text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL ROY HAMBLIN, Defendant-Appellant.
    Fourth District
    No. 17503
    Opinion filed June 17, 1982.

      Charles G. Reynard, of Bloomington, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

After a bench trial in the circuit court of McLean County, defendant, Daniel Roy Hamblin, was convicted on July 1, 1981, of the offenses of unlawful possession of cannabis (Ill. Rev. Stat. 1979, ch. 56½, par. 704) and unlawful use of weapons, by carrying a concealed weapon in a vehicle (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(4)), and acquitted of a charge of aggravated battery. Subsequently he was sentenced to 2 years’ probation conditioned upon payment of court costs for the former conviction and a fine of $100 for the latter conviction. He appeals, contending his guilt was not proved beyond a reasonable doubt as to either offense and the court improperly denied his motion to suppress evidence. We affirm.

Most of the evidence at trial was undisputed. On November 30,1980, sometime between 2 a.m. and 2:30 a.m., defendant was found by a deputy sheriff slumped over the wheel of a Dodge 100 van, parked with its lights on and its motor running, on East Street in the village of Downs. Defendant was then arrested, after a struggle, and taken to the McLean County jail. The van was searched and a metal box and an envelope, both containing cannabis, and a .25-caliber Jetfire Barreta automatic pistol in a knapsack were found. No one other than defendant was in the van when defendant was arrested.

Defendant maintains that the foregoing evidence was not enough to prove his actual or constructive possession of the items of contraband found in the vehicle. The State contends the evidence was sufficient to prove defendant’s constructive possession of the items beyond a reasonable doubt. We agree.

A person’s possession of contraband cannot be proved merely by proving that person’s presence in the vicinity of the contraband. When contraband is found on a premises rather than a person, to prove a person’s possession of the contraband, the State must prove the person’s control of the premises. This, in turn, gives rise to an inference that the person knowingly possessed the contraband. (People v. Kissinger (1975), 26 Ill. App. 3d 260, 325 N.E.2d 28.) In People v. Bolden (1977), 53 Ill. App. 3d 848, 368 N.E.2d 1319, the court restated the foregoing rule and applied it to contraband found in an automobile in the exclusive control of an accused. There, the accused was arrested after a high-speed chase and a small packet of heroin was found on the driver’s seat. The accused denied knowledge of the presence of the packet or of its contents, but the court deemed evidence of his control of the vehicle plus his flight to sufficiently support the conviction.

In People v. Nunez (1974), 24 Ill. App. 3d 163, 320 N.E.2d 462, the reviewing court agreed with the trial court that the prosecution had sufficiently proven the defendant had constructive possession of a weapon, although the judgment was vacated on other grounds and the case was remanded. There, a shotgun was found in a bedroom where the defendant was sleeping on a bed. Although the defendant denied knowledge of the weapon’s presence and members of his family testified that others used the bedroom, the reviewing court stated the jury could have inferred the defendant knew the weapon was beneath the mattress of the bed because he had been sleeping on the bed for two nights when the weapon was there and testimony indicated that the bedroom was his.

In the present case, defendant was shown to have been the driver and sole occupant of the van. The contraband was within his easy reach. As with the flight of the accused in Bolden, defendant’s resistance when being arrested here corroborated the inference, arising from his possession and control of the van, that he had knowing control of the contraband. The evidence was strong enough for the trial court to have found his guilt of both offenses to have been proved beyond a reasonable doubt.

Defendant’s motion to suppress evidence was made prior to trial and requested suppression of (1) the cannabis found in the metal box and the envelope, and (2) the gun, all found in the van. The evidence at the hearing consisted solely of the testimony of the arresting deputy, Kenneth Loper.

Deputy Loper testified that after defendant was arrested and transported to the police station, he made an inventory search of the van, pursuant to a policy of the sheriff’s department to inventory the contents of vehicles which are to be towed. He testified that prior to making the search he had observed marijuana paraphernalia known as a “roach clip” lying on the engine cover of the van and plastic bags appearing to contain marijuana residue on both a seat and the floor of the van. In the course of the search of the interior of the van, Loper found a closed, oldtime tin Jack Daniels box and the sealed unmarked envelope, both of which were opened by Loper and found to contain cannabis. Loper stated he could tell by the weight of the box that it contained something. He stated the envelope had considerable weight and had an herbal odor almost of ammonia but not quite as strong. He stated the envelope’s contents felt fibrous and he could feel a plastic bag inside of the envelope. He stated he believed the envelope to contain cannabis so he opened a corner of it. Officer Loper also testified he found an unzipped knapsack in the van and that when he picked it up, he was able to see inside it and saw a pistol in a holster there.

Throughout the testimony of the deputy, he always referred to the search he made as being an inventory search. At no time did he say that he searched the vehicle or any of the closed containers found therein because he thought there was probable cause that they contained contraband or the fruits of evidence of a crime. He did testify at trial that at the time he opened the envelope, he thought it contained cannabis. In denying the motion to suppress, the trial court found that the search was an inventory search. It concluded that the officer had a right to open the envelope even though it was sealed because the envelope was of such a nature that it could readily be opened and resealed. This was apparently taken to indicate the owner of the envelope had no substantial expectancy of privacy in connection with the envelope.

The United States Supreme Court has struggled with the question of the permissibility, under the fourth amendment, of warrantless searches of automobiles and of containers found therein for some time. (See 2 LaFave, Search & Seizure §7.2, at 509 (1978).) Much of the uncertainty of prior decisions has been resolved by the recent decision in United States v. Ross (June 1, 1982, U.S. No. 80 2209), 50 U.S.L.W. 4580, which involved the warrantless search by law enforcement officers of an automobile which they had probable cause to believe contained illicit narcotics. The court upheld the seizure of heroin found in a closed bag and money found in a zippered pouch, both of which were located in the trunk of the vehicle. The court stated that officers could properly “conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.” (50 U.S.L.W. 4580, 4581.) The permissible scope of the search was stated to be “no broader and no narrower than a magistrate could legitimately authorize by warrant.” 50 U.S.L.W. 4580, 4588.

Thus, if the search here was made with probable cause, the precedent of Ross would justify the search. Deputy Loper had testified he saw a “roach clip” and two plastic bags appearing to contain marijuana residue in the vehicle before he began his search. Ordinarily, such evidence would require a determination that the search was made with probable cause. Nevertheless, defendant asserts the search must be considered to be an inventory search because: (1) Loper stated it was made for that purpose pursuant to the policy of his law enforcement agency; and (2) the trial court found the search to have been an inventory search.

The search by law enforcement officers for inventory purposes of the passenger compartment, including the glove compartment, of vehicles being impounded has been upheld by the United States Supreme Court in South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, and by the Illinois Supreme Court in People v. Clark (1976), 65 Ill. 2d 169, 357 N.E.2d 798. Such a search is deemed to be reasonable to further the legitimate objectives of: (1) protecting the owner’s property by giving special protection to that found to be valuable; (2) protecting the police against a charge that property claimed to have been in the vehicle when impounded was not returned; and (3) enabling the police to ascertain property that might be dangerous and removed from the vehicle for that reason. No case called to our attention has permitted, merely as an incident to an inventory search, the opening of closed opaque containers found in the vehicle unless the containers appeared to present a danger. In a footnote to his dissent in Opperman, Mr. Justice Marshall stated the majority opinion did not authorize the inspection of suitcases, boxes, or other containers which might be sealed, removed or secured without further intrusion.

The decision in People v. Dennison (1978), 61 Ill. App. 3d 473, 378 N.E.2d 220, was consistent with Mr. Justice Marshall’s observation. There, a station wagon was impounded and an inventory search was conducted. A tool box was found and opened and various papers bearing the name of the owner of an abandoned, stolen, vehicle were found inside. The defendant’s motion to suppress this evidence was granted. The reviewing court affirmed the suppression order, stating the search of the box was not one which could be justified as fulfilling any of the three legitimate purposes of an inventory search enumerated in Opperman and that where the purpose of the search is exploratory in nature, it will be deemed illegal and the evidence so found must be excluded. The court quoted from a Colorado case (People v. Counterman (1976), 192 Colo. 152, 556 P.2d 481) which held that as to an inventory search of a sealed knapsack which did not give any indication of containing dangerous or particularly valuable items, the legitimate purposes of the search could have been fully accomplished by merely noting the item as a sealed knapsack.

The rationale of Dennison was sustained by the supreme court in People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.

As far as the search of the knapsack containing the pistol was concerned, the search was permissible even if Toper’s authority was limited to that accompanying an inventory search. As it was open and not sealed, as in Counterman, the inference arises that its owner had no expectation of privacy as to its contents. The conduct of the officer in picking it up was fully reasonable, and once he saw that it contained a pistol he was fully justified in seizing it as a dangerous instrument rather than noting it and leaving it in the van.

The seizure of the marijuana in the tin box and the sealed envelope can only be justified if the search was one based on probable cause or incident to a lawful arrest because the purposes of an inventory search could have been served merely by noting the items and holding them. Accordingly, we turn to the question of whether the State is limited by the officer’s designation of the search as an inventory search and the trial court’s so finding.

