APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
ROSENBERG, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Sears (defendant) appeals from the trial court's denial of its motion for judgment against plaintiff notwithstanding the verdict (n.o.v.) or, in the alternative, for a new trial on plaintiff's claim. Otis (third-party defendant) appeals from the granting of Sears' motion for judgment n.o.v. against Otis on its third-party complaint, denial of Sears' motion for judgment n.o.v. against plaintiff, and, alternatively, the failure to grant a new trial on plaintiff's claim against Sears.
The issues presented are whether the trial court erred: (1) in allowing plaintiff to amend her complaint to allege an entirely new theory of liability four years after suit was filed; (2) in denying entry of judgment n.o.v. against plaintiff; (3) in denying alternatively motions for a new trial on plaintiff's claim against Sears; and (4) in granting Sears' motion for judgment n.o.v. against Otis. We affirm.
The following facts were undisputed at trial. Plaintiff's injury occurred in June 1973, when she slipped and fell while stepping off a moving escalator located at the Sears store in Oak Brook. In July 1973, following her discharge from the hospital, she wrote a letter to Sears advising of her injuries and stating that she had slipped on a liquid substance. The place of her fall was described as the area known as the landing plate or headplate located at the top of the escalator. The letter did not mention that a worn landing plate was responsible or in any way contributed to her accident. On September 19, 1973, plaintiff and her attorney, Frank Koykar, visited the Sears store to observe the place of her fall.
Thereafter, on July 17, 1974, plaintiff filed suit against Sears. An amended complaint was filed on October 21, 1974. Both the complaint and amended complaint alleged negligence on the part of Sears in the operation and maintenance of the escalator by permitting a milky white substance to be placed upon the surface of the escalator, by permitting the slippery substance to remain, and by failing to warn of the said slippery substance. There was no specific allegation referring to any worn areas on the landing plate. In December 1974 depositions of plaintiff and her husband were taken. Neither plaintiff nor her husband testified about any defect in the landing plate. Plaintiff's attorney participated in the depositions and did not tell Sears' attorney that a landing plate was involved.
On September 20, 1978, two weeks before the close of discovery, plaintiff filed an amended notice to produce at trial pursuant to Supreme Court Rule 237 (73 Ill.2d R. 237), which for the first time requested information concerning the installation, repair or replacement of the landing plate. On September 25, 1978, plaintiff was granted leave to amend her complaint by adding an allegation that Sears was negligent in that it "failed to replace the landing plate at the top of the escalator here involved when it became worn and slick in spots."
Thereafter, on February 21, 1979, Sears filed a third-party complaint against Otis alleging that if plaintiff was injured due to a worn landing plate as alleged in plaintiff's amendment, those injuries were a result of Otis' breach of its maintenance contract with Sears or, alternatively, were due solely to the negligence of Otis. Otis filed its answer on October 9, 1979, at the time of trial.
Plaintiff testified. Prior to the day of the accident she and her husband would shop occasionally at the Sears store in Oak Brook. She had used the escalator upon which she fell many times before June 24, 1973. One week prior to the accident she had observed that the steel plate on the top of the escalator was "worn smooth" and was "very slick" on the right and left-hand sides. When she stepped off the escalator on the day of the accident, she looked where she was stepping but there was a man directly in front of her and she couldn't see into what she was stepping. She stepped off onto the left side of the escalator where the grooves were worn and smooth and felt she had stepped into something very slippery and slimy. She did not see what she had stepped into nor where she stepped on the plate itself, but she knew where she had stepped because she could just "sense by the feel." The worn spot upon which she stepped was about two inches in size. Plaintiff did not see the alleged slimy substance before or after the fall. Following her fall and after her husband had helped her to their car, she looked at her clothes and noticed a white, milky substance on the left leg of her pants suit, on the sole and heel of her left shoe, and on the sole of her right shoe. Plaintiff's husband was unable to testify at trial due to illness.
