Burke v. 12 Rothschild's Liquor Mart, Inc., 1-89-0237

• Citation: 209 Ill.App.3d 192,568 N.E.2d 80,154 Ill.Dec. 80
• Decision Date: 15 January 1991
• Docket Number: No. 1-89-0237,1-89-0237
• Parties: , 154 Ill.Dec. 80 Henry L. BURKE, Plaintiff-Appellee, v. 12 ROTHSCHILD'S LIQUOR MART, INC., a corporation, Defendant-Appellee (The City of Chicago, a municipal corporation, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 80

568 N.E.2d 80 209 Ill.App.3d 192, 154 Ill.Dec. 80 Henry L. BURKE, Plaintiff-Appellee,
v.
12 ROTHSCHILD'S LIQUOR MART, INC., a corporation,
Defendant-Appellee (The City of Chicago, a
municipal corporation, Defendant-Appellant). No. 1-89-0237. Appellate Court of Illinois,
First District, Second Division. Jan. 15, 1991.

Page 81

[209 Ill.App.3d 194] [154 Ill.Dec. 81] Kelly R. Welsh, Corp. Counsel, Chicago (Ruth M. Moscovitch, Jean Dobrer, Asst. Corp. Counsel, of counsel), for defendant-appellant.

Pavalon & Gifford, Chicago (Eugene I. Pavalon, Gary K. Laatsch, Richard L. Kumlin, of counsel), for plaintiff-appellee.

Presiding Justice SCARIANO delivered the opinion of the court:

Plaintiff was injured when he fell and struck his head while being forcibly ejected from a store owned by defendant 12 Rothschild's Liquor Mart, Inc. (Rothschild). After several Chicago police officers arrived, he was arrested and thrown into a paddy wagon. Plaintiff filed this action seeking recovery for his injuries, which rendered him a quadriplegic, and the jury returned a verdict against both defendants in the amount of $7,487,000. The City appeals, charging that three erroneous evidentiary rulings and two regarding damages were made by the trial court. We affirm.

The case was tried, beginning September 20, 1988, on Counts I and V of the complaint; Count I charged Rothschild with negligence, and Count V charged the City with willful and wanton misconduct. Shortly before trial, Rothschild and the City both filed counterclaims against each other seeking contribution based on the Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.

Plaintiff testified that his injuries occurred on November 20, 1977, when he became involved in an altercation with the manager of Rothschild's store, who attempted to eject him forcibly from the premises. As the manager was shoving plaintiff toward the door, [209 Ill.App.3d 195] plaintiff's foot caught on a broken tile and he fell forward, striking his head on the door. Plaintiff testified that after lying on the floor several minutes, he lost consciousness. When he awoke a short time later, two Chicago police officers had arrived. They asked him to get up, and when plaintiff responded that he could not because he was hurt, he was picked up in a rough manner by the officers and thrown into a paddy wagon. He received equally rough treatment when he was removed from the vehicle, and again lost consciousness after he was dropped to the ground. Much of this testimony was confirmed by several other occurrence witnesses. Plaintiff was caused serious and irreversible damage to his spinal cord.

The City presented the testimony of the two arresting officers which conflicted sharply with plaintiff's version of the facts. The senior officer testified that after he arrived on the scene, he spoke with the store manager, who had called the police.

Page 82

[154 Ill.Dec. 82] When he observed plaintiff lying on the floor he asked him several questions in order to obtain the information he needed to prepare his arrest report. Plaintiff said nothing at this time regarding his injuries, but told the police that they would have to carry him away if they were going to lock him up. The officer testified that plaintiff did not appear to be seriously injured, although he did not move while lying on the floor. Several minutes later, just as a paddy wagon was arriving, plaintiff told the officer he was hurt, and the officer relayed this information to the two paddy wagon officers. He heard them ask plaintiff to get up, but he could not hear plaintiff's response. The paddy wagon officers then lifted plaintiff off the ground, carried him into the wagon, and drove away. This testimony was essentially corroborated by the second arresting officer.

During the instructions conference, plaintiff moved the court to rule as a matter of law that his conduct did not contribute to any injuries caused by the City's misconduct, and that the jury be instructed not to reduce the City's liability based on plaintiff's negligence. The judge granted the motion, and he later advised the jury of his ruling. The judge also refused a number of instructions proffered by the City directing that its damages be reduced by plaintiff's own negligence.

The first of three completed verdict forms returned by the jury in favor of plaintiff stated that his total damages against both defendants were $7,487,000. The second apportioned damages at 65% against Rothschild and 35%against the City. In the third verdict form the jury determined that plaintiff was 32% negligent as compared to Rothschild's fault, and fixed a total of $3,309,254 damages recoverable against Rothschild. This figure was apparently arrived at by reducing[209 Ill.App.3d 196] $7,487,000 first by 35%, the City's share of damages, and then by an additional 32%, the plaintiff's negligence. The court entered judgment on the verdicts.

In its post-trial motion, the City contended for the first time that defendants were not joint tortfeasors, and that it was liable for only 35% of the total damages; in the alternative, it claimed the trial judge erred in ruling that the City's liability could not be reduced by plaintiff's negligence. Plaintiff asserted in oral argument on the motion that the jury was properly instructed to find joint and several liability, and that the apportionment figures related solely to defendants' counterclaims against each other for contribution. Plaintiff also filed his own post-trial motion asking the court to amend the verdict forms to reflect damages assessed against Rothschild as $5,091,160, the full $7,487,000 reduced by 32%, the percentage of plaintiff's negligence. ¹

The trial judge denied the City's motion and granted plaintiff's post-trial motion on November 28, 1988. Plaintiff's attorney was asked to draw up a judgment order reflecting the court's ruling. After additional oral argument on December 5, 1988, the judge approved plaintiff's draft order and entered a nunc pro tunc order effective October 4, 1988, which provided that judgment should be entered against both defendants in the amount of $7,487,000; that based on the defendants' contribution actions, damages should be apportioned 65% to Rothschild and 35% to the City; and that Rothschild's damages should be reduced by plaintiff's own negligence (32%), thus limiting recovery against Rothschild to $5,091,160. A second order was entered making corresponding changes in the jury verdict forms.

The City filed a notice of appeal on January 4, 1989, appealing from both orders. Rothschild has neither appealed nor appeared, nor has it filed a brief in this appeal. ²

Page 83

[154 Ill.Dec. 83] I.

We first address the three evidentiary issues raised by the City. On September 19, 1988, just prior to the start of trial, the City filed a motion in limine to bar the testimony of Judith Sher on the ground that [209 Ill.App.3d 197] she had not been disclosed by plaintiff as an expert witness, as required by Supreme Court Rule 220 (107 Ill.2d R. 220.) Counsel for the City stated that on September 13, 1988, plaintiff submitted Sher's name for the first time, and advised defendants that she would testify as a fact witness regarding the ongoing costs of plaintiff's medical care and rehabilitation treatment; counsel further represented that Sher's deposition was taken some time after that date. The judge denied the City's motion on the ground that Sher was a fact witness, and that therefore Rule 220 did not apply. The judge also denied the City's motion for the continuance it sought in order to permit it to obtain additional information regarding the costs of plaintiff's continuing nursing care, which was the subject of Sher's testimony. Sher testified at trial on September 27, 1988.

Rule 220(a)(1) defines an expert as "a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim...