Swartz v. Sears, Roebuck and Co.

• Decision Date: 14 May 1993
• Docket Number: No. 1-90-3439,1-90-3439
• Parties: , 201 Ill.Dec. 210 Gail SWARTZ, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 642

636 N.E.2d 642

264 Ill.App.3d 254, 201 Ill.Dec. 210

Gail SWARTZ, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.

No. 1-90-3439.

Appellate Court of Illinois,

First District, Fifth Division.

May 14, 1993.

Arnstein & Lehr, Chicago, IL (Arthur Klein, Kurt Heinz and Debra Williams, of counsel), for defendant-appellant.

Ialongo & Meyer, Chicago, IL (James Meyer and A. Mark Ialongo, of counsel), for plaintiff-appellee.

Presiding Justice GORDON delivered the opinion of the court:

Plaintiff filed a negligence action after she was injured when she slipped on a puddle and fell in the service area of defendant's auto service center. Plaintiff sought damages, alleging that the fall aggravated her pre-existing multiple sclerosis. A jury awarded plaintiff $2,275,000 in damages but reduced the award by 50%, finding that plaintiff's actions constituted contributory negligence. On appeal, defendant argues that the trial court erred in refusing to grant a directed verdict in its favor because plaintiff slipped on "tracked-in" water, not a foreign substance, and consequently it owed plaintiff no duty. Even if plaintiff slipped on a foreign substance, defendant argues that a directed verdict was proper because plaintiff failed to offer sufficient evidence that it had notice of the puddle or that the puddle was the proximate cause of her fall. In the alternative, defendant contends that a new trial is warranted because the trial court erred in rejecting its proffered jury instructions, admitting certain expert witness testimony, and preventing its use of an evidence deposition. Lastly, defendant argues that the jury's verdict was legally inconsistent and against the manifest weight of the evidence.

FACTS

On November 19, 1982, plaintiff, Gail Swartz, went tire shopping at defendant Sears, Roebuck & Co. (hereinafter Sears or defendant) store located in Vernon Hills. She entered the store's auto center through a garage door marked "Exit" and began walking through the auto service area. When she was halfway through the service area she slipped on a puddle and fell. According to the arguments of counsel, the accident occurred at 1:45 p.m. After seeking treatment for a variety of ailments, plaintiff was eventually diagnosed as having multiple sclerosis. She subsequently brought suit against Sears alleging that it was negligent in maintaining the service area and that as the result of the fall, her pre-existing condition of multiple sclerosis was aggravated.

In preparation for trial, the judge granted several motions in limine including an oral motion in limine made by plaintiff which limited the number of experts who would testify at trial. The judge issued an order which provided "that no witness other than Drs. Kessler [plaintiff's expert] and Reder [defendant's expert] may be asked his or her opinion as to whether plaintiff's multiple sclerosis was or could have been exacerbated by her fall at Sears." At trial, the following testimony was heard.

Plaintiff first called Mike Herrick as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1102). He testified that at the time of the accident he was a brake specialist employed by Sears at its Vernon On November 19, 1982, Herrick saw plaintiff enter through the vehicular door and proceed at a "fast shuffle" with her feet skidding across the floor as she walked. Herrick testified that he was going to say something to her, but did not. He explained that it was understood that Sears' employees were to tell customers not to enter through the vehicular door. He said that it was unusual for non-Sears' employees to come through the vehicular door which contained a sign that read "Exit," but that it occurred from time to time.

[201 Ill.Dec. 213] Hills store. He stated that the auto center had two entrances, one for customers [264 Ill.App.3d 258] and one for vehicles. Herrick testified that the vehicular door was left open at various times by employees or management and that it was open on the day of the accident. He explained that the auto service center had 22 service bays, 11 on each side and that a person coming in through the vehicle entrance would normally see service bays for cars on the left and right with mechanics working on the cars.

