*1 began Protection job general Plan. Weaver the Golden Grain fore- during job promoted man and superintendent. He testified promoted May that when he was 1987—the same month of given Book,” accident —he was Safety "Brand safety included the two documents at issue. Weaver testified that the regular business, kept ordinary book was in the and he course further testified that neither of the documents which defendants had, sought knowledge, May updated prior to admit to his been 1987.
We believe that the foundation evidence offered defendants finding was sufficient to support that the documents were authenti- cated plaintiff’s injury. Accordingly, and were effect at the time of we find no error in their admission. reasons, foregoing
For the judgment of the circuit court of County Cook is affirmed.
Judgment affirmed. ZWICK, JJ.,
EGAN and concur. HALLECK, IRENE Plaintiff-Appellant, v. COASTAL BUILDING MAINTE- COMPANY, (Mar- NANCE Defendant-Appellee Third-Party Plaintiff Company, Third-Party
shall Field and Defendant-Appellee). Second District No. 2 — 94—0065 Opinion Rehearing filed March April denied 1995. *2 DOYLE, J., concurring. specially DiMonte, Werth, & Shostok both of DiMonte and Andrew D.
Riccardo A. Lizak, Ridge, appellant. for of Park Carmen, Hinshaw & Culbert- both of and Bruce L. D. Kendall Griffith Company. Building
son, Chicago, Maintenance appellee for Coastal Cassiday, Barrett, Jr., Seeley, Schade S. both of and Therese Richard A. Dowd, Lynn Wheaton, Cassiday, and D. Gloor, Schade & Gloor & Haberkorn, Chicago, appel- for Levin, McFarland, Leydig Phillips, & both Company. lee Marshall Field court: opinion delivered
JUSTICE BOWMAN defendant, Halleck, against Plaintiff, brought this action Irene (Coastal), Corporation seeking Coastal to re- Building Maintenance damages injuries slip-and-fall in a workplace cover for she suffered third-party complaint incident. Coastal filed a for contribution (Marshall against plaintiff’s employer, Company Field Marshall Field). trial, plaintiff compensation Prior settled her worker’s trial, against claim proceeded Marshall Field. The cause and a $240,000, plaintiff’s damages figure assessed but reduced contributory 50% The trial negligence. to account court verdict, resulting damages on judgment entered recoverable $120,000. compensa- then Coastal filed a motion set off the worker’s payments tion made Marshall Field to which totaled $119,018.99. granted The trial court this motion and reduced the judgment appeal This followed. $981.01. principal appeal:
Plaintiff makes two contentions the trial concerning number of errors at trial committed admis- evidence; sibility of trial court erred when it found good settlement Marshall Field to be in faith and al- lowed set off compensation recovery Coastal worker’s against judgment. the final Plaintiff seeks a new trial based on the alleged evidentiary errors, as well vacatur of the court’s or- der granting Coastal setoff. following
Plaintiff to the Sunday April testified facts at On trial. 9, 1989, a.m., at 10:30 she for work arrived at Marshall Field’s Oak store, Brook where she awas sales associate in second-floor fur *3 salon, salon. To plaintiff reach the fur rode the escalator to the second Smith, top escalator, floor. At the Jerry she met a Coastal em- ployee. responsible Coastal housekeeping and floor care at Mar- shall waxing Field’s. Smith was marble tile that runs down the center of the second floor’s east-west corridor. The east-west corridor is 300 long feet and 8 feet fur op- wide. The salon is situated at the posite end of the corridor from the escalator. good
Plaintiff morning they testified that she said After to Smith. exchanged pleasantries, plaintiff Smith asked time the what other arrive, sales due and she replied they associates were would arrive proceeded around 10:45 a.m. then Plaintiff down the corridor toward the portion fur salon. She avoided the wet the marble cor- ridor walking carpeting on the ran parallel which to it until she minutes, reached prepar- the fur salon. Over the 10 to 15 next while ing store, open trips made three to and from stockroom, time crossing adjacent each the marble floor to the fur sa- lon. On each these trips, dry. three floor was At no time did she any signs waxing observe "wet or see floor” Smith the floor. On her trip floor, her, fourth feet slipped across her out from under fall, over to her rushed Immediately after her Smith fell. and she you would sorry, I didn’t know and, "I’m according said slipped she had on testified that leaving salon.” Plaintiff the fur be wet, sticky fall there was after her "something wet” and that cross-examination, plaintiff