The question of whether a search or seizure may be justified by the existence of probable cause even though the officer making the search or seizure does not believe he has probable cause is one that seldom arises. The majority view is that the officer need not believe that he has probable cause. (See United States v. Day (3d Cir. 1972), 455 F.2d 454; 1 LaFave, Search & Seizure sec. 3.2, at 460 (1978).) However, a decision of the appellate court of this State for the second district is to the contrary. In People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, a law enforcement officer had seized a gun found in a plastic bag in the trunk of an automobile. Officers had arrested the operator of the car for traffic violations. When searched, the operator was found to have no driver’s license but to have $1,000 in bills on his person. A check concerning the registration of the automobile had revealed the car was not registered in the name of the operator. After taking the operator and the automobile to the police station where the defendant was detained, a search was then conducted. The State tried to justify the search on the basis that there was probable cause to believe the car was stolen. The appellate court rejected this on the basis that the arresting officer had testified he did not believe the car was stolen. Citing People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574, and People v. Cox (1971), 49 Ill. 2d 245, 274 N.E.2d 45, the opinion also stated the officer making a search or arrest is bound by his stated motive for making the arrest or search.

In Gabbard, a State trooper arrested a man who was walking along the side of a highway. When asked where he had been and where he was going, he said he was coming from and going to Springfield. The only identification the defendant could give was to show his name on some check stubs. When he showed them to the officer, a piece of paper appearing to be an Illinois driver’s license was visible in the checkbook. Six days earlier the officer had seen a notice that an escaped Federal prisoner was thought to be on the highway some 30 miles from the point of arrest. Nothing in the given description of the escapee particularly fit the arrestee. The supreme court held that the evidence showed that probable cause to make the arrest did not exist. The court did note that the officer admitted that the defendant did not meet the particulars of the description given in the notice and the trooper did not testify that he was motivated by a belief that the person he arrested was the escapee. The opinion thus indicated the trooper’s belief was a matter bearing upon the existence of probable cause but it did not indicate the trooper’s belief controlled or that the State was bound by the trooper’s stated reason for proceeding.

In Cox, after officers had obtained an invalid warrant to search the defendant’s apartment, they went to that apartment. One officer testified that at that time they had not decided whether to arrest the defendant. Upon entering and searching the apartment, the officers found a bag appearing to contain marijuana in the apartment, whereupon the defendant was arrested. The trial court upheld the search as being incident to a lawful arrest even though the search had preceded the arrest. In reversing, the supreme court noted that the officer had testified the apartment was entered for the purpose of searching rather than arresting and, therefore, the search was not incident to the arrest.

We do not deem the dictum of Velleff that the officer making a search or arrest is bound by his stated motive for doing so to be required by Gabbard or Cox, and we do not consider it to state the law. Gabbard would indicate that the officer’s stated motive is a matter to take into consideration in determining the existence of probable cause. Cox was controlled by the search having occurred before the arrest. Here, unlike in Velleff and Gabbard all the objective indications supported the existence of probable cause. The defendant had been slumped over the wheel in a drunken stupor. He resisted the officers. A “roach clip” was plainly visible. The envelope had an herbal odor and felt fibrous. Unlike in Velleff, the deputy made no statement that he didn’t think he had probable cause to search and did testify at trial that he believed the envelope to contain cannabis. Although the trial court found the search to have been an inventory search, we determine that under the evidence, the existence of probable cause was shown as a matter of law.

Because the knapsack containing the pistol was not closed and the pistol was visible to the deputy when the knapsack was picked up, the seizure of the pistol would have been proper even if the deputy had been limited to the requirements of an inventory search. Thus, even if probable cause for the search of the van was not shown, the conviction on the weapons charge would be affirmed. As we have determined that probable cause did exist, we affirm the conviction on the cannabis charge as well.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    JEAN WOOD, d/b/a Wood Aviation, Plaintiff-Appellant, v. MOODY-McMASTER, INC., Defendant-Appellee.
    Fourth District
    No. 17614
    Opinion filed June 17, 1982.
    Dale A. Cini, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellant.
    M. John Hefner, of Harlan Heller, Ltd., of Mattoon, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, a resident of Moultrie County, filed a suit for breach of contract against defendant, a corporation having its principal place of business in Florida and not registered as a foreign corporation in Illinois. Defendant filed a special and limited appearance in the circuit court of Moultrie County where the suit was brought to contest the jurisdiction of the court pursuant to section 20 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 20.) Defendant had been served with process in Florida pursuant to section 16 of the Act. The trial court sustained the objection to its jurisdiction and dismissed the suit. This appeal followed from that order. We affirm.

The facts must be established from the pleadings and from the affidavit of the defendant’s president attached to its special and limited appearance and the counteraffidavit of the plaintiff filed on the day of hearing, together with the exhibits attached to the complaint and to the affidavits. Plaintiff moved for an evidentiary hearing but this motion was denied by the trial court which decided the matter on the aforementioned documents pursuant to section 20(2) of the Civil Practice Act. Ill. Rev. Stat. 1979, ch. 110, par. 20(2).

The factual matters must be viewed against the backdrop of the divergent theories of the parties as to the nature of the transaction and thus whether or not defendant submitted to the jurisdiction of the Illinois court under section 17 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 17.) The dispute centers around the sale of a Cessna 401 airplane. Plaintiff claims that he was the owner of the plane and in possession of it in Moultrie County; that the negotiations for the sale were conducted by telephone and mailgram from Moultrie County; and that defendant’s employee came to Moultrie County and took possession of the aircraft there; hence jurisdiction lay in the Moultrie County circuit court.

Defendant, contra, claims that all negotiations were with a broker, an Indiana corporation, at Asheville, North Carolina; that the broker delivered the plane to Florida; that plaintiff came to Florida and removed the plane back to Illinois; that the broker promised to defray all costs in returning the aircraft to Florida; and that to this end, defendant dispatched its corporate pilot to Moultrie County where he obtained the craft and returned it to Florida; therefore, no negotiations, delivery, nor payment were made in Illinois; hence no jurisdiction lies in Illinois.

By piecing together information from the papers on file in the case, it becomes apparent that certain facts are uncontroverted. Plaintiff owned the aircraft on December 5,1980, and on that date a purchase order for it was signed by defendant’s president and a representative of the broker. Both parties attached copies of the purchase order to their pleadings; plaintiff alleged ownership in his complaint; and in a mailgram attached to the complaint and sent by plaintiff to defendant on December 31,1980, plaintiff stated that he “confirm[ed]” his approval of the sales contract from Rhoades (the broker) dated December 5,1980.

Defendant’s affidavit states that the broker delivered the plane to Boca Raton, Florida, on December 5, 1980, where it was inspected by defendant’s president, who found certain defects which were to be corrected prior to final acceptance; that on December 20,1980, defendant became aware that the plane had been removed from its possession; that on December 27, 1980, the police department of Boca Raton informed defendant that the aircraft had been removed by its registered owner, plaintiff, to the State of Illinois; that the broker promised to return the aircraft to Florida at its own expense; and that pursuant to that promise the plane was returned from Illinois to Florida. These statements are not controverted by any of plaintiff’s pleadings, nor his affidavit.

In their affidavits the parties part company over the matter of negotiations. Plaintiff states that he had possession of the aircraft from December 21,1980, to January 2,1981, in Illinois; and that he negotiated with defendant by telephone from his home in Sullivan and culminated the negotiations by the mailgram whose contents have been summarized above. In its affidavit defendant denies such negotiations.

It is thus apparent that the only controverted fact is that of negotiations. However, this was not properly presented to the trial court and hence could take no part in its decision, the presumption being that when a matter is being heard at bench only competent evidence is considered. (Tanner v. Tanner (1927), 326 Ill. 302, 157 N.E. 161.) Both affidavits refer only to “negotiations,” a purely conclusory term, and thus in violation of Supreme Court Rule 191(a) (73 Ill. 2d R. 191(a)), which states in part that affidavits in connection with a special appearance under section 20(2) of the Civil Practice Act “shall not consist of conclusions but of facts admissible in evidence.” Compare Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 409 N.E.2d 423.

Negotiations then being absent so far as the record is concerned, there is nothing left except a contract made between foreign corporations concerning subject matter located in the State of Florida. It is the same contract ultimately “confirm[ed]” by the plaintiff by means of his mailgram; the subject matter was not in this State until it was unilaterally extracted from Florida by the plaintiff; and the defendant’s agent was present in this State only because of the provocation by the plaintiff.

Even if the negotiations were to be considered a “fact” within the meaning of Supreme Court Rule 191(a), they occurred because of plaintiff’s action in removing the aircraft to Illinois. The case is thus unlike Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 333 N.E.2d 562, which is heavily relied upon by plaintiff. In Tabor the defendant purposefully entered this State, seven times in all, in the execution of the contract which called for performance in this State. It was foreseeable that McNall would be present in Illinois. The Supreme Court, in rejecting a mechanical application of a foreseeability rule, nevertheless said:

“This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen v. Woodson (1980), 444 U.S. 286, 297, 62 L. Ed. 2d 490, 501, 100 S. Ct. 559, 567.

