Ahmed v. Pickwick Place Owners' Ass'n

• Court: Appellate Court of Illinois
• Writing for the Court: Theis
• Citation: Ahmed v. Pickwick Place Owners' Ass'n, 896 N.E.2d 854, 384 Ill. App. 3d 794, 324 Ill.Dec. 778 (Ill. App. 2008)
• Decision Date: 30 September 2008
• Docket Number: No. 1-07-2047.,1-07-2047.
• Parties: Wasim Sam AHMED, as Administrator of the Estate of Gul Nageen Ahmed, Plaintiff-Appellant, v. PICKWICK PLACE OWNERS' ASSOCIATION and Vista Property Management, Inc., Defendants-Appellees.

896 N.E.2d 854

384 Ill. App. 3d 794

Wasim Sam AHMED, as Administrator of the Estate of Gul Nageen Ahmed, Plaintiff-Appellant, v. PICKWICK PLACE OWNERS' ASSOCIATION and Vista Property Management, Inc., Defendants-Appellees.

No. 1-07-2047.

Appellate Court of Illinois, First District, Third Division.

September 30, 2008.

Rehearing Denied October 28, 2008.

Gregory A. Harris, Law Offices of Gregory A. Harris, Maywood, for plaintiff-appellant.

Edward M. Kay, Paul V. Esposito, Kimbley A. Kearney, Kimberly A. Hartman, Joseph J. Ferrini, Clausen Miller P.C., Chicago, for defendants-appellees.

Justice THEIS delivered the opinion of the court:

Plaintiff, Wasim Sam Ahmed, as administrator of the estate of Gul Nageen Ahmed, filed a two-count wrongful death and survival action against defendants, Pickwick Place Owners' Association and Vista Property Management, Inc., to recover for his daughter's drowning death in a retention pond owned and managed by defendants. After a trial, the jury returned a general verdict for plaintiff in the amount of $100,000, but answered "No" to a special interrogatory on proximate cause. The trial court ultimately found that the verdict was irreconcilable with the special interrogatory and entered a judgment notwithstanding the verdict in favor of defendants.

On appeal, plaintiff contends that (1) the trial court abused its discretion in denying his motions for leave to amend the complaint; (2) the trial court erred in granting the judgment notwithstanding the verdict and finding the special interrogatory to be inconsistent with the general verdict; (3) the trial court abused its discretion in failing to admit certain witness testimony; (4) the trial court erred in directing a verdict on various issues of fact; and (5) various other trial court rulings severely prejudiced and limited plaintiff's case. For the following reasons, we affirm the judgment of the circuit court.

BACKGROUND

On July 12, 2001, seven-year-old Gul Ahmed was riding her bicycle on a sidewalk located behind the apartment buildings at the Pickwick Place Apartments in Schaumburg, Illinois. As Gul attempted to turn her bicycle on a sidewalk circling a retention pond, she lost control of her bicycle and fell down a grassy embankment into the pond where she ultimately drowned.

Plaintiff filed suit against the property owners' association and the property manager of Pickwick Place. The original complaint was filed on July 16, 2002. Therein, plaintiff alleged that defendants negligently maintained the retention pond and that Gul drowned after becoming entangled with a bicycle or other debris in the pond. Additionally, plaintiff alleged that defendants were negligent in failing to maintain a sidewalk of proper width in accordance with certain Village of Schaumburg code provisions and allowed a dangerous slope to exist from the sidewalk to the retention pond. The latter two theories were ultimately abandoned prior to trial.

Gul's mother and sister were the only two eyewitnesses to see Gul fall into the retention pond. Gul's mother, Shaista Ahmed, testified at trial that on July 12, 2001, she was walking with her five-year-old daughter, Arisha, on the sidewalk, while Gul was riding her bike. They were traveling on the sidewalk that ran between two buildings and connected in an intersection with the main sidewalk surrounding the retention pond. At the intersection, Gul attempted to turn her bicycle. Her front wheel touched some dirt and she slipped off the sidewalk and went down the hill on her bike and fell into the pond. Gul's sister, Arisha, testified that she saw her sister was about to make a turn, she hit some dirt, and fell down the hill really fast and into the pond. Neither Mrs. Ahmed nor Gul knew how to swim.

Mrs. Ahmed began screaming for help at the nearby swimming pool. Suzanne Daniel, a tenant who lived on the second-floor of the nearby apartment, testified that she heard screaming. She noticed a child bobbing up and down, struggling in the water. She called the police and told them there was a child that appeared to be stuck on something. Daniel did not see Gul attached to anything, but believed she was stuck by the way she was struggling in the water. Daniel did not know that Gul was unable to swim.

