KOONCE EX REL. KOONCE v. Pacilio, 1-98-4446.

• Citation: 307 Ill. App.3d 449,718 N.E.2d 628,241 Ill.Dec. 57
• Decision Date: 07 September 1999
• Docket Number: No. 1-98-4446.,1-98-4446.
• Parties: Timothy KOONCE, a minor by His parent and natural guardian Carol KOONCE, Plaintiff-Appellant, v. Vincenzio PACILIO and Teresa Pacilio, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

718 N.E.2d 628

307 Ill. App.3d 449

241 Ill.Dec. 57

Timothy KOONCE, a minor by His parent and natural guardian Carol KOONCE, Plaintiff-Appellant, v. Vincenzio PACILIO and Teresa Pacilio, Defendants-Appellees.

No. 1-98-4446.

Appellate Court of Illinois, First District, Second Division.

September 7, 1999.

Nancy L. Hirsch, Reibman, Hoffman & Baum, Chicago, for Appellant.

Howard J. Rigsby, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

The instant premises liability action was brought by Carol Koonce as parent and natural guardian of the plaintiff, Timothy Koonce, against defendants Vincenzio Pacilio and Teresa Pacilio. The jury returned a verdict in favor of the defendants, and the plaintiff appeals. On appeal the plaintiff argues that he is entitled to a new trial because defense counsel made improper and prejudicial closing argument; because the trial court rejected a jury instruction tendered by the plaintiff regarding defendants' failure to produce evidence; and because the trial court denied plaintiff's request to question Vincenzio regarding a prior premises liability action. For the reasons discussed below, we reverse the judgment in favor of the defendants and remand for a new trial.

BACKGROUND FACTS

At trial, the plaintiff contended that the defendants carelessly and negligently maintained their premises by permitting a clothesline to exist on the premises in a dangerous condition; by failing to warn of that condition; by failing to properly fix, repair and maintain the clothesline; by permitting minors to play in the area of the clothesline; and by failing to properly supervise minors in the area of the clothesline. The plaintiff contended that he was injured when the clothesline snapped and a wire, allegedly connected to the clothesline by Vincenzio, punctured his left eye causing permanent loss of vision in that eye.

The evidence at trial relevant to the issues raised in the instant appeal showed that Timothy was injured on April 10, 1992 while playing with Nello Pacilio, the defendants' son, in the backyard of the defendants' home. At that time, Timothy and Nello were ten and nine years old, respectively.

Nello testified as an adverse witness and stated that he and Timothy were hanging or pulling on a clothesline in the back yard, that the clothesline snapped and that Timothy's eye began to bleed. (The clothesline ran from the back porch/deck attached to the defendants' home to the defendants' unattached garage.) Nello denied seeing any wire hit Timothy in the eye. He stated there were no rocks on the ground and that they were not playing with pencils or anything sharp at the time of Timothy's injury.

Timothy testified that he and Nello were shaking and hanging on the clothesline and that the clothesline snapped and hit his left eye. He stated he looked down to see what hit him and saw a wire that had been connected to and wrapped around the clothesline. He did not see any other sharp object in the area.

Carol Koonce, Timothy's mother, testified that she received a telephone call at her place of employment on April 10, 1992 advising her that Timothy had been injured. She went to the Pacilio home and spoke to Teresa. Teresa took her to the back yard and told her, "[t]he rope, it broke and hit Timmy's eye, cut Timmy's eye.'" Carol also was told that Vincenzio had taken Timothy to the hospital. Carol further testified that Teresa told her that the rope had broken before Timothy was injured and that, "`My husband put the rope together with a piece of wire.'"

