Wolfe v. Menard, Inc., 2-04-0629.

• Decision Date: 08 March 2006
• Docket Number: No. 2-04-0629.,2-04-0629.
• Citation: 301 Ill.Dec. 280,846 N.E.2d 605
• Parties: James K. WOLFE, Plaintiff-Appellee and Cross-Appellant, v. MENARD, INC., Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

846 N.E.2d 605

301 Ill.Dec. 280

James K. WOLFE, Plaintiff-Appellee and Cross-Appellant, v. MENARD, INC., Defendant-Appellant and Cross-Appellee.

No. 2-04-0629.

Appellate Court of Illinois, Second District.

March 8, 2006.

Rehearing Denied April 17, 2006.

COPYRIGHT MATERIAL OMITTED

Clifford Lee Gunter, Marilyn Frangella, Robert J. Metts, Timothy J. Young, Chilton, Yambert, Porter & Young LLP, Geneva, for Menard, Inc.

Lisa R. Fabiano, Fabiano Law Offices, Frank A. Perrecone, Ferolie, Perrecone & White, Ltd., Rockford, for James K. Wolfe.

Justice KAPALA delivered the opinion of the court:

Defendant, Menard, Inc. (Menards), appeals from the judgment of the circuit court of Winnebago County in favor of plaintiff, James K. Wolfe, after a trial by jury. Menards also appeals from the order of the trial court denying its posttrial motion. Plaintiff cross-appeals from certain rulings the trial court made during the hearing on the posttrial motion. We reverse and remand this cause for a new trial, based upon the trial court's ex-parte communication with the jurors during their deliberations, and we dismiss plaintiff's cross-appeal.

FACTS

On November 11, 1999, plaintiff entered the warehouse area of the Menards store in Machesney Park, Illinois, to buy a 10-foot aluminum stepladder. He did not seek assistance other than to ask an employee where he could find the ladders. There were three 10-foot ladders that were stacked together, upside down, with the tops resting on the concrete floor. On direct examination, plaintiff testified:

"Q. [By Mr. Perrecone] * * * With respect to the 10-foot ladder stack that you went up to, you said there was [sic] three ladders there?

A. Yes.

Q. When you walked up to it, tell the jury what you noticed about the stack of ladders.

A. Well, I noticed they were upside down and the first 10-footer was tilted in.

Q. Towards the wall?

A. Correct.

Q. And what was behind the first 10-footer tilted towards the wall?

A. There was [sic] two more ladders behind it, 10-footers.

Q. Do you recall how those two 10-foot ladders were situated other than being upside down behind the one that you purchased?

A. No, I don't."

On cross-examination, plaintiff gave the following testimony about the positioning of the ladders:

"Q. [By Mr. Young] None of the ladders against the wall that you were to select were affixed to each other; is that right?

A. I don't know. I can't answer that."

Plaintiff thought the ladders appeared to be stable. He grasped the first ladder, lifted it, and turned to place it on his cart. As he turned, he was struck on the head and back by one of the other ladders in the display. Plaintiff testified that this "threw [him] into a twisting, falling motion." He heard a pop in his left leg, whereupon he fell down and hit the floor. He experienced pain in his left leg. He called out for help, and Menards employees came to his aid.

At the time of this incident, plaintiff had a prosthesis in his left knee. As a result of a motorcycle accident years before, he had undergone two total left-knee replacements. After his fall at Menards on November 11, 1999, plaintiff was treated in the emergency room at Rockford Memorial Hospital. An X ray revealed a fracture of his left medial/tibial plateau. The medial/tibial plateau is where the femur and the tibia articulate at the knee joint. The X ray also showed that the prosthesis was loosened and was sinking into a large cystic lesion beneath it. The loosening had begun before the accident at Menards. Plaintiff underwent a third total left-knee replacement in December 1999. Following this surgery, he developed a chronic long-term infection of the prosthesis and osteomyelitis, which is an infection of the bone. Doctors testified that both conditions are serious and permanent and that plaintiff will be on antibiotics for the rest of his life. He has periodic flare-ups when the infection causes blood and pus to drain from his knee. Following the third total knee replacement, plaintiff had a series of procedures designed to clean the infection out of his knee.

On March 27, 2001, plaintiff filed suit against Menards. During trial, plaintiff filed an amended complaint in which he alleged that Menards was negligent in that it: (1) failed to stack the ladders in a safe manner, (2) stacked the ladders with no restraints to prevent them from falling forward, (3) failed to warn customers about the hazards of falling merchandise, (4) knew or should have known that unrestrained stacked ladders presented a hazard of falling on customers, and (5) knew or should have known that ladders for customer sale should be restrained.