recalled clothes. On on her substance that, Smith at the first encountered investigator when she telling an the floor was escalator, be careful because he told top of the he said the floor was also recalled that She wet near the escalator. be careful. end, replied that she would dry and she at the other Ertl, fall, a Marshall Field sales Jeanette Shortly plaintiff’s after floor, came to assist the second over also worked on associate who testimony that there trial, At Ertl corroborated plaintiff. indicating was wet and the floor signs in marble corridor no were clothing. sticky substance presence to the testified trial, party was able to testify at as neither Jerry Smith did subpoena. him him or serve locate a number of re- court committed contends the trial Plaintiff first evidence, which each of regarding the admission of errors versible evidentiary ruling which a new trial. The first warrants testimony about to strike her challenges trial court’s decision is the and after the accident. by Smith before allegedly made statements time question as to what are Smith’s in issue The statements response; arrive, by plaintiff’s followed associates would other sales (2) at the end that the floor was wet Smith’s statement end; escalator, dry at the other but nearest the corridor you would sorry, "I’m I didn’t know post-accident statement leaving the fur salon.” only two of the court struck that the trial Preliminarily, we note Plaintiff claims plaintiff. Smith to allegedly made three statements that, statements, struck the trial court to Smith’s other in addition escalator, dry but wet near that the floor was Smith’s statement However, sup- does not the record corridor. other end of the two, not come statement, did unlike the other That port this claim. Instead, it was direct examination. during plaintiff’s into evidence instructing as to by Coastal on cross-examination. elicited expressly stated that striking, trial court statements was which during plaintiff’s elicited striking only the conversations two it was floor was wet that the Smith’s statement direct examination. evi- end, came into escalator, dry at the other but near statements, stricken was never two from the other separately dence *4 claims of error plaintiff’s Accordingly, we address record. from the time of the arrival about question Smith’s only they as relate (2) Smith’s response; and associates and the other sales apology. post-accident
891 argues Plaintiff that the to strike these two statements decision hearsay the is Although as was error. admission of evidence ordinarily court, within the sound of the the initial discretion trial particular hearsay is a determination that statement constitutes discretion, legal require any issue which does not fact exercise (1994), finding, or Ill. credibility. (People evaluation 265 Aguilar 3d App. court exercises its discretion as to admis sibility only it has made a whether a after determination state (See hearsay. Aguilar, App. ment is Ill. 3d a trial 265 at particular hearsay court’s determination that a is is statement at subject Aguilar, App. to a standard review. 3d de novo 109. argues query
Plaintiff that as to the other associ Smith’s when arrive, were to response, ates should not have been stricken they because were not offered for truth of the matter asserted Hearsay not hearsay. and therefore do constitute is defined as "testimony evidence, or written of a statement made out court, being such statement an offered as assertion show the truth therein, resting of matters asserted its upon and thus value credibility of the out-of-court (People Carpenter asserter.” 116, 121; Owens-Corning Corp. see also Fiberglass Kochan v. An statement out-of-court offered independent purpose, for some rather than for truth of mat asserted, Kochan, hearsay. ter 3d at Thorn v. University ton Civil Service Merit Board 1016,
Plaintiff asserts that she did not offer this conversation to show did, fact, that other sales at associates arrive 10:45 a.m. Instead, maintains, that, she she offered to show at the time of work, plaintiff’s arrival at waxing Smith intended to continue only possible floor. Plaintiff contends that in- reason for Smith’s quiry as to the arrival time of the other associates his sales timing waxing. concern about completed If he had wax- his plaintiff reasons, ing, According "his question would make no sense.” question and her answer probative are one central waxing issues trial —whether Smith continued argues floor after arrival. al- She should have been did, fact, lowed consider this he wax that plaintiff’s arrival, the floor after failed to her that had but warn he done so.
