author: PRESIDING JUSTICE SEIDENFELD

text:
    REBECCA NAVE, Adm’r of the Estate of Robert J. Nave, Jr., Deceased, Plaintiff-Appellant, v. RAINBO TIRE SERVICE, INC., Defendant-Appellee.
    Second District
    No. 83 — 346
    Opinion filed March 19, 1984.
    Rehearing denied May 16, 1984.

      Richard A. Palmer, of Ward, Murray, Pace & Johnson, of Sterling, for appellant.
    Charles G. Roth, David J. Dubicki, and Richard D. Rinner, all of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Rebecca Nave, administrator of the estate of Robert J. Nave, Jr., deceased (Nave), appeals from a judgment entered on a jury verdict in favor of the defendant, Rainbo Tire Service, Inc. (Rainbo Tire), in a suit charging strict liability in tort and breach of warranty. Nave principally contends that trial errors in ruling on objections permitted the jury to reach its decision on an improper basis, the due care of Rainbo Tire in retreading a tire manufactured by another.

On November 9, 1977, Robert J. Nave, Jr., was killed when the truck he was driving collided with a tree. The decedent was driving on United States Route 30, a two-lane paved highway, when the truck’s right front tire blew out, causing the truck to leave the highway and hit a tree, killing the driver. The accident occurred during the course of decedent’s employment with Wood Products, Inc., while he was hauling a load of logs with a company-owned straight bed truck.

The decedent’s surviving wife was appointed administrator of the estate and, in that capacity, brought an action against Rainbo Tire. The tire which blew out was a bias ply tire manufactured by Goodyear which had been retreaded by Rainbo Tire in 1976 and then sold to Wood Products, Inc. Nave alleged liability on the part of defendant on two theories, strict products liability and breach of the implied warranty of merchantability. In her third amended complaint, Nave alleged that the bond between the outer ply and original tread of the Goodyear tire carcass was inadequate, permitting a separation of these components and the ultimate failure of the tire. The strict liability count alleged that the tire was unreasonably dangerous for its intended use, while the breach of warranty count alleged that the tire was not of merchantable quality when used for ordinary purposes. No negligence on the part of Rainbo Tire nor any defect in the retreading process has been alleged. Goodyear has not been joined as a party.

Prior to trial, Nave filed a motion in limine seeking to exclude any evidence “[t]hat Defendant, Rainbo Tire Service, Inc., exercised due care in the retreading of the subject tire.” The trial court denied the motion.

At trial, William Max Nonnamaker, a tire consultant, testified that, in his opinion, the tire failure was caused by “an inadequate bond between the bottom of the tread, the original tread, not the retread, and the top of the outer ply,” and that the tire was unreasonably dangerous when it left the control of Rainbo Tire. On cross-examination, he stated that in his opinion the inadequate bond was not created by the retreading process, but rather existed when it left Goodyear, the manufacturer of the tire. He further stated that he would not have expected a retreader to have detected the presence of the inadequate bond. In his opinion, there was no evidence that the tire had been operated in an underinflated condition or that it had been operated in other than normal operating conditions.

Rainbo Tire presented the testimony of two expert witnesses, Edward J. Wagner (by means of an evidence deposition) and Robert Hill. Both of them were of the opinion that the tire failed because it had been operated in an underinflated condition and that the cause of the underinflation was a leaky valve core assembly inside the tire.

Mr. Hill testified concerning the procedure followed in retreading a tire. He stated that if a tread separation existed, it would have been detected during the retreading process, concluding “no way there could have been an original separation.”

Rainbo Tire also presented John O’Neill, the chairman of its board of directors. Mr. O’Neill testified concerning the tire retreading process employed by Rainbo Tire. He stated that if there had been a separation in the tire, that separation would have been detected during the retreading process.

During Mr. O’Neill’s testimony, Rainbo Tire offered into evidence a “Tire Retread Processing Manual” published by the National Tire Dealers and Retreaders Association and the Tire Retreading Institute. Nave objected to the admission of this exhibit on the basis that it was not a set of standards and, further, that it constituted hearsay, but the exhibit was admitted over her objection. The exhibit consists of 154 pages and contains a detailed step-by-step explanation of the retreading process for various types of tires, as well as a glossary of terms used in the retreading process and procedures for repairing, equipment installation and maintenance, and production and quality control record keeping. The only standard found in the manual applies to retreaded passenger car tires.

The jury returned a verdict for Rainbo Tire and the trial court entered judgment thereon. Nave then filed a post-trial motion alleging that the court erred in: (1) denying the paragraph of her motion in limine seeking to exclude all evidence of exercise of due care since the evidence was not relevant and its admission denied her a fair trial, and (2) admitting into evidence the “Tire Retread Processing Manual” since it was not relevant, relating only to the issue of Rainbo Tire’s exercise of reasonable care and caution in the retreading process, and its admission denied her a fair trial. The trial court denied the post-trial motion.

I

Rainbo Tire preliminarily argues that the claims of error have been waived by failing to object at trial to the admission of certain evidence and to remarks made by defense counsel in argument and by failing to raise the issue of improper argument in the post-trial motion.

We do not agree that claims relating to the admission of certain evidence and to counsel’s argument not objected to were waived. Nave not only filed a motion in limine to exclude all evidence of Rainbo Tire’s due care in retreading the tire, but also objected at the first instance when defense counsel sought to inject the same issue during opening statements. The following colloquy took place:

“[Defendant’s counsel]: No one yet through the evidence and the people we have deposed have [sic] been able to say there was anything wrong with the retreading process on this tire. No one.
[Plaintiff’s counsel]: Your Honor, I’m going to object to that comment. I think we’re way beyond the scope of the pleadings at this time and counsel is talking about something wrong with the retreading process that’s not the theory in this case.
[Defendant’s counsel]: I am describing to the court what I believe the evidence will show, Your Honor. There are a product liability and warranty case before this jury, I believe I am able to comment on the evidence and what will be testified to as to the retreading of this tire.”

The court overruled the objection.

Continuing with his opening statement, defense counsel stated,

“so the question then becomes, well, why did the tire fail? If, my client, Mr. O’Neill’s company didn’t do anything wrong, if this company didn’t do anything wrong in the processing of this tire and the retreading, why did it fail?”

There was no objection to this comment. The next reference to the retreading process was when defense counsel stated,

“But it’s important to know here that even Mr. Nonemaker [sic, Nonnamaker], their expert, says that this tire separation was not due to anything in the retreading process.”

Again, no objection was made. During his closing argument, defense counsel reminded the jury that nobody in the case could testify that defendant did anything wrong. He explained that that was important because

“we’re supposed to have recapped a tire that had something wrong in it. But we didn’t do anything wrong if our retreading process wasn’t wrong or defective, where would the basis of liability be? In order for the plaintiff to recover in this case, under the first count, he has to show there was something wrong with that tire.”

