it.” Confronted with a patient refusing arch bars, he would “back off” and suggest the patient “go elsewhere.” Based on his review of Cook County Hospital records, he felt the subsequent procedures there were “unnecessary.”

The circuit court granted plaintiff’s motion for a directed verdict as to liability. The jury then assessed plaintiff’s damages as $75,000, reducing this by one-third, the degree of comparative negligence found attributable to him. After denying defendant’s timely post-trial motion to vacate, for judgment n.o.v., for a new trial, and for remitti-tur, the circuit court entered judgment for plaintiff in the amount of $50,000. This appeal followed.

I

Defendant initially contends that, because the record is barren of any evidence of proximate causation, he is entitled to judgment notwithstanding the verdict or to a new trial.

The plaintiff bears the burden of establishing each element necessary to constitute a cause of action for medical malpractice (Burrow v. Widder (1977), 52 Ill. App. 3d 1017, 1023, 368 N.E.2d 443), including the standard of care applicable to a physician’s conduct, that the physician was negligent in light of this standard, and that this negligence proximately caused plaintiff’s injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301.) Plaintiff sustains his burden by proving, generally through expert testimony, that defendant’s breach of the applicable standard of care is more probably than not the cause of plaintiff’s injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 424; see First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 12, 448 N.E.2d 256; Burrow v. Widder (1977), 52 Ill. App. 3d 1017.) Proximate cause is not established, however, where the causal connection is “contingent, speculative or merely possible.” Manion v. Brant Oil Co. (1967), 85 Ill. App. 2d 129, 136, 229 N.E.2d 171.

Defendant urges that the testimony of Dr. Trieger, plaintiff’s expert, was too speculative to establish proximate cause. Although some of his testimony may have been speculative or hypothetical in nature, Dr. Trieger also testified that plaintiff’s care at Englewood Hospital did not meet the generally accepted standard of care and that this “inadequate treatment *** led to further problems including the need for further surgery.” He further noted that the displacement of the fracture would not have occurred if defendant had applied arch bars. Judgment n.o.v. is properly entered only where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Upon Dr. Trieger’s testimony alone then, the circuit court correctly denied defendant’s motion for judgment n.o.v.

Other evidence, by contrast, suggested that defendant’s treatment of plaintiff did not proximately cause the subsequent surgical procedures: Dr. Janda, defendant’s expert, testified that these later procedures were “unnecessary”; defendant testified that he didn’t understand the purpose of these procedures, as the emergency room records from Cook County Hospital indicated that plaintiff’s jaw was stable. This conflict in expert medical testimony presented a question of fact to be resolved by the jury as trier of fact. (Soberalski v. Chicago Rock Island & Pacific R.R. Co. (1975), 29 Ill. App. 3d 1019, 1029, 331 N.E.2d 645.) Moreover, an item of evidence highly relevant to the issue of proximate cause — the X ray taken at Cook County Hospital — was also the subject of considerable controversy. Plaintiff's expert testified that this X ray depicts plaintiff’s jaw and shows significant displacement of the fracture, thus indicating that subsequent remedial measures, including surgery, were necessary. Defendant and his expert, contrariwise, maintained that this X ray is of a person other than plaintiff; furthermore, plaintiff’s witnesses conceded that a physician examined plaintiff at Cook County Hospital on September 2, 1980, and found him to have a “normal bite,” and that a Cook County radiologist on the same date found plaintiff’s fracture to be in “good position.” These facts suggest that the subsequent treatment may have been proximately caused by an intervening reinjury of plaintiff’s jaw.

Motions for directed verdicts at the close of all the evidence are evaluated by the same stringent standard applied to judgments n.o.v. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; Borowski v. Von Solbrig (1975) 60 Ill. 2d 418, 423.) Viewing the foregoing evidence in its aspect most favorable to defendant, it cannot be said that a verdict in defendant’s favor would be impossible, or even unlikely. A genuine question of fact as to causation was presented here. The circuit court’s directed verdict of liability in plaintiff’s favor was in error. The cause must be reversed and remanded for a new trial.