Nothing in the record indicates conversation was offered result, prove arrival time of the must other associates. As conversation, agree offered as evidence that *5 arrival, plaintiff's hearsay. waxed the floor after was Smith However, ruling evidentiary require an does not reversal erroneous prejudicial error affected the of the trial. unless the and outcome 4, Trucks, (1994), App. 3d (Bafia City v. International Inc. 258 Ill. degree Accordingly, prejudice we evaluate the of caused must light plaintiff by plaintiffs this in the exclusion of of other evidentiary error. claims of alleg-
Plaintiff’s assertion of error concerns the statement next by edly Jerry made to after her fall. Plaintiff testified Smith fell, immediately and after she rushed to her said: that Smith over leaving know sorry, you ap- "I’m I the fur salon.” On didn’t would peal, striking the statement plaintiff contends the court erred (2) admission; qualified it was it an party because terance; a excited ut- against pecuniary a inter-
and constituted declaration properly est. Because we conclude the statement was admissible as a admission, party need not address alternative theories. we striking sorry, you In the "I’m I didn’t know would be statement salon,” a leaving party fur that it not be the the found could because, authority to janitor, as a lacked the bind admission Smith argues ruling that employer his as to fault. Plaintiff based misunderstanding regarding party the and on a of law admissions the is authority corporation that whether Smith had to bind irrele- agree party misapplied find that the trial court vant. We exception hearsay admission rule.
Traditionally, by concerning a an a employee whether statement admission his is of the scope employment matter within the of an agency test: the statement employer was determined whether employer. The result of this traditional rule was authorized generally damaging found statements to be outside was that courts high-level involving relatively scope authority, of even cases (M. Graham, Cleary & Handbook of Illinois Ev employees. Graham’s (6th 1994) 802.9, (Handbook), citing Hodgerson at ed. idence 684-86 § Louis, (1896), v. Paul More Chicago St. & St. R.R. Co. is recognized problem have with this rule that recent cases that the damaging Taylor are hired to make statements. See employees rarely (noting a that Checker Cab Co. 419-20 talk). drive, driver is hired to not to developed, response problem, to this a modern trend has both rule, authority to Under the modern Illinois elsewhere.
speak employees rarely given Since are author- is not concern. statements, is the statement ity damaging make the test whether scope not whether employment, concerns matters within the (Miller employee authority has make the statement. J.M. Co. cases Jones Minois "broader, better, clearly to the adhere current view” hold a party during it is exis statement admission if made relationship employment concerning tence matters within Handbook, scope 802.9, employment. Rinchich v. Vil § 614, 626-27;Miller, lage Bridgeview App. 3d at 803. Applying case, statement, present this test to the find salon,” sorry, you leaving "I’m I didn’t know would be the fur to be party admission. statement was made while Smith was an em- ployee of scope Coastal and concerns matters within the his i.e., employment, waxing of the floor. The statement was not of- fered, stated, as the trial court "bind corporation as to fault.” Rather, tending it was offered as additional relevant prove theory aspect an applied the case: that Smith *6 adjacent coat of wax to the subsequent floor to the fur salon to day arrival at work on the of accident. the 370, Waechter v. & App. Carson Pirie Scott Co. 170 Ill. 3d by Coastal, Waechter, require cited not a does different result. In the injured was when an escalator riding on which she was a department suddenly, Carson’s stopped causing store to fall. Im her mediately fall, plaintiff reported after the the the incident to an who, customer employed by unidentified service clerk ac Carson’s " cording no, 'Oh, again. to repair the said: not The escalator man has many past been out here I don’t know how times the two ” regarding weeks.’ The trial court excluded the clerk’s hearsay. jury statement as a returned verdict for Car son’s, plaintiff appealed, contending and the the statement was admis dangerous sible to show notice Carson’s of the the condition of Waechter, escalator. 170 App. Ill. 3d at 372.
