Bodkin v. 5401 SP, INC.

• Decision Date: 29 March 2002
• Docket Number: No. 1-01-0228.,1-01-0228.
• Parties: Steven BODKIN, Plaintiff-Appellee, v. 5401 S.P., INC., a corporation d/b/a Lindy's, Chili Parlor, and Michael McClory, Individually, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

768 N.E.2d 194

329 Ill. App.3d 620

263 Ill.Dec. 434

Steven BODKIN, Plaintiff-Appellee, v. 5401 S.P., INC., a corporation d/b/a Lindy's, Chili Parlor, and Michael McClory, Individually, Defendants-Appellants.

No. 1-01-0228.

Appellate Court of Illinois, First District, First Division.

March 29, 2002.

Kiesler & Berman, Chicago, for Appellant.

Kenneth J. Sophie, Jr., Vincent B. Browne, Harrington, Thompson, Acker & Harrington, Chicago, for Appellee.

Presiding Justice COHEN delivered the opinion of the court:

Plaintiff suffered extensive injuries following an explosion at Lindy's Chili Parlor. Plaintiff filed a complaint alleging negligence against 5401 S.P. Inc., a corporation doing business as Lindy's Chili Parlor (hereafter, the corporation), and against Michael McClory, a part owner of the corporation and bartender at Lindy's. Following a trial, the jury returned a verdict in favor of plaintiff, awarding $861,111.23 in damages, reduced by 10% to $782,200 to reflect plaintiffs comparative negligence. Defendants then brought a motion for judgment notwithstanding the verdict, which the trial court denied. Defendants appeal, arguing that the trial court erred by: (1) not entering judgment notwithstanding the verdict because plaintiff failed to establish either a duty owed by defendants or that defendants' acts proximately caused plaintiff's injuries; (2) allowing evidence and argument related to alcohol consumption and intoxication; and (3) refusing to instruct the jury to apportion negligence among plaintiff, the corporation, McClory, and "Person X," an unidentified person who was not a party to the lawsuit. For the following reasons, we affirm.

BACKGROUND

Plaintiff testified at trial that he was employed as a locomotive engineer for the Norfolk and Southern Railroad Corporation on the date of the accident. Plaintiff's position required him to travel by freight train from Fort Wayne, Indiana, to Chicago, Illinois. Upon plaintiff's arrival in Chicago, a company bus would transport plaintiff from the train yard to the Rolling Wheels Motel. Once plaintiff arrived at the Rolling Wheels Motel, he would then contact a company dispatcher who would inform plaintiff of the time of plaintiff's expected return to Fort Wayne.

On June 13, 1996, plaintiff arrived in Chicago and was transported to the Rolling Wheels Motel. As was his custom, plaintiff walked from the motel to Lindy's Chili Parlor. Lindy's is divided into two sections with a family-style restaurant on one side and a bar on the other side.

Plaintiff testified that he arrived at Lindy's and entered the bar area around 11:30 a.m. Plaintiff walked to a barstool near the front of the bar where he remained standing until the occurrence took place. Plaintiff's coworker, Ron "Rondo" Martineck, and Rondo's brother Bobby arrived around 2:30 p.m. Rondo stood to plaintiff's right. Bobby, confined to a wheelchair, was also located to plaintiff's right. James Trahin, Jr., another of plaintiff's coworkers, arrived sometime later and stood to plaintiff's left.

Plaintiff further testified that Mike McClory, a bartender and co-owner of Lindy's, was not present when plaintiff first arrived. McClory arrived later, entering through a door at the back of the bar. McClory spoke with different people as he proceeded down the length of the bar, finally approaching plaintiff. According to plaintiff, when McClory reached the place where plaintiff was standing, McClory placed an object, which plaintiff later identified as an "M 80," on the bar in front of plaintiff and said, "Here, you can have this." Plaintiff testified:

"I looked down at it, and I don't do well in the—it's a little darker there. I don't have my glasses with me. I looked at it. I couldn't exactly tell what it was, so I picked it up and held it up to the light, which the front is—has a lot of windows, has more light coming in. So I held it up to see what—what exactly that was.

* * *

As I was looking at it, I seen a hand come with a lit lighter and light the fuse."

Plaintiff testified that the hand that lit the fuse came from the left front of plaintiff, but he did not know to whom the hand belonged. Plaintiff, shocked that someone had lit the fuse, ran toward the front door of the bar while trying to extinguish the fuse of the M-80 on his pant leg. Plaintiff exited through an interior door, opened an exterior door, and "tried to underhand pitch the M-80 out up against the building by the sidewalk." The M-80, however, exploded before plaintiff could release it, causing serious injuries to his hand, stomach and thigh. Plaintiff testified that he did not light the M-80 and did not know who lit it. Plaintiff had some experience with M-80s at least 10 to 15 years prior to the incident at Lindy's and knew an M-80 explodes about five seconds after the wick is lit and has a "pretty powerful explosion."

Plaintiff's counsel called McClory as an adverse witness. McClory testified that he arrived at Lindy's around 4 p.m. on the day of the explosion and observed a group of patrons near the back of the bar passing an object back and forth. According to McClory, someone in the group at the back of the bar either dropped the object or placed it on the bar and McClory picked the object up. McClory initially testified that he was not sure whether the object was an explosive device, but admitted that he "had an idea that it may be some type of firework." McClory also admitted that during his deposition he had testified that he remembered "seeing an M-80" five minutes prior to the explosion. According to McClory, the device was "red, about an inch or more high, with a wick" and was one-half inch in diameter. McClory testified that he picked up the explosive and asked "who it belonged to." McClory believed that someone had gestured in the direction of plaintiff, so McClory placed the explosive on the bar in front of plaintiff.

Plaintiff's counsel then questioned McClory regarding alcohol consumption as follows:

"Q. You knew that people were drinking in the bar, correct?

A. Yes, correct.

Q. You knew that people were smoking in the bar, correct?

A. Correct.

Q. You know that patrons often consume a little bit too much alcohol in the bar; is that correct?"

Defense counsel objected and moved for a mistrial, arguing that there was no supporting evidence of intoxication. Plaintiff's counsel argued that the testimony he sought to elicit "goes to the foreseeability and the knowledge of the defendant of placing an explosive device on a bar where he knows people are drinking and sometimes drink too much." The trial judge overruled defense counsel's objection and denied the motion for a mistrial. McClory then further testified as follows:

"A. I know that it does happen from time to time, sure.

Q. And you know that it does happen at Lindy's Chili Parlor, correct?

A. To the best of my ability, I try not to allow that to happen.

Q. But prior to June 13, 1996, there are occasions where you have observed people consuming more alcohol than they should?

A. If I observe anybody that doesn't look like they should be drinking, they are asked to leave.

Q. Have you on occasion, though, seen people drinking where you have had to ask them to leave?

A. Correct.

Q. And you don't know how much people had been drinking before you arrived on June 13th?

A. Positively not."

Upon cross-examination by defense counsel, McClory testified that, having just arrived, he had no way of knowing whether anyone in Lindy's was intoxicated at the time of the occurrence and that, from his experience, he would not expect to see people intoxicated at Lindy's at 4:30 in the afternoon. Finally, McClory testified that "the bar is, for the most part, pretty dimly lit."

Plaintiff next called James Trahin as a witness. Trahin was employed as a dispatcher for Norfolk Southern Railroad Corporation at the time of the occurrence. Trahin testified that he arrived at Lindy's between 3 and 4 p.m. and joined plaintiff, "Rondo" and Bobby at the bar. Trahin ordered some food from McClory. While waiting for his order, Trahin saw McClory reach underneath the bar, grab what turned out to be the explosive, and bring it to the end of the bar where Trahin and plaintiff stood. According to Trahin, plaintiff neither asked nor gestured to McClory to place the explosive on the bar.

Trahin testified that the explosive was "about five inches tall. When it was put on the bar it was standing on end, circular." Trahin commented that the explosive "looked like a candle, had a wick off the top. It's red with like a clear wax in the middle of it where the wick was." Trahin was watching McClory to see whether he was bringing Trahin's food order when Trahin heard the fizzling of the lit wick. Trahin testified that he had left his lighter and cigarettes on the bar but could not find the lighter when he left after the explosion. Plaintiff's counsel asked if Trahin had ever seen intoxicated persons in Lindy's bar. Defendants' objection to this question was sustained.

Following the close of evidence, defendants moved for a directed verdict arguing that: (1) any negligence by defendants was a condition rather than a cause of plaintiff's injuries; (2) the lighting of the wick was an intervening cause of plaintiff's injuries; and (3) plaintiff failed to prove that McClory provided the firecracker. The trial court denied the motion for directed verdict.

Plaintiff was permitted to reopen his case and call Rigoberto Gonzalez as a witness. Gonzalez testified that he had seen an explosive device being passed around by patrons at Lindy's on June 12, 1996, the day before plaintiff was injured. The explosive Gonzalez observed was "red, about one inch and a half diameter. It was like a quarter size." Gonzalez did not know whether this was the same explosive that injured plaintiff on June 13.

The parties again rested. In closing argument, plaintiff's counsel made the following comments:

"Michael McClory * * * is the

...