Plaintiff’s counsel made no objection.

In addition to these remarks made by defense counsel, the testimony of John O’Neill and Robert Hill was admitted without objection. An objection was made, however, when defense counsel moved to admit into evidence the retread processing manual.

To save a question for review, an objection need not be repeated each time similar matters are presented where the court has previously ruled. (Chicago Union Traction Co. v. Lauth (1905), 216 Ill. 176, 180; Fullerton v. Robson (1978), 61 Ill. App. 3d 93, 97.) In Lauth, the supreme court noted that after the trial court had ruled on the question it was not necessary to repeat the same objection. “Such conduct *** would have been improper, and no right was lost by failing to adopt such a course.” (Chicago Union Traction Co. v. Lauth (1905), 216 Ill. 176, 180.) One is entitled to assume that the trial judge will continue to make the same ruling and that he need not repeat the objection. McCormick, Evidence sec. 52, at 118 (2d ed. 1972).

Here, by filing the motion in limine as well as objecting to defense counsel’s remarks, Nave properly raised the issue of admissibility of due-care evidence. We find no waiver by not thereafter continuing to object. See Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 178; cf. People v. Spates (1979), 77 Ill. 2d 193, 199-200 (defendant’s motion in limine to exclude admission of prior misdemeanor conviction properly preserved that question for review even though, after denial of the motion, defense counsel introduced such evidence in order to alleviate the prejudicial effect).

We also do not agree that Nave waived the issue of defense counsel’s improper argument by failing to raise it in her post-trial motion. Although, as a general rule, issues not presented in a post-trial motion are generally deemed waived (87 Ill. 2d R. 366(b)(2)(iii)), the waiver rule may be relaxed if the trial court was given the opportunity to consider and correct any error made at trial, since the rule of waiver states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court. (Hux v. Raben (1967), 38 Ill. 2d 223, 224-25; see also Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211.) Here, Nave's objection at trial to defense counsel’s argument sufficiently alerted the trial court to the contention of error.

In sum, the motion in limine, the objection at trial to counsel’s argument, the grounds supporting the post-trial motion and the points argued on appeal all challenge the trial court’s ruling that evidence pertaining to Rainbo Tire’s due care in the retreading process was admissible. We therefore conclude that this issue was not waived.

II

The basic issue on the merits is whether Rainbo Tire, in fact, injected into the case the irrelevant issue of its exercise of due care in the retreading process. Nave alleged liability on two theories, strict products liability and breach of an implied warranty of merchantability. Under both theories Nave alleged that the tire which blew out was defective in that the bond between the outer ply and the original tread of the Goodyear tire carcass was inadequate, permitting a separation of these component parts and the ultimate failure of the tire. Thus, the action in its entirety proceeded upon the theory that the tire was defective when originally manufactured and that Rainbo Tire was liable for incorporating a defective component into the final product which it reintroduced into the stream of commerce. There was no allegation that the retreading process itself was negligent, that the defect resulted from the new tire tread, or that Rainbo Tire could have discovered the defect in the original tire if it had exercised due care.

Proof required under the theory of strict products liability is that the “injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.) Suvada expressly adopted section 402A of the Restatement (Second) of Torts (1965), which provides, “One who sells any product in a defective condition unreasonably dangerous *** is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property *** although the seller has exercised all possible care in the preparation and sale of his product.” (Emphasis added.) (32 Ill. 2d 612, 621.) Thus, the basis of strict liability in tort is the condition of a product, and the conduct of the defendant in terms of negligence is not in issue. (Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 638-39; see Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 455; Dintelman v. Alliance Machine Co. (1983), 117 Ill. App. 3d 344, 346.) Negligence concepts have no place in an action for strict products liability. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 82-83; see Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 725.

Nave sought to exclude evidence of due care in the retreading process both by her motion in limine and by her subsequent objection to the opening statement. Rainbo Tire contends that the evidence of the retreading process was relevant to the issues of whether the alleged defect existed at the time the tire left its control and whether the tire was merchantable. We conclude that the admission of such evidence permitted Rainbo Tire to improperly mislead the jury into a belief that it was not liable in the case because it was not “at fault,” had done nothing “wrong” and had exercised all due care in the retreading process.

While evidence of testing is probative of the degree of care exercised in an ordinary negligence action, it is irrelevant in an action based upon the theory of strict liability. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 453-55; McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 436.) In Cunningham, the fact that it would be practically or scientifically impossible to discover the defect complained of in the product, even with the best of testing procedures, was held to be irrelevant in a strict liability action. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 453-55.) In McKasson the manufacturer raised as error the trial court’s exclusion of the defendant’s testing methods, evidence to establish that each product, before leaving the factory, was subjected to a test for defects. The court held that the evidence was irrelevant and inadmissible in a strict liability case. McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 436. See also Taylor v. Carborundum Co. (1969), 107 Ill. App. 2d 12, 26 (an inquiry into the general method of manufacture and testing of a product would serve no useful purpose in a strict liability action); Sweeney v. Matthews (1968), 94 Ill. App. 2d 6, 20, aff’d (1970), 46 Ill. 2d 64 (a manufacturer can be most careful in making and testing his product, but can be held accountable if a defect was in the product at the time it was made).

Here, the issue of whether an inadequate bond actually existed in the original tire carcass which would not necessarily be revealed by the testing for the retreading process should have gone to the jury on the basis of the testimony directly relevant to that issue. The evidence of the retreading process merely went to the collateral and irrelevant issue of the defendant’s due care.

Rainbo Tire further suggests that the evidence of the retreading process, even if it is assumed irrelevant to the issue of strict liability, was relevant under the warrant of merchantability theory of Nave’s complaint. Reliance is placed upon the official comment to section 2 — 314 of the Uniform Commercial Code (Ill. Ann. Stat., ch. 26, par. 2 — 314, Uniform Commercial Code Comment, at 234 (Smith-Hurd 1963).) The comment (written pre-Suvada) provides that “evidence indicating that the seller exercised care in the manufacture, processing or selection of the goods is relevant to the issue of whether the warranty was in fact broken.” However, we do not find the comment here applicable since the theories of breach of implied warranty and strict liability are nearly identical. It has been stated that a breach of implied warranty theory is a form of strict liability without the necessity of proving negligence or fault on the part of the defendant. (R. Hursh & H. Bailey, American Law of Products Liability sec. 3:2, at 430 (2d ed. 1974).) “[T]he strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice.” Dunham v. Vaughan & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 333, affd (1969), 42 Ill. 2d 339.