Frank Koykar testified at trial over the objection of Sears and Otis. He was a member of the law firm initially retained by plaintiff and was familiar with her claim against Sears, which he earlier had personally handled. After plaintiff had retained his firm, he visited the Sears store on September 15, 1973, and examined the landing plate on the escalator. He observed patches of wear on the left and right sides of the plate. On the left side the grooves were worn off almost entirely. Plaintiff had told him that she had been injured when she slipped on a slippery substance. His firm has an interest in the outcome of the suit, being entitled to 50% of any fees received by the attorneys at trial. He admitted that he had participated in the lawsuit before trial and in the discovery deposition; further, that his firm had never formally withdrawn as attorneys in the case but had turned over the file to another firm in 1975 for trial. His firm had an agreement with the plaintiff for attorney fees contingent upon the outcome of the trial, amounting to $35 an hour or one-third of the recovery, whichever was greater. His firm had already received some fees. It would receive additional fees if plaintiff was successful in the lawsuit, but it would not receive additional fees if she were not successful.
Max D. Adams testified on behalf of plaintiff over the objection of both Sears and Otis. He was presently employed as a chemist and had, among other degrees, a Ph.D. in chemistry from St. Louis University. For the six years preceding trial he worked in chemistry projects based on analysis of explosions, fires and failures of plastic materials. For the past 25 years he worked in conjunction with chemical engineering groups in design of electronic or mechanical gadgetry for use in chemical and nuclear reactors. He had some familiarity with mechanical design. This was the first case upon which he has been consulted which involved escalators. He had no experience in the design, manufacture, installation or maintenance of escalator equipment and had never consulted with anyone knowledgeable in those fields.
Mr. Adams testified that he examined the bottom of plaintiff's slacks and shoes under a polarizing microscope. He determined that the material on the shoes was an organic one which he could not identify but suspected due to the morphology, that is the shape and surface characteristics of the particles, the material on the pants was at least like an ice cream or milk-shake type of food material.
Mr. Adams also testified that he visited the Sears store at Oak Brook on the day before he testified at trial to measure and photograph the escalator patterns for comparison with the markings on the toes of plaintiff's shoes. He found that the markings were spaced on the shoe in such a manner as to make it quite consistent that they could have been formed by driving the shoe into this type of escalator tread. On cross-examination Mr. Adams admitted that he did not determine that there was anything wrong in the manner in which the escalator was manufactured, designed, installed or maintained, nor did he equate the damaged toe to any kind of malfunction of the equipment itself.
Witness Fenrow Cole testified on behalf of Sears. He has been employed at Sears' Oak Brook store for 10 years. In 1973 he was a porter and presently is assistant foreman in maintenance. The maintenance department cleaned and maintained the escalators and turned them on in the morning, security turning them off at night. Maintenance did nothing other than clean the escalators once or twice a day, if necessary, and if there was anything wrong with the escalators mechanically or functionally, Sears would call Otis. Sears did not itself make any repairs to the escalators, and to his knowledge Otis' representatives would visit the store once or twice a week to check the escalators for operating purposes. It was not part of his job in 1973 to watch what the Otis people did or to see how they did it.
Plaintiff's treating physician and a radiologist testified regarding plaintiff's injuries.
Plaintiff introduced into evidence over Otis' and Sears' objections several color photographs depicting the plaintiff's injured leg taken shortly after surgery, and also showing injuries to her elbow. The photographs evidenced coloration around the injured areas caused by iodine and other materials used in surgery.
The jury returned verdicts in favor of plaintiff and against Sears awarding damages of $22,500 and in favor of Otis, and against Sears on the third-party complaint. Sears' and Otis' motions for judgment n.o.v. or, alternatively, for a new trial on plaintiff's complaint were denied. Sears' motion for judgment n.o.v. against Otis and on the third-party complaint was granted, with judgment against Otis in the amount of $22,500. Sears and Otis appealed.