Matthews v. Avalon Petroleum Co.

• Decision Date: 29 June 2007
• Docket Number: No. 1-05-2606.,1-05-2606.
• Citation: 871 N.E.2d 859
• Parties: Harold MATTHEWS and Phyllis Matthews, Plaintiffs-Appellants, v. AVALON PETROLEUM COMPANY, Petroleum Technologies Equipment, Inc., Allied Drywall Materials and Management Corporation; and Allied Drywall Materials and Management Corporation d/b/a Allied Drywall Materials Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

871 N.E.2d 859

Harold MATTHEWS and Phyllis Matthews, Plaintiffs-Appellants, v. AVALON PETROLEUM COMPANY, Petroleum Technologies Equipment, Inc., Allied Drywall Materials and Management Corporation; and Allied Drywall Materials and Management Corporation d/b/a Allied Drywall Materials Corporation, Defendants-Appellees.

No. 1-05-2606.

Appellate Court of Illinois, First District, First Division.

June 29, 2007.

Anesi, Ozmon, Rodin, Noval & Kohen, LTD., Chicago, (Marc A. Taxman of counsel), for Appellants.

Langhenry, Gillen & Lundquist, Joliet (Anastasia L. Hess and Troy A. Lundquist of counsel), for Appellees.

Justice ROBERT E. GORDON delivered the opinion of the court:

This is a slip and fall case. Plaintiff Harold Matthews, a truck driver, sued defendants to recover for injuries sustained when he tripped and fell over a piece of metal jutting up near a fuel pump. He sued defendant Avalon Petroleum Company (Avalon), the owner of the fuel pump, on a claim of premises liability; he sued defendant Petroleum Technologies Equipment, Inc. (PTE), which Avalon called to repair the pump, for failing to make timely repairs, and he sued defendant Allied Drywall Materials Management Corporation (Allied), whose driver hit the fuel pump and caused the damage. Plaintiff Phyllis Matthews brought claims against all three defendants for loss of consortium and time from work and for her husband's medical bills. The jury found for defendants, and plaintiffs brought this appeal alleging numerous errors at trial. For the reasons set forth below, we affirm.

BACKGROUND

On July 24, 2001, plaintiff Harold Matthews, a 60-year-old truck driver, tripped and fell over a piece of metal jutting up from a fuel pump island on property owned by defendant Avalon and located on South Crawford Avenue in Markham, Illinois. Plaintiff sustained a fractured hip, resulting in surgery with the placement of screws and metal plates to set the fracture. Plaintiff claims that he is disabled for work return.

Defendant Avalon, which owned the subject pump, is a corporation that sells fuel to truck drivers. Defendant Allied is a corporation that purchases fuel for its trucks at Avalon and whose driver, Charles Smith, struck the fuel pump with his truck on July 3, 2001, causing the metal jutting found in the fuel pump island. The collision caused a piece of metal rim or rail along the bottom of the fuel island to point up several inches. Defendant PTE is a corporation that installs and repairs fuel pumps that was called by Avalon on July 9 to assess and repair the damage. PTE came on July 9 to assess the damage and made some intermediate repairs, such as removing a light pole and straightening a vent pipe. The metal rim was not repaired until July 31, 2001, a week after plaintiff fell, because a needed part was not in stock and PTE had to order it.

Plaintiff drove a tractor-trailer truck for Vans, Inc. (Vans), a wholesale florist supply company, which required its drivers to purchase fuel at Avalon. At the end of his work day, plaintiff was required to go to Avalon to fill up the fuel tanks on the truck prior to returning to the Vans' warehouse. When plaintiff returned to work in early July after a vacation and prior to his injury, he noticed that the fuel pump had been damaged and was aware of the metal jutting up from the fuel pump. Between the time when he first noticed the metal and the time of his injury, he filled up the truck 10 to 12 times at the damaged fuel pump without incident.

Plaintiff testified at trial that at the time that he fell, he did not know what caused him to fall. However, "when [he] looked at the photographs" of the damaged fuel pump, he then "realized" that he had "stepped on the piece of metal that was sticking up." After he fell and was still in the hospital, his daughters visited Avalon, took photographs and showed him the photographs of the damaged pump. Plaintiff testified that it was his review of the photographs that made him realize what had happened.

At trial, plaintiff testified that his work boot became caught on the metal rim. Then on cross-examination he was impeached from his deposition testimony, where he denied that his work boot had caught on the metal rim and claimed that his foot had slipped out from under him. He then testified: "I know what I did. I stepped on the piece of metal."