We are mindful of the fact that the jury was properly instructed. An instruction submitted by Nave went to the jury advising them that “it is not a defense that the condition of the product could not have been discovered by the defendant or that care was used in the manufacture of the product.” Nevertheless, the effect of Rainbo Tire’s continual emphasis on its lack of fault or wrongdoing, the evidence that it conformed to the retreading manual’s standards and the judge’s overruling of the objection of plaintiff’s counsel as to the issue of due care, made it highly likely that the jury could have considered an improper issue in deciding the case in spite of the language of the instruction.

The judgment of the circuit court of Lee County is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    M. KATHRYN KELLEY et al., Plaintiffs-Appellants, v. ASTOR INVESTORS, INC., et al., Defendants-Appellees.
    Second District
    Nos. 83 — 497, 83 — 524 cons.
    Opinion filed April 13, 1984.

      Jeffrey Lawrence, of Rudd & Associates, of Schaumburg, for appellants.
    William D. Heinz and Gail A. Niemann, both of Jenner & Block, of Chicago, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiffs, original purchasers and current owners of units in a condominium conversion project of an apartment building complex called “Westbrook West,” filed a four-count complaint asserting various claims for damages arising from leaking roofs and other structural defects in the common elements of the project. Among the named defendants were Astor Investors, Inc., the developer, and Marshall Abraham, Larry Abraham and Howard Abraham, officers and directors of the defendant corporation. Defendants filed a motion to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2-615, 2-619 (formerly sections 45 and 48 of the Civil Practice Act)) for the entry of an order dismissing the individual defendants and dismissing counts I and III of the complaint. The trial court entered its order on March 22, 1983, and plaintiffs have appealed from the portions of that order which dismissed with prejudice the individual defendants from count II, and which granted the motion of Astor Investors, Inc., requiring plaintiffs prove wilful misconduct in their count II claim. Plaintiffs have also appealed the dismissal of their count III with prejudice.

In count III, plaintiffs sought to state a cause of action upon the theory of implied warranty of habitability. While plaintiffs recognize that the doctrine has not heretofore been applied in Illinois to situations involving the conversion of an existing apartment complex into condominium units, they contend that the doctrine should be so applied. Plaintiffs cite the case of Towers Tenant Association, Inc. v. Towers Limited Partnership (D.D.C. 1983), 563 F. Supp. 566, in support of their position. In Towers, the court did apply the doctrine of implied warranty of habitability to the conversion of an existing apartment building to condominium ownership. In that case, the plaintiffs alleged that, as part of its development and renovation of the Towers, defendant had undertaken extensive rehabilitative construction, and latent defects in this new construction became the basis for plaintiff’s complaint. Under those circumstances, the court perceived no meaningful difference between a newly constructed apartment building and an old building that had been significantly refurbished and reconstructed for the purpose of imposing liability for defective conditions. The court went on to say that while defendants may or may not be liable for conditions that preexisted their involvement with Towers, they are certainly responsible for the quality and results of the work they in fact undertook. 563 F. Supp. 566, 575.

We recognize that there is considerable merit in the contention that, where extensive reconstruction has been undertaken in rehabilitating an older building as part of the process of converting the ownership to condominiums, the doctrine of implied warranty of habitability should be applied to defects arising out of that new construction. We do not make that decision in this case, however, since we agree in the present case with the trial court that the facts well pleaded in the plaintiffs’ complaint, which we accept as true, do not establish that any significant refurbishing or renovation was undertaken by the defendant corporation as part of the condominium conversion. As the trial court pointed out in its opinion letter and according to the factual allegations of plaintiffs’ complaint, the conversion activities consisted of declaring the rental units to be condominiums and offering them to the residents who were occupying them as well as to the public at large. While the defendant Astor Investors, Inc., made many false promises and misrepresentations in the spring of 1979 that they would repair roof leaks, make engineering studies to determine if structural repairs were necessary, and represented that repairs to road and landscaping would be made, there are no facts set forth in the complaint that would have established that the defendants actually undertook any extensive refurbishing or renovation of the premises, or that the defects of which plaintiffs complain arose from new construction in connection with such refurbishing or renovation. Absent such extensive refurbishing and renovation, the reasons for applying the doctrine of implied warranty of habitability to the conversion of existing structures into condominiums do not exist. Furthermore, in their complaint, plaintiffs appear to be complaining about roof leaks and defects of which they were advised in the spring of 1979 and which defendants, contrary to their promises, simply failed to repair. Such defects cannot be considered latent ones; consequently, even if defendants had undertaken major renovations, plaintiffs could not recover under the implied warranty of habitability for these defects because that doctrine applies only to latent defects. (See Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 40.) We agree with the trial court that under the facts well pleaded in plaintiffs’ complaint the doctrine of implied warranty of habitability should not be applied.

We also agree that the trial court properly dismissed the individual defendants as parties to count II of the complaint. In count II, plaintiffs attempt to assert a claim for breach of trust against the individual defendants as members of the board of directors of Westbrook West Condominium Association. Under the terms of the declaration of condominium, the directors had the responsibility for the operation, care, upkeep, maintenance, replacement and improvement of the common elements. Plaintiffs alleged that these individuals served as board members between June 1, 1979, and October 1, 1979, and that the defendants breached their fiduciary duty in their director capacities by certain acts or omissions as set forth in paragraph 27 of count II of the complaint.

However, in their motion to dismiss, defendants filed an uncontested affidavit with supporting documents which established that the certificate of incorporation of Westbrook West Condominium was issued on October 12, 1979, and at the first meeting of the corpora; tion held on October 15, defendants submitted their resignations as directors effective immediately. For the purposes of ruling on the motion to dismiss, the trial court was required to accept as factual that the Abrahams had served as board members for the three-day period between the date of incorporation and the date of the first meeting of Westbrook West Condominium Association. While the plaintiffs correctly cite authority which establishes that the initial board of directors elected by the corporate developer has a common law fiduciary duty to the association and a breach of that duty subjects each or all of them to individual liability (see Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981), 114 Cal. App. 3d 783, 171 Cal. Rptr. 334), the defendants urge that their three-day term as nominal members of the board of directors is insufficient, as a matter of law, for holding them liable under such a fiduciary duty for actions taken prior to their appointments. In Illinois, the officers, and directors of a not-for-profit organization stand in a fiduciary relationship to the members of the association (Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 533); however, individual liability does not attach absent sufficient evidence of active participation (see National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703) or either substantial control over the corporation or disregard of corporate formalities (see Macaluso v. Jenkins (1981), 95 Ill. App. 3d 461). We agree with the defendants that the Abrahams’ three-day stint as directors of the Westbrook West Condominium Association was not a period of mismanagement and the alleged wrongdoings of the defendants apparently took place prior to their appointments as directors. The trial court correctly dismissed count II as to the individual defendants.

