Morton v. F.B.D. Enterprises

• Decision Date: 11 March 1986
• Docket Number: No. 5-85-0109,5-85-0109
• Citation: 141 Ill.App.3d 553,95 Ill.Dec. 903,490 N.E.2d 995
• Parties: , 95 Ill.Dec. 903 Cynthia MORTON, Plaintiff-Appellee, v. F.B.D. ENTERPRISES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 995

490 N.E.2d 995

141 Ill.App.3d 553, 95 Ill.Dec. 903

Cynthia MORTON, Plaintiff-Appellee, v. F.B.D. ENTERPRISES, Defendant-Appellant.

No. 5-85-0109.

Appellate Court of Illinois,

Fifth District.

March 11, 1986.

Rehearing Denied April 10, 1986.

Eugene C. Menges, Wagner, Bertrand, Bauman & Schmieder, Belleville, for defendant-appellant.

Cook, Shevlin, Keefe & Chatham, Belleville, for plaintiff-appellee; Bruce N. Cook, of counsel.

JONES, Justice:

The plaintiff, Cynthia Morton, brought suit in negligence against the defendant, F.B.D. Enterprises, after having been injured in a fall on the defendant's business premises when another patron, Mary Helen Bevirt, fell and struck her, thereby causing the plaintiff to fall. The plaintiff maintained that, as a result of the fall, she had suffered a fractured coccyx and a herniated lumbar disc. A jury rendered a verdict in favor of the plaintiff, assessing damages in the amount of $750,000. The trial court denied in its entirety the defendant's post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The defendant has raised seven issues for review, namely; (1) whether the plaintiff failed to prove that "any charge of negligence against this defendant was a proximate cause of the plaintiff's injuries"; (2) whether the trial court erred in allowing "extensive testimony" regarding medical expenses and in admitting "numerous" medical bills into evidence "without sufficient foundation"; (3) whether the trial court erred in instructing the jury that "it is not a defense that a lack of care by a physician may have aggravated plaintiff's damages"; (4) whether the court erred in "denying this defendant the right to present evidence of compliance with applicable ordinances and in denying this defendant's right to an appropriate jury instruction with respect to compliance"; (5) whether the trial court abused its discretion in severing the defendant's third party contribution claim against Mary Helen Bevirt; (6) whether the trial court erred in instructing the jury "with respect to the value of earnings lost instead of instructing the jury as to the value of lost profits where the plaintiff is self-employed"; (7) whether "the conduct of the Court and plaintiff's counsel coupled with other errors den[ied] this defendant a fair trial." Because of the disposition we make in this appeal we consider only the first issue the defendant raises, that concerning causation. Accordingly, we set forth only those facts relevant to that issue.

The incident in question occurred on December 13, 1980, during a Christmas party held at the Good Times Dinner Theatre in Fairview Heights. The plaintiff was standing near the foot of a two-step stairway waiting to go through a buffet line. Mary Helen Bevirt was standing near the top of this stairway when she fell. In paragraph five of the plaintiff's fourth amended complaint she alleged that the defendant had

"committed one or more of the following negligent acts or omissions:

(A) Negligently and carelessly failed to adequately guard said stairway contrary to Section 616.5 of the B.O.C.A. Code as adopted by the City of Fairview Heights.

(B) Negligently and carelessly failed to have adequate handrails in the stairway contrary to Section 616.5 of the B.O.C.A. Code as adopted by the ordinance of Fairview Heights.

(C) Negligently and carelessly failed to adequately maintain the stairway.

(D) Negligently and carelessly failed to warn persons standing in line that an unguarded stairway without handrails was in the path of the line when they knew, or should have known, that such was a hazard to plaintiff."

At the close of the plaintiff's evidence she moved orally to amend

"the complaint dealing with the particulars of negligence that I charge. I previously charged negligently and carelessly failed to adequately guard contrary to the B.O.C.A. code, negligently and carelessly failed to have adequate handrails, contrary to the B.O.C.A. code. I would ask leave of the Court to strike the references to the B.O.C.A. code in A and B in the particulars of that complaint. In addition, I would ask to add paragraph 3 which states, negligently and carelessly failed to adequately light the stairway, to the particulars of negligence. D remains the same."

The trial court granted leave to amend in the respects mentioned.