It is thus apparent from this record that any activity by defendant in this State, i.e., either “negotiations” or the presence of the corporate pilot, was provoked by the unilateral act of plaintiff and was not a voluntary submission to its jurisdiction. McNall could reasonably anticipate being haled into court here and in fact entered a Wisconsin court for the purpose of limiting his damages. The defendant in the instant case was forced into this jurisdiction. In this connection, the language in Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 351, 395 N.E.2d 1131, 1137, is instructive:

“Any contract involving an Illinois party inevitably has a contact with this State, but to equate some contact with sufficient contact is to abandon the required qualitative analysis of contacts for a simple counting exercise. We find no contacts in the instant case which indicate that defendant voluntarily ‘availed itself of the privilege’ of conducting business here. On the contrary, the record shows that plaintiff sought out defendant, who then performed entirely from outside of the State. To uphold jurisdiction in this instance would be tantamount to allowing plaintiff to ‘lure’ defendant into the State. Finding jurisdiction over defendant here on the basis of plaintiff’s actions is not consistent with the ‘traditional notions of fair play and substantial justice’ mandated by International Shoe.”

We conclude that in this case the defendant had performed no act submitting to the jurisdiction of the courts of this State within the meaning of section 17 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17) and that any minimum contacts which it might have had (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154) were involuntary. The action of the circuit court of Moultrie County in sustaining the objection to jurisdiction was correct and it is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE TRAPP

text:
    THE TOWN OF NORMAL et al., Plaintiffs-Appellees and Cross-Appellants, v. BOARD OF REGENTS, REGENCY UNIVERSITIES et al., Defendants-Appellants and Cross-Appellees.
    Fourth District
    No. 17549
    Opinion filed June 22, 1982.
    Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P. C., of Springfield (John L. Swartz, of counsel), for appellants.
    Alan J. Novick, Corporation Counsel, of Normal, and Hayes, Schneider, Hammer & Miles, Ltd., of Bloomington (Frank Miles, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court;

An earlier appeal by plaintiffs from an order of the trial court dismissing a complaint for declaratory judgment was dismissed in the reviewing court for want of a timely notice of appeal. Here, defendants appeal from the order granting plaintiffs’ section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) whereby the trial court vacated its previous judgment and reentered the identical judgment in order to allow a timely notice of appeal.

Defendants assert this is an improper use of section 72 and there were not sufficient facts alleged in the petition to entitle such relief. Plaintiffs filed a cross-appeal asserting that the dismissal of the complaint for declaratory judgment was improper. We find the section 72 petition was improperly granted and therefore do not reach the dismissal issue on cross-appeal.

On January 5, 1981, plaintiffs filed a complaint for declaratory judgment alleging that plaintiff, Town of Normal, a home-rule municipal corporation, was authorized by statute and the Illinois Constitution of 1970 to license establishments which sell alcoholic beverages. This authority was alleged to extend to licensing of such sale at Illinois State University, which was authorized to sell alcoholic liquors by Public Act 81-1160, incorporated into section 11 of article VI of the Liquor Control Act. (Ill. Rev. Stat. 1979, ch. 43, par. 130.) On January 19, 1981, defendants filed a motion to dismiss this complaint. The motion was granted and the order dismissing the complaint was filed on March 16, 1981.

Prior to the filing of this order, a letter from plaintiffs’ counsel to the Sangamon County circuit clerk was filed. The letter stated:

“Enclosed please find a notice of appeal in Town of Normal v. Board of Regents et al. 81-CH-4. Please prepare the record in this case. I have sent Judge Friedman an order which is to be entered just before this notice in the chronology of the case.”

The circuit clerk filed the notice of appeal on March 9, 1981, prior to the March 16 filing of the final order. The notice of appeal having been filed, the case came to this court where the appeal was dismissed due to lack of jurisdiction by order entered August 7, 1981 (4th Dist., Gen. No. 17057).

On September 24, 1981, plaintiffs filed a petition to vacate the order of dismissal entered by the trial court pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). In count I of this petition, plaintiffs alleged that, through no fault or negligence on the part of the petitioners, an order of dismissal was entered by the court through an error of fact. The alleged error of fact was that the order of dismissal was signed a week after it arrived in the judge’s possession because the judge was on vacation, with the result that the order was signed and filed after the notice of appeal was on file. In count II of this petition, the same allegations are made, except that it is also alleged there was no final order of dismissal entered by the circuit court while it had jurisdiction to do so. This assertion is apparently based on the fact that the notice of appeal was already on file. Both counts contained the prayer that the court enter an order vacating and setting aside the order of dismissal and “either entering judgment for plaintiff in the original complaint or enter a new order of dismissal dated so that petitioner will be able to file a new notice of appeal * * *.”

Among other affidavits, attorney for plaintiffs filed an affidavit stating the court had indicated its intent to dismiss the complaint; affiant decided not to amend the complaint because it stated a good cause of action; he sent the draft final order, approved by opposing counsel, to the court; he sent the notice of appeal along with the previously noted letter to the clerk of the circuit court; affiant had no knowledge the judge was going to be on vacation; through no fault of his own the judge signed the .order when he returned from vacation; the notice of appeal was already on file; and affiant was not negligent in his activities.

The trial court’s order dated October 20,1981, stated that the order of March 16,1981, was erroneously entered later than could reasonably have been expected under these circumstances because Judge Friedman’s vacation was unknown to the parties, and therefore, the section 72 petition stated a valid cause of action and the March 16 order was vacated pursuant to section 72. The order then stated that plaintiffs’ original complaint in declaratory judgment was defective because the Town of Normal does not have the power to license the University.

Section 72 of the Civil Practice Act enables a party to bring before the court rendering a judgment matters of fact not appearing in the record which, if known to the court at the time judgment was entered, would have prevented its rendition. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) Defendants assert there were no unknown pertinent facts alleged in the petition since the time the notice of appeal was filed was a matter of record. There are no facts alleged relating to the dismissal, and the petition specifically invited reentry of the same order of dismissal.

We agree that where all relevant facts appear of record, and especially where reentry of the same judgment is requested, section 72 relief is not appropriate.

The plaintiffs argue that the right to appeal should not be denied to a litigant under circumstances over which the litigant had little, if any, control, and cite People v. Jacobs (1975), 61 Ill. 2d 590, 338 N.E.2d 161, People v. Aliwoli (1975), 60 Ill. 2d 579, 328 N.E.2d 555, People v. Brown (1968), 39 Ill. 2d 307, 235 N.E.2d 562 and People v. McManus (1978), 66 Ill. App. 3d 986, 384 N.E.2d 568. These cases are plainly distinguishable and are not persuasive upon the issue here.

We note initially that no case cited involves the issue of perfecting an appeal by the filing of a timely notice — an action which is essential to establishing jurisdiction on appeal under Supreme Court Rule 301 (87 Ill. 2d R. 301.)

In Jacobs, Aliwoli, and Brown, timely notices of appeal were filed. Thereafter, the appeals were dismissed by the reviewing court for failure to file briefs and abstracts, or for want of prosecution. Motions to reinstate the respective appeals were denied. The supreme court granted leave to appeal from the latter orders. No proceedings under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) were sought or considered in these cases.

In Jacobs, the supreme court exercised its supervisory power to require the vacation of the order dismissing the appeal. In Aliwoli, it was held that the refusal to reinstate the appeal was an abuse of discretion; while in Brown, the supreme court reversed the denial of the motion to reinstate the appeal and remanded with directions to allow it. In McManus, the appeal was dismissed in the circuit court under the former Supreme Court Rule 309, which authorized the circuit court to dismiss an appeal where the record was not timely filed in the reviewing court. It is in such context that there was an appeal of the dismissal of the section 72 proceeding. In McManus, the reviewing court treated the issue as whether, under the circumstances, defendant “should be allowed to pursue a late notice of appeal” (66 Ill. App. 3d 986, 988), and, in such context, the opinion stated that it would be necessary to reverse the dismissal of the section 72 proceedings, and the trial court’s dismissal of the appeal. Such action was based on the considerations found in Jacobs, Aliwoli, and Brown, and the appellate court did not approve the application of section 72.

The theme of the cited cases is that in criminal cases the courts have a pervading concern that a criminal defendant have at least one full appellate review of the conviction. In Brown, the court stated:

“For a representative system of litigation to function, it is self-evident that under most circumstances clients must be bound by the acts of their lawyers. However, it is equally self-evident that a mechanical application of this legal proposition can lead to harsh results repugnant to commonly held notions of justice and fair play. [Citation.] These results can be even harsher in a criminal case than a civil one since in the latter suit the aggrieved client has, in theory, a malpractice action against his attorney for damages, while in the former no attorney can restore his client’s lost liberty. * * *
We find the consequence of the dismissal here most significant, for while the right of appeal in a criminal case is not per se of constitutional dimension [citation], any denial of it is subject to the due-process and equal-protection guarantees of the Federal and "State constitutions. Moreover, recent decisions have implemented this right, providing that indigents are entitled to competent appointed counsel on appeal [citation], even where pleas of guilty were made below [citation], and to free transcripts of the trial record. [Citation.] These decisions reflect courts’ concern with providing that any defendant who so desires can obtain at least one full appellate review of his conviction.” (39 Ill. 2d 307, 310-11, 235 N.E.2d 562, 565.)