In reaching our conclusion that the trial court properly dismissed count II as to the defendants, we should add that we have considered plaintiffs’ argument made on appeal, that another ground for holding the Abrahams personally liable for the purported breach of trust is based upon their status as officers and directors, not of the association, but of Astor Investors, Inc. We do not need to review the merits, if any, of such a contention because an examination of the allegations of count II makes evident that no such claim or cause of action was pleaded in count II.

The final contention by plaintiffs in this appeal is whether the plaintiffs are obligated to prove wilful misconduct on the part of the defendants in order to prevail on their breach of trust claim in count II. In view of the dismissal of the individual defendants, the narrower issue is whether plaintiffs have to prove wilful misconduct on the part of Astor Investors, Inc.

According to the declaration of condominium, the liability of the association’s board of managers was limited to acts or omissions found to constitute wilful misconduct. This provision applies to Astor Investors because the Condominium Property Act charges the condominium developer with the responsibilities and duties of the board of managers until that board is duly elected. (Ill. Rev. Stat. 1981, ch. 30, par. 318.2.) The plaintiffs maintain that the elected board, and the interim managing developer, owe a fiduciary duty to the condominium association members. (See Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527.) This duty, according to the plaintiffs, imposes an unalterable obligation on Astor to exercise reasonable care and diligence in performing its interim managerial duties. Any attempted exculpation or limitation of liability would create a conflict of interest and be violative of public policy. Plaintiffs also suggest that the legislature has now placed its approval on the common law fiduciary duty recognized in Wolinsky by enacting an amendment to the Condominium Property Act. This amendment states:

“In the performance of their duties, the officers and members of the board are required to exercise, whether appointed by the developer or elected by the unit owners, the care required of a fiduciary of the unit owners.” (Ill. Rev. Stat. 1983, ch. 30, par. 318.4, amended effective July 1, 1984.)

The plaintiffs conclude that both judicial opinion and legislative directive compel this court to strike the exculpatory bylaw in issue.

While plaintiffs argument that Illinois law recognizes a fiduciary relationship between an interim condominium board of managers and the condominium association members may be meritorious, there is no controlling precedent for their conclusion that the scope of such a fiduciary duty cannot be limited by the association bylaws. As a general proposition, trust or contractual instruments containing an exculpatory clause for simple negligence are valid unless they violate public policy, involve one of a limited number of semipublic relationships (e.g., common carriers) or result from overreaching or abuse of a fiduciary relationship. See Browning v. Fidelity Trust Co. (3d Cir. 1918), 250 F. 321, 324-25; Restatement (Second) of Trusts sec. 222 (1959); Bogert, Trusts & Trustees sec. 542 (1978); see also W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 32; First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 417-18.

We find nothing in the instant clause which would either violate our State’s established public policy or evidence unfair overreaching by Astor Investors. Public policy, while not precisely defined, is located by reference to the State constitution, State statute, judicial decisions, and the constant practice of government officials. (W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 38.) A review of the Illinois Condominium Property Act does not indicate any legislative intent to restrict limitation of condominium managerial liabilities. Such legislative silence prevents this court from injecting such a restriction, no matter how beneficial the attempted innovation may be. (In re Peak (1978), 59 Ill. App. 3d 548, 551-52; Droste v. Kerner (1966), 34 Ill. 2d 495, 504.) Even the 1984 act amendment cited by plaintiffs, while expressly creating a fiduciary relationship between the association members and the board of managers, does not preclude a limitation on managerial liability. The same conclusion can be deduced from a careful reading of the judicial opinion in the Wolinsky case cited by plaintiffs. In the absence of any clear public policy mandates, we must consequently decline to invalidate the instant exculpatory provision.

Our conclusion is further supported by the fact that there is no evidence of undue overreaching by Astor in fulfilling its fiduciary duties. The plaintiffs openly and voluntarily entered into the Westbrook West Condominium Association and they impliedly acquiesced in the bylaws drafted prior to the association’s incorporation. We have already concluded that there is no inherent impropriety in an elected board of managers’ reliance upon a limited exculpatory clause, and we find no reason for disallowing the corporate-developer’s use of a similar provision. The public policy favoring freedom of contract prevails over any conflicting policies in the instant case (see McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp. (1983), 95 Ill. 2d 68; Morrow v. Auto Championship Racing Association, Inc. (1972), 8 Ill. App. 3d 682; Simmons v. Columbus Venetian Stevens Buildings (1958), 20 Ill. App. 2d 1), and the trial court was consequently correct in upholding the clause at issue.

Those portions of the trial court’s order of March 22, 1983, from which plaintiff has brought this appeal are affirmed.

Affirmed.

HOPE and NASH, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TORY L. RACHEL, Defendant-Appellant.
    Second District
    No. 83 — 315
    Opinion filed April 11, 1984.
    Rehearing denied May 17, 1984.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Tory Lee Rachel, was found guilty of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11— 4(a)(3)), home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(2)) and battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3). He was sentenced to concurrent terms of six years’ imprisonment by the circuit court for indecent liberties and home invasion. Defendant appeals, contending (1) he was not proved guilty beyond a reasonable doubt of home invasion; (2) that the admission in evidence of certain testimony was irrelevant and prejudicial; and (3) that he was denied effective assistance of counsel when his attorney tendered an improper jury instruction which prejudiced defendant.

Evidence adduced at trial disclosed that on July 27, 1982, in the early evening, Suzanne Dowell and Kristin Voska, aged 13 years, were walking home from the beach when a car, later identified as defendant’s, came towards them, stopped, then turned around and went back in the other direction. A few minutes later as they were walking, defendant came out of the bushes near the road and followed them. The girls noticed defendant’s car parked nearby with the driver’s door open; they became frightened and walked faster until they reached the driveway of a house where a man was standing. The girls told the man about the defendant’s conduct and continued walking home. While doing so they again saw defendant’s car pass them on the road and proceed in the same direction in which they were walking. On their way home, the girls walked past the “Hager” house.

In the Hager house at that time on the same evening the Hager sisters, Hollie, aged 15 years; Heidi, aged 14 years; Valli, aged 11 years; and Heather, aged 8 years, were home alone. Heather and Valli were in a bedroom playing a video game, Hollie was in the kitchen baking and Heidi was sleeping on the living room couch. When Valli and Heather looked up from their game, they noticed defendant looking at them through the bedroom window. He asked them if their father was home and Valli responded that he was not; defendant then asked if their mother was home and Valli responded that she was, but Heather reminded her that she had gone out. Defendant then walked away in the direction of the front door and Valli went to the kitchen to ask Hollie if she expected any callers. All three sisters then heard Heidi scream from the living room and the girls next saw defendant running out of the front door. Defendant got into his car, which had been parked pointing away from the house, and as he drove off he turned around and waved and smiled at the girls.

