APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The plaintiff sued the City National Bank and Trust Company on account of injuries she suffered when she slipped and fell on the bank floor. The jury held for the defendant and the plaintiff appeals raising the following issues: (1) whether the trial court's (a) special interrogatory and (b) instructions on issues and burden of proof correctly stated the burden of proof regarding the duty of care owed to a business invitee by the premises' owner; (2) (a) whether the trial court erred in giving the jury defendant's tendered instruction, Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI), concerning plaintiff's failure to produce a witness under her control during her case in chief and (2)(b) did the court abuse its discretion by refusing to allow the plaintiff to reopen her case to call the witness in question and (3) did the court improperly allow a witness to testify to hearsay evidence.
December 3, 1976, was a cold wet day in Rockford, with snow and slush on the streets. Around 7 p.m. on that day, the plaintiff, accompanied by her daughter and husband, entered the defendant bank for the purpose of depositing her pay check. She entered by a side door where there was a mat placed to absorb excess water, then went through a second door and down a carpeted corridor before turning left into the main lobby where the teller cages were located. The floor area in the main lobby was covered with vinyl tile and in the center was an inlaid pattern or "logo" designated as "Sir Greenback," with an advertising symbol which was the bank's familiar symbol. The evidence indicated there were rubber mats in front of the tellers' cages around the lobby. There were no mats in the center or middle portion of the lobby since, as was testified to by a bank employee, the bank did not wish to cover up "Sir Greenback." Customers traversing the lobby from the door to a teller's cage would therefore be apt to walk on the uncovered part of the lobby, at least part of the way, especially if there were already customers standing on the mats in front of the tellers' cages. Plaintiff walked on the uncovered vinyl floor near the "Sir Greenback" emblem, slipped and fell, breaking her arm. The evidence adduced at trial established that because of the nature of the weather there was a considerable amount of water being brought into the bank by customers. A maintenance man, 78 years old, was mopping up the lobby from time to time; however, he testified, he was not charged with that duty but was doing it on his own. A bank employee testified he was not sure whether Morgan, the maintenance man, had last mopped the floor 1 minute or 10 minutes before the plaintiff fell. Morgan apparently was not in the lobby when the accident occurred. As a result of the fall, the plaintiff suffered a comminuted fracture of her left arm. Her physician testified at trial, 23 months after the injury, that she had suffered some permanent loss of motion of her arm. At the conference on instructions, the defendant tendered an instruction based on section 343 of the Restatement (Second) of Torts, which the court modified and gave as the court's own instruction No. 20 as to burden of proof. This read as follows:
"The plaintiff claims that she was injured while exercising ordinary care for her own safety and that defendant was negligent. Plaintiff claims that the defendant knew, or should have known, that the wet floor created an unreasonable risk of harm to plaintiff and plaintiff claims that the defendant should expect that plaintiff would fail to realize the danger of the wet floor or adequately protect herself. Plaintiff further claims that the defendant failed to exercise reasonable care to protect her against such danger in one or more of the following ways:
(a) Failed to prohibit plaintiff from walking on wet floor;
(b) Failed to cover an adequate amount of floor surface with rubber mats between the tellers' cages;
(c) Failed to assign sufficient number of maintenance personnel to cope with the water conditions on the floor surface;
(d) Failed to warn the plaintiff that the wet tile created an unreasonable risk of harm. * * *."
While (a) and (b) of the instruction are obviously taken from the Restatement (Second) of Torts, and the Restatement has been approved in several Illinois cases as accurately stating the duty of a landlord to an invitee injured on his premises (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552), the instruction was, of course, at variance with IPI Civil No. 21.02 designated "Burden of Proof on the Issues", which reads as follows:
"The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff before and at the time of the occurrence was using ordinary care for [his own safety] [and] [the safety of his property];
Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Third, that [the plaintiff was injured] [and] [his property was damaged];
Fourth, that the negligence of the defendant was a proximate cause of [the injury to the plaintiff] [and] ...