Bausback v. K Mart Corp.

• Decision Date: 16 February 1990
• Docket Number: No. 2-89-0389,2-89-0389
• Citation: 194 Ill.App.3d 325,550 N.E.2d 1269
• Parties: , 141 Ill.Dec. 223 Nellie BAUSBACK, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant (Heinz Bausback, Plaintiff; Billy Williams, et al., Defendants).
• Court: United States Appellate Court of Illinois

Page 1269

550 N.E.2d 1269

194 Ill.App.3d 325, 141 Ill.Dec. 223

Nellie BAUSBACK, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant (Heinz Bausback Plaintiff; Billy Williams, et al., Defendants).

No. 2-89-0389.

Appellate Court of Illinois,

Second District.

Feb. 16, 1990.

James S. Tukesbrey, argued, Ridge & Lawler, Waukegan, for K Mart Corp.

Michael F. Bonamarte, III, argued DeSanto & Bonamarte, P.C. and James J. DeSanto, James J. DeSanto, P.C., Waukegan, for Nellie Bausback.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The defendant, K mart Corporation, appeals from judgments entered on jury verdicts against it and in favor of plaintiff, Nellie Bausback, for $10,000 in compensatory damages and $40,000 in punitive damages upon her complaint charging it with battery, false imprisonment, intentional infliction of emotional distress and wilful and wanton misconduct. The jury found in favor of the individual defendants, who were all K mart employees at the Mundelein store, and against plaintiff Nellie Bausback on her complaint against Billy Williams, the loss prevention manager, for battery and false imprisonment, and her complaint for false imprisonment against defendants Freida Teeter, the personnel manager; David Fisher, a security assistant; and Timothy Scully, co-manager of the store. Plaintiff has not appealed from the judgments in favor of the individual defendants. The jury also found against Heinz Bausback, plaintiff's husband and coplaintiff, on his complaint against K mart and the individual defendants for loss of consortium, and no appeal was taken from that verdict. K mart's post-trial motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.

K mart contends the court erred in denying its motion for judgment notwithstanding the verdict or for new trial where: (a) its liability to the plaintiff was premised on the theory of respondeat superior and the jury found none of its employees liable for the acts upon which its vicarious liability was based; and (b) evidence of plaintiff's convictions for battery and disorderly conduct arising out of the same incident was improperly excluded.

K mart's motion to strike certain portions of the plaintiff's statement of facts and argument is well taken. The portions of plaintiff's statement of facts noted by K mart are either improperly argumentative, unsupported by record references, or misstate the evidence, and a portion of its argument refers to matters which are dehors the record. K mart's motion to strike those portions is granted. 113 Ill.2d Rules 341(e)(6), (e)(7); see also Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill.App.3d 637, 350 N.E.2d 242.

The events which gave rise to the instant cause all occurred during the afternoon hours of Saturday, October 6, 1984, at the K mart store in Mundelein, Illinois. The record shows that since an operation in 1982, plaintiff suffered partial paralysis in her left leg and used a cane to help her walk. When she arrived at the K mart on October 6, she placed her cane on her shopping cart and used the cart for support as she went to get a carton of cigarettes.

According to plaintiff's testimony, when she went to the layaway department to make a $2 payment on a blazer for her daughter, Tracy, she was informed the blazer had been returned to the sales racks due to payments being late. Timothy Scully, the store co-manager, tried to help her find the blazer, and plaintiff called her daughter at one point during this search to check on the color and size. The blazer could not be found, and plaintiff went back to the layaway and got in line with several other customers. Plaintiff testified there had been some yelling and fighting previously but that "the couple" had left, and she didn't pay any attention to it. Then, "all of a sudden, they came after [her]" and were yelling at her saying she was being too loud and was using vulgar language. They wanted her to sign her name on the layaway card and then give her the money, but she told them Tracy would come back and pick out what she wanted and so she refused to sign the card. Plaintiff identified Billy Williams, Timothy Scully and David Fisher as the "they." She told them to "[t]ake the carton of cigarettes. Do what you want with it because I don't care * * * I'm leaving." Plaintiff testified that when she turned around to get her cane and purse, they were gone, and she was suddenly grabbed in the back. They took her out "like an animal" to a room, put her on the ground, tied her hands and feet with belts, hit her in the face, and sat on her back.