Heidi Hager testified she had been sleeping on the living room couch when she was awakened by a man who was pulling at the crotch of her shorts and trying to get his hand into them. A pillow was over her face. Heidi got the pillow off of her face and screamed, whereupon her sisters ran into the room and the man ran from the house. Heidi testified that she had struggled with defendant in attempting to get the pillow off of her face so that she could breathe. She was frightened and crying, but freed her face sufficiently so that she could scream. On cross-examination, Heidi testified that she had sustained no scratches, bruises or swelling as a result of the incident and required no medical treatment.

Defendant testified on his own behalf and in explanation for his presence at the Hager home on July 27, 1982, stated that in early June 1982 he had been in the vicinity of the Hager home en route to a customer’s house and had stopped at the Hager’s for directions. A lawn party was then in progress and a girl had given him directions. When defendant informed her he was a car salesman the girl said she was interested in buying a car, but had financial problems.

Defendant testified further that on July 27, 1982, he had spent the day at a sales promotion seminar and that evening was proceeding to the Hager home to see whether he could sell a car. On the way, he saw someone who looked like the girl he had spoken to at the Hagers’ in early June and turned down the road towards her. Because he could not tell for sure whether the girl was the same person, he decided to approach her on foot and parked his car around the corner and cut back through a yard walking up near to the girls. He then decided neither of the girls was the person to whom he had spoken previously and returned to his car and drove to the Hagers’ home.

At the Hagers’, defendant testified no one answered when he knocked on the door. He heard noises in the house and looked into a bedroom window where he saw two young girls playing, and he asked if their parents were home. He was told they were not and that he could talk to a sister. Defendant walked to the partially opened front door, stuck his head in and said “excuse me” a couple of times. He could see someone lying on the couch so he entered the room, walked over to the couch, and placed his hand on the sleeping person’s shoulder and hip to shake her in order to wake her up. The sleeper awoke and began to yell and scream, frightening defendant who then hurried out the door to his car. Before driving away he shrugged and waved goodbye to two girls he saw looking out of the house after him. Defendant testified he did not put his hands in Heidi’s pants or try to remove them nor did he intend to arouse his sexual desires or injure the girl.

In the conference on instructions the State tendered an instruction based upon Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.01 (2d ed. 1981), stating that the offense of home invasion includes the offense of battery and instructions defining the offense when committed by one who causes bodily harm to another (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(1)). Defendant’s counsel also tendered instructions as to battery based upon having physical contact of an insulting or provoking nature with another (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(2)). These instructions were given to the jury and general verdict forms for the offense of battery were submitted to it.

Defendant contends first that the evidence was insufficient to establish he caused injury to the complainant and that necessary element of the offense of home invasion was thus lacking.

The home invasion statute provides, inter alia, as follows:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and ***
(2) Intentionally causes any injury to any person or persons within such dwelling place.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(2).)

Defendant asserts that since Heidi Hager was not bruised, scratched or swollen because of defendant’s assault upon her, she was not injured.

It is true that the girl was not treated for any injury and there were no marks left on her body. An officer who interviewed her two hours after the incident stated she was shaking and crying at that time, but mentioned no injury which he had observed. The only evidence relating to possible injury to the girl was her testimony defendant held a pillow against her face and pushed her back into the couch. She stated it was then difficult to breathe and she struggled to free herself from the constraints of the pillow in order to scream.

The question of what constitutes “any injury” for purposes of the home-invasion statute has not been directly considered by our reviewing courts. In People v. Bitner (1980), 89 Ill. App. 3d 1106, 1112, 412 N.E.2d 721, appeal denied (1981), 82 Ill. 2d 585, the court considered whether the offense of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12— 11(a)(1)), in which defendant had been charged with causing bodily harm, was a lesser-included offense of home invasion so as to preclude defendant’s convictions of both offenses. The court noted that to commit home invasion in that case defendant had to have caused “injury” to a person to be within the statute, while the battery statute speaks of “bodily harm.” It found that while injury and bodily harm were not identical terms, “that to cause an injury within the meaning of the home-invasion statute, one must cause bodily harm, thus committing a battery. Thus, whenever a person violates the home-invasion statute, he simultaneously commits a battery.” The court concluded in People v. Bitner (1980), 89 Ill. App. 3d 1106, 412 N.E.2d 721, that battery was a lesser-included offense of home invasion and thus barred as a multiple conviction for the same conduct under the principles of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

In People v. Foster (1982), 103 Ill. App. 3d 372, 377, 431 N.E.2d 430, this court noted People v. Bitner (1980), 89 Ill. App. 3d 1106, 412 N.E.2d 721, had held that to cause injury within the meaning of the home-invasion statute one must cause bodily harm, thus committing a battery. This court also noted, however, that evidence of visible injury to the victim is not necessary in order for a battery to have occurred. (People v. Choate (1979), 71 Ill. App. 3d 267, 276, 389 N.E.2d 670; see People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318, appeal denied (1980), 81 Ill. 2d 595; People v. Taylor (1977), 53 Ill. App. 3d 810, 815, 368 N.E.2d 950.) In People v. Foster (1982), 103 Ill. App. 3d 372, 431 N.E.2d 430, evidence was presented that defendant entered the victim’s residence and pushed her down into a chair with his hand around her throat while she struggled with him; it held that “clearly this contact caused injury, thus it was sufficient to sustain defendant’s conviction under the home invasion statute.”

We consider defendant’s similar conduct in the present case, wherein he held a pillow over the child’s face preventing her from breathing properly, was also sufficient to cause injury within the context of the home invasion statute and the lack of visible evidence of injury to the victim does not negate injury to her.

Defendant next contends that the testimony of Suzanne Do-well and Kristin Voska that defendant had followed and approached them on the street shortly before the incident at the Hager home was not relevant to any issue in the case and prejudicial. He argues this evidence, to which he objected, gave rise to an improper inference defendant had a propensity to commit offenses such as those for which he was being tried.

The evidence must be fairly limited to the issues on trial (People v. Pickett (1975), 34 Ill. App. 3d 590, 598-99, 340 N.E.2d 259); however, evidence is admissible unless there is some distinct ground for refusing it, and evidence is relevant if it tends to make a proposition at issue either more or less probable (People v. Grady (1982), 107 Ill. App. 3d 970, 977, 438 N.E.2d 608, appeal denied (1982), 91 Ill. 2d 575). It is the trial judge’s function to balance the probative value and prejudicial effect of offered evidence and his decision will not be reversed absent an abuse of discretion. (People v. Adams (1981), 102 Ill. App. 3d 1129, 1135, 430 N.E.2d 267.) Evidence which is otherwise relevant will not be excluded merely because it may prejudice the accused. People v. Calderon (1981), 98 Ill. App. 3d 657, 661, 424 N.E.2d 671, appeal denied (1981), 85 Ill. 2d 579.

