Esser v. McIntyre

• Decision Date: 25 January 1996
• Docket Number: No. 78530,78530
• Parties: , 214 Ill.Dec. 693 Diane ESSER, Appellee, v. Joseph McINTYRE, Appellant.
• Court: Illinois Supreme Court

Page 1138

661 N.E.2d 1138

169 Ill.2d 292, 214 Ill.Dec. 693

Diane ESSER, Appellee, v. Joseph McINTYRE, Appellant.

No. 78530.

Supreme Court of Illinois.

Jan. 25, 1996.

Francis D. Morrissey, Michael A. Pollard and Mark M. Burden, of counsel, Baker & McKenzie, Chicago, for Joseph McIntyre.

Robert A. Chapman, Robert A. Chapman, P.C., Chicago, for Diane Esser.

Justice HEIPLE delivered the opinion of the court:

This appeal arises from plaintiff's personal injury suit, in the circuit court of Cook County, seeking damages for injuries allegedly

                [214 Ill.Dec. 695] sustained when plaintiff slipped on unpopped popcorn kernels spilled by defendant.  At the close of the evidence, the jury returned a verdict in favor of defendant.  The appellate court reversed and remanded for a new trial, holding that the jury instructions improperly stated defendant's duty of care.  (267 Ill.App.3d 611, 204 Ill.Dec. 902, 642 N.E.2d 803.)   This court granted defendant's petition for leave to appeal (145 Ill.2d R. 315).  We affirm
                

FACTS

In 1983, three men, Joseph McIntyre, Donald Fett, and Joseph O'Brien, along with their respective guests, Sue Pence, Joanne Walden Votava, and Eva Myers, planned a five-day vacation to Acapulco, Mexico. When Eva Myers, Joseph O'Brien's guest, became unable to go on the trip, she suggested that O'Brien invite Diane Esser, the plaintiff. After meeting O'Brien once, plaintiff agreed to accompany him and the other couples to Acapulco at O'Brien's expense.

Other than O'Brien, plaintiff did not meet her fellow travelers until she arrived at Chicago's O'Hare International Airport for the flight to Acapulco. When the six travelers arrived in Mexico, they checked into a villa at the Villa Vera Hotel. Their villa was a separate structure with three levels. The lower and upper levels contained bedrooms and the middle level contained a private pool, bar, and kitchen.

Plaintiff testified that, after checking in, the vacationers went out for dinner and then returned to the villa. Around 11 p.m., plaintiff retired to the bedroom and O'Brien followed soon after. Just after midnight, she and O'Brien heard the other vacationers pounding on their locked bedroom door and asking them to come out and "party." Plaintiff and O'Brien declined and remained in the bedroom.

Plaintiff stated that she woke up the next morning at 7 a.m. and sat on the sun deck for a short time. Wearing leather loafers, she then walked to the kitchen to order coffee from room service. As she stepped onto the kitchen's glazed tile surface she fell, hit her back on the floor, and screamed. After falling, she looked around and realized that she had slipped on unpopped popcorn kernels that were strewn across the kitchen floor.

Plaintiff testified that O'Brien and defendant McIntyre responded when she fell. Plaintiff asked defendant why no one had cleaned up the popcorn. Defendant replied that he was sorry and that he had opened the popcorn the night before and spilled it, but could not find anything to clean it up.

Plaintiff further testified that she delayed seeking medical attention until she was back in Chicago, where she could see her own doctor. During the remainder of the trip, plaintiff suffered back pain and developed bruises on her left arm, left leg, and hip as a result of the fall. Plaintiff admitted, however, that she was still able to sunbathe by the pool and participate in various activities throughout the remainder of the vacation.

Plaintiff then testified that, after returning to Chicago, she consulted her physician, who prescribed a neck collar and pain medication, and advised her to keep her legs elevated. In 1984, she underwent back surgery for a ruptured disc, during which her lower spine was fused. In 1991, she underwent a second surgery for refusion of her lower spine. Plaintiff testified that, as a result of the fall, she continues to experience back pain which limits her physical activity. Further, these physical problems have caused her to suffer depression, for which she takes medication.

Defendant disputed plaintiff's testimony regarding her fall. He and the other four travelers testified that they were never aware that plaintiff fell and stated that they observed plaintiff participating in various activities after the alleged fall, including swimming, dancing, shopping, and lounging on a raft in the pool. O'Brien, Pence, and Votava further testified that they noticed no bruises on plaintiff's body even though they observed her wearing a bikini in the days following the alleged fall. Photos taken of plaintiff during the vacation corroborate that there were no bruises.

