Vojas v. K Mart Corp.

• Decision Date: 24 March 2000
• Docket Number: No. 5-99-0170.,5-99-0170.
• Citation: 245 Ill.Dec. 144,312 Ill. App.3d 544,727 N.E.2d 397
• Parties: Mary V. VOJAS, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

727 N.E.2d 397

312 Ill. App.3d 544

245 Ill.Dec. 144

Mary V. VOJAS, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant.

No. 5-99-0170.

Appellate Court of Illinois, Fifth District.

March 24, 2000.

Michael Resis, O'Hagan, Smith & Amundsen, LLC, Chicago, for Appellant.

John H. Leskera, Leskera Law Firm, Collinsville, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

Plaintiff Mary V. Vojas filed a complaint against K mart Corporation (K mart), alleging that she slipped and fell in the K mart retail premises in Collinsville, Illinois, on May 5, 1996. The jury returned an itemized $40,000 verdict and awarded plaintiff $10,000 for disability, $10,000 for pain and suffering, $14,000 for emotional distress, $6,000 in medical expenses, and nothing for lost earnings. K mart argues that it was entitled to judgment n.o.v. because plaintiff failed to present competent evidence that K mart knew or had reason to know of the foreign substance before plaintiff slipped and fell. K mart claims that two hearsay statements were inappropriately admitted to show K mart had notice of the substance on the floor. K mart also contends that plaintiff is not entitled to an award of $14,000 for emotional distress.

BACKGROUND

Evidence at trial revealed the following. On May 5, 1996, at approximately 9 to 9:15 p.m., plaintiff and her daughter-in-law went to the K mart in Collinsville to buy work slacks. Plaintiff testified that while walking along the main aisle, her left foot slid off to the side, her right leg went under her left leg, her right foot went under her left foot, her body became twisted, and she fell on her left side. She testified that she had instant pain in her right leg and thigh all the way down to her foot. She stated that while she was on the floor, her daughter-in-law told her of a black substance on the floor and on her shoe. She testified that the substance looked like black Vaseline.

She then testified that her daughter-in-law helped her up after a few minutes, and she walked, with the aid of a shopping cart, to the front desk. Plaintiff then stated that she asked one of the two women at the desk for an incident report. One of the women asked, "What happened?" Plaintiff stated that she told the woman that she had fallen on an unknown substance in the main aisle between the men's and maternity departments. Then one of the women, according to plaintiff's testimony, replied, "I thought they cleaned that up," or something to that effect. Plaintiff testified that the other woman then shrugged her shoulders and said, "Apparently not."

Plaintiff saw Dr. Michael Rallo the next day for the pain in her right leg. Plaintiff offered the following testimony about her medical conditions. The pain was in the outer aspect of her right thigh radiating down to the knee and along the outside of her calf. The pain did not improve over the next year. The pain was worse when she tried to walk or stand for any period of time, and it kept her awake at night. The pain has made her irritable and affected her mentally at work. She can no longer take long walks, work in her garden, or lift heavy packages. She needs her husband to assist her in doing household chores such as the laundry. Plaintiff can no longer fish with her husband. Her irritability has affected her relationships with her husband and family.

K mart presented witnesses who testified that K mart provides training and handbooks which teach employees the importance of safety in the stores. The Collinsville store had received awards in the past for cleanliness, and it conducts ongoing training in cleaning up spills. Cathy Cox, the loss-control manager at the time of plaintiff's fall, completed a customer-accident worksheet over the telephone with plaintiff the day after the fall. She testified that plaintiff never told her that she fell on a greasy substance or that she was injured. Cox testified that nothing in the investigation showed that any K mart employee knew of any substance on the floor before the fall. Plaintiff testified that she recalls telling Cox that she slipped on a greasy substance, which her daughter-in-law wiped up with a tissue after the fall, and that she was seeking medical attention because she was in pain.

The jury returned an itemized verdict of $40,000, and the trial court entered judgment on the verdict. K mart filed a posttrial motion requesting a judgment n.o.v. or a new trial on all issues or a remittitur of $14,000 for the emotional-distress award. After a hearing, the trial court denied all posttrial relief.

DISCUSSION

Turning first to K mart's contentions that it was entitled to a judgment n.o.v. because the only evidence of the notice of the dangerous condition consisted of improperly admitted hearsay statements, we conclude that K mart's contention is unpersuasive for two reasons. Plaintiff and her daughter-in-law testified that when they went to the front desk after the fall and told the two women at the desk what happened, one of the women stated, "I thought they cleaned that up," and the other woman responded, "Apparently not."