At trial, plaintiff presented a safety expert, William L. Jacobs. Mr. Jacobs testified that stacking the ladders upside down caused them to become unstable. He further testified that, at the time of plaintiff's accident, the standard in the industry for warehouse stores such as Menards was to restrain ladders in a display to prevent them from falling on customers. He cited to internal publications of Lowe's, Sam's Club (Wal-Mart), and Home Depot. Those stores had written, internal policies that required ladders to be restrained. In addition, Mr. Jacobs testified that the standard was written in an article in a professional safety journal.

Over Menards' relevance objection, Mr. Jacobs testified that at the time of plaintiff's accident, Menards did not have an officer who was responsible for safety, did not have a process for training employees in customer safety, and did not have written policies or procedures relating to customer safety. Mr. Jacobs opined that not having any written policies or procedures violated the standard of care in the industry. Mr. Jacobs further testified that Menards stores had collectively experienced 371 accidents from falling merchandise from May 1, 1997, to November 11, 1999. Six of these occurrences, including plaintiff's accident, involved falling ladders. Mr. Jacobs testified that, in addition to the ladder accident, there had been "repeated" accidents involving falling carpeting, boards, paneling, and sledgehammers. Mr. Jacobs stated that the importance of these prior incidents was that Menards knew of the hazards of falling merchandise and took no steps to minimize or eliminate the danger. Menards objected to the testimony related to falling merchandise and the lack of safety policies or procedures on the bases that the evidence bore on postaccident investigation and insurance coverage issues.

At the close of plaintiff's case, Menards' motion for a directed verdict was denied.

Menards presented evidence that assistance is available to customers in selecting and purchasing items. Testimony revealed that a Menards employee assigned to the hardware department in the warehouse portion of the Machesney Park store stacked the ladders as previously described, although the identity of that employee never became known. The store manager at the time of plaintiff's accident testified that he had no knowledge of any falling ladders in the Machesney Park store prior to plaintiff's accident. To counter the opinions offered by Mr. Jacobs, Menards presented the testimony of Gregory Wisniewski, a registered architect, who was allowed to testify over plaintiff's objection that he lacked expertise in the area of safely storing and displaying merchandise. Mr. Wisniewski was not aware of any written standard in the retail industry in 1999 for the display of ladders. He testified that the standard at the time of plaintiff's accident was to store ladders vertically in a neat fashion where they are laterally stable. His opinion was that Menards complied with the standard, because the ladders were leaning against the wall, and the force of the ladders would be pushing against the wall unless someone or something changed the force, causing the ladders to topple forward. On cross-examination, plaintiff's counsel elicited the opinion from Mr. Wisniewski that the standard in the retail industry from the mid-1970s to the present time was not to restrain ladders.

In response to Mr. Wisniewski's opinion that it was the standard at the present time not to restrain ladders, plaintiff offered the rebuttal testimony of Donald C. Roberts, a private investigator. The evening before Mr. Roberts's trial testimony, he was commissioned by plaintiff's attorney to visit Lowe's, Home Depot, and Sam's Club in Rockford, Illinois, to observe the ladder displays in those stores and to photograph them. It was undisputed that plaintiff had not disclosed Mr. Roberts as a witness. Over Menards' objection that plaintiff had not disclosed him as a witness, the trial court allowed Mr. Roberts to testify to his observations and admitted the photographs he took the evening before. Mr. Roberts testified that the ladders at Home Depot and Lowe's were stored in racks with retaining bars to keep them from falling. Sam's Club stored the ladders in a rack that was secured by a chain.

The jury ultimately returned a verdict in plaintiff's favor in the amount of $1.5 million, reduced by 50% to $750,000 to account for plaintiff's 50% fault.

The jury had two questions during its deliberations. The first was a written note that requested copies of all the depositions and a copy of the incident report that Menards generated after plaintiff's fall. Upon receiving this note, the trial judge called Menards' attorney, Mr. Young. The court reporter was present in the judge's chambers and reported both sides of the telephone conversation, which was conducted over the judge's speaker phone. The judge did not include plaintiff's attorney because he did not have the physical capability of making a conference call from the courthouse. Mr. Young objected to the depositions and the incident report going to the jury. The judge said he would call plaintiff's attorney, and then would call Mr. Young back and tell him what action the judge would take. The judge next, in the...