Defendant argues as he did not deny being at the Hager home near the time when Kristin Voska and Suzanne Dowell saw him on the road his identity was not in issue in the case. He also notes that three of the Hager girls identified him in trial as the man who entered their home and asserts that as the State did not need the testimony of Voska and Dowell to establish his identity, it was irrelevant and cumulative.

In a pretrial hearing of defendant’s motion in limine in which he sought to exclude the Voska-Dowell testimony, defendant proposed to stipulate to his identity and presence in the Hager home. The trial court denied the motion, correctly holding that the State was not required to accept a defendant’s stipulation of fact, but could offer proof of each element of the offenses on trial. (See People v. Christen (1980), 82 Ill. App. 3d 192, 198, 402 N.E.2d 373; People v. Kuntz (1977), 52 Ill. App. 3d 804, 808, 368 N.E.2d 114, appeal denied (1978), 67 Ill. 2d 594.) Identity is always an issue in a criminal case, and the State cannot be required to anticipate whether a defendant will testify or what facts he may dispute if he testifies. The young witnesses who viewed defendant at the scene of the offenses saw him briefly under stressful circumstances, and only the victim viewed defendant from a short distance. The State was required to prove defendant’s identity and presence at the scene, and the evidence to which he objects served to establish the reliability of defendant’s in-court identification by the on-scene witnesses. See People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68; People v. Hutchins (1972), 9 Ill. App. 3d 447, 292 N.E.2d 494.

Defendant’s conduct relative to the first two young girls was also relevant to prove he committed the offenses for which he was on trial. Evidence which tends to prove a fact in issue, even though it may show the accused committed another crime, or evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E .2d 489.) While evidence may not be introduced solely to show a defendant’s propensity to crime, the State may offer testimony relating to events which are not themselves criminal offenses which go to motive and intent of defendant. See People v. Dewey (1969), 42 Ill. 2d 148, 157, 246 N.E.2d 232; People v. Lehman (1955), 5 Ill. 2d 337, 341, 125 N.E.2d 506; People v. Pieper (1951), 410 Ill. 15, 101 N.E.2d 109; United States v. Serlin (7th Cir. 1976), 538 F.2d 737.

Defendant testified he was at the Hager home simply to sell an automobile and, in our view, his conduct towards the first two young girls shortly before the offenses for which he was convicted was probative of his intent and motivation when he entered the Hager home. We conclude the trial court did not err in its admission of this evidence.

Defendant’s final argument is that he was denied effective assistance of counsel when his trial attorney tendered and the court gave to the jury, over the objection of the State, an instruction defining the offense of battery. The State argued at the conference on instructions that defendant was not charged with battery and, further, that the tendered instruction was couched in terms of making “physical contact of an insulting or provoking nature with an individual” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(2)), rather than defining battery in terms of causing “bodily harm to an individual” as provided in section 12 — 3(1) of the battery statute. When the trial court agreed to give defendant’s tendered instruction, the State then offered, and the court gave, instructions defining battery causing bodily harm. The court also requested that IP I Criminal No. 2.01 be tendered as a court’s instruction by which it advised the jury that “defendant is charged with home invasion, which includes the offense of battery ***.” The jury thereafter returned a general verdict finding defendant guilty of battery, together with its verdicts finding him guilty of home invasion and indecent liberties.

Defendant contends that because of the tendered instructions for battery premised upon physical contact of an insulting and provoking nature, the jury may have convicted defendant of home invasion even though it may have concluded he caused no injury to the victim. Defendant asserts his trial counsel was incompetent in submitting the battery instruction and defendant was prejudiced thereby requiring a new trial.

We do not agree. It is axiomatic that a defendant cannot complain of error in instructions to which he has acquiesced, induced or invited or which were given at his request; nor may he contend that lesser offenses for which he has tendered instructions and verdict forms were not lesser-included offenses of that charged. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 772-73, 445 N.E.2d 1213, appeal denied (1983), 94 Ill. 2d 554; People v. Jeffrey (1981), 94 Ill. App. 3d 455, 468, 418 N.E.2d 880, appeal denied (1981), 85 Ill. 2d 570; People v. Mireles (1979), 79 Ill. App. 3d 173, 199, 398 N.E.2d 150, cert. denied (1980), 449 U.S. 860, 66 L. Ed. 2d 76, 101 S. Ct. 163; People v. Morgan (1976), 40 Ill. App. 3d 711, 715, 352 N.E.2d 444, cert. denied (1977), 431 U.S. 930, 53 L. Ed. 2d 246, 97 S. Ct. 2635.) However, where the basis of defendant’s challenge to instructions tendered by him goes to competency of counsel, he may raise the instruction as error. (People v. Williams (1975), 31 Ill. App. 3d 161, 165, 333 N.E.2d 655; People v. Count (1969), 106 Ill. App. 2d 258, 263, 246 N.E.2d 91.) For defendant to establish that his trial counsel was thus incompetent, he must demonstrate actual incompetence which resulted in substantial prejudice without which the outcome would have been different based on the circumstances of the particular case. People v. Royse (1983), 99 Ill. 2d 163, 168, 457 N.E.2d 1217; People v. Carlson (1980), 79 Ill. 2d 564, 584-85, 404 N.E.2d 233; People v. Bliss (1970), 44 Ill. 2d 363, 369, 255 N.E.2d 405.

A defendant was entitled to have the jury instructed as to the law applicable to any state of facts, if there is evidence which would support the instruction as viewed in its factual context. (People v. McEvoy (1975), 33 Ill. App. 3d 409, 413, 337 N.E.2d 437, appeal denied (1976), 62 Ill. 2d 591.) By offering the battery instruction, counsel’s trial strategy was premised upon his argument defendant was guilty of a lesser offense, rather than those charged, and in closing argument counsel extensively advised the jury that as defendant’s actions did not injure the complainant, he could not be convicted of home invasion. Submission of these instructions was clearly a deliberate tactic on the part of counsel to cause a compromise verdict and avoid a Class X conviction and does not demonstrate incompetence. See People v. Pettit (1983), 114 Ill. App. 3d 876, 449 N.E.2d 1044, appeal allowed (1983), 96 Ill. 2d 547; see also People v. Stokes (1974), 21 Ill. App. 3d 754, 316 N.E.2d 127.

Although the jury in this case was instructed that battery was a lesser-included offense of home invasion, we do not consider it could have been misled so as to find defendant guilty of that offense absent injury to the victim. The jury was separately and correctly instructed as to the elements of the offense of home invasion, including the requirement that defendant had injured the victim. The State in argument directed to that offense did not suggest that conduct by defendant which did not injure the girl could satisfy the proof requirements for that offense. It, instead, correctly argued that the requisite injury was caused when defendant pressed the pillow over the victim’s face so that she had difficulty breathing. As defendant notes, the State did in its closing argument point out defendant was also guilty of battery by both causing bodily harm to the victim and touching her in an insulting or provoking manner. It noted evidence of the latter form of battery was seen where defendant placed his hand at her crotch and sought to get inside of her shorts.