Defendant and the other four vacationers also testified that there was never any popcorn in the villa during the vacation. In addition, defendant stated that he suffers from diverticulitis, which prevents him from

[214 Ill.Dec. 696] eating popcorn. However, plaintiff's witness Eva Myers, who was not on this vacation, testified that defendant loved popcorn and had eaten it often during previous sojourns to Acapulco.

PROCEDURAL HISTORY

Prior to trial, the court ruled that Illinois law, rather than Mexican law, applied to plaintiff's claim. The trial court also determined that defendant was an occupier of land and thus owed plaintiff, a licensee, a duty only to refrain from willful and wanton misconduct. At the close of the evidence, the court instructed the jury that defendant had only a duty to refrain from willful and wanton misconduct. The jury then returned a verdict for defendant. The appellate court reversed and remanded for a new trial because defendant was not an occupier of land and therefore owed plaintiff a duty of ordinary care. 267 Ill.App.3d 611, 204 Ill.Dec. 902, 642 N.E.2d 803.

Before this court, defendant argues that: (1) Mexican law rather than Illinois law applies to plaintiff's claim; (2) the trial court properly instructed the jury as to defendant's duty; (3) plaintiff waived any negligence claim against defendant; and (4) evidence of Eva Myers' disreputable occupation was properly admitted.

ANALYSIS

I. Choice of Law

Initially, we must determine whether Mexican law or Illinois law applies to plaintiff's claim. The parties agree that plaintiff has no cause of action under Mexican law.

To determine which law applies, we look to the conflicts law of Illinois, the forum State. (Nelson v. Hix (1988), 122 Ill.2d 343, 346, 119 Ill.Dec. 355, 522 N.E.2d 1214, citing Restatement (Second) of Conflict of Laws § 122 (1971).) In Ingersoll v. Klein (1970), 46 Ill.2d 42, 262 N.E.2d 593, this court rejected the lex loci delicti doctrine and adopted the most significant relationship test for deciding among conflicting laws. (Ingersoll, 46 Ill.2d at 47, 262 N.E.2d 593 (citing the preliminary draft of what is now section 145 of the Restatement (Second) of Conflicts of Law).) Under this test, the law of the place of injury controls unless Illinois has a more significant relationship with the occurrence and with the parties. (Ingersoll, 46 Ill.2d at 45, 262 N.E.2d 593.) When applying the most significant relationship test, a court should consider (1) where the injury occurred; (2) where the injury-causing conduct occurred; (3) the domicile of the parties; and (4) where the relationship of the parties is centered. (Ingersoll, 46 Ill.2d at 47, 262 N.E.2d 593.) The court must look at the contacts of the jurisdictions under these four factors and then evaluate those contacts in light of the policies underlying the laws of those jurisdictions.

The first two factors of the most significant relationship test are easily determined. First, plaintiff's injury occurred in Acapulco, Mexico, at the Villa Vera Hotel. Second, the alleged injury-causing conduct--defendant's spilling of the popcorn--also occurred in Mexico.

Third, we must determine the domicile of the parties. The parties do not dispute that defendant's domicile is Illinois. Plaintiff claims that her domicile is Illinois as well, but defendant argues that plaintiff's domicile is unclear since plaintiff has spent significant time living in Utah. However, the relevant time to examine the domicile of the parties is at the time of the accident. (See Miller v. Hayes (1992), 233 Ill.App.3d 847, 850, 175 Ill.Dec. 411, 600 N.E.2d 34.) Since plaintiff lived in Chicago from her birth until after the 1983 accident, she is an Illinois domiciliary for purposes of the most significant relationship test. Although plaintiff spent five weeks in Utah during 1982 and 10 weeks in Utah during 1983, she was still domiciled in Illinois because she intended to return to Illinois when each visit to Utah was finished.

Fourth, and finally, we must determine where the relationship of the parties was centered. Defendant argues that his relationship with plaintiff was centered in Mexico since plaintiff and defendant had no contact until they met at the airport on the way to Mexico and have had no contact since their return, except regarding plaintiff's lawsuit.

[214 Ill.Dec. 697] Plaintiff responds that everything about her relationship with defendant was centered in Illinois and only the destination involved Mexico. All of the vacationers were Illinois residents, the trip was planned in Illinois, plaintiff's invitation from O'Brien was issued in Illinois, and, finally, the vacationers left from and returned to O'Hare International Airport in Chicago, Illinois.

We conclude that the relationship of the parties was centered in Illinois because (1) plaintiff was invited by defendant's friend O'Brien, an Illinois resident; (2) O'Brien's invitation was issued in Illinois, and (3) defendant planned the vacation with O'Brien and Fett in Illinois.

Under the four factors of the most significant relationship test, the contacts of Mexico and Illinois are as follows: (1) the injury occurred in Mexico; (2) the injury-causing conduct occurred in Mexico; (3) both plaintiff and defendant are domiciled in Illinois, and (4) the...