Wiegman v. Hitch-Inn Post of Libertyville

• Decision Date: 13 October 1999
• Docket Number: No. 2-98-1494.,2-98-1494.
• Citation: 721 N.E.2d 614,308 Ill. App.3d 789,242 Ill.Dec. 335
• Parties: Audrey WIEGMAN, Plaintiff-Appellee, v. HITCH-INN POST OF LIBERTYVILLE, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

721 N.E.2d 614

308 Ill. App.3d 789

242 Ill.Dec. 335

Audrey WIEGMAN, Plaintiff-Appellee, v. HITCH-INN POST OF LIBERTYVILLE, INC., Defendant-Appellant.

No. 2-98-1494.

Appellate Court of Illinois, Second District.

October 13, 1999.

Jay S. Judge, Edward F. Dutton, Judge, James & Dutton, Ltd., Park Ridge, for Hitch-Inn Post of Libertyville, Inc.

Louis W. Brydges, Jr., Hinshaw & Culbertson, Waukegan, for Audrey Wiegman.

Justice THOMAS delivered the opinion of the court:

The plaintiff, Audrey Wiegman, filed this negligence lawsuit against the defendant, the Hitch-Inn Post of Libertyville, Inc., to recover for injuries she sustained when she slipped and fell at the bottom of a stairway near the sauna room at the defendant's hotel. The trial court denied the defendant's motion for a directed verdict. Thereafter, the jury returned a verdict in favor of the plaintiff, and the trial court subsequently denied the defendant's posttrial motion for a judgment notwithstanding the verdict. The defendant appeals, contending that (1) the plaintiff failed to present any evidence as to the cause of her fall and, therefore, the jury's verdict must be set aside as being based on speculation and conjecture; (2) the plaintiff's expert's testimony was irrelevant and inadmissible; (3) the plaintiff failed to prove that the defendant had constructive notice of the wet condition of the floor in the area where the plaintiff fell; (4) the trial court erred in refusing to allow a jury instruction on the duty of care owed to a trespasser; (5) the trial court erred in refusing to allow the defendant to present evidence of the plaintiff's consumption of alcohol on the day of the accident; and (6) the trial court erred in awarding certain costs to the plaintiff.

The 42-year-old plaintiff testified at trial that on the day of the occurrence, February 19, 1994, she and her family were guests at the defendant's hotel. On that day, the plaintiff had been at a wedding reception. She returned to the hotel about 8:30 p.m. After spending time in her room with her children, she went to find her husband, who she thought was playing pool in the recreation area of the hotel. On her way, she walked through the open gate at the pool area and then down the stairway toward the area where the sauna and exercise rooms were located. She did not see a sign indicating that the pool area was closed. However, she did remember seeing people still in the pool and others standing around in the pool area. She also observed a sign that read:

"No lifeguard on Duty. Swim at Your Own Risk. No Food or Glass. Children Must Be Accompanied by An Adult. Do Not Enter Pool When Covered. No Running in Pool Area. Pool for Registered Guests Only. No Pool Parties Allowed. No Radios Allowed Anywhere."

She also saw a sign stating that the pool hours were from 8 a.m. to 10 p.m. The plaintiff further testified that she was wearing leather-soled sandals and carrying a child in her arms as she descended the stairs. She also had two small girls with her, and they were walking in front of her or to her side. Several feet away from the bottom of the stairs was a sauna room. There were no mats at the bottom of the stairs at the time she fell. When the plaintiff reached the bottom of the stairs, the next thing she remembered was lying on the floor with her sister above her. She did not know what caused her to fall but stated that she fell on the tile floor surface at the bottom of the stairs. She also stated that she did not trip on anything. She was later taken to the hospital and was treated for a cut to the back of her head. At the hospital, she noticed that the back of her dress was wet. According to the plaintiff, her fall occurred at about 10 p.m., or maybe 10:15 p.m., when there were still many people in the pool area.

Ron Wiegman, the plaintiff's husband, testified that he was playing pool at the hotel with his nephew at the time of the plaintiff's fall. He found the plaintiff lying at the bottom of the stairway that was between the game room and the pool area. The plaintiff was lying with her head toward the bottom of the steps and her feet toward the other stairway. He noted that there was water on the floor all around the plaintiff. He further stated that when he knelt down his knee immediately became soaked. He acknowledged that he did not see what caused the plaintiff to fall. He further testified that the accident happened around 9:30 p.m. On cross-examination, he stated that the accident happened between 9 p.m. and 9:20 p.m. but admitted that in his deposition taken two years earlier he had testified that it happened at approximately 9:45 p.m. or 10 p.m. He acknowledged that an emergency room record contained a notation indicating that the accident occurred at 10:15 p.m.

Pamela Kirschbaum, the plaintiff's sister, testified that she learned that the plaintiff had fallen when she heard a scream, ran over to the area, looked down the steps, and saw the plaintiff lying at the bottom of the steps holding a baby. Kirschbaum noted that she was in the pool area at the time of the occurrence and there were several people still in the pool at that time. She noticed that there was standing water all over the floor in the area where the plaintiff had fallen. She also noted that there had been water in the same location when she had been by there earlier in the day but she had not informed the hotel of this fact. She stated that there were no mats on the floor in that area and there had not been any mats on the floor earlier in the day when she viewed the floor.

Kenneth Kirschbaum, the plaintiff's brother-in-law, testified that he did not witness the accident but that his wife informed him of it sometime after 10 p.m. At the time, he was in the pool area, talking with people. He noted that there were people still swimming in the pool. About 15 or 20 minutes after the accident, he went with his wife to view the scene of the accident. At this time, the plaintiff had already left for the hospital. He noted that blood and water were still on the floor and was amazed because hotel personnel had not cleaned the area yet. He speculated that the water in the area had to have come from dripping swimmers because the stairs were so close to the pool.

Allan Pickus, a licensed Illinois architect with extensive experience in the area of building safety, testified in his videotaped evidence deposition presented at trial that he examined the area of the defendant's hotel where the plaintiff was injured. He noted that the stairway in the area was carpeted but the floor was covered by glazed ceramic tile without any nonslip preparation. He testified that in his opinion the defendant could have taken some measures to alleviate the potential hazard at the bottom of the steps, such as installing proper matting or nonslip ceramic tile. Pickus further noted that the sign warning of the slippery condition was not visible until one had already descended the stairs and reached the condition and was therefore of no value. In his opinion, the defendant should have installed a sign offering a sufficient warning of the condition. When asked whether his opinions were based on a reasonable degree of certainty in the profession of architecture, Pickus responded affirmatively, stating, "I think that you would not find * * * much variation[ ] [with] the opinions I have expressed." He also stated his opinions were based on his experience as a licensed architect and "what getting a license means in the State of Illinois."

Robert Boesch, the general manager of the hotel, testified that it was his practice to close the pool area at 10 p.m. and put a lock on the gate. He acknowledged that there is no sign indicating that the pool area is closed at 10 p.m., nor is there a sign that indicates that the deck area is closed at that time. The only sign indicating that the exercise room is closed at 10 p.m. is on the door to that room. Boesch explained that the sign stating that the pool closed at 10 p.m. was supposed to apply to the whole area. He noted that a tarp is placed over the pool at 10 p.m. and, if there were still people in the pool area after that time, the maintenance personnel would not have been doing their jobs correctly. He also noted that the hotel's policy was to set up "hand-held" temporary barricades around the areas that are mopped.

Guy Norman, a hotel maintenance and security employee, testified that he worked the third shift from 10 p.m. until 6 a.m. on the evening in question. He noted that he had a routine that he generally followed during his shift but did not necessarily remember the specifics of the evening in question. According to his routine, within a few minutes of starting his shift, he would remove the mats or runners that were normally located at the bottom of the stairs where the plaintiff fell and then hang the mats up to dry over the pool area. Within minutes of starting his duties, he would have walked through the area in question twice, and if he noticed that it was wet, he would have mopped up the water. He stated that he recalled that the mats were there on the evening in question. He noted that he would normally mop the area and place "hand-held" caution signs around the area that was wet from being mopped. He first learned of the accident shortly after the pool area was closed. However, he acknowledged that the hotel's incident report stated that he received the call about the accident at 10:30 p.m. He noted that after he was notified of the occurrence, he mopped and dried the area of the fall. He indicated that he could not remember whether he had mopped and dried the area to clean up water or only blood.

At the close of all the evidence, the defendant moved for a directed verdict, which the trial court denied. The jury returned a gross verdict of $65,625 for the plaintiff and then reduced it by 20% due to the contributory negligence of the plaintiff, for a net award of...