The Waechter court held that the clerk’s statement was not that, admissible to show notice to Carson’s. The court stated to admit notice, this statement as evidence of had establish Carson’s, that the clerk the employee was the statement related to matters authority, within the clerk’s clerk made the state (Waechter, ment authority. virtue of that 3d 374- App. at 75, citing Kapelski & App. Alton Southern R.R. 36 Ill. 3d 37, lay The court held had a proper that the failed to foundation as to whether the clerk’s statement related to matters scope authority spoke by within the of her and whether she virtue of authority. (Waechter, Waechter, at App. 3d critical dangerous issue was whether a Carson’s had notice of condi tion, i.e., malfunctioning escalator. a Whether the statement was expressly The court party not in issue in Waechter. admission was [p]laintiff customer service not claim that "[the] [did] noted that party op a qualified as a vicarious admission clerk’s statement Waechter, [citation], ponent she did not offer as such.” at distinguishable at bar. In the instant is from case Waechter Waechter, case, at issue trial was unlike critical Rather, issue employer’s dangerous of a condition. the critical notice Jerry negligent, jury negligent. If he was was whether Smith principle of re impute negligence his to Coastal based could (Marco McHenry spondeat superior. County 503, negligence imputed Smith’s to Coastal Whether could entirely liability question separate from the purposes is statement, sorry, you admissibility his "I’m I didn’t know would be salon,” at leaving party as a admission. Unlike the fur statement Waechter, issue in statement was not offered to show notice Smith’s any negligence to prove to Coastal of condition or that Smith’s additional, It was offered as relevant evi attributable Coastal. that, work on following plaintiff’s April dence arrival at adjacent to fur salon without warn Smith waxed the marble floor imputed on re ing negligence is to Coastal based her. Whether wholly question from the of whether spondeat superior distinct party Smith’s statement was admission. authority to by focusing Smith had the bind on whether fault, employer
his the trial court confused the issues liability negligence and the admissibil Coastal’s vicarious for Smith’s ity party-admission exception his statement under vicariously hearsay liable for Smith’s rule. Whether Coastal was (see Marco, issue for the conduct was factual contrast, 505), By question not a law. whether *7 determine party required statement was a admission the trial court to employed while he was whether Smith made the statement Coastal; matters within the and whether the statement concerned 9-10.) 3d Because we scope employment. (Bafia, App. of his 258 at satisfied, that the were we find requirements conclude both of these was trial court’s decision to strike this statement erroneous. erroneously pre Having that trial court struck the concluded post- and Smith’s plaintiff, accident conversation between Smith and A caused. apology, degree prejudice must address the accident we evidentiary rulings only reviewing grant will reversal based on substantially prejudicial and affected where the error was (Burns 923, (1992), Ill. App. 3d of the trial. v. Michelotti 237 outcome 284-85.) 279, Conversely, Leary Eng v. trial, appears where it an error did affect the outcome of the or reviewing see where court can from the entire record that the er prejudice, judgment ror did not result substantial will not be (Cairns disturbed. Hansen party seeking Burns,
burden is on the prejudice. reversal to establish Ill. App. 3d at 938. respect preaccident With to the and conversation between Smith plaintiff, any prejudice that we find caused of this exclusion minimal, import evidence was at The meaning ques- best. and tion plaintiff’s "what time do the other sales come in” associates they response that would arrive around 10:45 a.m. is far less obvious than According only question contends. proof makes sense waxing as that Smith intended continue floor, and it shows he was concerned with the arrival time question, however, other employees. The just easily could be viewed as continuation of the small talk pleasantries Smith exchanged top when she reached first Contrary assertion, escalator. the mere fact that Smith inquired starting toas time of the other associates nec- does not essarily give to a compelling to, rise inference that Smith intended did, waxing continue the floor. short,
(cid:127)1 In we conclude the effect of the exclusion of this testimony inconsequential. may was a judgment We not reverse based allegation evidentiary on an error unless has demon materially strated that error affected the outcome of the trial. (Cerveny Family American Insurance Co. ambiguous In view of the question, nature of Smith’s materially
cannot conclude its exclusion affected the outcome of the trial. respect
