Hawkes v. Casino Queen, Inc.

• Citation: 785 N.E.2d 507,271 Ill.Dec. 575,336 Ill. App.3d 994
• Decision Date: 29 January 2003
• Docket Number: No. 5-01-0001.,5-01-0001.
• Parties: Rick G. HAWKES, Plaintiff-Appellee, v. CASINO QUEEN, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

785 N.E.2d 507

336 Ill. App.3d 994

271 Ill.Dec. 575

Rick G. HAWKES, Plaintiff-Appellee, v. CASINO QUEEN, INC., Defendant-Appellant.

No. 5-01-0001.

Appellate Court of Illinois, Fifth District.

January 29, 2003.

Kenneth M. Burke, Brown & James, P.C., Belleville, for Appellant.

Robert W. Rongey, Kenneth P. Danzinger, Callis, Papa, Jackstadt, Szewczyk, Rongey & Danzinger, P.C., Granite City, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

A jury rendered a verdict in favor of Rick G. Hawkes (plaintiff) and against Casino Queen, Inc. (defendant), for injuries sustained by plaintiff while using the restroom aboard defendant's casino cruise ship. Defendant now appeals. The issues for review are as follows: (1) whether the circuit court erred in prohibiting defendant from performing a psychiatric examination upon plaintiff, (2) whether the court erred in granting plaintiff's motion in limine, which prevented the admission of evidence of plaintiff's prior injuries, (3) whether the circuit court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case, (4) whether the circuit court erred in submitting certain jury instructions, (5) whether the jury's award of damages was against the manifest weight of the evidence, and (6) whether the circuit court erred in denying defendant's motion for a judgment notwithstanding the verdict. We affirm.

I. BACKGROUND

On November 12, 1994, plaintiff boarded defendant's casino for an afternoon cruise. During his visit plaintiff entered the men's restroom. While in the restroom, plaintiff tripped and fell to the floor, sustaining injuries to his head, neck, and back. Plaintiff was later taken by ambulance to St. John's Mercy Hospital for medical treatment. After being released from the hospital, plaintiff received medical care from Dr. David Schreiber for head, neck, and shoulder pain, as well as for weakness in his arms and inability to grip. Dr. Schreiber eventually referred plaintiff to Dr. George Schoedinger, an orthopedic surgeon. Dr. Schoedinger diagnosed plaintiff as suffering from a ruptured disc at the C5-C6 level and later performed an anterior cervical discectomy and fusion upon him. Dr. Schoedinger believed that plaintiff's ruptured disc, or the symptoms he experienced that necessitated his surgery, had been caused by his November 12, 1994, fall. Plaintiff also received a submuscular ulnar nerve transposition, performed by Dr. David Haueisen, to cure cubital tunnel syndrome also caused by the fall.

Plaintiff filed a complaint against defendant in the circuit court of Madison County. Plaintiff's complaint, as amended on August 18, 1995, alleged that he was an invitee using the bathroom aboard defendant's casino boat when he was caused to trip and fall by an open cabinet door immediately below one of the bathroom sinks. Plaintiff alleged that defendant had been negligent in (1) opening and leaving open the cabinet door below the bathroom sink, (2) failing to warn him of the open door and the dangerous condition it created, (3) failing to close the door or correct the dangerous condition it presented, (4) failing to ascertain that he was lying in a position of danger while its agents repeatedly attempted to open the bathroom door, or (5) carelessly operating its gaming boat. Plaintiff alleged that these incidents of defendant's negligence proximately caused his fall and resulting injuries. Plaintiff's suit was later transferred to St. Clair County on grounds of forum non conveniens. On December 30, 1998, defendant amended its answer to include a third-party complaint against Boatmen's National Bank. Defendant alleged that the bank might be liable in part for plaintiff's damages under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101et seq. (1994)). The bank had the case removed to federal court, relying on the court's federal question and pendent jurisdiction over the matter. However, the matter was remanded to the circuit court of St. Clair County on May 18, 1999, after the federal district court entered a summary judgment on all the issues forming the basis of its federal question jurisdiction.