The question of whether defendant inflicted injury, as required under the home invasion statute, and bodily harm or contact of an insulting or provoking nature required for battery, were fact issues for determination by the jury. (See People v. Green (1977), 54 Ill. App. 3d 596, 370 N.E.2d 42; People v. Hadley (1974), 20 Ill. App. 3d 1072, 314 N.E.2d 3.) Defendant’s trial counsel presented an able and vigorous defense on his behalf, arguing defendant could only be convicted of the misdemeanor battery offense as any contact with the victim did not cause injury. We do not consider the jury was misled and find it accurately considered the law and evidence before it. It is also apparent that evidence of defendant’s guilt was substantial and, had the presently disputed instructions not been given, the verdict would have been the same. People v. Sedlacko (1978), 65 Ill. App. 3d 659, 665, 382 N.E.2d 363.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

HOPE and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH CASERTA, Defendant-Appellee.
    Second District
    No. 82 — 959
    Opinion filed April 24, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Victor F. Ciardelli, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State has filed a certificate of impairment and appeals pursuant to Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)) from an interlocutory order which granted defendant’s motion to suppress evidence, i.e., a revolver found in an automobile driven by defendant, Kenneth Casería.

The issue raised on appeal is whether the trial court erred in suppressing this evidence where the evidence was in plain view and the police officer’s conduct was not unreasonable.

Defendant was arrested on July 10, 1982, and charged with unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(4)). He filed a motion to suppress evidence (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12), and at a hearing on that motion testified that on the evening of his arrest, he had gone to the Flame restaurant in Oakbrook Terrace driving a gray 1977 Lincoln Mark V. Defendant’s car had been parked for him in the restaurant lot by an attendant, and returned to him by an attendant at the time of his departure at about 3:30 a.m. Upon leaving the restaurant, defendant drove approximately four blocks when he was stopped by several police officers. He was alone at the time and to the best of his knowledge was not committing any type of offense. When defendant pulled over, he heard the police demand that he get out of the car with his hands up. He then saw that the occupants of four squad cars, with their shotguns and pistols drawn, were on the scene. Defendant was spread-eagled over the trunk of his car and searched while a police sergeant opened his car door and entered. Defendant did not give permission for a search of his vehicle. The sergeant reached in, grabbed the gun, and threw it onto the roof of defendant’s car.

Sergeant Stephen J. Quinn of the Oakbrook Terrace police department testified that earlier on the evening in question the police had received a complaint that there had been “a traffic altercation” in which two vehicles had cut off a third vehicle. This incident involved two Lincolns and a Corvette. In the course of his investigation, Quinn was informed that one of the Lincolns was blue, and the other was silver with Pennsylvania license plates. He was further told that the driver of the blue Lincoln had threatened the Corvette’s driver with a gun, saying, “I’m going to blow your head off.” The driver of the silver Lincoln responded, “Let’s go, it’s not worth it,” and the two Lincolns were driven northbound on Summit.

The police began checking local bars and found a blue Lincoln in the parking lot at the Flame restaurant. On receiving this report, Sergeant Quinn transported the driver of the Corvette to the Flame parking lot where the latter identified the blue Lincoln. He and other officers looked into this vehicle for the gun, and then glanced into the adjoining car in the parking lot, which was a silver Lincoln with Pennsylvania license plates. In the silver Lincoln he observed the butt of a gun in a holster protruding up between the two sections of the front seat. This observation was made from outside the car. They never went into the vehicle. The police then set up the surveillance on both vehicles. When defendant later drove away in the silver Lincoln, Sergeant Quinn and another officer followed and stopped him, ordered him out of the car, and had him put his hands on the trunk. Upon ascertaining that the weapon was not on the defendant’s person, Quinn went into the vehicle and retrieved the gun from between the seats.

On cross-examination, Quinn testified that he had also arrested the driver of the blue Lincoln and that as a result of that arrest he had prepared a three-page report. In that report, Quinn related that the complainant had reported being threatened by a man who then drove away and that the complainant described the other man’s car and license plate. The report continued that the offender’s car was located about five minutes later at the Flame restaurant. The three-page report made no mention of a silver Lincoln or of another driver’s participation in the traffic incident. In addition, Sergeant Quinn’s two-page report, which related to the arrest of the instant defendant, made no mention of the traffic incident. Quinn did not recall whether a police report was prepared regarding the original “man-with-a-gun” complaint.

Sergeant Quinn further testified that most of the patrons at the Flame have their cars parked in the lot for them by attendants, although some park their cars themselves. When he stopped the car at the time of the arrest, the armrest between the seats was down, although it had been up when he had looked into the car in the parking lot. He had not tried the car’s door in the parking lot. When they had looked into the window of the car while it was in the parking lot, the police used their flashlights.

Defendant testified in rebuttal that when he brought his car into the parking lot, both armrests were down. The center armrest completely covers the center opening between the two seats and about three or four inches on either side.

In granting the motion to suppress, the trial court stated that the information supplied by the complaining motorist “certainly was insufficient as far as a basis for a search to be made. It is lacking in probability.” In further remarks, the court indicated that it regarded as not controlling the question of whether the police could see the gun from their position in the parking lot. Rather, in view of the complainant’s inability to trace the car to its position in the parking lot, there was insufficient probable cause to “come upon” the vehicle and to look into this particular vehicle. The court also appeared to find less justification for the police to look into a car parked in a private parking lot than into a car parked on the street. As the court remarked, “It is not a parking lot, it is a restaurant parking lot. *** I think when a person pays a bill in a restaurant and there is a parking lot afforded, you can probably say that part of that bill goes toward the parking lot, too.”

The State’s position is that the police were properly in the parking lot pursuant to an investigation of a report of a man with a gun. Once in the parking lot, the State contends, the police “inadvertently” saw evidence of a crime in defendant’s car and were justified in later seizing the weapon. Defendant’s appellate argument is that credibility determinations were made by the trial court which were not manifestly erroneous. In this regard, defendant claims that the failure of Officer Quinn to mention in his police report that defendant’s vehicle was involved in the original “traffic altercation” and the failure of that report to list the name of the complainant undermined Officer Quinn’s testimony, which explained the reason for his presence in the parking lot, such that the trial court made a credibility determination, rejecting the explanation of the police and finding they had no probable cause to be in the parking lot. Also, defendant argues that his testimony regarding the downward position of the armrests which would allegedly cover the weapon was believed by the trial court.