Several individuals testified regarding the rescue efforts to save Gul and their observations regarding the condition of the pond. James Wasser, a lifeguard at the Pickwick Place swimming pool, testified that once alerted that there was a girl in the pond, he dove in with three other individuals. He could not see below the surface of the pond and was unable to locate her. A short time later, the police and fire departments arrived and eventually located Gul and pulled her out of the water. She was found several feet from the shore in approximately four to five feet of water.

Wasser testified that as Gul was being pulled out of the water, a bike came up from the surface of the water, and then, it dropped back into the water as a firefighter brought her to shore. Wasser indicated that plaintiff's exhibit No. 4 was an accurate photograph of the bike that was sticking out of the water after Gul was pulled out. The police later pulled that bike out of the water. Wasser only saw that bike and Gul's bike at the pond that day. Karen Jernstad, a tenant at Pickwick, testified in an evidence deposition that she witnessed a firefighter pull Gul out of the pond. She saw a bike attached to Gul's t-shirt as she was pulled from the water. She identified exhibit No. 4, shown to her at her evidence deposition, as the old bicycle in the pond that was attached to Gul. Angela Nelson, a lifeguard at the Pickwick pool, testified that she saw a firefighter pull Gull out of the water. Nelson was about 10 feet away from the firefighter. She did not see any bicycle in the water, but she heard the firefighter say that the girl's foot was caught in the pedal.

Village of Schaumburg fire department lieutenant and paramedic, John Brohan, testified that he was the individual that found Gul in the pond. When he pulled her out of the water, there was a bike in the water within a few feet of Gul. He described the bike as being older and dirtier than Gul's bike. Brohan did not feel any contact between Gul and the older bike, and he did not see her entangled, entrapped or in any way connected to that bike. He did not recall telling anyone that Gul was attached to the bicycle. Village of Schaumburg police officer David Antes testified that he was on shore at the time Brohan pulled Gul out of the pond. Antes did not observe anything that would have indicated that Gul was in any way attached to the old bicycle.

Village of Schaumburg police officer Todd Bochenek testified that he was dispatched to the scene and saw Brohan carrying Gul out of the water. He saw a bicycle tire afloat in the water. He never saw Gul in any way attached to a bicycle, but he could not see below the water surface and acknowledged that his attention was diverted while talking to Gul's mother. Village of Schaumburg firefighter and paramedic Donald Paul McCown testified that he was responsible for ensuring Brohan's safety and was focused on him from the time he entered the water until the time he recovered Gul. There was nothing that he observed to indicate that Gul was trapped or tangled on any debris. When Brohan lifted her out of the water, she was not attached to a bicycle. However, McCown could not see under the water and there was no way he could know if she was tangled with anything under the water.

Robert Friedewald, one of the individuals that dove in to the pond to attempt to rescue Gul, testified that he was in the pond right behind the paramedic when he found Gul. He did not see Gul attached, entangled, or trapped on any bicycle when she was pulled out of the water. He did see two bicycles on the day of the incident. One of them was Gul's pink bike and the other was a "rusted" bicycle in the area where Gul was found. He saw the rusted bicycle in the water before the day of the accident in the same spot where Gul was found. Although he could not be sure that the rusted bicycle he had seen previously was the same bicycle he saw the day of the accident, he described the photograph he was shown at his evidence deposition as the "old rusted up bike" that was found in the pond where Gul was found. When asked if he heard the paramedic who removed Gul from the pond say anything, he responded "no." However, when then asked if the paramedic stated that she was caught on a bicycle, he responded, "yes."

Several witnesses, including tenants and landlords at Pickwick, testified that they would often see bicycles and other debris in the pond prior to the accident. Ann Marie Rush testified that she would take walks around the pond and see debris, bicycles, shopping carts, and auto parts in the pond. She spoke to her landlord several times about the debris and the safety of the pond, including putting up a fence. Christy Boyle saw a bicycle in the pond a few months before the accident, but only saw the handlebar sticking out of the water and could not identify if it was the same bike as in plaintiff's exhibit No. 4. She also notified her landlord, a board member of the Pickwick Place Owners' Association. Boyle never saw that bicycle in the pond after that day.

Several Pickwick board members testified that the board was responsible for hiring and overseeing the property management company. Its duties included responsibility for routine weekly inspections of the premises, including the pond and sidewalks. If objects in the pond were visible, they were to be reported to the ownership or management for removal for safety and aesthetic reasons. None of the board members who testified at trial indicated that they had received any complaints about bicycles or shopping carts in the pond or about the need for a fence. However, Mark Corrado indicated that he had seen shopping carts in...