In view of this judicial attitude the Brown court held that in criminal cases it would not apply the general agency rule binding clients by the acts of their lawyers as it would in civil cases. The dichotomy is clearly stated. We do not believe the potential loss of power to license sales of liquor at Illinois State University is of the magnitude of the potential loss of liberty involved in criminal cases. Therefore, the agency rule will not be waived in this case, and plaintiffs are bound by the acts of their attorney.

Plaintiffs have cited and attempted to analogize to several other cases. However, each argument attempts to avoid the fact that neither the trial court nor anyone else, except plaintiffs and their attorney, had the responsibility to check and verify that notice of appeal was timely filed. Plaintiffs were not misled by anyone except their own expectations and assumptions.

It appears that counsel attempted to delegate his responsibility to file a timely notice of appeal to the office of a busy, harried circuit court clerk. The draft order was sent to the trial judge while the notice of appeal was sent to the office of the clerk with a result that effective handling of the two documents was not readily correlated. While the circuit clerk might desire to be accommodating, there was no official duty imposed by simply sending a letter such as this.

One does not find an attempt to verify that there was an acceptance of responsibility by the clerk, and it appears that counsel made no verification of the status of the appeal until the matter was brought to his attention by the rule in the reviewing court.

For the reasons stated the granting of the section 72 petition is reversed, and the initial order of dismissal reinstated. Plaintiffs’ cross-appeal addressing the dismissal of the original complaint is not timely and is, therefore, dismissed for lack of jurisdiction.

Reversed. Cross-appeal dismissed.

GREEN, P. J., and WEBBER, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILMORE TOMMY DYE, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0008
    Opinion filed June 24, 1982.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Following his convictions in the circuit court of Macon County for the offenses of home invasion and robbery, defendant, Gilmore Tommy Dye, was sentenced on July 18,1980, to serve terms of imprisonment of 30 years and 7 years respectively. On April 24, 1981, this court vacated the sentences and remanded the cause for a new sentencing hearing, by order entered pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). On remand, the circuit court, following a hearing on December 7, 1981, imposed the same sentences that it had set following the original sentencing hearing.

On appeal defendant contends the cause must be remanded for a new sentencing hearing because the presentence report relied upon by the trial court, the same report prepared in connection with the first sentencing hearing, was prepared too remotely in time to include all relevant information and the court failed to order a supplemental report.

Although the preparation and presentation of a presentence report is mandatory under section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1) where, as here the sentencing is for a felony, no cases have held that it is mandatory for a supplemental report to be prepared when a cause is remanded for resentencing. No objection was made at the resentencing hearing to the use of the presentence report or to the failure of the court to order a supplemental report.

In People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, the supreme court held that it is the duty of the parties to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. There the report failed to comment upon resources within the community which may have been available to assist defendant’s rehabilitation. The court stated that while that deficiency was error, it was not preserved for review as any objections to the sufficiency of the presentence report must first be presented to the trial court.

In People v. Chaney (1977), 48 Ill. App. 3d 775, 362 N.E.2d 1375, this court held that any objection to the timeliness of presentence reports was waived when the defendants failed to object at the trial level. There defendants contended the reports were outdated as they were prepared at least 17 months before being filed.

By analogy to these cases, we hold here that any deficiencies in the report could have been brought to the attention of the court by defendant, who, by failing to object, has waived his contention that the report was untimely or insufficient.

Accordingly, the sentence of the circuit court is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    WILLIAM E. A. RIGGINS, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF PEORIA, Defendant-Appellant.
    Third District
    No. 81-430
    Opinion filed June 7, 1982.

      Brian M. Nemenoff and David L. Thomas, both of Peoria, for appellant.
    Robert H. Jones, Ltd., of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The superintendent of police of the Peoria Police Department filed charges with the Board of Fire and Police Commissioners of the City of Peoria against William E. A. Riggins, a police officer, on March 27, 1981, accusing him of five violations of police department regulations in connection with a pyramiding scheme that was under police investigation. For a hearing thereon the applicable provision of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17) states as follows:

“The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time.”

A written notice to Riggins, dated April 2, 1981, informed him that a hearing on the charges had been set for April 23 and that he should file an answer to the charges no later than April 16. A copy of the charges accompanied the notice. On April 13 Riggins filed a request to produce a demand for a bill of particulars, both of which sought to obtain from the superintendent of police and other city officials very broad discovery, including all statements of witnesses, all reports of investigators, and all written material relating to the guilt of Riggins. On April 17 the city and the police superintendent filed a written response to these requests, stating that they were overly broad, that certain material had been made available to Riggins, and that other material might be made available, “but on a selected basis.”

Riggins’ attorney received a letter from the board which notified him “that a hearing on all pending preliminary matters will be held” before the board on April 22, 1981. This letter confirmed a previous telephone agreement between the city attorney and Riggins’ attorney arranging for Riggins and his counsel to be present.

Riggins and his attorney appeared before the board on April 22, at which time the board considered the discovery requests and the response of the city and the superintendent. The board ordered the city to produce those items which were not “work product” and to disclose names and addresses of anyone who claimed to see Riggins doing one of the acts charged. However, reports made in connection with the investigation which involved other suspects were not required to be produced. The demand for a bill of particulars was also granted.

The city attorney indicated that he would need time to respond to the discovery orders and would need until May 4. The board then ruled that the hearing would be continued and would resume on May 20, 1981. Riggins’ attorney objected to the continuance.

Throughout the entire hearing on April 22, Riggins took the position that this was not a hearing on the charges but rather was a preliminary inquiry into prehearing discovery requests. He insisted upon preserving his right to object on this basis although he did participate in the proceeding. The board stated its position that the proceeding was related to the charges against plaintiff and, therefore, constituted a hearing on the charges within the meaning of the statute.

Before the May 19 hearing, Riggins filed a complaint in the circuit court of Peoria County for an injunction, alleging that the board had lost jurisdiction of the cause because no hearing had been provided within 30 days after the charges were filed. A temporary injunction was issued, and subsequently the court ruled that the injunction should be made permanent. The board has appealed from that ruling.

The first contention of the board is that plaintiff should have been required to exhaust his administrative remedies by going forward with the hearing before the board and then seeking administrative review, rather than being permitted to seek an injunction before there was a final administrative ruling. Although the exhaustion doctrine has long been recognized in Illinois, it is not without limitation. Where an administrative agency’s power to proceed is attacked on the ground that the agency lacks jurisdiction, the courts will entertain a complaint for injunction. (Horan v. Foley (1963), 39 Ill. App. 2d 458, 188 N.E.2d 877.) We are not persuaded that the rule in Horan is incorrect, and we conclude that it is applicable here to permit the circuit court to consider the complaint for injunction.

The board next argues that the proceeding on April 22 amounted to a “hearing on the charges” within the meaning of the Illinois Municipal Code and therefore that the hearing commenced within the 30-day period as required by the statute. We have examined the record, and we find that a hearing on the charges did not begin on April 22. No discussion of the merits of the charges occurred, no arguments were made, and no witnesses were called. The proceedings most closely resembled a pretrial hearing on motions, and in fact were characterized by the board in the notice to Riggins’ attorney as a hearing on “preliminary matters.” Quite clearly, neither party sought to have the board consider the merits of the charges at the April 22 hearing. Counsel for the city indicated that he would need additional time to prepare the prehearing discovery ordered by the board. In our view the April 22 proceedings did not comply with the statutory requirement that Riggins be provided a hearing on the merits of the charges within 30 days.

However, we think it clear that the hearing was delayed beyond the 30-day period solely because Riggins submitted a request for discovery which could not be furnished within the statutory period. The board had originally set a hearing date on the charges within the 30-day period and was forced to delay the commencement of the hearing because of Riggins’ action. This court has recently held that where the delay was not attributable to the board but was occasioned by the plaintiff, the statute was not violated. (Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 424 N.E.2d 976.) We find that the same rule applies here.

The trial court relied upon Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, 403 N.E.2d 1062, where the court held that the 30-day period was a mandatory requirement the violation of which caused the board to lose jurisdiction if a hearing was not commenced within the time period. The court in Bridges also ruled that a motion for a continuance at the beginning of the hearing was not a commencement of the hearing, and that to hold otherwise “would circumvent the language of the statute.” (83 Ill. App. 3d 190, 195, 403 N.E.2d 1062, 1066.) The continuance in Bridges was clearly attributable to the city because the city attorney had forgotten to obtain a court reporter. Hence, Bridges involved a different situation than the case at bar.