With post-accident apology, sorry, "I’m I didn’t you leaving salon,” know would the fur we find that es- sentially other cumulative of evidence admitted at and that its exclusion, erroneous, require while argues does not reversal. Plaintiff the above statement was critical to her case it is because that, 9, 1989, after arrival on April at work Smith waxed her, adjacent warning marble corridor to the fur salon without causing to slip Although may, fact, and fall. Smith’s statement circumstantially support proposition, produced ample she other evidence on point, rendering the same the statement cumulative. example, plaintiff’s that,
For arriving indicated after day question, work on the trips she made three across marble dry floor and that the floor each time. The time fourth floor, wet,” she slipped "something crossed the she her feet slid *8 ice, She testi- though was on and she fell. out from under her she stocking leg wet and covered fied that after the fall her were sticky a further with what she described as substance. She testified posted verbally warning signs and Smith did not that there were no adjacent waxing he floor to the fur salon. This warn her that co-workers, testimony Ertl. was corroborated one of her Jeanette immediately plaintiff fell she walked Ertl testified that after over attempted plaintiff. of the fall and to assist Ertl noticed that the site wet, shiny,” plaintiff’s skirt "very that it was and that floor was wet, panty gooey a Ertl stated hose were covered with substance. warning signs that she saw no on marble floor. testimony prove post- same fact Smith’s
The above tends to prove: point that at while accident statement was offered to some stockroom, walking fur plaintiff between the salon and the Smith verbally warning signs posting floor without or waxed marble warning plaintiff danger. although the trial court’s deci- of post-accident plaintiff’s testimony regarding Smith’s sion to strike erroneous, testimony the excluded was cumulative statement was conclude, therefore, jury We other evidence which the heard. error. of this does not constitute reversible exclusion evidentiary the trial claim of error concerns Plaintiff’s next square a floor to exclude from evidence 12-inch court’s decision tile, plaintiff in the marble floor where purportedly similar to the tile slipped; a of floor wax similar to the wax used container day a witness Smith the accident. Plaintiff intended have on the physically demonstrate for pour some the wax onto tile viscosity applied glossy of the wax when invisibility floor tile. experiment depends on whether the condi admissibility of an substantially to the actual cir experiment
tions are similar case, although not need be identical. cumstances of the conditions (Ford App. 3d The admis City Chicago v. is within the sound discretion of sibility experimental court, absent a clear abuse whose decision will not be reversed Central Ltd. of discretion. Brennan Wisconsin 1070, 1088; App. 3d People Wills conducting wax deciding preclude from her floor In no evi jury, trial court noted there was experiment before the sought exper in the tile to use dence as to whether the floor substantially plaintiff slipped; tile similar to the iment was it; strength full or whether the wax diluted applied whether Smith buffer, brush, rag; how scrub or or mop, electric applied he it with sum, the court space. relative to the floor much wax he used plaintiffs proposed experiment concluded that the conditions were substantially day similar to the conditions on the of the accident. lay Our review of the record shows was unable to sufficient factors, regarding foundation the above and we find no abuse of excluding experiment. discretion in *9 evidentiary
Plaintiff’s final of claim error concerns the cross- treating physicians, examination of one of her Dr. In cross- Greco. Greco, objec- examining permitted, plaintiffs Dr. Coastal was over tions, by question report nontestifying him about written doctor, Brackett, Boone Although which was in Dr. file. Dr. Greco’s report agreed Greco stated that he reviewed the Brackett and with aspects diagnosis, certain Dr. of Brackett’s he testified that he dis- agreed report’s with the ultimate conclusion that could resume normal work and cease medical treatments. Dr. Greco stated incorporated findings that he report neither Dr. Brackett’s into his nor relied on plaintiff. them as a basis for his treatment trial of The court allowed Coastal cross-examine Dr. regarding Greco contents report, Brackett but instructed the that Dr. report Brackett’s was not to only be considered as evidence and could be considered for the purpose evaluating [Dr. limited Greco] "what reaching reviewed ultimate diagnosis in his opinions.” and On appeal, plaintiff contends the allowing trial court erred in regarding Coastal to report. cross-examine Dr. Greco Dr. Brackett’s According the fact that Dr. rely Greco testified he did not report on the forming opinion precluded Brackett in his from Coastal cross-examining contents, him regardless on its of whether Dr. Greco report. reviewed the cross-examination,
