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Hodges v. Jewel Companies

OPINION FILED MAY 30, 1979.

WAYNE HODGES, PLAINTIFF-APPELLANT,

v.

JEWEL COMPANIES, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 2, 1979.

The plaintiff, Wayne Hodges, appeals from a directed verdict for the defendant arising out of an action for personal injuries which the plaintiff sustained in a fall on the defendant's premises.

Wayne Hodges is a victim of polio, who has to wear a leg brace on his left leg and can only walk with the aid of crutches. He weighs about 230 pounds. The plaintiff went to the offices of American Family Insurance Company in Elgin, which offices are in a building owned by the defendant, for the purpose of buying automobile insurance. He drove his automobile to the American Family Insurance Company parking lot, got out of his car and proceeded along the sidewalk to the entranceway of the insurance company. The testimony at trial established that at the entranceway or threshold of the building there is a step or raised portion comprised of one course of brick, being about 2 1/4 inches high, immediately under the door itself, so that the level is approximately 2 1/4 inches lower on the outside of the door than the level encountered when opening the door to step inside.

The plaintiff testified that he saw the small step or difference in levels between the outside and the inside at the threshold. He attempted to negotiate this by maneuvering his right crutch into position to hold the door while stepping forward into the building with his left leg. However, as he attempted to move forward, his right toe caught the raised portion of the threshold causing him to fall forward onto his left knee, severely injuring it. The plaintiff was taken to a hospital in an ambulance where it was found that he had a fracture of the left knee. He was in bed for a month, then returned to the hospital for further treatment and at the time of the trial was still suffering pain and discomfort as well as greatly lessened mobility, allegedly due to the injury sustained in the fall. The complaint alleges permanent disablement. There appears to be no question that the plaintiff was a business invitee at the time of the injury.

At the trial the plaintiff called an expert witness, John Allen Marshall, an architect, who testified that in architectural design it is considered poor practice to "put a step in the door of a commercial building," and that the threshold of the building in this case did not comply with the standards of his profession. He also testified that the door handle was not at the standard height for a commercial door, being 50 1/4 inches from the concrete threshold on the outside whereas the normal reach from the threshold to the handle was about 43 or 44 inches. It was his opinion that while the extra height did not actually increase the difficulty of opening the door, it was a distracting element which added to the hazard imposed by the 2 1/4-inch difference in level at the threshold. It was Marshall's opinion, as an architect, that the small step or shelf at the threshold, together with the unusual height of the door pull, was a combination which did not conform to proper architectural standards for an entranceway.

• 1 This evidence was not countered by any other expert evidence and we think it may properly be considered as constituting some evidence of negligence on the defendant's part in the duty owed to the plaintiff as a business invitee. While it may be that the small rise at the entrance would not have bothered an able-bodied person, this was a business office soliciting the business of the public in general and the defendant must be taken to have contemplated the entrance of handicapped persons through its doorway, as well as those physically fit. To the extent that the plaintiff's expert's evidence indicated a difficulty engendered by improper construction, we think there was a sufficient basis for jury deliberations on the question of negligence.

Actually, the defendant does not in its appeal brief contend otherwise — its brief is bottomed solely on the defense of contributory negligence and not on the insufficiency of the plaintiff's case to raise a jury question on the issue of the defendant's negligence. The trial judge did not issue a memorandum opinion in granting the motion for a directed verdict but we assume from the defendant's brief, which as we say rests entirely on the question of contributory negligence, that this was the basis on which the motion was granted.

• 2 Ordinarily the issue of contributory negligence is a jury question, and using the familiar Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494) for the directing of verdicts, a verdict will be directed based on contributory negligence only "in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." 37 Ill.2d 494, 510.

The motion for the directed verdict was granted at the close of the plaintiff's evidence. As we have said we think it far from clear that the facts presented by the plaintiff raised no question for the jury as to the issue of defendant's negligence. However, if, applying the Pedrick standard, the plaintiff was guilty of contributory negligence as a matter of law, then the motion for a directed verdict was proper on that basis. We, therefore, must consider the evidence on which, judging from its brief, the defendant relies as a basis for the defense of contributory negligence.

Following the plaintiff's direct testimony as to his fall at the threshold of the defendant's building, defense counsel cross-examined the plaintiff as follows:

"Q. * * * Did you observe this cement or bridge railing or shelve [sic] here that goes under the door?

A. I'm sure I did, but I didn't realize it was that high.

Q. You saw it there before you started in; ...


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