The jury was given a special interrogatory which said: "Do you the jury find that Avalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews' position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk?" The jury answered yes to the special interrogatory, but returned a general verdict for defendants. The trial court then heard arguments on plaintiffs' posttrial motion, which was denied, and this appeal followed.

Plaintiffs raise six claims of error by the trial court on appeal: (1) that the jury's general verdict for the defendants was inconsistent with its response to the special interrogatory, and as a result plaintiff should have been granted a new trial; (2) that "the trial court applied the wrong standard for determining defendant Avalon's liability;" (3) that the trial court refused to allow deposition impeachment testimony of Avalon's operations manager, Charles Stubblefield; (4) that the trial court allowed Stubblefield to give undisclosed expert opinion testimony; (5) that the trial refused to admit evidence of defendants Avalon and PTE's failure to barricade or place warning signs; and (6) that the trial court allowed a jury instruction on issues which stated that "defendants claim" that plaintiff "failed to avoid an obvious danger that he was aware existed while entering upon the fuel island."

ANALYSIS

Plaintiffs raise several different claims on appeal, which require different standards of review. "[A] standard of review applies to an individual issue, not to an entire appeal. Each question raised in an appeal is subject to its own standard of review." Redmond v. Socha, 216 Ill.2d 622, 633, 297 Ill.Dec. 432, 837 N.E.2d 883 (2005). This opinion will discuss the respective standard of review prior to the discussion of each claim.

First, plaintiffs claim that they must be granted a new trial because the jury's general verdict for defendants was inconsistent with its response to the special interrogatory. None of the parties discussed the standard of review in their appellate briefs. Redmond was the first Illinois decision, either from the supreme court or the appellate court that expressly stated that the determination of legal inconsistency is a question of law and thus subject to de novo review. Redmond, 216 Ill.2d at 633, 297 Ill.Dec. 432, 837 N.E.2d 883. Thus, this court will apply de novo review to plaintiffs' claim of inconsistency. Redmond, 216 Ill.2d at 642, 297 Ill.Dec. 432, 837 N.E.2d 883 ("whether two verdicts are legally inconsistent is a question of law" which "is subject to de novo review"); DiMarco v. City of Chicago, 278 Ill.App.3d 318, 322, 214 Ill.Dec. 959, 662 N.E.2d 525 (1996) (de novo review applied where special interrogatory conflicted with general jury verdict).

The Illinois Supreme Court has held that when "a special interrogatory does not cover all the issues submitted to the jury," a court will not grant a new trial so long as any "`reasonable hypothesis' exists" to construe the general jury verdict consistent with the jury's response to the special interrogatory. Simmons v. Garces, 198 Ill.2d 541, 556, 261 Ill.Dec. 471, 763 N.E.2d 720 (2002); Redmond, 216 Ill.2d at 644, 297 Ill.Dec. 432, 837 N.E.2d 883 ("verdict or verdicts will not be considered irreconcilably inconsistent if supported by any reasonable hypothesis"); DiMarco, 278 Ill.App.3d at 322, 214 Ill. Dec. 959, 662 N.E.2d 525. In construing the verdict, a court must "exercise all reasonable presumptions in favor of the verdict." Redmond, 216 Ill.2d at 643, 297 Ill.Dec. 432, 837 N.E.2d 883; Simmons, 198 Ill.2d at 556, 261 Ill.Dec. 471, 763 N.E.2d 720.

With this procedural framework in mind, "our review of the circuit's decision is governed by the elements of the cause of action alleged by plaintiffs in their complaint[]." McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 133, 241 Ill. Dec. 787, 720 N.E.2d 242 (1999). In their third amended complaint, plaintiffs alleged: (1) claims for premises liability against all three defendants; (2) a claim against only Allied for negligently damaging the gas pump island; (3) a claim against PTE for failure to repair; and (4) claims against all three defendants by Phyllis Matthews for loss of consortium, loss of time from work, and liability for her husband's medical expenses. At trial, the jury was asked to consider the claim of premises liability against only Avalon.

The special interrogatory asked the jury to answer either yes or no to the following question:

"Do you the jury find that Avalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews' position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk?"

The interrogatory at issue asked only about defendant Avalon, and the only cause of action against Avalon (other than the wife's derivative claims) was premises liability.

"[I]n construing the meaning of a special interrogatory, courts must examine it in light of the jury instructions to determine how the jury understood the interrogatory." DiMarco, 278 Ill.App.3d at 322, 214 Ill.Dec. 959, 662 N.E.2d 525. The trial court gave Illinois Pattern Jury Instructions, Civil, No. 120.09 (2005) about Avalon's premises liability, and neither party disputes the propriety of giving this instruction. The trial court told the jurors that in order for plaintiffs to recover...