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01/31/94 THOMAS BAFIA v. CITY INTERNATIONAL TRUCKS

January 31, 1994

THOMAS BAFIA, PLAINTIFF-APPELLANT,
v.
CITY OF INTERNATIONAL TRUCKS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Anthony J. Bosco, Judge Presiding.

Buckley, Campbell, Manning

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Thomas P. Bafia, brought a retaliatory discharge action against defendant, City International Trucks, Inc., alleging that he was fired from his job with defendant because he filed and refused to withdraw a claim pursuant to the Workers' Compensation Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.4(h) (now 820 ILCS 305/4 (West1992)).) At the close of plaintiff's case in chief, the trial Judge granted defendant's motion for a directed verdict pursuant to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1110 (now 735 ILCS 5/2-1110 (West 1992))) on the grounds that plaintiff failed to present sufficient evidence to support a verdict in his favor. On appeal, plaintiff contends that the trial Judge erred in excluding necessary evidence on the ground that it was inadmissible hearsay. Plaintiff asserts that he was prejudiced by this erroneous exclusion of evidence because it prevented him from establishing his prima facie case. We reverse and remand for a new trial.

In 1982, plaintiff was employed as a truck mechanic for defendant. In 1985, plaintiff severely injured his back while at work and was unable to return to work for almost one year. During this time, plaintiff filed a workers' compensation claim and received his benefits. In 1986, plaintiff returned to work as the foreman of a newly created "third shift" or "overnight shift." In 1987, defendant terminated plaintiff. At the time plaintiff was fired, he was still unable to obtain a medical release to work as a mechanic. Defendant maintains that plaintiff's foreman position was eliminated because the "third shift" was unprofitable and that plaintiff was terminated because his back problems prevented him from being considered for a mechanic's position.

During his case in chief, plaintiff called Wyatt Ervin and Mike Boss as witnesses for the purpose of testifying to a statement they allegedly heard made by August Sunzere to the effect that plaintiff was fired for refusing to withdraw his workers' compensation claim. Between 1983 and 1987, Sunzere was the service manager and a partner with a 30% ownership interest. At the time of the trial, however, Sunzere was no longer employed by defendant. Defendant objected to this testimony on the grounds that it was inadmissible hearsay. Plaintiff argued that the testimony was admissible as a vicarious party admission. The trial Judge agreed with defendant and excluded the testimony as hearsay. Plaintiff made no formal offer of proof as to the testimony of Ervin or Boss.

At the close of plaintiff's case in chief, defendant moved for a directed verdict pursuant to the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1110 (now 735 ILCS 5/2-1110 (West 1992)).) Defendant argued that plaintiff had failed to establish a prima facie case, and, in particular, failed to show a causal connection between the filing of his workers' compensation claim and his termination. The Judge stated that plaintiff had not proven his case and granted defendant's motion. Subsequently, the Judge denied plaintiff's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff filed this timely appeal.

Plaintiff contends that the trial Judge erred when he excluded Ervin and Boss's testimony concerning a statement they heard made by August Sunzere on the ground that the statement was hearsay. Plaintiff asserts that Sunzere's statement satisfies the hearsay exception for vicarious party admissions. Defendant, on the other hand, maintains that the trial Judge properly excluded the testimony of Ervin and Boss as hearsay and that plaintiff has failed to make a prima facie case. Defendant also argues that plaintiff has waived this issue by failing to make an offer of proof as to the substance of the testimony of Ervin and Boss.