Furthermore, we think it important that Riggins and others in his position not be permitted to defeat the legislative intent by delaying tactics and thereby evade charges of misconduct by causing the board to lose jurisdiction 30 days after the charges are filed. Riggins is, of course, entitled to “a timely hearing and a speedy adjudication of disciplinary charges” (McReynolds v. Civil Service Com. (1974), 18 Ill. App. 3d 1062, 1065, 311 N.E.2d 308, 310), and the 30-day period was established for that purpose. It thus resembles the 120-day rule in criminal cases, which entitles a defendant to a trial within 120 days of his arrest and confinement unless trial is delayed for a cause attributable to him. A discovery motion that necessitates postponement of trial has been held to be a delay attributable to the defendant. (People v. Spicuzza (1974), 57 Ill. 2d 152, 311 N.E.2d 112.) We believe fairness and logic require the same rule to be applied to the proceeding in this case.

We accordingly reverse the judgment of the circuit court of Peoria County and remand this cause for further proceedings.

Reversed and remanded.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE HEIPLE

text:
    GLEN JOHNSON, Plaintiff-Appellant, v. BURLINGTON NORTHERN, INC., et al., Defendants-Appellees.
    Third District
    No. 81-531
    Opinion filed June 10, 1982.

      Peter F. Ferracuti & Associates and John F. Vickers, of Brusatte & Vickers, both of Ottawa, for appellant.
    Donald Flayton, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Safeway Store, Inc.
    Michael T. Reagan, of Herbolsheimer, Lannon, Henson & Duncan, of La Salle, for appellee ACF Industries, Inc.
    Kenneth J. Wysoglad, John Newell, and Michael L. Sazdanoff, all of Chicago, for appellee Burlington Northern, Inc.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Glen Johnson, seeks to recover money damages from Burlington Northern, Inc. (“Burlington”), Safeway Store, Inc. (“Safeway”), and ACF Industries, Inc. (“ACF”). Plaintiff’s damages stem from personal injuries suffered on March 31, 1977, in an industrial accident at the Wedron Silica Company (“Silica”) in Wedron, Illinois. Plaintiff’s amended complaint contained nine counts. Count I, a negligence claim against Burlington, concerned a bent sill step on railroad car ACFX 61300. Counts V and VIII, against Burlington, were based on respective theories of strict liability, and res ipsa loquitur. As to Safeway, counts III, VI, and IX alleged causes of action based on negligence, strict liability, and res ipsa. Counts IV, VII, and X, against ACF, were identical to those theories of recovery pleaded against Safeway. The La Salle County Circuit Court dismissed count VI, since it concluded it did not state a cause of action. Summary judgment for the other defendants was entered on the balance of the amended complaint. Mr. Johnson unsuccessfully tried to set aside these orders. Now, he appeals. The facts follow.

Silica manufactures sand and silica. To deliver a portion of its products it uses railroad carriers. Railroad cars and their contents are weighed on Silica’s scale which is built into the tracks located at its Wedron manufacturing site. These cars are delivered to Silica’s facility empty, then loaded. Once delivered to Silica, the cars are moved within the Wedron complex in a number of ways. Burlington stationed a yard engine(s) on location, which one of its employees operated at Silica’s direction. At times, the cars might be moved by “* * * car pulls * * *," which utilized cables and hooks, and a winching device to pull the cars on the tracks from point to point. On other occasions jacking devices or a tractor with a front-end loader were employed to push the cars. Once weighed on the scale track, a Silica employee would release the railroad car’s braking mechanism, permitting the car to roll down an incline. The car would be spotted farther down the track line. As part of their normal duties, a scale track laborer would ride the free-rolling car and apply the vehicle’s brake to stop the car at the desired location. This procedure prevented the free-wheeling car from crashing into a car previously spotted on the track line.

On March 31, 1977, Mr. Johnson was working as a scale track laborer for Silica. A certain railroad car, ACFX 61300, was sitting on the track scale having just been weighed. The car had been loaded with sand prior to March 31. Richard Sorenson released the car’s brake so it could roll down the incline off the track scale. The car was moving slowly. As it did, plaintiff attempted to climb aboard. All hopper-type railroad cars like ACFX 61300 have a metal step on their corners to facilitate a workman’s ascent. In some unexplained method, plaintiff was unable to negotiate the step. As a result, his foot was crushed under the car’s wheel. Eventually, it was amputated above the ankle. Photographs of ACFX 61300, taken after the accident, show the sill step upon which Mr. Johnson sought to climb was bent and misshapen.

The pretrial discovery in this cause is voluminous and telling. ACF owned ACFX 61300. Safeway leased it from ACF to haul sand from Wedron to one of its out-of-state plants. Burlington was the carrier. From May 1975 to May 1976, ACFX 61300 was in ACF’s Missouri repair shop. Its sill step guards were repaired. Its sill steps were not. The car was inspected when it left the shop and reinspected on May 24, 1976, before being put back into Burlington’s interchange. The sill steps were not bent or otherwise misshapen. Later, Safeway leased the car. On March 22, 1977, the car was in Burlington’s Galesburg yard. It was inspected by Albert Townsley and D. H. Josephson. These men were railroad car inspectors and Burlington employees. Both said their inspection of ACFX 61300 revealed the car was not in need of repair and its sill steps were not bent at that time. During their discovery depositions both men were shown photographs of ACFX 61300 and the condition of the sill step immediately after plaintiff’s accident. They noted the step’s irregularity and stated if their individual inspections had revealed such a condition, the car would have been removed from the Burlington’s interchange and repairs ordered. Both inspectors said the car’s step could have been bent by the use of cables and hooks to pull the car, or a forklift type apparatus to push it. Finally, Floyd Webster, a retired Burlington employee, stated in his deposition that prior to his retirement in March 1979, he had witnessed Silica employees on various occasions pulling railroad cars with cable hooks attached to a car’s sill steps. Burlington delivered ACFX 61300 to Wedron prior to March 31,1977, the date of the accident. The car was at the Silica site on the day previous to the accident and possibly two days earlier.

The issues in this cause are whether the trial judge erred when he dismissed count VI of plaintiff’s amended complaint and granted summary judgment on the remaining counts of the amended complaint. We affirm.

In sum, count VI says Safeway, being in the business of leasing railroad cars, leased ACFX 61300, and thereafter placed such car into the marketplace with a defective sill step or ladder rung. Allegedly, this condition was the proximate cause of plaintiff’s injuries. Safeway moved to strike and dismiss count VI, contending as a lessee, it was not liable strictly in tort. The trial court agreed in an order dated October 24,1980. On January 24, 1981, that dismissal order was certified for immediate appeal. (73 Ill. 2d R. 304(a).) Mr. Johnson filed his appeal on September 4, 1981.

Although we question the timeliness of plaintiff’s appeal, disagreement on the topic need not delay us. (Compare Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1013, with Flynn v. Mahin (1971), 1 Ill. App. 3d 51, 55-56.) Safeway was a lessee of ACFX 61300. It was a user of that car and other cars for business purposes, and was not in the business of manufacturing, selling, or distributing such cars in the marketplace. Safeway was not engaged in the manufacture or marketing of a product to benefit those individuals to whom the injury from the product’s defective condition might reasonably be foreseen. (Court v. Grzelinski (1978), 72 Ill. 2d 141, 145-56.) Safeway cannot be strictly liable in tort for plaintiff’s injuries. Count VI was correctly dismissed.

Next, we address the strict liability counts lodged against Burlington and ACF. Each count said the sill step was defective at the time ACFX 61300 left each^ defendant’s control or before the car was transported to Silica on Safeway’s behalf.

In order to prevail on these two strict liability counts, Mr. Johnson had to establish his injury resulted from a condition of the sill step, such condition was unreasonably dangerous, and that condition existed on the product at the time it left a defendant’s control. (Restatement (Second) of Torts sec. 402A (1965), cited in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 621.) In order to support his allegations, plaintiff had to produce sufficient underlying factual details to support each separate element of his cause of action. Direct or circumstantial evidence might suffice. Mr. Johnson relied on the latter, exclusively. Plaintiff provided no expert testimony by deposition or otherwise that the sill step was defective. His circumstantial proof, namely, the existence of the bent step after the accident occurred, did not make out a prima facie case as to why the sill step was bent or misshapen. Such evidence must justify the probability of those events which generate each element of plaintiff’s cause of action. It did not. The record in its present state admits that it was more probable that ACFX 61300 was moved by Silica employees either by car-pulls or the front-end loader. Either of these methods of transportation would have caused the sill step on ACFX 61300 to become bent or crooked. Plaintiff’s theory as to what occurred is guesswork: it is unsupported by fact, nor does it contravene defendant’s theory thereby creating a material issue of fact for a jury to consider and weigh. Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 931-33.

This does not mean plaintiff must prove his case at the summary judgment stage. He must present facts to support the various elements of his claim. The discovery filed in this case manifests plaintiff’s failure in this regard. The crux of the strict liability counts against ACF and Burlington was the existence of a defect in the sill step when it left their control. But the record does not contain evidence the sill step was defective. Because it was bent does not make it so. A fact is not established from circumstantial evidence unless the circumstances or events are so related to each other so as to make the conclusion the only probable, not possible, one which can be drawn from them. (See Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 510.) Plaintiff did not produce any facts whereby it was shown the step’s condition constituted a defect.