In February 2000, while the suit was still pending in federal district court, plaintiff sought psychiatric care from Dr. Edwin Wolfgram. Dr. Wolfgram diagnosed plaintiff as permanently and chronically suffering from major depression, mood disorder secondary to cerebral concussion, and anxiety disorder resulting from his chronic pain. On August 4, 2000, after the matter had been remanded to the circuit court, defendant filed a motion pursuant to Supreme Court Rule 215 (166 Ill.2d R. 215) to allow a psychiatric examination of plaintiff by Dr. Richard Wetzel. Defendant's motion asserted that its psychiatrist needed to examine plaintiff before he could offer testimony. Defendant further asserted that it would be severely prejudiced if Dr. Wetzel were not able to examine plaintiff, allowing him to form his own opinion on plaintiff's claimed psychiatric or psychological injuries. On August 28, 2000, defendant's motion was summarily denied by the circuit court.

Shortly before the trial, plaintiff submitted a motion in limine in which he sought to bar defendant from mentioning or referring to prior neck injuries and related treatment he received before his fall. Plaintiff's motion, relying upon the Illinois Supreme Court's recent decision in Voykin v. Estate of DeBoer, 192 Ill.2d 49, 248 Ill.Dec. 277, 733 N.E.2d 1275 (2000), sought to bar defendant from suggesting that plaintiff's injuries were a result of a preexisting condition involving his neck. On October 2, 2000, before the trial began, the court heard arguments from the parties on plaintiff's motion. The court granted plaintiff's motion in limine and barred defendant from mentioning plaintiff's prior neck injuries and treatment, as well as any opinions or cross-examination concerning whether plaintiff had a prior bulging disc in his cervical area. Defendant objected to the court's barring of this evidence and submitted, as an offer of proof, the evidence deposition of plaintiff's former chiropractor, Dr. Robert Engelmann, and nearly three full pages of cross-examination from the evidence deposition of plaintiff's orthopedic surgeon, Dr. Schoedinger.

At the close of plaintiff's case, defendant moved for a directed verdict. Defendant argued that plaintiff had failed to make a prima facie case. The court denied defendant's motion. On October 5, 2000, the jury returned a verdict in favor of plaintiff in the amount of $1.87 million, which included a $1.25 million award for plaintiff's impaired earning capacity. The jury also found plaintiff 30% contributorily negligent and reduced the award to $1.309 million. On November 2, 2000, defendant filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. On December 13, 2000, the circuit court denied defendant's posttrial motion entirely. Defendant made a timely appeal.

II. ANALYSIS

Motions for Directed Verdict and Judgment Notwithstanding the Verdict

Defendant first argues that the circuit court erred in denying both its motion for a directed verdict at the close of plaintiff's case and its later motion for a judgment notwithstanding the verdict, because plaintiff failed to prove, to a reasonable certainty, that his fall had occurred from tripping over an open vanity door. Defendant contends that, though plaintiff alleged that his injuries had resulted from tripping over an open vanity door in defendant's restroom, he failed to actually prove that an act of negligence had proximately caused his injuries. Defendant claims that plaintiff offered no testimony on direct examination explaining how the accident happened and that his own testimony makes it just as likely that he slipped in soapy water dripping from his hands. We disagree.

In a negligence action, the plaintiff is required to prove that the defendant owed him a duty of reasonable care, that the defendant breached its duty, and that the defendant's breach proximately caused the plaintiff's injuries. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill.App.3d 789, 795, 242 Ill.Dec. 335, 721 N.E.2d 614, 620 (1999). "[L]iability cannot be predicated upon surmise or conjecture as to the cause of an injury, and therefore proximate cause can be established only when there is a reasonable certainty that the defendant's act caused the injury." Wiegman, 308 Ill.App.3d at 795, 242 Ill. Dec. 335, 721 N.E.2d at 620. However, causation need not be shown by direct evidence and "may be established by facts and circumstances which, in the light of ordinary experience, reasonably suggest that the defendant's negligence operated to produce the injury." Wiegman, 308 Ill.App.3d at 795, 242 Ill.Dec. 335, 721 N.E.2d at 620.

"[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple v. Gustafson, 151 Ill.2d 445, 452-53, 177 Ill.Dec. 438, 603 N.E.2d 508, 512 (1992). A directed verdict or a judgment notwithstanding the verdict is properly entered only where all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967); Grewe v. West Washington County Unit District No. 10, 303 Ill. App.3d 299, 303, 236 Ill.Dec. 612, 707 N.E.2d 739, 742 (1999). In directing or setting aside a verdict, the circuit court cannot reweigh the evidence or assess the credibility of witnesses; instead, it may only consider the evidence and any inferences that may follow, in the light most favorable to the nonmovant. See Maple, 151 Ill.2d at 452-53, 177 Ill.Dec. 438, 603 N.E.2d at 512; Grewe, 303 Ill.App.3d at 303, 236 Ill.Dec. 612, 707...