On may probe expert counsel an witness’ qualifications, experience sincerity, and the weaknesses in the basis opinions, his the sufficiency assumptions, general his and opinion. (1993), 258, soundness his (People Page facts, data, and opinions which form the expert’s basis opinion, examination, may but which are not disclosed on direct be (Piano developed on cross-examination. v. Davison 157 Ill. App. 3d expert may An be cross-examined on material by expert, reviewed upon ultimately rely. but which did he 133, 179, (People citing Piano, v. Pasch 671-72.) 3d at may explaining, be Cross-examination directed toward modifying, discrediting or expert’s testimony may used ascertain what he factors took into account and what factors he (Pasch, arriving discarded in at his conclusions. 152 Ill. 2d at People v. Fields A trial court’s determi regarding nation the scope of cross-examination will not be disturbed Piano, 3d at of discretion. appeal absent an abuse demonstrate, scope of cross-
As the above-cited authorities upon by an actually relied examination is not defined material Rather, may forming permit expert in his conclusions. expert, upon but on materials reviewed cross-examination rely. question critical in which he did not choose to Dr. and was aware of Dr. Brack instant case is whether Greco read although report. reading of his establishes that ett’s Our did, fact, conclusions, Greco disagreed he ultimate Dr. its report. properly Dr. Coastal allowed to cross- review Brackett’s accepted he aspects report Dr. examine Greco as to which rul aspects rejected; find no of discretion which he abuse ing. claim of error to the court’s order entered
Plaintiffs final relates 16, 1993, approved settlement April between good recognized being Field’s waiver Marshall Field faith subsequent compensation argues lien. Plaintiff also its worker’s er- of that lien was post-judgment given setoff Coastal for the amount roneous. *10 26, 1992, plaintiff approximately
On 19 months after October complaint Coastal, third-party filed a contri- against filed her Coastal In Febru- against plaintiff’s employer, Marshall Field. bution action Coastal, Mar- 1993, plaintiff’s against ary prior to the trial of action of her plaintiff agreed to settlement worker’s shall Field and against Marshall Field. compensation pending then claim was payment plaintiff expenses, medical The settlement involved of $75,000, earnings, lump along with waiver lost sum rights against By the subrogation plaintiff. Marshall Field of its agreement, Marshall Field waived entire express terms of the recovery plaintiff’s in against lien it had compensation worker’s lien, including the against action Coastal. The total value of $119,081.99. lump payment, sum was 16, 1993, court with presented Field the trial April
On Marshall 2(c) Joint finding pursuant good-faith a motion for a section 100/2(c) (Contribution Act) (740 ILCS Act Tortfeasor Contribution 1992)). (West mo- Field’s objection from Marshall Without granting approved the motion granted. The court’s order tion being good plaintiff Marshall Field the settlement between Act; it Marshall Field’s pursuant found that faith to the Contribution and, third- finally, it liability extinguished; dismissed tort trial, to a proceeded The cause party complaint prejudice. plaintiff. $120,000 damages to resulting in an award of recoverable
899 Following trial, Coastal filed a motion to set off the worker’s $119,018.99 compensation judgment lien amount of from the $120,000, granted. which was 16, 1993, appeal, plaintiff argues April
On order should (1) good-faith finding be vacated because trial court’s was errone- ous; supporting there was no consideration the settlement be- Field; tween and Marshall Coastal should not have plaintiff’s recovery been compensation allowed to set off worker’s judgment plaintiff’s from against it. We find contentions to be without merit.
The Contribution Act allows a tort-feasor with a who settles good claimant discharged liability faith be from for contribution (740 (d) (West to any 100/2(c), 1992); other tort-feasors. ILCS Alvarez 815.) (1993), 811, Fred Hintze Construction 247 An Ill. 3d employer sought good-faith from whom contribution is can make a settlement of a compensation employee worker’s claim with its discharged thus nonsettling from liability contribution (Wilson (1989), defendants. v. The Group, Inc. Ill. 2d Hoffman 308, 318-19; Higginbottom Pillsbury (1992), Co. 240, authority, Based clear above that the dismissal third-party against permissible, claim Marshall Field was provided good settlement with was made in faith. Our review of the applicable record and the case law belies claim that settlement with Marshall Field was not made in good faith. (In
The Contribution Act "good does not define the term re faith.” Guardianship agree Babb 162 Ill. 2d Whether an good depends ment was made in faith on all circumstances sur rounding (Babb, 162; the settlement. Wilson v. The Group, Inc. 131 Ill. 2d The determination Hoffman good of whether a settlement is in properly faith is a matter left to court, the discretion finding good and a trial court’s toas faith appeal will not be reversed on an absent abuse discretion. Babb, Texaco, 162 Ill. 2d at Smith v. Inc.
