{ "id": 3084746, "name": "ROSCOE MINOR, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant", "name_abbreviation": "Minor v. City of Chicago", "decision_date": "1981-11-16", "docket_number": "No. 80-2228", "first_page": "823", "last_page": "826", "citations": [ { "type": "official", "cite": "101 Ill. App. 3d 823" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "223 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 2d 337", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2568824, 2568640 ], "weight": 2, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0337-02", "/ill-app-2d/78/0337-01" ] }, { "cite": "389 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 987", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5580260 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0987-01" ] }, { "cite": "280 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2910638 ], "weight": 2, "pin_cites": [ { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0123-01" ] }, { "cite": "248 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "109 Ill. App. 2d 6", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1594801 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-2d/109/0006-01" ] }, { "cite": "371 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3407139 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0884-01" ] }, { "cite": "395 N.E.2d 563", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489484 ], "weight": 2, "pin_cites": [ { "page": "202-03" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0193-01" ] }, { "cite": "363 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "66 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464094 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0585-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] } ], "analysis": { "cardinality": 538, "char_count": 8986, "ocr_confidence": 0.909, "pagerank": { "raw": 1.958098349071078e-07, "percentile": 0.7376515001453753 }, "sha256": "2fee69078afde7e0b4342bbe37f5d02176e339b8a6f9f834e5e6bb3d187d8fc1", "simhash": "1:28a9594c785dcde6", "word_count": 1496 }, "last_updated": "2023-07-14T15:21:39.102418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROSCOE MINOR, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff Roscoe Minor filed a negligence action against defendant City of Chicago to recover damages for personal injuries allegedly sustained as a result of an incident occurring on a public sidewalk in Chicago. An amended complaint was filed on June 5, 1980. After a jury trial, a verdict in the amount of $35,000 was returned in favor of plaintiff. Defendant raises two issues on appeal: the trial court erred (1) in not allowing defendant to impeach plaintiff\u2019s credibility with prior convictions for theft, and (2) in not allowing into evidence as a past recollection recorded a hospital record made by a physician-witness.\nPlaintiff alleged that defendant negligently maintained a sidewalk section in his neighborhood. Plaintiff was the sole occurrence witness at the trial. He testified that he tripped and fell over one portion of the sidewalk which was lower than another. As a result of this fall, he testified, he sustained a knee injury which required surgery, hospitalization at Cook County Hospital and extensive therapy. Plaintiff denied on cross-examination that he ever told anyone that he fell any place other than on the uneven sidewalk.\nBefore trial, plaintiff presented a motion in limine which sought to prohibit any remarks or questions relative to plaintiff\u2019s consumption of alcohol, use of narcotics or his prior convictions. Over defendant\u2019s objections, the trial court granted the motion in limine.\nDefendant called Dr. Merle Strong as one of its witnesses. Dr. Strong was an intern at Cook County Hospital at the time of plaintiff\u2019s treatment. One of the doctor\u2019s duties was to take the medical history of newly admitted patients in the orthopedic surgery section. He was asked to testify as to certain medical history records relating to plaintiff\u2019s admission to the hospital.\nAt plaintiff\u2019s request, an in camera voir dire examination was held to determine whether there was a proper foundation to allow Dr. Strong to testify to the following entry in the hospital record:\n\u201cThis is a forty-five year old black male who stepped from a curb and fell, injuring his right knee one week ago. The patient tried to stand and fell a second time on the same knee.\u201d\nIn the voir dire examination, Dr. Strong testified that he did not have any independent recollection of having talked to plaintiff. He also did not have an independent recollection of making the record. However, he did state that the handwriting of the entry was his and it contained his signature. He further testified that it was his practice to make the patient\u2019s history record at, or soon after, the time the patient was interviewed and admitted to the hospital. He also indicated that the information written into the record would be related to him by the patient. If the patient history information came from a different source, he would make a notation to that effect. He could not say whether the information pertaining to the location of the fall was true or not.\nThe trial court refused to allow Dr. Strong to testify from the medical history record. However, he was allowed to testify to such matters as the condition of plaintiff and his treatment at the hospital.\nFurther testimony was received from two city employees regarding the condition and type of lighting along the street where the accident occurred.