Also, the record lacks any details showing that the bent step was defective when it left the control of any of the defendants. Again, plaintiff asks us to infer that it must have been since it was bent immediately after the accident. Such is not an inference in any sense of the word. It is a hunch. The depositions of Young, Townsley, and Webster indicate that ACFX 61300 had been inspected as late as March 22, 1977, nine days before the accident, and no defects were found in the sill steps or any other part of the car. Mr. Webster stated that he had frequently seen Silica employees pull railroad cars with cable hooks and winches, or push the cars with a tractor, at the Silica facility. The record is barren of any facts which establish that Burlington or ACF damaged, knew of, or are chargeable with, knowledge of any damage to ACFX 61300 prior to the accident. Thus, plaintiff could not prevail on either strict liability count against Burlington or ACF.

The same is true pertaining to the three res ipsa counts against the defendants. Res ipsa loquitur is comprised of three elements: (1) the event must be one which ordinarily does not occur in the absence of someone’s negligence; (2) the event must result from an agency or instrumentality within the exclusive control of the defendant; and (3) plaintiff must be free from contributory negligence. (Spidle v. Steward (1980), 79 Ill. 2d 1, 5.) It is plaintiff’s burden to adduce adequate facts to obtain the inference of negligence res ipsa affords.

Plaintiff presented insufficient details to show that Burlington, ACF, or Safeway had exclusive control over ACFX 61300. The fact the sill step was bent on the day of the accident does not mean the step’s condition is attributable to any of the defendants. Nor does it provide them with notice of that condition. The facts of record make this plain. On March 22, 1977, the car was found to be without defects by Burlington employees. Subsequently, Burlington transported the car to Wedron on its line. The car sat in Silica’s facility the day before the accident and possibly for two additional days prior thereto. When Burlington moved ACFX 61300, it did so with its locomotive engines. The only facts indicating how the sill step was bent points to the method of transportation sometimes employed by Silica employees: namely, pulling the cars by the sill steps with cable hooks or pushing them with a front-end loader. Plaintiff elicited no data during discovery showing how, when, or where the steps were damaged. As to ACF, the unrebutted facts are the car left its control in good repair. Finally, plaintiff showed no facts indicating Safeway had knowledge or should be chargeable with knowledge of the steps’ condition, e 6 The intervening control of Silica destroys the inference of negligence which res ipsa permits. We cannot agree with plaintiff that Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 132-33, affd (1970), 46 Ill. 2d 288, requires a different result. Our reasons are twofold.

In Moore, plaintiff sued a manufacturer for injuries suffered when a can of Drano exploded after the product was out of the producer’s control in excess of 10 months. The can had not been opened or altered in any way since being shipped by the producer. Accordingly, it was held the manufacturer had exclusive control over the product when the can exploded. In other words, no facts existed to associate liability with another person in the manufacture and marketing of the product.

The facts of record in this cause are otherwise. First, Silica had the opportunity as well as several instrumentalities to cause the sill step to become bent. Silica employees had engaged on prior occasions in moving railroad cars in such a manner so as to cause the purportedly defective condition of the sill step. Plaintiff’s facts do not in any way eliminate these outward causes of the event which allegedly caused plaintiff’s injuries. Furthermore, plaintiff stated in his deposition that prior to ascending ACFX 61300, he did not look at the sill step and he did not know what caused him to fall. He said the step was secure and he saw no grease or oil on it. The inference of negligence is not based on the possibility that an event caused the harm if the facts indicate otherwise. Probability, not speculation, is the standard (Spidle v. Steward) if the inference is to be permitted. We affirm the summary judgments on these counts.

On the three separate negligence counts, the trial judge concluded plaintiff failed to present facts to support the elements of such claims. We agree.

For a defendant to be liable for negligence, he must have a duty towards plaintiff, he must breach that duty, and the breach must have been the proximate cause of the injury thereby damaging plaintiff. (Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 1030.) Plaintiff has the burden of proof on each and every element.

Plaintiff elicited no facts that Safeway or ACF caused the condition of the sill step, were aware of such, or should have been aware of such condition prior to the accident. After three years of discovery, plaintiff could not plead facts that Safeway knew of the step’s condition. As to ACF, plaintiff could only submit that repairs had been made to the sill step guards in 1975-1976. Plaintiff did not plead any facts to show ACF made repairs to ACFX 61300’s sill steps or knew or should have known such steps were bent prior to the accident. Because the sill step was bent immediately after the accident is not a sufficient reason to charge Safeway or ACF with notice of the steps’ condition. The existence of a fact cannot be reasonably inferred from the evidence when the existence of another fact, which is inconsistent with the first, can be inferred with equal certainty from identical proof. Thus, we see no facts indicating ACF or Safeway breached a duty owed to plaintiff. The record does not say ACF or Safeway knew or should have known of the step’s condition, nor does it allow us to draw an inference they did. The record does not say ACF or Safeway caused the bent sill step, nor does it allow us to draw an inference they did. Thus, no genuine issue of material fact existed to be litigated.

The same is true as to the negligence claim against Burlington. No facts exist that Burlington caused the sill step condition, delivered ACFX 61300 to Silica in that condition, or was aware of, or had a previous awareness of that condition in ACFX 61300. Plaintiff has the burden of eliciting sufficient facts, circumstantial or otherwise, wherein extrinsic causes of the accident were excluded. This does not mean plaintiff had to refute all other possible causes of the accident. It does mean that a quantum of details had to exist which would give rise to a reasonable inference that what plaintiff claims as fact was true. Although plaintiff had a substantial opportunity to present facts to sustain his negligence action, he failed to do so. (See Shramek v. General Motors Corp. (1966), 69 Ill. App. 2d 72, 77-78.) If less were required, liability would be based on nothing more than guesswork. Such is impermissible.

Plaintiff’s amended complaint does not specifically set out a cause of action against Burlington Northern under the Federal Safety Appliance Act. Under that statute, it is unlawful:

"* * * for any common carrier * * * to haul or permit to be hauled or used on its line any car * * * not equipped with appliances provided for * * * to wit; All cars must be equipped with secure sill steps and efficient handbrakes * * *." (45 U.S.C.A. sec. 11 (1976).)

Instead, plaintiff relied solely on theories of negligence, strict liability, in tort, and res ipsa. The Federal statute was only pleaded as one of several instances of Burlington’s negligence (i.e., violation of a statute: see Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390). Therefore, the trial judge was not given an opportunity to rule on whether plaintiff pleaded a cause of action under the Federal statute.

Notwithstanding, on appeal plaintiff asserts he has a cause of action under Federal law which imposes absolute liability on Burlington for noncompliance with the Federal statute. Plaintiff cites various Federal cases (e.g., Monongahela Ry. Co. v. Black (4th Cir. 1956), 235 F.2d 406; Hunter v. Missouri-Kansas-Texas R.R. Co. (N.D., Okla. 1967), 276 F. Supp. 936), where a cause of action has been acknowledged based on a liberal construction of the statute as well as the notice pleading rules of the Federal courts. Since we are confronted with a legal issue, namely, the sufficiency of a complaint, plaintiff says, we should reverse the summary judgment for Burlington, and allow plaintiff to amend his pleadings so he can plead a cause of action directly under the Federal statute. We cannot do this.

It is well settled that parties to an appeal must adhere to the theory which they presented to the trial court. In other words, the theory upon which the case was submitted to the trial court should be treated as the law of the case on appeal. (Blanchard v. Lewis (1953), 414 Ill. 515, 521.) The theories upon which plaintiff sought recovery against Burlington did not include a cause of action under the Federal statute. Res ipsa, strict liability in tort, and negligence were the only causes of action outlined in plaintiff’s amended pleadings. Nor did plaintiff, at any time in the trial court, argue the Federal statute as an independent basis of recovery. On several occasions in the trial court, Mr. Johnson availed himself of the opportunity to amend his pleadings. Not once did he do so to allege a cause of action under the Federal statute. Because the theory was not presented to the trial court, it was waived for the purposes of this appeal. In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 548-49.

For the reasons stated, the judgments of the La Salle County Circuit Court are hereby affirmed.

Affirmed.

BARRY, P. J., and ALLOY, J., concur.


author: JUSTICE STOUDER

text:
    WILLIAM GALINDO, JR., Plaintiff-Appellant, v. RIDDELL, INC., Defendant-Appellee.
    Third District
    No. 81-366
    Opinion filed June 17, 1982.
    Rehearing denied July 23,1982.

      Robert G. Day and Robert G. Day, Jr., both of Peoria, for appellant.
    Richard E. Quinn and James R. Morrison, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This suit was brought by plaintiff, William Galindo, Jr., against defendant, Riddell, Inc., in order to recover damages for personal injuries sustained by the plaintiff during a football game while wearing a football helmet manufactured by the defendant. The jury returned a verdict for the defendant, and the Peoria County Circuit Court entered judgment accordingly.

On October 11, 1974, the plaintiff was injured while attempting to make a tackle in a varsity high school football game in Chillicothe, Illinois. The plaintiff’s injury consisted of a fracture dislocation of his cervical vertebrae at the level of the fifth and sixth cervical vertebrae. As a result of this injury, the plaintiff was paralyzed from the neck down and was rendered a quadriplegic.