463, 467. good faith,
In order for a settlement to be in must *11 agreement. receive some net consideration for the settlement (Hig 257.) ginbottom, Ill. App. consistently 232 3d at Courts have found good where, here, settlements in faith as received a lump sum amount a employer’s compensa and waiver of the worker’s Wilson, 319; tion lien. (E.g., Alvarez, 131 Ill. 2d at 3d at 60-61.) Ametek, Stacy Inc. Ill. The rec ord in the present case establishes —and admits her $75,000 acceptance lump her of a sum brief —that consideration right subrogation agreed Field to waive its payment, Marshall (820 5(b) Compensation Act. ILCS of the under section Workers’ 305/ (West 5(b) 1992).) rights waiving subrogation its under section By 5(b), reimbursement from gave up right Field its seek Marshall $119,018.99 by any paid her Coastal. up amount plaintiff for compensation lien con employer’s Because an waiver its worker’s 2(c) of Contribution adequate consideration under section stitutes agreement Act, settlement reject we contention that unsup faith good Field because with Marshall Stacy, 3d at 60-61. See ported by consideration. by Finally, reject plaintiff’s claim that the trial erred we recovery setting compensation from the verdict her off worker’s by supreme court has been addressed our against Coastal. This issue There, Group, Inc. in Wilson v. The Hoffman 2(c) under section question the court framed the whether lien, compensation waived Act of worker’s Contribution the amount any against subsequent set off plaintiff’s employer, should be question judgment plaintiff. obtained court answered affirmative, noting law in Illinois is that in the (Wilson, 2d at only recovery injury. for an shall one have denied, the plaintiff if a is The court then concluded that setoff recovery injury he would the same because would receive double compensation employer in the form of worker’s from the retain both damages from the other defendant. compensation benefits and identical (Wi according to lson, recovery, 131 Ill. 2d at Such double 2(c) court, supreme exactly what section the Contribution is (Wilson, In 131 Ill. 2d view prevent. Act is intended to Wilson, compensa that the setoff of worker’s plaintiff’s contention damage against Coastal was erroneous recovery from the award tion unpersuasive. above, judgment affirm the Accordingly, stated for the reasons Page County. Du of the circuit court of
Affirmed.
COLWELL, J., concurs. DOYLE, concurring: specially
JUSTICE I majority opinion, aspects Although agree I with most analysis of am concerned that concur because I specially for confusion. hearsay may potential create a issue Waechter, "the embraced well-established plainly this court *12 requirements prior be met to the introduc foundation which must agent’s by employer,” as tion of an statement as an admission (Waechter, authority including speak employer. to for the rely requirement It as a purported 3d at then to on this impute employer, for to to her knowledge basis its refusal clerk’s by Al urged nonhearsay theory. as under a state mind though oranges, it does not apples this seems to me to mix with pronouncement detract from the court’s of the traditional founda an requirements admitting agent’s tional for statement as therefore, agree, Cleary’s I employer’s admission. observation traditional, that an require Waechter is adherent to the common-law ments, including Handbook, the authority speak employer. to for the 802.9, at 686. § court, case, present following
The trial in the was correct Waech- authority ter as second precedent speak district to is a prerequisite against foundational to introduction Coastal of "apology” to as an a party opponent. admission light the trend in appellate following recent decisions the lead 801(d)(2)(D), agree of Federal majority Rule Evidence I with the that it is time authority-to-speak to abandon the element. I find no supreme doing decision of our preclude court which would so. our However, acknowledge I we must effecting sig- believe that we are nificant important modification in an governing rule party opponent Accordingly, majority admissions. I believe the should clearly have allegiance disavowed Waechter’s to the "old” rule. Instead, by distinguish Waechter, undertaking to may be read as implying that the requirement” "well-established foundation authority speak may viability to still have in other circumstances.
Moreover, majority appears opinion suggest to that Smith’s of apology statement against could be admitted him prove negligence, his negligence own imputed could then be employer respondeat his under the principle superior. As the trial noted, Smith was not named a party to the lawsuit. that,
The majority authority has cited the proposition no hearsay the absence of exception, another of a the statement nonparty could an party opponent be admitted as admission of a prove nonparty’s negligence. appellate Taylor court in Checker Cab Co. appears hold to the contrary. only I legitimate theory admissibility submit that the qualified this case is that Smith’s statement as an admission i.e., party Coastal, opponent, spoke agent. because Smith as Coastal’s It majority’s is unclear from the respondeat superior discussion may agent’s may this issue whether it an intend that statement be which, only in cases in employer’s party as the admission admitted here, vicariously may agent’s liable for the same employer as negligence.
However, no undoubtedly the rule has such limitation. Handbook, 802.9, See 684-87. § *13 COMPANY, Appellant, THE INDUS-
ELMHURST-CHICAGO STONE (James Wolsfeld, Appellee). et al. TRIAL COMMISSION Division) (Industrial No. District Commission 2 — 94—0396WC Second Opinion February filed