\nDefendant initially contends it should have been allowed to impeach plaintiff\u2019s credibility with the prior convictions for theft. This is particularly so, it is argued, where plaintiff was the only witness testifying to the accident and the circumstances surrounding it. In support, defendant primarily relies on People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805, and People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.\nThe general rule regarding impeachment of witnesses with evidence of their prior criminal conduct is set forth in Montgomery. There, the supreme court adopted proposed Rule 609 of the Federal Rules of Evidence and held that a prior conviction may be used to impeach a witness if the crime (1) was punishable by death or imprisonment in excess of one year, or (2) involved a dishonest or false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. (47 Ill. 2d 510, 516.) Also, the conviction or the release from confinement must have been within the last 10 years.\nThis rule was specifically adopted for civil cases in Knowles, which involved a question of whether a misdemeanor conviction was admissible for impeachment purposes. The supreme court held that it was, stating: \u201c[a]ny prior conviction, so long as it comports with paragraph (a) [of proposed Rule 609] as well as with the other provisions set out in Montgomery [citation] may be introduced.\u201d 66 Ill. 2d 585, 588.\nThe Spates decision held that theft is a crime involving dishonesty or false statement within proposed Rule 609(a)(2) (77 Ill. 2d 193, 202-03). The court reiterated, however, that it was still the province of the court, after weighing all the factors, to refuse to admit evidence of a conviction.\nDefendant presented to the trial court a certified copy of the conviction of plaintiff for theft on May 8, 1979. Defendant also informed the trial court that in a discovery deposition plaintiff revealed he was sentenced to one year in jail for theft in 1973.\nWe feel that evidence of these crimes should have been allowed during the trial. The convictions meet the test enunciated in Montgomery. Both convictions occurred within the 10-year limit and involved a crime of dishonesty. (People v. Spates; Pratt v. Bartoli (1977), 55 Ill. App. 3d 884, 371 N.E.2d 359.) In this case, plaintiff was the sole occurrence witness. Thus plaintiff\u2019s testimony and credibility was of the utmost importance in the jury\u2019s determination. We do not believe the trial court properly determined the probative value of this evidence.\nThe crucial question in this case, however, concerns the refusal of the trial court to admit in evidence the entry in Dr. Strong\u2019s medical history record. We find that a proper foundation was laid for its admission. The primary requisites to the admission of a document into evidence under the doctrine of past recollection recorded are that the witness has no independent recollection of the facts and that, after reviewing the document, he is unable to refresh that recollection. (Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 248 N.E.2d 679; Umberger v. Hospital Service Corp. (1972), 4 Ill. App. 3d 123, 280 N.E.2d 264.) Defendant established in the voir dire examination that Dr. Strong had no present recollection of seeing or talking to plaintiff, that the record did not refresh his recollection, but that the information written on the medical history would be correct entries at the time he made them. Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.\nWolfe v. City of Chicago (1966), 78 Ill. App. 2d 337, 223 N.E.2d 231, involved facts very similar to this case, including the alleged cause of injury, a defective sidewalk. There, the plaintiff contended she injured her ankle in a hole in the pavement. The appellate court ruled the trial court was correct in allowing an emergency room nurse to read a report she made at the time plaintiff was admitted for treatment. (78 Ill. App. 2d 337, 342.) Using the report, the nurse testified the plaintiff had stated she fell on the ice when she injured her ankle.\nIn Umberger, an issue existed as to the place where the plaintiff slipped and fell. The appellate court found a proper foundation had been laid for a hospital nurse to read from a report a statement regarding where the plaintiff said he had fallen. 4 Ill. App. 3d 123, 126.\nWhile it is true, as plaintiff points out, that the doctor could not swear to the truth of the statement regarding the location of the fall, the record shows the doctor did testify that the information recorded was what was related to him at the time and was recorded by him in his handwriting. Plaintiff\u2019s argument goes to the credibility of the statement, not to the admissibility of the report. See Healy v. City of Chicago.\nFor the reasons stated herein, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.\nJudgment reversed and cause remanded for a new trial.\nCAMPBELL, P. J., and McGLOON, J., concur.", "type": "majority", "author": "Mr. JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke, Jetta N. Jones, and Leon Pawlykowycz, Assistant Corporation Counsel, of counsel), for appellant.", "Ronald Kirk Goulding, of Goulding and Kamberos, of Chicago, for appellee." ], "corrections": "", "head_matter": "ROSCOE MINOR, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.\nFirst District (1st Division)\nNo. 80-2228\nOpinion filed November 16, 1981.\nStanley Garber, Corporation Counsel, of Chicago (Robert R. Retke, Jetta N. Jones, and Leon Pawlykowycz, Assistant Corporation Counsel, of counsel), for appellant.\nRonald Kirk Goulding, of Goulding and Kamberos, of Chicago, for appellee." }, "file_name": "0823-01", "first_page_order": 845, "last_page_order": 848 }