We must first address whether plaintiff has waived this issue by failing to make an offer of proof. The purpose of an offer of proof "is to inform the trial court, opposing counsel, and a court of review of the nature and substance of the evidence sought to be introduced." ( Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 491, 404 N.E.2d 406, 409.) Therefore, as a general rule, in order to preserve for review a trial court's alleged error in excluding certain testimony, a party must make an offer of proof and, the failure to do so, usually will result in waiver of the perceived error. ( First National Bank of Mount Prospect v. Village of Mount Prospect (1990), 197 Ill. App. 3d 855, 864, 557 N.E.2d 1257, 1263.) However, in many cases, the failure to make an offer of proof is not fatal if the content of the witness's excluded testimony is obvious. ( First National Bank, 197 Ill. App. 3d at 865, 557 N.E.2d at 1263.) In other words, an offer of proof is not required where it is apparent that the trial Judge understands the nature of the objection and the character of the evidence sought to be introduced or "where the questions themselves and the circumstances surrounding them show the purpose and the materiality of the evidence." Volvo, 83 Ill. App. 3d at 491, 404 N.E.2d at 409.

In the instant case, Ervin was asked on direct examination if he knew why plaintiff was fired. He responded "that it was because he wouldn't drop his workman's comp claim -- his lawsuit." Plaintiff then immediately asked Ervin how he knew that plaintiff was fired because he would not drop his workers' compensation claim. Ervin began to testify that he knew because he had heard August Sunzere make such a statement when defendant objected on hearsay grounds. Subsequently, during the direct examination of Boss, defendant objected immediately after plaintiff asked "Do you ever recall [August Sunzere] saying anything about not bringing [plaintiff] back because he wouldn't withdraw his worker's [sic] compensation claim?" The Judge forbade both Ervin and Boss from answering and excluded the testimony on the grounds that it was hearsay and Sunzere was unavailable to be cross-examined.

We find that a formal offer of proof was unnecessary because plaintiff's questions and the circumstances surrounding the questions "show the purpose and materiality of the evidence." ( Volvo, 83 Ill. App. 3d at 491, 404 N.E.2d at 409.) The trial Judge and the opposing counsel clearly knew the "nature and substance of the evidence sought to be introduced." ( Volvo, 83 Ill. App. 3d at 491, 404 N.E.2d at 409.) Additionally, the Judge's ruling shows that he understood the nature of the objections and the testimony which plaintiff asserts would have been elicited is equally obvious to this court. Thus, plaintiff has not waived this alleged error by failing to make a formal offer of proof.

The next question we must address is whether the testimony of Ervin and Boss as to the statement they allegedly heard made by Sunzere was properly excluded as inadmissible hearsay. Defendant argues that the testimony was properly excluded because plaintiff neglected to lay a sufficient foundation to show "that the statement was made about a matter over which Sunzere had actual or apparent authority and that he made the statement by virtue of that authority." Plaintiff responds that defendant has waived the issue of lack of foundation by failing to properly object at trial.

As a general rule, a specific objection is limited to the grounds specified and is a waiver of any other unspecified grounds. ( Central Steel & Wire Co. v. Coating Research Corp. (1977), 53 Ill. App. 3d 943, 945, 369 N.E.2d 140, 143; Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 43, 343 N.E.2d 207, 211.) The purpose of this waiver rule is "to disclose the nature of the objection, inform the trial court as to the particular frailty, and enable the party offering the objectionable testimony to confront the objection." ( Kapelski, 36 Ill. App. 3d at 43, 343 N.E.2d at 211.) Additionally, where the ground for the objection is of a character that can be remedied such as a lack of proper foundation, the objecting party must make the objection in order to allow an opportunity to correct it. Central Steel, 53 Ill. App. 3d at 946, 369 N.E.2d at 143.

In the instant case, defendant did not object on the basis of lack of foundation. However, the hearsay objection defendant did present was sustained by the trial court. Thus, defendant had no reason to continue to object or to add additional grounds for precluding the objectionable testimony. Additionally, none of the reasons behind the waiver rule would have been satisfied by such an additional objection. By excluding the testimony based on the hearsay objection, a foundational objection was made irrelevant. Plaintiff would not have been given an opportunity to confront the objection or to remedy any alleged lack of foundation. Additionally, we note that a reviewing court can affirm a trial court's decision based on any ground apparent in the record "regardless of whether the trial court relied on those grounds or whether the trial court's reasoning was correct." ( Milder v. Van Alstine (1992), 230 Ill. App. 3d 869, 871, 595 ...


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