II

Defendant next maintains that the circuit court erred by directing a verdict based on its finding that a single standard of care had been established. In a medical malpractice action, the standard of care against which such a defendant’s conduct is measured is not the highest degree of skill possible, but the reasonable skill which a physician in good standing in the community would use in a similar case. (Taber v. Riordan (1980), 83 Ill. App. 3d 900, 904, 403 N.E.2d 1349; Spike v. Sellett (1981), 102 Ill. App. 3d 270, 273, 430 N.E.2d 597.) Where alternative methods of treatment are shown to be proper, the physician’s choice of one method over another, even where injury results, is not a deviation from the standard of care. Roberts v. Tardif (Me. 1980), 417 A.2d 444, 448-49; Donaldson v. Maffucci (1959), 397 Pa. 548, 554, 156 A.2d 835, 838; 1 D. Louisell & H. Williams, Medical Malpractice par. 8.04, at 204 (1983); see also Ybarra v. Cross (1974), 22 Ill. App. 3d 638, 644, 317 N.E.2d 621.

In the case at bar, both plaintiff's and defendant’s experts, as well as defendant himself, agreed that the least intrusive and most effective treatment for jaw fractures in patients with teeth, such as plaintiff, is the application of arch bars, whether alone or in conjunction with open reduction. These experts cited alternative methods of treatment for patients with specialized problems, such as breathing and seizure disorders or fractures with bone loss, none present here. Moreover, the particular alternative methods cited did not include that used here by defendant. As to the treatment used — open reduction without arch bars or any other stabilizing device besides 26- or 28-gauge wire — both plaintiff’s and defendant’s experts testified that it did not conform to the prevailing standard of care. Defendant’s expert also said that, in view of plaintiff’s purported refusal of arch bars, the instant treatment was “adequate.”

Defendant insists that plaintiff’s refusal of the preferred treatment, coupled with testimony that the treatment actually given was “adequate,” presented a fact question regarding the standard of care which was improperly resolved by the circuit court’s directed verdict. Refusal of “standard” treatment by a competent adult patient fully cognizant of the potential consequences of his refusal, after the physician’s reasonable explanation of the necessity of the preferred treatment, is a complete defense to a charge of malpractice resulting from the physician’s failure to give the treatment; whether the treatment was offered and refused is a question of fact. (See Littlejohn v. Arbogast (1900), 95 Ill. App. 605, 608; Steele v. Woods (Mo. 1959), 327 S.W.2d 187, 196; Richeson v. Roebber (1941), 349 Mo. 132, 159 S.W.2d 658; Hunter v. United States (M.D. Tenn. 1964), 236 F. Supp. 411, 415; Peterson v. Branton (1917), 137 Minn. 74, 162 N.W. 895; see also 70 C.J.S. Physicians and Surgeons sec. 51(c), at 974 (1951); 61 Am. Jur. 2d Physicians, Surgeons, & Other Healers sec. 303, at 451 (1981); Annot., 93 A.L.R.Sd 67, 71 (1979); Annot., 50 A.L.R.2d 1043, 1053-54 (1956.) Although under comparative negligence principles a patient’s refusal may not be a complete defense, it is a factor to be weighed by the jury in determining the relative degree of negligence attributable to the parties.

In precluding the jury’s consideration of this refusal factor by directing a verdict as to liability, the circuit court ignored the dilemma confronting a physician when a patient in need of immediate care refuses the “standard” treatment. If the physician advises the patient to “go elsewhere,” he risks potential liability for abandoning his patient (see Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1034, 439 N.E.2d 1319); if he provides an “adequate,” albeit less than ideal treatment, as here, he can also incur malpractice liability. Permitting the jury to evaluate the reasonableness of defendant physician’s conduct, by considering the nature of the treatment provided, whether this treatment and the preferred treatment were fully explained to plaintiff, and whether plaintiff knowingly refused the preferred treatment, would squarely address this dilemma and make for a more equitable result. Comparative negligence, because of its flexibility, is particularly suited for such broad-based fact-finding. On remand, therefore, the jury should consider the reasonableness of defendant’s professional conduct in light of all the relevant circumstances outlined above.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DOWNING and O’CONNOR, JJ., concur.