Plaintiff contends that these statements are not hearsay, as they were not offered for their truth. Plaintiff contends that she offered these statements not for their truth, to show that the spill had not been cleaned up, but rather to show that the employees knew that a spill existed. We conclude that even if the statements were offered for their truth and are therefore hearsay, they fall into the exception to the hearsay rule that makes admissions by a party admissible. Any statement made by a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by a party opponent. See County of St. Clair v. Wilson, 284 Ill. App.3d 79, 88, 219 Ill.Dec. 712, 672 N.E.2d 27 (1996).

In the case of Halleck v. Coastal Building Maintenance Co., 269 Ill.App.3d 887, 893, 207 Ill.Dec. 387, 647 N.E.2d 618 (1995), the court analyzed the application of the party-admission exception to the hearsay rule. Relying on prior Illinois case law and the Handbook of Illinois Evidence (M. Graham, Cleary & Graham's Handbook of Illinois Evidence, § 802-9, at 770-74 (7th ed.1999)), the Halleck court found that, traditionally, whether a statement by an employee concerning a matter within the scope of his employment was an admission of the employer was determined by the agency test — i.e., whether the statement was authorized by the employer. Halleck, 269 Ill.App.3d at 893, 207 Ill.Dec. 387, 647 N.E.2d 618. The result under the traditional rule was that courts generally found that damaging statements were outside the scope of authority. See Halleck, 269 Ill.App.3d at 893, 207 Ill.Dec. 387, 647 N.E.2d 618. Many courts, however, have recognized that the problem with the rule is that employees are rarely hired to make damaging statements. See e.g., Halleck, 269 Ill.App.3d at 893,

207 Ill.Dec. 387,

647 N.E.2d 618; Miller v. J.M. Jones Co., 225 Ill.App.3d 799, 803, 167 Ill.Dec. 385, 587 N.E.2d 654 (1992); Bafia v. City International Trucks, Inc., 258 Ill.App.3d 4, 10, 196 Ill.Dec. 121, 629 N.E.2d 666 (1994).

In response to this problem, more recent Illinois cases hold that the principal's grant of authority to speak is not the main concern in applying the party-admission exception to the hearsay rule. See Halleck, 269 Ill.App.3d at 893,207 Ill.Dec. 387,647 N.E.2d 618. Instead, the test is whether the statement concerns matters within the scope of the employment. See Halleck, 269 Ill.App.3d at 893,207 Ill.Dec. 387,647 N.E.2d 618; Miller, 225 Ill. App.3d at 803,167 Ill.Dec. 385,587 N.E.2d 654; Ogg v. City of Springfield, 121 Ill. App.3d 25, 39-40, 76 Ill.Dec. 531, 458 N.E.2d 1331 (1984); In re Application of County Treasurer & Ex Officio County Collector of Cook County, 166 Ill.App.3d 373, 379, 116 Ill.Dec. 795, 519 N.E.2d 1010 (1988),aff'd,131 Ill.2d 541, 137 Ill.Dec. 561, 546 N.E.2d 506 (1989). Thus, Halleck concluded that "Illinois cases which adhere to the `broader, better[,] and clearly current view' hold that a statement is a party admission if it is made during the existence of the employment relationship and concerning matters within the scope of the employment." Halleck, 269 Ill.App.3d at 893,207 Ill.Dec. 387,647 N.E.2d 618; see also Miller, 225 Ill.App.3d at 803,167 Ill. Dec. 385,587 N.E.2d 654; Rinchich v. Village of Bridgeview, 235 Ill.App.3d 614, 626-27, 176 Ill.Dec. 504, 601 N.E.2d 1202 (1992); Edwards v. Alton & Southern Ry. Co., 275 Ill.App.3d 529, 538, 212 Ill.Dec. 55, 656 N.E.2d 208 (1995).

In this case, the evidence shows that the statements were made during the employment relationship between K mart and the women at the front desk on the night of plaintiff's fall. In addition, the statements concern a matter within the scope of the employees' employment, namely, their knowledge that some sort of spill had occurred in the store's main aisle. Hence, the statements were properly admitted either because they were not hearsay or as an exception to the hearsay rule as a party admission. Therefore, there was proper evidence of notice, and K mart is not entitled to judgment n.o.v. based on the lack of notice.

K mart also alleges that it is entitled to a new trial because of several erroneous rulings. First, K mart claims that plaintiff was not entitled to recover $14,000 for emotional distress in addition to the $10,000 she received for pain and suffering and the $10,000 she was awarded for disability.

K mart argues first that plaintiff was not entitled to recover for emotional distress as part of a cause of action for ordinary negligence and that therefore the trial court erred when it gave the emotional-distress jury instruction. However, K mart did not raise this issue in its posttrial motion, nor did K mart raise the issue in the instruction conference at trial. In order to raise an issue on appeal concerning the giving of a jury instruction, ...