At the time of his injury, the plaintiff was-wearing a Riddell suspension helmet, referred to as a TK2 model helmet. The helmet consisted of a plastic shell on the outside and a grey rubber pad and a suspension system made of cloth straps on the inside. It was held on the plaintiff’s head by a chin strap which fastened to each side of the helmet. The helmet had a face mask attached to it of the type commonly used by players who wear eye glasses.

The plaintiff initially filed suit against Riddell, Inc., the manufacturer of the helmet, Illinois Valley Central Unit School District 321 and Bailey & Himes, Inc., the retail seller of the helmet. Later, Century Sports, Inc., a football helmet reconditioning company, and Island Plastics, Inc., a manufacturer of football helmet shells, were added as party defendants. Illinois Valley Central Unit School District 321 was dismissed from the suit by the plaintiff before the case went to trial and Century Sports, Inc., Island Plastics, Inc., and Bailey & Himes, Inc., were dismissed from the suit by the plaintiff during the course of the trial.

The plaintiff’s complaint against Riddell consisted of the following five, counts: Count II, a strict product liability count; count III, a negligence count; count V, a wilful and wanton negligence count; count VII, a breach of warranty count; and count XVII, a strict product liability count seeking punitive damages based upon the defendant’s alleged knowledge of the unreasonably dangerous condition of its helmet. Prior to trial, the plaintiff dismissed the two negligence counts against the defendant.

Counts II and XVII alleged that the helmet worn by the plaintiff which was manufactured by Riddell, Inc., was unreasonably dangerous for one or more of the following reasons:

1. The suspension system of the helmet was not adequate to attenuate the impact to the wearer;
2. The padding of the helmet was not adequate to attenuate the impact to the wearer;
3. The face guard of the helmet acted as a lever, so as to cause the head and neck of the wearer to be snapped back when the face guard came in contact with an external force;
4. The face guard of the helmet had no shock absorption capacity and transmitted the force of a blow to the head and neck of the wearer;
5. The rear edge of the helmet was too low on the neck of the wearer;
6. The rear edge of the helmet was not padded; and
7. There was no adequate warning given by the defendant to the users of the product, including the plaintiff, of its potentially dangerous nature.

In addition, count XVII alleged that the defendant knew the helmet was unreasonably dangerous prior to the time of the plaintiff’s injury.

At the conclusion of the trial, the jury returned a verdict for the defendant. The plaintiff filed a post-trial motion requesting a new trial based on certain errors which the plaintiff claimed were committed during the course of trial. This motion was denied.

The issues which the plaintiff has presented for our review are whether the trial court erred in: (1) refusing to admit into evidence the defendant’s catalogs which contained alternative helmet designs to that of the helmet worn by the plaintiff; (2) allowing the defendant to present expert testimony of experiments performed regarding helmet-related football injuries while refusing to allow the plaintiff to present evidence which would refute such testimony; (3) allowing defense witness Dr. Joseph Torg to testify to conclusions drawn from the results of a survey of football neck injuries; (4) allowing defense witness Tom Mack to testify as an expert regarding helmet-related football injuries and his own helmet preference; (5) refusing to admit into evidence Riddell engineering reports numbers 1155, 1024 and 1105; (6) refusing to allow the plaintiff to present evidence that the Riddell TK2 helmet had failed the American Standards Institute Z90.1 impact test; (7) refusing to admit into evidence an article entitled “Serious and Fatal Football Injuries Involving the Head and Spinal Cord” and Riddell report number 1076 on the issue of notice to the defendant of the unreasonably dangerous condition of its helmets; (8) allowing the plaintiff’s treating physicians to testify as to the plaintiff’s injuries over the plaintiff’s objection that such information was privileged; (9) refusing to allow the plaintiff to question Riddell’s chief engineer about the warning label which Riddell presently places in all helmets which it sells; and (10) allowing the defendants to introduce into evidence other manufacturers’ helmets to show the state of the manufacturing art.

During the course of the trial, the plaintiff attempted to introduce into evidence the defendant’s product catalogs for the years 1968 through 1973 in an effort to show that Riddell was designing alternatives to the helmet worn by the plaintiff. The defendant objected to the introduction of the entire catalogs for those years on the grounds of relevancy, and the trial court sustained that objection, indicating that only the relevant portions of the catalogs should be offered for admission into evidence. The court did allow the admission of one page in the 1968 catalog and a second page in the 1969 catalog. The plaintiff did not offer any additional pages for admission.

The plaintiff argues it was error for the trial court to refuse to admit into evidence the defendant’s catalogs. We fail to see any error in that respect. Upon review of the record, it is apparent the Riddell catalogs contained a substantial amount of information which had nothing to do with alternative helmet designs. Therefore, it was well within the court’s discretion to refuse admission of the catalogs in their entirety and to limit their use to relevant portions thereof. Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.

In addition, the plaintiff did not offer into evidence any specific pages outside of the two pages previously mentioned. Because the plaintiff did not offer any other relevant pages for admission into evidence, he cannot now claim error.

The plaintiff was not allowed to introduce into evidence two sets of X rays taken of him at his doctor’s- office while wearing two different suspension helmets of the same basic type he was wearing at the time of his injury. One of the plaintiff’s contentions was that the rim of his helmet was cut too low across the back of his neck and as a result would come into contact with his neck in the area of the fifth and sixth vertebrae when his head and neck were forced into a hyperextended position.

Each set of X rays contained one X ray with the plaintiff’s head in a normal, forward looking position and one or more X rays with the plaintiff’s head tilted backward in a hyperextended position. The court sustained the defendant’s objections to the admission of these X rays on the grounds that they were posed pictures and therefore inadmissible and that the plaintiff’s physical condition at the time the X rays had been taken was substantially different from his condition at the time he was injured.

. The court did allow the defendant to present expert testimony which included the results of experiments performed utilizing dummies, cadavers and X-rayed individuals wearing football helmets in order to establish the impossibility of the TK2 helmet striking the cervical spine when the head and neck were hyperextended. The plaintiff had objected to this expert testimony because the defendant had not first established that there was a substantial similarity between the conditions of the experiments and the conditions existing at the time of the plaintiff’s injury.

On rebuttal, the plaintiff attempted to show that it was possible for the rear rim of a TK2 helmet to hit the cervical spine area when the head and neck were hyperextended by placing a TK2 helmet on John Galindo, the plaintiff’s brother, and pushing upward on the helmet’s face mask as Galindo extended his head and neck backward. The defendant objected on the basis of the physical differences between the plaintiff and his brother. The court ruled it would allow the proposed demonstration but only on the condition that no one be allowed to move the face mask or the helmet on John Galindo’s head in an upward direction. The court stated that this demonstration could not duplicate the plaintiff’s accident and therefore could confuse the jury. The plaintiff then withdrew his offer of this proposed demonstration.

In general, experiments are incompetent as evidence unless the essential conditions of the experiment are shown to be the same as those existing at the time of the accident. (Ryan v. Rlakey (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604; Smith v. Ford (1976), 43 Ill. App. 3d 407, 356 N.E.2d 1306.) However, when an experiment is not represented to be a reenactment of the accident and it deals with one aspect or principle directly related to the cause or result of the occurrence, the exact conditions of the accident need not be duplicated. Skalon v. Manning, Maxwell & Moore, Inc. (1970), 127 Ill. App. 2d 145, 262 N.E.2d 146; Johnson v. Chicago b North Western Ry. Co. (1956), 9 Ill.App. 2d 340, 348, 132 N.E.2d 678.

It appears that all evidence of experimentation offered by both the defendant and the plaintiff was similar in nature and purpose. The intent was to prove either that the rear rim of the TK2 helmet could have come in contact with the plaintiff’s cervical spine when his head and neck were in a hyperextended position or that the rear rim of plaintiff’s helmet could not have done so. None of the experiments were intended to be a recreation of the plaintiff’s accident. They merely attempted to test the probability of one particular theory of causation.

Therefore, the court properly admitted into evidence the expert testimony of the defendant describing experiments of helmet-related injuries; however, the court erred in not allowing the plaintiff to present his X-ray experimentation and rebuttal demonstration, evidence which was essentially of the same nature as the defendant’s expert testimony. This error was especially prejudicial to the plaintiff because of the allowance of the defendant’s expert testimony in its entirety and without limitation. The defendant having persuaded the court to admit its expert testimony on this basis is not in the position to object to similar testimony on the part of the plaintiff. Watson Orchards, Inc. v. New York, Chicago & St. Louis R.R. Co. (1931), 263 Ill. App. 397.

Dr. Joseph Torg, a medical doctor, testified as an expert witness for the defense. His testimony included the results of a survey he conducted on football head and neck injuries in which information was solicited from various high school officials and athletic trainers throughout the country. Dr. Torg concluded from the survey results that football helmet design features were not a contributing cause of neck injuries. The plaintiff objected to Dr. Torg’s testimony on the grounds that it was based on hearsay, that no proper foundation had been laid regarding the methods of the survey, and that it was irrelevant to the plaintiff’s injury as to how other football neck injuries had occurred.