Contrary to the defendant’s contention, the trial court did not appear to base its decision to suppress the evidence on a credibility assessment, but rather it determined as a legal matter that the police lacked probable cause to be in the parking lot and to look into defendant’s vehicle. This particular question before us is a legal one subject to consideration by this court de novo. (See People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543.) Even if this were a credibility question decided adversely to the State below, under the circumstances here our result would still be the same.

The analysis of whether the eventual seizure of the revolver violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV) under the circumstances depends first upon whether the police were lawfully in a position to observe the weapon, and then, if so, whether the weapon was within “plain view.” The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior fourth amendment justification and who has probable cause to suspect that the item is connected with criminal activity. (Illinois v. Andreas (1983), 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 1010, 103 S. Ct. 3319, 3324; People v. David (1981), 96 Ill. App. 3d 419, 421, 421 N.E.2d 312; People v. De La Fuente (1981), 92 Ill. App. 3d 525, 529, 414 N.E.2d 1355; see 1 W. LaFave, Search & Seizure sec. 2.5(c), at 355-56 (1978).) Initially, we must determine whether the police were in a place where they had a lawful right to be, i.e., in the parking lot of the Flame restaurant, when they observed the revolver inside defendant’s vehicle parked in that lot.

Numerous decisions in other jurisdictions have concluded that a police officer, just as any citizen, has a right to be in a parking lot adjacent to a commercial establishment which is open to the public. (See United States v. Finch (4th Cir. 1982), 679 F.2d 1083, 1085; State v. Planz (N.D. 1981), 304 N.W.2d 74; Albo v. State (Fla. 1980), 379 So. 2d 648, 650; Milner v. State (1981), 159 Ga. App. 887, 285 S.E.2d 602; see also United States v. Bellina (4th Cir. 1981), 665 F.2d 1335; Commonwealth v. Cadoret (1983), 388 Mass. 148, _, 445 N.E.2d 1050, 1052-53.) The rationale is that a law enforcement officer is a member of the public and, just like any citizen, may accept a general public invitation to enter upon commercial premises which are open to the public. Courts have consistently held that police, albeit motivated by an investigative purpose, conducted no search by merely entering premises open to the public. See 1 W. LaFave, Search & Seizure sec. 2.4(b), at 338-39 (1978).

We believe this reasoning is applicable in the case at bar. The Flame restaurant catered to the general public and was open to the public at the time the police entered upon the lot. Automobiles were either self-parked or parked by an attendant in the restaurant parking lot. We conclude that the police had a lawful right to be in the parking lot.

In Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, a plurality of the United States Supreme Court determined that the “plain view” doctrine permits the warrantless seizure by police of private possessions where three requirements are satisfied: (1) the police officer must lawfully make an “initial intrusion” or otherwise be in a position from which he can view a particular area; (2) the officer must discover evidence inadvertently, that is he may not know in advance the location of the evidence and intend to seize it relying on the plain view doctrine only as a pretext; and (3) it must be immediately apparent to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. 403 U.S. 443, 464-71, 29 L. Ed. 2d 564, 582-86, 91 S. Ct. 2022, 2037-41.

In a recent opinion, Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, a plurality of the Supreme Court further discussed the plain-view doctrine and stated that plain view “provides grounds for seizure of an item where an officer’s access to an object has some prior justification under the Fourth Amendment. ‘Plain view’ is perhaps better understood, therefore, not as an independent ‘exception’ to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.” (460 U.S. 730, 738, 75 L. Ed. 2d 502, 511, 103 S. Ct. 1535, 1540-41.) After determining first that the initial stop of the defendant was valid, the court went on to hold that the use of a flashlight to illuminate the interior of the defendant’s car did not infringe upon any fourth amendment right (460 U.S. 730, 739, 75 L. Ed. 2d 502, 512, 103 S. Ct. 1535, 1541), and that there was no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. (460 U.S. 730, 739, 75 L. Ed. 2d 502, 513, 103 S. Ct. 1535, 1542.) As we determined above, the police in the case at bar were in a place they had a right to be and, as in Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, the fact that they used a flashlight in attempting to observe the interior of defendant’s vehicle infringed on no protected right of the defendant. See also People v. Bombacino (1972), 51 Ill. 2d 17, 22, 280 N.E.2d 697.

We next must determine the applicability of the other two requirements of the plain-view doctrine to the facts of this case. In Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, the Supreme Court modified the requirement in Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, that it be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. The court restated the rule to be that the seizure of property in plain view is presumptively reasonable assuming that there is “probable cause” to associate the property with criminal activity. (460 U.S. 730, 741, 75 L. Ed. 2d 502, 513-14, 103 S.' Ct. 1535, 1542.) There appears to have been no dispute below that the possession of the weapon in the car gave the police probable cause that a criminal offense was being committed, and the weapon was subject to seizure. See Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(4).

As to the third requirement in Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, that the police discovery of the incriminating evidence be “inadvertent,” the trial court did not consider this issue although there is no direct contrary evidence to the testimony of Officer Quinn that the police here were looking for a possible weapon in a blue Lincoln, not the defendant’s vehicle, and when glancing in defendant’s automobile parked next to the blue Lincoln, they observed the weapon inside. Thus, there was no bar to the eventual seizure based upon this “inadvertence” requirement of plain view. We further note that in Texas v. Brown (1983), 460 U.S. 730, 743, 75 L. Ed. 2d 502, 514-15, 103 S. Ct. 1535, 1543-44, the plurality, and the concurring opinion of Justice White, call into question the “inadvertent” viewing requirement enunciated in Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

Remaining, however, is a factual issue disputed below as to whether Officer Quinn could see the weapon from outside the defendant’s vehicle while it was parked in the lot. He said he could. The defendant testified that the armrests were down, and that in that position they completely cover the center opening between the two seats where Quinn contends he saw the weapon. Quinn testified that the armrest was up. Unfortunately, contrary to defendant’s appellate argument, the trial court specifically declined to make this credibility determination and, instead, suppressed the evidence, as we have determined herein, incorrectly on another basis. While we conclude the order granting the defendant’s motion to suppress on the legal basis stated by the trial court was manifestly erroneous and must be reversed (see People v. Winters (1983), 97 Ill. 2d 151, 163, 454 N.E.2d 299), the cause is remanded with directions to the trial court for consideration of the factual question not ruled upon as to whether the weapon could be seen from outside defendant’s automobile. (People v. Tate (1967), 38 Ill. 2d 184, 188, 230 N.E.2d 697; People v. Mendoza (1978), 62 Ill. App. 3d 609, 621-22, 378 N.E.2d 1318.) Whether new evidence must be taken on that issue is left to the discretion of the trial court. If the court’s determination is that the weapon could be seen from outside the vehicle, the motion to suppress must be denied. If otherwise, the motion must be granted.

For the foregoing reasons, the judgment below is reversed and the cause is remanded for further consideration as directed.

Reversed and remanded with directions.

UNVERZAGT and NASH, JJ., concur.