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Wolfe v. Bertrand Bowling Lanes

OPINION FILED JULY 13, 1976.

NAOMA WOLFE, PLAINTIFF-APPELLEE,

v.

BERTRAND BOWLING LANES, INC., A/K/A BERTRAND BOWLING ALLEY, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 5, 1976.

The plaintiff, who had an atrophied left leg as a result of polio, fell in the defendant's cocktail lounge, breaking her right leg. She contends that she slipped on a cellophane cigarette wrapper dropped on the carpet by a waitress clearing ashtrays. The defendants contend that she merely fell getting off a bar stool. The jury found for the plaintiff and awarded her $21,000 for which judgment was entered. On appeal, the defendants contend: (1) that the verdict is contrary to the manifest weight of the evidence; (2) that the court erred in the giving and refusal of instructions; (3) that the court erred in excluding certain expert testimony; and (4) that improper testimony and comments of counsel deprived the defendants of a fair trial. We find no reversible error and affirm.

On June 13, 1969, the plaintiff came into the defendants' cocktail lounge shortly after midnight and remained until closing. A friend of hers, Minnie Neargarder, worked there. During those next 1 1/2 to 2 hours she was seated on a bar stool at the bar on the west (carpeted) side of the defendants' lounge which area was serviced by Miss Neargarder. She did not leave the bar stool during this period but had two short beers (she was not intoxicated) and listened to the band. To the left of her seat was a waitress station; in it was a plastic waste receptacle 2 1/2 to 3 feet high located on the floor. While leaving the lounge she fell, suffering a fracture of the right femur. No one other than the plaintiff witnessed the actual fall, although at that time there were perhaps eight to ten customers in the lounge.

At the trial, the only witnesses were the plaintiff; Mr. Gluth, Mr. Lawrence and Mr. Bertrand, all employees and officers of the defendants; Mrs. Judith Linderholm, a former waitress of the defendants; and Dr. Creath, the treating physician. Although they were the first to reach the plaintiff after her fall, neither LeRoy Twilliger, an acquaintance whom she knew because he had come to the lounge regularly, nor Minnie Neargarder testified.

During the whole time the plaintiff was seated at the bar, there were only eight to ten customers on the west side of the lounge. There were only two on that side just prior to closing. During the evening Minnie would clear the tables in her area and empty whatever was on her tray, dumping ash trays and garbage. In the last half hour before closing Minnie went by her perhaps a dozen times with trash and debris from the tables. No one else was in the area near the waitress station around closing. Miss Wolfe did not, however, see anyone drop a piece of cellophane. She was watching the band.

While she was seated at the bar, her feet reached the footrest. She testified that she was very careful getting off the stool. Because she had had polio, she always looked to see where she was stepping. When, however, she looked at the floor as she was leaving, she had difficulty seeing it. The lighting was dim. She denied that she fell off the bar stool.

Miss Wolfe took three or four steps after getting off the bar stool and fell in an aisleway where people could pass through going to the bowling alley or to the parking lot. Her left leg slipped on a single layer of clear cellophane the size of a package of cigarettes. (Right when she fell she looked down to see what it was — the cellophane was under her foot.) She fell some 2 feet from the waste container, on a darkened area of the carpeting. In this area there was other debris as well; including cigarette wrappers, cigarette butts, plastic stirrers and napkins. This area of debris was about 2 feet in width and length.

At the time of the fall she was wearing reasonably new tie shoes with low rubber heels and rubber soles. She had not had trouble walking with these shoes before on different types of surfaces.

The first persons to reach her were Minnie and LeRoy. They took her to St. Theresa's Hospital in her car. At no time did she tell Dr. Creath or anyone else that she fell off a stool. Dr. Creath at no time asked her what happened.

Miss Wolfe was under treatment, either in the hospital or at home until May 1, 1970. She has suffered permanent aftereffects because of the injury to her right leg. She tires easily when walking and she can no longer perform many of the activities she could before.

Dr. Creath, an orthopedic surgeon, testified for the plaintiff. He treated her in June, 1969, and thereafter. He was actually the second doctor to see her and she had already been placed in bed at that time. She had a fracture of the right femur. According to his medical report which was made on September 4, 1969, approximately 3 months after the accident, she had apparently (the word "apparently" was his) fallen from a seat. He did not know where he got the history. Occasionally he will see the emergency record or actually talk with the patient. This comment could not have been obtained from the emergency record since it does not say this and there is nothing in his notes to indicate where the history did come from. In his opinion, the injury could have made the extremity weaker than it was before, could have made it slightly shorter and could have aggravated the weakness in her hip and right ankle. The weakness in her right hip and ankle and the narrowing of the musculature could make her less well. He did not believe her right leg would improve.

Neither Mr. Gluth nor Mr. Lawrence actually saw the accident; rather they saw her on the floor with a group of people around her. Both testified that they did not see any debris on the floor near where they saw Miss Wolfe. However, Mr. Lawrence did not look over in the direction of the waste receptacle to see if there was any debris on the floor. Mr. Gluth, who was the bartender, did not interrupt his cleaning-up at the time of the accident and did not go over to that area. He only passed by the area where she had fallen when he went home about 25 minutes later. Then he did not notice anything but he did not look specifically at the floor and could not say with any certainty whether anything was on the floor when he walked out. The maintenance crew comes in sometime after 2 a.m. after the customers have gone home and vacuums.

Both witnesses agreed that the lights were turned up bright at 2 a.m. which was closing time. Mr. Gluth acknowledged that a year and a half after the accident when he was not employed by the defendants he had given them a written statement that the lights were dim. He had changed his mind after he discovered at what time the accident happened; by this time he was employed by Mr. Bertrand. However, according to Mr. Gluth, even when the lights were on dim one could see the entire west side of the lounge area floor.

Mr. Gluth, Mr. Lawrence and Mr. Bertrand all agreed that the waitresses were supposed to keep the area clean. They were to keep an eye out for any debris and pick it up if it was seen on the floor. Likewise they were supposed to pick up any debris around the receptacle. Part of Mr. Lawrence's duties were to walk through the lounge and see if there was any debris on the carpeting.

Mr. Lawrence also testified that the west side of the lounge was carpeted. The carpeting was dark green and there was a darkened area at the waitress station that extended out a couple of feet. He did not know why it was darkened. It could be traffic.

Mrs. Judith Linderholm, a former employee of the defendants, testified for the defendants. The night of the accident she had worked on the east side of the lounge and Minnie on the west side. She first became aware Miss Wolfe had fallen when she sensed a general commotion. This was around closing time which would be around 2 a.m. At that time the witness had been cleaning up. The general practice was to clean off the tables, empty the ash trays and pick up the glasses. Mrs. Linderholm was under the impression that the commotion was simultaneous with the lights being turned up — it all came back in her mind as if it had all happened at once but she did not remember for sure. ...


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