We agree with the plaintiff that Dr. Torg’s testimony was inadmissible. In the first instance, Dr. Torg’s conclusions were clearly based on hearsay statements. Statements made by out-of-court declarants as in a poll or survey in order to prove the truth of the matter asserted are hearsay and therefore inadmissible unless found to be an exception to the hearsay rule. United States v. An Article of Drug (5th Cir. 1969), 415 F.2d 390.

One exception to the hearsay rule in this respect could be based upon the survey’s inherent reliability because the methods utilized are generally accepted in the scientific community to produce statistically accurate results. (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.) In the case at hand, the defendant laid no foundation whereby the court could conclude that a scientifically accurate method of survey was utilized by Dr. Torg. His method, that of sending out questionnaires to high school administrators and athletic trainers and thereafter relying on their responses without any knowledge as to who provided the information, is inherently unreliable. Therefore, the trial court erred in allowing such testimony to be introduced into evidence.

Thomas Mack, a former professional football player for the Los Angeles Rams, testified as an expert witness for the defendant. His qualifications included a 20-year football career and a bachelor’s degree in mechanical engineering. It was his opinion that the rear rim of the football helmet does not cause cervical spine injury.

While it is true that the court has broad discretion in determining whether or not a witness has been qualified as an expert (People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795; Northern Illinois Gas Co. v. Wienrank (1965), 66 Ill. App. 2d 60,213 N.E.2d 411), the trial court in this instance has abused its discretion. In order to qualify as an expert, it must be shown that the proposed expert possesses special skills beyond the ken of the average juror and that he employed those skills in forming an opinion. (Deaver v. Hickox (1967), 81 Ill. App. 2d 79, 224 N.E.2d 468.) Mr. Mack’s qualifications did not enable him to form an opinion as to the mechanism of the plaintiff’s injury. It was never established that being a professional football player or being a mechanical engineer gave him the expertise to analyze the cause of a football injury, and no testimony was given to indicate that he ever utilized engineering skills to determine the causation factors of football injuries.

Mr. Mack’s testimony was more in the nature of a testimonial. He simply preferred wearing the Riddell TK2 helmet during his career. In addition, because of Mr. Mack’s national prominence and reputation, this type of testimonial was especially damaging to the plaintiff’s case. Therefore, his opinion as to the impossibility of cervical spine injury from a low-cut helmet and his expressions of confidence in the TK2 helmet were inadmissible as expert testimony.

The trial court refused to admit into evidence Riddell engineering reports numbers 1155, 1024 and 1105. These reports dealt with comparison studies and impact performance tests of various Riddell helmet designs.

Although some confusion exists in the record, apparently the trial court felt that pertinent portions of reports numbers 1155 and 1024 had been read to the jury by the defendant’s chief engineer and therefore their admission into evidence was not required. In addition, the trial court felt that the jury would become confused because of the technical nature of these reports.

Upon review of the record, we found that only one sentence was read to the jury from report number 1155, a recommendation of the need for more padding in the TK2 helmet, and that no part of report number 1024 was read to the jury. The defendant apparently did not have any strong objections to the jury becoming aware of the information contained in these reports having claimed at the time they were offered that the pertinent portions of the reports had already been read to the jury. Because these reports contained test results and lengthy discussions which could have been quite helpful to the jury in their determination of liability, it was error not to admit them into evidence.

Report number 1105 was not considered admissible by the court for the reason that the TK2 helmet was not specifically covered therein, therefore rendering the report irrelevant. The plaintiff contended that the report was relevant because the helmet tested was merely the TK2 helmet with aero cells inserted, a more effective design which fell short of the impact standards established by the defendant. It is our opinion that report number 1105 was relevant in that it tended to show the TK2 helmet had serious impact resistance problems. The trial court, therefore, erred in not allowing this report to be admitted into evidence.

The plaintiff attempted to present evidence during the course of trial that the TK2 helmet had failed the American National Standards Institute Z90.1 impact test. ANSI is an organization which develops manufacturing standards for various products. The ANSI committee designated as the Z90.1 Committee was responsible for developing standards for protective headgear for vehicular uses. The court refused to admit evidence of the Z90.1 test for the reason that the test was irrelevant.

A party must lay a proper foundation in order to introduce evidence relating to industry standards or codes. (Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 368 N.E.2d 1299.) The court was not shown how or why the Z90.1 test standards could be applied outside of the field of vehicular headgear. Not having laid the proper foundation, it was within the court’s discretion to find the test irrelevant in proving defects in the TK2 football helmet.

In 1961, Dr. Richard D. Schneider, a neurosurgeon from the University of Michigan Medical School, wrote an article entitled, “Serious and Fatal Football Injuries Involving the Head and'Spinal Cord,” appearing in the Journal of the American Medical Association. In that article Dr. Schneider related his studies of serious head and neck football injuries and made suggestions for changes in football helmet construction in order to prevent such injuries.

The plaintiff offered Dr. Schneider’s article for admission into evidence to prove the defendant had been placed on notice prior to the plaintiff’s injury of the unreasonably dangerous condition of the TK2 helmet. The trial court sustained the defendant’s objection to the admission of this article on the grounds that it constituted hearsay.

Riddell report number 1076 was also offered by the plaintiff for the purpose of showing the defendant had notice of the TK2 helmet’s unreasonably dangerous nature. The report indicated that serious injuries to the neck and spinal cord could be caused by the back rim of a football helmet pushing against the wearer’s neck by hyperextension of the head as a result of a force being applied to the face mask. The defendant objected to the admission of the report on the grounds of relevancy, and the trial court sustained that objection.

The defendant has abandoned its arguments of hearsay and relevancy to support the trial court’s refusal to admit Dr. Schneider’s article and report number 1076, now claiming that those exhibits were properly excluded as cumulative evidence on points already conceded at trial. Such contentions are not proper grounds to sustain the refusal to admit the article and report number 1076. In count XVII of the plaintiff’s complaint, punitive damages were sought, based on the defendant’s alleged knowledge of the unreasonably dangerous condition of the TK2 helmet. Both Dr. Schneider’s article and Riddell report number 1076 were relevant in proving that point. A concession by the defendant that the article and report do exist and have been read by defendant personnel did not provide the jury with the detail of that material, and certainly such detail was not cumulative of any previous testimony related to Dr. Schneider’s theories and the content of Riddell report number 1076. Therefore, the refusal to admit Dr. Schneider’s article and report number 1076 was error.

Dr. Henderson and Dr. Elwood, two of the plaintiff’s treating physicians, were allowed to testify as to the nature and cause of the plaintiff’s injuries over the objection of the plaintiff that such information was privileged. Section 5.1 of “An Act in regard to evidence and depositions” (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) states that no surgeon or physician is permitted to disclose information obtained while attending a patient in a professional capacity. Several exceptions are listed in the statute, one of which is the exception for civil suits where the patient’s physical or mental condition is at issue.

This exception applies to the case at hand. Clearly, the plaintiff’s physical condition was at issue and the defendant should have been allowed to question the plaintiff’s treating physicians without any privilege limitation. The trial court, therefore, properly allowed the testimony of those treating physicians.

The trial court disallowed the plaintiff’s questioning of the defendant’s chief engineer about a warning label the defendant had begun to place inside its helmets in January of 1980. The plaintiff’s claim was that the defendant’s TK2 helmet was unsafe because it did not contain a similar warning label. This warning label cautioned players not to butt or spear opposing players with the helmet because such activity could cause severe injuries to the head or neck.

It is our opinion that due to the extended interval of time between the plaintiff’s accident and the use of the warning label, such evidence was not relevant to the issue of helmet safety. The actual placement of the label in the defendant’s helmets was more than five years after the plaintiff’s injury. The trial court, therefore, did not err in disallowing questions concerning the warning label.

At trial the defendant presented evidence in order to demonstrate that its helmet was designed and manufactured in the same manner as nearly all other helmet manufacturers at the time. The plaintiff objected to the admission of this testimony on grounds of relevancy. This objection was overruled. The plaintiff had introduced evidence of one other helmet manufacturer who used a different design than that of the defendant.

Count XVII of the plaintiff’s complaint requested punitive damages based upon the defendant’s alleged knowledge of the dangerous condition of its helmets and its subsequent failure to warn the plaintiff of that danger. When knowledge of a product’s defective condition is an element of liability, both parties should be allowed to present evidence either establishing or refuting the existence of such knowledge. The plaintiff was allowed to present evidence to prove that the defendant was on notice of the dangerous condition of its helmets. The defendant should have been allowed to rebut such evidence by showing that it could not possibly have been aware of any defect in its helmets when the vast majority of other helmet manufacturers constructed their helmets by the same methods. Therefore, it was not error to allow the defendant to present such evidence on the state of the manufacturing art of football helmets.

Because of the prejudicial effect of the errors enumerated above, it is our opinion that an unfair advantage was afforded the defendant at trial. This case is, therefore, reversed and remanded to the circuit court of Peoria County for a new trial consistent with the opinions expressed herein.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.