According to Herrick, plaintiff's feet slipped out from under her and she fell backwards. He stated that plaintiff jumped right back up after the fall. Sears' security personnel took pictures of the area, questioned Herrick, and prepared a customer's accident report. Herrick testified that a customer accident report was filled out by Sears. Defendant's accident report stated that plaintiff was walking through the auto service center when she slipped and fell on rain water brought in by cars. According to the report, it was rainy and cloudy on the day of the accident. The report also noted that plaintiff complained of pain in her back and elbow and that plaintiff's coat was soiled.

During his examination by plaintiff's counsel, Herrick identified a photograph in which he had previously marked a dark spot on the floor of the garage indicating that that was the spot where plaintiff fell. He testified that although he did not touch or feel the spot, he believed it to contain an accumulation of water. He also testified that he believed it was raining at the time of the occurrence. Herrick conceded that cars sometime leaked oil and gas when pulled in and out of the service bays and that he had seen oil on prior occasions in the aisle between the service bays. Although customers are not supposed to, they will sometimes drive their car into the service area, but they would never drive their cars into the bays. Herrick testified that the floor of the auto center was cleaned at night.

Plaintiff, Gail Swartz, testified that on the day of the accident she and her mother went to Sears to buy tires for her car. Plaintiff did not recall what the weather was like that day. She stated that they were walking toward the customer entrance, but noticed that a trailer was blocking it. The trailer had a sign on it that said "tire sale." There was no tractor in front of the trailer.

Halfway between the trailer and the garage, plaintiff's mother suggested that they enter through the vehicular door as other people were doing. Plaintiff stated that upon entering the auto service center, her mother asked a Sears employee about the tire sale and the employee directed them into the garage to the service desk which was all the way at the back and at the right of the garage.

They began walking to the service desk, plaintiff's mother walking in front. Plaintiff stated that she fell about halfway through the service area. According to plaintiff, she took a step and "both feet flew out" in front of her. She put down her right elbow, her head snapped back, and she fell on her back.

Plaintiff testified that she was stunned and did not know whether she got up without any assistance. At the instruction of a mechanic, she went to the front desk and while waiting for further assistance, she realized that her keys were missing and went to retrieve them. She found her keys near a puddle of oil. She determined that the puddle was oil after putting the toe of her shoe into the puddle. Plaintiff testified that her coat was ruined because the entire back of it was covered with oil.

Plaintiff said that she was hospitalized in 1967 because she could not walk and had recurrences of this problem in the early 1970s. She never had any other difficulties with her legs until the accident. Immediately On cross-examination, plaintiff admitted she had been to this store before and knew of the customer service entrance. She did not know if she could have entered by going behind the trailer on the day of the accident because she did not get close enough to it. She conceded that the first time she saw that there was oil where she fell was when she returned to get her keys. She did not remember seeing any footprints in the puddle except for "maybe" one of her shoe prints. She testified that she could not remove the oil stain from her coat and that she either gave or threw that coat away. She admitted that she did not know how the substance got on the floor or how long it had been there. She testified that she did not think that it was raining that day.

[201 Ill.Dec. 214] after the accident, she experienced pain in her legs and lower back. Plaintiff testified that she sought treatment after the pain grew worse and she developed bladder troubles. Over the course of treatment, her condition generally deteriorated. Plaintiff said that she developed numbing sensations and experienced uncontrollable spasms in her legs. After she was hospitalized in 1984, plaintiff was diagnosed as suffering from multiple sclerosis by a doctor who she did not identify.

Prior to the testimony of Gail Swartz, Bernice Magdid, plaintiff's mother, testified. She stated that she arrived at the service center with her daughter. Her testimony as to how they entered was consistent with plaintiff's testimony. She stated that they were walking toward a truck trailer with a sign advertising a tire sale when she told plaintiff that people were entering through the vehicular door and suggested they enter that way as well. She testified that they conversed as they were walking through the service bays with plaintiff trailing behind. Magdid discovered that plaintiff had fallen when, after realizing that plaintiff was not walking right behind her, she turned around and saw plaintiff lying flat on her back. Magdid was permitted without objection to testify that plaintiff was not shuffling, skidding, running, or walking fast before she fell. Magdid testified that after her fall plaintiff was stunned. She sat up and remained in a seated position for a few minutes before she stood.

According to Magdid, the floor where plaintiff fell was...