According to the testimony of the K mart employees, plaintiff was first observed by Williams and Fisher at the service desk, where she was demanding and insisting in a "very loud and outspoken" manner that she wanted her coat out of layaway. Timothy Scully tried unsuccessfully to help the plaintiff find the coat and apologized to her for having to refuse to take the payment for the layaway since the item was no longer in layaway. The plaintiff remained in a rage, however, stating that the layaway department was to blame and that they had the coat and were keeping it from her. Plaintiff then headed back to the layaway department and got in line.

Fisher stated he warned the two girls in the layaway department that plaintiff was coming back to the department and that they should just be polite and listen to her. He then positioned himself about 10 feet away from the layaway department in an aisle in order to observe the plaintiff. Williams asked Teeter to stand with him in the paint aisle to observe the plaintiff in the layaway department, and Scully joined them. They observed plaintiff screaming loudly about what "dummies" they all were and that none of them knew what was going on and that they were trying to steal the blazer. Scully told plaintiff that they would try to get her another blazer from another store but that it would take two or three days. Plaintiff kept talking louder, and Williams asked her to quiet down. Plaintiff did not quiet down, and Williams said she would have to leave the store or he would call the police.

When Williams motioned to plaintiff to leave the store, plaintiff poked Williams in the chest and grabbed her cane and swung it at Williams, striking him as he blocked the blow and knocked the cane away. Fisher picked up the cane while Williams picked plaintiff up in a "bear hug" hold and, carrying plaintiff, followed Fisher about 70 or 80 feet to the security office. Williams told Fisher to call the police, and Fisher did so after Scully and Teeter also entered the security office. Still holding plaintiff in a bear hug in front of himself, Williams asked her several times to sit down and calm down. When she did sit down, and he felt she seemed to relax, he released his grip on her arms. At that point, Williams testified, plaintiff grabbed her right wrist with her left hand and came straight back with her arm into his groin area causing him to double over. Williams testified that while he was doubled over, plaintiff gritted her teeth at him and came at him with both hands and her long fingernails. He grabbed her hands, and when she jerked away, he lost his balance and fell down onto the chair, forcing plaintiff over onto the chair beside it. Facing each other, plaintiff and Williams scuffled, and Williams called to Fisher for help. At that point, plaintiff kicked off from the wall with her feet, and Williams and plaintiff both fell to the floor. At Williams' direction, Fisher took off his belt and secured plaintiff's hands behind her back, and Williams stood up, holding plaintiff. According to Scully, plaintiff then "snarled" at him, stating repeatedly, "You're going to pay for this" and "You'll be the first." Plaintiff then kicked out hard at Scully, striking him below the groin and to the side. The force of the kick caused Williams to lose his balance, and he and the plaintiff fell to the floor again. Plaintiff continued to kick and holler and swear while on the floor, and Williams told Teeter to take his belt off him and tie plaintiff's feet together, which Teeter did. They then sat plaintiff up in a chair. Scully stated the plaintiff seemed to have calmed down, and he said to take the belt off her legs. This was done, and the police arrived shortly thereafter.

There was testimony that K mart had no policy concerning or a training program for dealing with customers who are making a disturbance or are unruly whereas it does have set policies with regard to shoplifters. There was no evidence that plaintiff was suspected of shoplifting. Williams denied he told the plaintiff she could not leave the security office until she signed a general release form or that he sat on her. According to the K mart employees' testimony, plaintiff did not seem to be suffering from any disability on October 6.

Darlene Saam, a store customer who was present along with her two-year-old son in the layaway department when the incident occurred, testified she heard the plaintiff screaming and yelling and saw her swing her cane back and forth. Saam's first thought was that the plaintiff was inebriated. She testified that the K mart employees who approached the plaintiff talked to her calmly and quietly and did nothing to provoke her. She saw plaintiff raise her cane and saw it intercepted by the man who put the plaintiff in a "bear hug."

Mundelein police officer Cimaglio testified he was dispatched to K mart about 5:18 p.m. on October 6. Plaintiff was sitting calmly in a chair; she was pale and had dark circles under her eyes. He did not notice any bumps, bruises, contusions or bleeding on the plaintiff. She was happy-go-lucky and laughing when she arrived at the police station. At no time did she claim to have been beaten, tied or mistreated by K mart.

Mundelein patrolman Roy McCommons, whom plaintiff's counsel encountered by...