Van Holt v. National R.R. Passenger Corp.

• Decision Date: 03 September 1996
• Docket Number: No. 1-95-1265,1-95-1265
• Parties: , 218 Ill.Dec. 762 Nancy E. VAN HOLT and Louis Van Holt, Plaintiffs-Appellees, v. NATIONAL RAILROAD PASSENGER CORPORATION, a foreign corporation, and Chicago Union Station Company, a domestic corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1288

669 N.E.2d 1288

283 Ill.App.3d 62, 218 Ill.Dec. 762

Nancy E. VAN HOLT and Louis Van Holt, Plaintiffs-Appellees, v. NATIONAL RAILROAD PASSENGER CORPORATION, a foreign corporation, and Chicago Union Station Company, a domestic corporation, Defendants-Appellants.

No. 1-95-1265.

Appellate Court of Illinois,

First District, Second Division.

September 3, 1996.

Nunc pro tunc July 30, 1996.

Lord, Bissell & Brook, Chicago (Hugh Griffin and Hugh Balsam, of counsel); Seyfarth, Shaw, Fairweather & Geraldson, Chicago (Robert Joyce, of counsel), for Appellants.

Law Offices of Donald J. Nolan, Chicago (Donald Nolan and William Jovan, of counsel), for Appellees.

Presiding Justice HARTMAN delivered the modified opinion of the court upon denial of rehearing:

Plaintiff Nancy Van Holt sued National Railroad Passenger Corporation (Amtrak) under the Federal Employers' Liability Act (FELA) ( 45 U.S.C. § 51 et seq. (1988)), and Chicago Union Station Company (CUS) under the common law for injuries sustained when she slipped and fell in a taxi and automobile parking tunnel at Union Station. Plaintiff's husband, Louis Van Holt, also brought an action against CUS for loss of consortium.

Following trial, a jury found in favor of plaintiff and against Amtrak and CUS in the amount of $3,050,000, and in favor of Louis Van Holt and against CUS in the amount of $100,000. The jury also found plaintiff 10% at fault for the accident. The judgments were entered accordingly, and post-trial motions were denied, with the exception of a set-off for medical expenses paid by defendants. Amtrak and CUS appeal, raising as issues for review whether the circuit court erred (1) in denying defendants' motion for judgment notwithstanding the verdict; (2) in allowing the testimony of plaintiffs' expert; (3) in excluding evidence relating to the absence of prior accidents; (4) in disallowing evidence of withholding taxes on plaintiff's future income; (5) in allowing recovery of damages for "loss of enjoyment of life" and "pain and suffering" under the FELA; (6) in excluding evidence of plaintiff's failure to mitigate damages; and (7) in excluding evidence of plaintiff's right to long-term disability benefits provided by defendants. We affirm in part, reverse and remand, in part, for reasons later stated.

At noon on April 14, 1987, plaintiff, an Amtrak payroll supervisor, and Leonard Benes, another Amtrak employee, on their way to lunch, walked along an area of Union Station known as the taxi tunnel, where plaintiff was permitted to park her car. Plaintiff testified that she "slipped on a greasy, slimy slick spot" on the surface of the taxi tunnel, which was paved with cobblestones. She had been taking small steps and walking cautiously because it had been raining and the road was wet. The day was overcast, and the tunnel was very dark. Just before her fall, she turned around because she heard the "revving" of taxicab engines. After the fall, she saw dark, greasy substances on her skirt and her hands and noticed that greasy substances were dripping from the ceiling of the tunnel onto the pavement. She mentioned this to Benes.

Benes testified that he saw puddles of water and oil on the tunnel road that day. He did not see plaintiff fall because he was walking a few steps in front of her. He heard a scream, turned around, and saw her on the ground. Her shoes and keys were a few feet in front of her, her stockings were ripped, and her hands were oily and wet.

C. William Autro, general superintendent for Amtrak activities at Union Station, was responsible for operations management at CUS, formerly a wholly-owned subsidiary of Amtrak. Autro testified that the taxi tunnel was an underground driveway that allowed vehicles to drop off passengers at a lower level Union Station entrance. It was CUS' responsibility to maintain and repair the taxi tunnel roadway. The taxi tunnel was a very busy roadway; taxis "tend[ed] to leak a lot of oil."