Teresa Pacilio¹ testified as an adverse witness and stated that the clothesline in the back yard consisted of a cotton rope. She stated that she and her husband put up the clothesline when they moved into the house and that they brought the clothesline with them from their previous house. She testified that they moved into the house involved in the instant lawsuit in 1990. Teresa admitted that in her interrogatories she stated that they moved into that house in 1988 and that the clothesline was purchased from a local hardware store in April 1992. Teresa stated that she had put laundry on the clothesline the day before Timothy was injured and that it was "tight." She stated that the clothesline was low enough for her to reach. She was five feet tall and, at the time of the incident, Timothy & Nello came up to her biceps. According to Teresa the clothesline was approximately 10 feet long. Teresa testified that when Timothy was injured, the clothesline broke into two five-foot long pieces. She did not view the broken clothesline until after Timothy's mother arrived. Teresa stated that the clothesline remained in its broken condition for approximately one week after the incident at which time she tied the two broken ends together. She further stated that the clothesline remained in that condition until it was taken down when a new garage was built in 1995. Teresa stated there was grass, not stones or twigs, underneath the clothesline. She also stated that after the incident a "wire piece where [the clothesline] was cut" was on the grass underneath but upon further questioning stated that she did not remember that a piece of wire was connected to the rope. She also testified that a man came to take pictures a week after the incident and that she showed him a wire. She stated that the man took a picture of the wire. She also stated that she and Vincenzio did not have the clothesline at the time of trial.

Vincenzio Pacilio testified through an interpreter as an adverse witness. He stated that he bought the clothesline and put it up with his wife five years before the incident. He could not remember whether it was plastic. He testified that he did not remember stating in interrogatories he completed before trial that the clothesline was plastic or that he put it up by himself shortly before the incident. He testified that he was sleeping at the time Timothy was injured and that he did not know that Timothy was at his house playing with Nello. He stated that he did not know whether Nello had invited Timothy over to their house; he did not remember if his wife allowed Timothy to stay at their house; he did not remember whether Timothy was a guest at their house at the time he was injured; did not remember whether he saw the clothesline after the incident; did not remember if the clothesline was reattached after the incident; did not remember if the clothesline was repaired or replaced after the incident; and did not remember what happened to the clothesline. He stated that there were no rocks or twigs in the area where the clothesline was located.

Doctor Michael Shapiro, an ophthalmologist with a specialty in retina treatment, testified by way of evidence deposition. He stated that he had treated Timothy at the University of Illinois Hospital. Timothy's mother brought him to the University of Illinois Hospital from Loretto Hospital on the night of the incident. Doctor Shapiro stated that, in rendering treatment to Timothy, he relied on the emergency room reports prepared at Loretto Hospital and at the University of Illinois Hospital which stated that Timothy had been hit in the left eye by a wire. He stated that a progress note prepared by another doctor at the hospital showed that Timothy had a small laceration in the upper left eyelid and extensive laceration to the left cornea (which he defined as the front cover of the eye), and the left uvea (which he defined as the middle layer of the eye). He stated that the uvea, which carries nourishment to different layers of the eye, had moved out of the eye through the laceration. He stated that the laceration was fairly straight, cutting across near the middle of the cornea. Doctor Shapiro opined, based upon a reasonable degree of medical and surgical certainty, that the conditions existing in Timothy's left eye were consistent with Timothy's eye being struck by a piece of wire. He further opined that the absence of any foreign body in Timothy's eye subsequent to the occurrence was irrelevant to the possibility of contact by a piece of wire to Timothy's eye. On cross-examination, Shapiro testified that the puncture wound to the eye could have been caused by a needle, a sharp poker, and, possibly, a pencil. He also stated that when an eye is struck by wire, there could be metal fibers in the eye or indications of rust. He did not review any records that would indicate the presence of metal fibers or rust in Timothy's eye.

At the conclusion of the trial, during closing argument, defense counsel made the following excerpted remarks:

"The rope was disposed of shortly after the accident because they didn't know they were going to be sued. Ladies and gentlemen, there's a lot of tension involved in the trial. Both the Koonces and Pacilios have an awful lot at stake here. * * *

* * *

Because it is—sometimes things happen that are not natural. Sometimes we might laugh at something that you'll never laugh at any place else. It's kind of like a church or a temple. The rabbi or the priest can make a little joke and it's not even funny but everybody laughs.

There's been some times during this trial where that has happened. To the extent that maybe I was responsible for it, sorry. It's a serious situation here. As I said, it's [sic] a lot at stake. Regardless of how this happened and who you feel is at fault, this boy has lost sight in one eye and that's serious. If the Pacilios lose in this case, everything they've gotten is threatened because of a possible verdict. So it is a serious situation; and despite anything I may have done during the course of trial, it is serious."

Plaintiff's counsel objected to these remarks. The trial court responded, "With the evidence shown, the jury will be instructed at the conclusion." Defense counsel then proceeded, stating the following:

"I hope that you take it seriously, too.

As I've said, there are two things here that are going here [sic].

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