APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
B. DUFF, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiff fell in the lobby of the Executive House Hotel on January 4, 1975, and after trial by jury he was awarded $150,000 in damages based on allegations that the accident was caused by the hotel corporation's negligence. Defendant now argues that the trial court committed reversible error in making the following nine rulings:
(1) concluding that defendant unreasonably refused to comply with the supreme court discovery rules (73 Ill.2d R. 219(c));
(2) excluding the testimony of several defense witnesses as a sanction for this violation;
(3) instructing the jury that it could infer that unproduced evidence was unfavorable to defendant, although the unproduced evidence was excluded by the court as a discovery sanction;
(4) refusing to permit defendant to raise the defense that, allegedly, the sole cause of plaintiff's injuries was the negligence of an independent contractor;
(5) denying defendant's request for an order commanding plaintiff to comply with a notice for production of documents (73 Ill.2d R. 237(b));
(6) permitting a physician to give an expert opinion based on X rays which were not available for use in cross-examination;
(7) refusing, during cross-examination, to permit plaintiff's medical expert to refer to an X ray report which the doctor referred to during direct examination;
(8) excluding evidence of admissions which plaintiff made, during discovery, about his medical history;
(9) refusing to permit defendant to examine X rays which plaintiff's physician took of plaintiff the day before trial commenced.
The following facts are material to our decision:
The complaint's principal allegation of negligence is that defendant caused plaintiff's accident by waxing the terrazzo floor on which plaintiff fell. Defendant denied that it used wax on the floor, and defendant did not dispute that wax should never be used on terrazzo floors because it makes them extremely slippery.
The defense theories are that (1) plaintiff's left knee spontaneously buckled because of pre-existing instability, and (2) much of plaintiff's pain and injuries were caused by (i) a childhood accident in which his left knee was injured, and (ii) 1978 surgery in which a tumor was removed from the upper portion of his left thigh bone.
On March 4, 1977, plaintiff served interrogatories on defendant requesting, among other things, that defendant identify who maintained the lobby floor at the time of the accident. More than a year and a half later, defendant, acting through its general manager, Robert Dangoia, answered this inquiry by stating, under oath, that the hotel lobby was maintained by hotel employees at the time of the accident. The truth, however, was that, at the time of the accident, janitorial services for the hotel lobby were provided by Amity Building Service Corporation. Amity's contract with Executive House began in 1973, and it did not terminate until April 1976. Nevertheless, defendant's interrogatory answers made no reference to, and did not even hint at, the existence of Amity Building Service Corporation.
In the spring of 1980, plaintiff petitioned to have his case advanced on the trial call; the supporting affidavit stated that he had cancer of the pancreas and had a life expectancy of only a few months.
The case was advanced, and there were two pretrial conferences with the court. Defendant's trial attorney did not mention, at either one of these conferences, that he intended to file a notice for production of documents. However, the day before the trial commenced, defendant filed a document which requested production of the following items:
(a) The statements of "all persons or witnesses";
(b) Names and addresses of any persons having knowledge of defendant's lobby floor on January 4, 1975;
(c) Names and addresses of all persons who have any knowledge of the methods used in maintaining the lobby floor;
(d) Names and addresses of any persons having any knowledge of the use of any wax product on the floor;
(e) The name and address of the supplier of the wax;
(f) Brochures or documents relating to any floor care products applied to the floor;
(g) The names and addresses of any of defendant's own employees who have any knowledge of how the floor was maintained;
(h) All of the plaintiff's medical records;
(i) Any reports prepared by the architectural expert who testified for plaintiff.
Immediately after opening statements were made to the jury, defendant's trial attorney first brought this "notice" to the attention of the trial court. Defendant's request for court ordered compliance with its "notice" was denied by the court on the grounds that it constituted an untimely attempt to obtain "shotgun" discovery by a litigant which had not diligently pursued the pretrial discovery procedures which would have permitted it to obtain the evidence which it first sought during trial.
Plaintiff testified that he was walking on the terrazzo floor in the lobby of the Executive House Hotel on January 4, 1975, while wearing rubber soled shoes, when his right leg shot straight out, his left leg twisted to his side, and he fell on his seat. He described his excruciating and continuing pain, and he claimed $9,000 in medical bills, $11,000 in lost wages, and $2,000 in expenses for his wife to come from Texas and stay in Chicago during his 10-week hospitalization. According to plaintiff, the injury caused a severe limp in addition to continuing pain. Also, he had trouble sleeping, could not enjoy sports — even as a spectator, could not sit through a movie, had to be driven around by his wife, had trouble getting in and out of cars, and was unable to work full time.
During cross-examination, plaintiff, who was 60 years old at the time of trial, admitted that he injured his left knee when he was four or five. But he denied knowing whether this old injury caused any instability in his left knee. Plaintiff also denied knowing whether this childhood injury caused any ligament damage in the knee. Responding to this testimony, defendant's attorney attempted to elicit evidence that (a) during his discovery deposition plaintiff said he thought that there was some ligament damage from the childhood injury, and (b) in his answers to defendant's interrogatories, plaintiff stated that the old injury caused "moderate instability" in the knee joint.
The trial court excluded evidence of these statements on the grounds that they were not impeaching and that, because plaintiff was an infant at the time of the old injury, his statements during discovery were necessarily based on the hearsay statements of others rather than on his own personal knowledge.
The first mention of the existence of Amity Building Service came when plaintiff called Ruth Matthews as a witness. Matthews worked for Amity between January 1974 and January 1975 as the supervisor of the Amity crew that worked at the Executive House Hotel. Despite the fact that defendant denied that wax was used on the lobby floor, Matthews testified that the terrazzo floor in the Executive House Hotel was waxed once a week. According to Matthews, the cans used by the Amity crew were labeled "wax," and occasionally the floor was so slippery that Matthews had to order the crew to correct the dangerous condition.
Although defendant argues on appeal that evidence of the existence of Amity would not have damaged its defense, its post-trial motion states that the testimony given by Matthews — evidence directly derived from plaintiff's independent discovery of the existence of Amity — was "a blow to the solar plexus of the defendant's defense theories from which defendant never recovered, nor could."
Harry Fear, the man who was general manager of the Executive House at the time of the accident, also testified that the terrazzo floor in the lobby of the hotel was waxed once a week and that, occasionally, it was extremely slippery. Furthermore, an occurrence witness who was an acquaintance of plaintiff's testified that the terrazzo floor on which plaintiff fell was slick and shiny like the terrazzo floor in the witness' home when it had once been waxed by mistake.
Plaintiff's medical expert, Dr. William F. Kernahan, an orthopedic surgeon and assistant professor of medicine at Northwestern University School of Medicine, treated plaintiff immediately after the accident and throughout his hospitalization.
The doctor testified that the fall in the lobby of the Executive House Hotel caused a fracture which had a lot of small fragments, and which ran all the way down the left thigh bone and into the knee joint. His opinion on the extent of fragmentation, and the length of the fracture, was ...