Video evidence deposition testimony of Herbert Bitting was introduced at trial. Bitting, an Amtrak engineer, testified that he was responsible for the maintenance of Union Station in the years 1985 through 1987. Lighting in the taxi tunnel was provided through sewer grates and lights in the tunnel. He described the lighting as dim, but not dark; it was sufficient during overcast days. Bitting agreed that the taxi tunnel was old and decrepit and that water seeped through the roof and walls of the tunnel. Stalactites, icicle-shaped deposits of limestone that leached from the concrete, hung from the ceiling of the tunnel. Bitting said that when stalactites fell to the ground, they were removed every night. Bitting agreed, however, that someone could slip on the accumulation of drops from the stalactites during the day. Workers occasionally knocked down the stalactites with a pole for safety reasons. Weather permitting, the taxi tunnel was washed and cleaned every night.

Plaintiffs introduced into evidence an accident report prepared by an Amtrak investigative safety committee, whose goal it was to ensure a safe working environment. The committee consisted of a peer group that investigated workplace accidents and made recommendations to management to avoid further accidents. Benes, who was a member of the committee, prepared the accident report because he was present at the time of its occurrence.

The report stated: "The conditions of the driveway were terrible. Chuckholes, wet moist pavement, oily slimy roadbed and darkness make walk[ing] to anyone[']s car difficult." It also reported that the conditions made walking "treacherous" on rainy days and the oil slicks made the brick road "extremely dangerous." Benes testified that he did not know the extent of plaintiff's injuries at the time the committee prepared the report.

Michael Massie, a consultant in railroad practices, possessed of a degree in architecture, testified as an expert for plaintiffs. Massie had worked various odd jobs in the railroad industry, and had designed parking lots for railroad facilities. He inspected the taxi tunnel in question, was of the opinions that the cobblestones made the surface of the road uneven, and that the roadway was not conducive for walking. When the roadway was converted to a combination road and parking lot, there was no adequate walking surface. The oil and grease on the road created a hazard for people walking to their cars. Defendants' motion to strike the opinion testimony, on the ground that it related to a matter of common knowledge, was denied.

Massie explained that the taxi tunnel, originally built as a two-lane road, was converted so that one lane was used for parking. The cobblestone paving was not conducive to a parking area; a smooth, anti-slip surface, such as concrete or asphalt, should have been used to prevent oil from causing a slippery surface. In addition, the lighting should have been improved to enhance the visibility for walking.

There was additional testimony regarding the extent of plaintiff's injury and damages, including her permanent disability that prevented her from working, the numerous operations for her disc and back problems, and the disruption on her family life.

At the conclusion of the trial, the jury returned a verdict against defendants and in favor of plaintiff in the amount of $3,050,000. Because plaintiff was found 10% comparatively negligent, the recoverable damages were reduced to $2,745,000. The separate loss of consortium claim of plaintiff's husband was entered against CUS in the amount of $90,000.

Pursuant to section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202 (West 1994)), defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, or a substantial remittitur. The circuit court denied defendants' post-trial motion, but granted a set-off of $54,000 for medical expenses. Defendants timely filed a notice of appeal.

I

Defendants first contend that they were entitled to judgment notwithstanding the verdict because plaintiff did not prove the cause of her fall, there was no evidence as to what the black substance was, and there was no evidence to show the substance was there for a length of time sufficient for notice.

A motion for judgment notwithstanding the verdict will be granted by the circuit court whenever all the evidence, when viewed in the light most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967); Tierney v. Community Memorial General Hospital, 268 Ill.App.3d 1050, 1054, 206 Ill.Dec. 279, 645 N.E.2d 284 (1994). A jury's verdict will not be set aside merely because different inferences and conclusions may be drawn from conflicting testimony. Allstate Contractors, Inc. v. Marriott Corp., 273 Ill.App.3d 820, 827, 210 Ill.Dec. 137, 652 N.E.2d 1113 (1995).

A

As to plaintiff's asserted failure to prove a condition created by defendants to cause her fall, liability cannot be predicated upon surmise or conjecture respecting the cause of the injury. Proximate cause can be established only when there is a reasonable certainty that defendants' acts caused the injury. Vance v. Lucky Stores, Inc., 134 Ill.App.3d 166, 168, 89 Ill.Dec. 281, 480 N.E.2d 167 (1985) (Vance ). If plaintiff fails to establish the element of proximate cause, she has not sustained her burden of making a prima facie case and a directed verdict is proper. Vance, 134 Ill.App.3d at 168, 89 Ill.Dec. 281, 480 N.E.2d 167. Causation need not be shown by direct evidence, however, but may be established by facts and circumstances which, in the light of ordinary experience, reasonably suggest that defendants' negligence produced the injury. Canzoneri v. Village of Franklin Park, 161 Ill.App.3d 33, 41, 112 Ill.Dec. 494, 513 N.E.2d 1103 (1987). ¹

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