Mary Helen Bevirt testified for the plaintiff, stating that she had followed the rest of her party, which was numerous, to stand in the "food line." She and her husband and another couple, she said, were at the end of the line. To get to the buffet table patrons had to descend the two-step stairway. The plaintiff was standing in line in front of the witness, and the witness' husband was, she said, standing to the left of the witness and behind her. She acknowledged that she knew there was a step there. Asked, "How close to the edge were you standing?" she answered, "Well, I wouldn't have went [sic] right to the edge. Maybe a couple inches from the edge." She stated that she did not know that she was standing right at the edge of the step but that she knew she was at the top of the step. She said there was no guardrail or handrail at the top of the steps. When she was asked, "What caused you to fall?" she responded, "I believe that the step was too heavily carpeted and I thought I was standing on a step and there was nothing under the carpeting." Asked further, "You just kind of slipped off?" she answered, "And my foot just folded over." Asked, "Now, there wasn't any rail for you to catch yourself on?" she responded, "No." She said she thought that the front part of her foot, as opposed to her heel, had slipped. She responded in the negative to the following: "Did you realize there was too much carpet there? Did you realize that you were standing there, that you were standing that close to the edge of the step?" She likewise responded in the negative to the question whether there was anything to indicate to her that she was standing "that close" to the edge of the step unless she looked directly down. Asked what happened when she fell, she responded, "I just fell completely backwards. I don't know why. I didn't get hurt." She said she "landed" on " [m]y seat and my back."

On cross-examination the witness said that the plaintiff and her husband had gone down the steps in front of the witness, who had stopped at the top of the steps. She stated that her husband was on her left and that her right shoulder was "aimed down the step." She had felt, she said, no pressure from the line to move forward and had not been pushed. She stated further that the lighting was not a problem and that she knew the step was there, having seen both steps. She indicated that her right foot had slipped out and that she had fallen back. She had, she said, been "shifting." She did not know where her arms were. She had nothing in her hands. She indicated that she had fallen because the front part of her right foot had slipped over the edge of the step. Asked, "And if I understood you correctly, it felt to you like there was too much carpeting on the step?" she answered, "Correct." She did not, however, look after she fell to see whether the carpeting was in the condition in which she believed it to have been. Asked on redirect, "Did you know when you were edging forward that you were at the very edge of the step, at the very edge?" she responded. "Well, probably not, no."

The plaintiff testified that Mary Helen Bevirt had fallen against her and knocked her down. The plaintiff's husband, Robert Morton, testified that he had seen Mary Helen Bevirt fall and that when she fell he was standing " [d]irectly behind her, to the side of her." He said that they were "single file in the line" and that "the line was going straight ahead and it stopped so we stopped and we turned sideways and we were talking to each other." Asked when he first noticed that Mary Helen Bevirt had fallen, he responded, "She just disappeared from the side of me like she went off the end of a scaffold." He had not seen his wife fall but saw both Mary Helen Bevirt and his wife on the floor and aided in helping them up.

Called by the plaintiff as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-1102), Thomas Buckley testified that in December of 1980 he was the defendant's president. There was, he said, "a little rail on the sides" of the stairway at the time of the incident. According to Plaintiff's Exhibits Nos. 1 and 2, which are photographs of the stairway in question taken after the incident occurred, the handrails did not, he said, appear to extend to the top of the stairway and a person would have to step down one step before coming to the rail. Each handrail is attached to a wall, or guard, on either side of the stairway. The two handrails are as long as the two walls, or guards, are wide. The walls, or guards, appear to be a few feet high. The witness "assume[d] " that each handrail extended only as far as the wall is wide "because if it sticks out why somebody might run into it."

Robert Hotz, an engineer employed as the Public Works Director for the City of Fairview Heights, testified for the plaintiff that with regard to the handrailings pictured in Plaintiff's Exhibits Nos. 1 and 2 the stairway was not a safe one because of the absence of a "continuous handrail" extending both 18 inches above and 18 inches below the steps, in accordance with the BOCA Basic Building Code, a national code adopted by the City of Fairview Heights. On cross-examination the defendant attempted to show that, by virtue of the definitions in the BOCA code, the section of the code upon which plaintiff had relied did not apply to the stairway involved here. On redirect examination the witness stated that, as a matter of engineering, where there is a stairway there should be a continuous handrail. Asked, ...