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Chapman v. Foggy

OPINION FILED APRIL 4, 1978.

STACEY CHAPMAN, A MINOR, BY JOSEPH CHAPMAN, JR., HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

MATTHEW FOGGY, D/B/A MARTIN LUTHER KING MEMORIAL SKATING RINK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT J. SAUNDERS, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant Matthew Foggy, owner and operator of the Martin Luther King Memorial Roller Skating Rink, from a judgment of the circuit court of St. Clair County entered on a jury verdict in the amount of $5,000 in favor of minor plaintiff Stacey Chapman for injuries allegedly received by her while a patron at the defendant's skating rink.

The following issues are presented on appeal: (1) whether the trial court erred in denying defendant's motion for directed verdict; (2) whether the court properly granted plaintiff's oral motion for admission of facts; (3) whether the court erred in submitting the case to the jury in the absence of expert medical testimony concerning plaintiff's injury; (4) whether the jury was properly instructed; and (5) whether the verdict was excessive.

The skating surface of defendant's rink is polished concrete. Since 1971 or 1972 there has been a restraining wall, approximately 3 1/2 feet tall, around most of the perimeter of the rink. This wall separates the skating area from nonskating areas. At the top of this wall is a wooden railing, painted black.

On Sunday, February 2, 1975, plaintiff Stacey Chapman attended the afternoon session at defendant's rink in the company of her brother Cedric and a friend, Carla Harris.

Midway through the session, at approximately 3:30 p.m., Stacey and Carla endeavored to leave the skating surface in order to reach the seating area. Stacey was in the lead as they approached an opening in the railing which was obstructed by patrons milling therein. According to the testimony of both Stacey and Carla, they were forced to stop to allow the crowd to clear. As Stacey skated slowly, coming to a stop, she placed her right arm upon the black painted rail. She felt something go into her forearm.

Upon reaching the seating area, Stacey told Carla and Cedric that she had something sticking out of her arm. This "something," according to the testimony of all three, was a black splinter. She asked her brother to take it out. He pulled on it and as much as was visible did come out. Stacey thereafter continued skating until the session was finished.

Upon returning home, Stacey told her parents that she had gotten a splinter in her arm while at the skating rink. Since no splinter was visible and Stacey was not in great pain, they did not seek medical attention at that time. However, when Stacey came home from school the following day, February 3, her arm was swollen and red. The Chapmans then took Stacey to Christian Welfare Hospital. Her arm was X-rayed, but no attempt was made to remove any object from the arm.

The following day, Stacey and her parents went to Cardinal Glennon Hospital. It is unclear whether an X-ray was made there, but both parents agreed that a staff doctor operated on her arm, removing a black splinter, 2 1/2 inches in length.

Joseph Chapman, Jr., Stacey's father, testified that no stitches were put in the incision after the splinter was removed. He took Stacey back to the hospital on three or four occasions in order to have the wound cleaned, examined and dressed.

A photograph depicting the highly visible scar left by the operation was admitted at trial. In addition, plaintiff exhibited her scar to the jurors. Prior to this time, Stacey's arm was free from scars or cuts.

Defendant Foggy contends first that the court erred in denying his motion for directed verdict, made at the close of plaintiff's case. He argues that an essential element of this negligence case was missing in that there was no evidence presented from which notice of the dangerous condition of his railing could be imputed to him.

• 1 While it is true that an owner of a business premises is not an insurer of the safety of patrons on his premises (Dunlap v. Marshall Field & Co., 27 Ill. App.3d 628, 327 N.E.2d 16), he nevertheless has a duty toward them to exercise ordinary care in maintaining the premises in a reasonably safe condition (Saviola v. Sears, Roebuck & Co., 88 Ill. App.2d 13, 232 N.E.2d 4; Dunlap v. Marshall Field & Co.). See 24 A.L.R.3d 911, § 5(a) (1969) (skating rink owner or operator's duty to maintain premises extends to auxillary parts of the premises).

More specifically, he has a duty to exercise reasonable care to discover defects or dangerous conditions existing on the premises (McGourty v. Chiapetti, 38 Ill. App.2d 165, 186 N.E.2d 102; Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465) and to either correct them or give sufficient warning to his customers to enable them to avoid harm (Perminas v. Montgomery Ward & Co., 60 ...


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