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Piper v. Moran's Enterprises





Appeal from the Circuit Court of St. Clair County; the Hon. Stephen Kernan, Judge, presiding.


Defendant-appellant, Moran's Enterprises d/b/a Moran's Market, appeals from the judgment of the circuit court of St. Clair County entered upon the jury's verdict in favor of the plaintiff-appellee Ruby L. Piper. Moran's Enterprises (Moran's) appeals from the denial of its post-trial motion for judgment notwithstanding the verdict or a new trial. The jury awarded Piper $31,000 in damages for personal injuries suffered in a fall from a wooden pallet in the appellant's store.

Piper went to Moran's store on December 23, 1978, to buy a case of root beer. She shopped in Moran's because it was convenient and it sold certain items, including soda, more cheaply than other markets. Dottie Darnell, a clerk in Moran's, recognized Piper and saw her go to the aisle where cases of soda were stacked on wooden pallets placed along the walls. Darnell could see Piper's head and shoulders above stacks of merchandise. Piper, 61 years old at the time of the accident, was wearing her glasses and low-heeled shoes.

As Piper moved her grocery cart along the aisle, she stopped to talk with another shopper and then turned back to get the root beer from one of the wooden pallets. A pallet is a wooden platform 40 inches by 48 inches. Its top surface is formed of wooden slats separated by random spaces, variously estimated to be one quarter, 2 1/2 or three inches wide. The pallets, stacked with 100 cartons of soda, were delivered to Moran's from the dealer's warehouse. Moran's employees used pallet jacks to bring the filled pallets into the store and place them along the wall as well as to remove empty ones. Properly inserted, the jacks went under the slatted top surface so that the boards ran across the jacks and were parallel to the wall when the pallets were in place. Piper described the boards in the pallet from which she fell as running out from the wall rather than parallel to it. Darnell, who said she had pulled cases of soda to the front of the same pallet, thought the slats "would have been running crosswise * * *."

The market used the pallet system to lower labor costs, but it required its employees, including managers, to move cases forward on the pallets so customers could reach merchandise without getting on the pallets. As damaged pallets were found in the store, they were stacked behind the building to be returned to the warehouse. No signs were posted to advise patrons about stepping on pallets, but employees were expected to move cartons for customers who asked for assistance. Darnell said she had never seen an adult step on a pallet to get anything. Piper said she had stepped on pallets before. On the Saturday when Piper fell, an extra stock boy had been hired to restock and help customers. Piper did not see him.

Darnell testified that sometime before 10 a.m. on December 23 she moved all 35 cases of soda to the front of the pallet. She estimated that 200 customers had come through the store that morning, and she had been busy at the check-out counter from 10 a.m. on. When Piper came to the pallet, she found partly filled cases on the right front of the pallet, but she wanted root beer which was further back. Under vigorous cross-examination she said that she saw no defect in the pallet before she stepped on it and that she may have stepped two feet into the middle of it. She took up a case of soda and made a quarter turn to the left. Her foot was caught and she fell, breaking her ankle and suffering other injuries. After she fell, she saw a hole on the left front corner of the pallet. She did not hear any cracking sounds or see any ragged edges, but thought there was a short board on the top of the pallet where the hole was.

Darnell, hearing Piper call out and seeing her disappear behind stacked merchandise, came up to where Piper lay on the floor. Piper remembered mentioning the hole to Darnell, but Darnell denies hearing any comment about the pallet. Nothing was said to the manager about the pallet. In a deposition read to the jury, the doctor who examined Piper at the hospital repeated her account of falling because she tried to free her foot from a hole in the pallet. Piper's daughter thought her mother said her foot went "in a hole" or "between the boards." A friend vaguely remembered a comment about a heel catching in a slat.

After the fall, Piper was taken to the hospital where the broken bones were realigned and a cast applied. A second cast was applied in January 1979. After the second was removed and Piper began to walk again, she complained of back pain. She was treated for back problems over a period of years. Doctors testified that her ankle was permanently weakened and that her back condition had probably been aggravated by the fall. It was predicted that she would continue to experience back pain.

Piper filed her first complaint on June 4, 1979, alleging that her injuries were the result of the store's negligence in bringing in a wooden pallet "containing a hole or wide spaces on the top." After a series of motions to dismiss and amended complaints, Piper's fourth amended complaint was filed on March 29, 1982, naming Moran's Enterprises, Inc., d/b/a Moran's Market, as the sole defendant. Piper alleged that by maintaining a wooden pallet with an open space in the top caused by a missing piece of the pallet, Moran's failed to exercise due care for Piper who was an invitee. She further alleged in subparagraphs 4b through 4c that Moran's had failed to move the soda cases forward on the pallet, to appreciate the danger in requiring customers to step onto the pallets, to warn of the dangers and to conduct routine inspections of the pallets. Moran's moved to dismiss the fourth amended complaint or to strike subparagraphs 4b through 4c. After the motion was denied, Moran's denied all of Piper's allegations and filed an affirmative defense of Piper's contributory negligence. The case went to the jury on the theory of comparative negligence.

As the case was tried before the jury, the major points of contention were whether the hole was something other than a wide space between the boards and whether a hole big enough for Piper's foot to go in would also be obvious enough so that she could have avoided it by exercising due care. Defense witnesses denied seeing any hole at any time. Piper described a hole several inches square with no ragged edges but big enough to hold her whole foot. Piper marked on photographs of typical pallets the point where she thought the hole was. She demonstrated to the jury how she stepped onto the pallet and turned to get off. The defense argued that in stepping two feet into the pallet and making a quarter turn, Piper could not have stepped on the front left of the pallet where the hole was said to be.

During the instruction conference, each party objected to the other's statement of the law defining the duty owed a business invitee by a property owner. Appellant objected to plaintiff's instruction No. 16, based on Illinois Pattern Jury Instructions (IPI), Civil, No. A20.01 (1981 Supp.), which stated that Moran's could be found liable if the jury found it was negligent in "failing to exercise due care and caution for the plaintiff's safety" in maintaining a pallet with an open space on top, failing to move cases forward, or failing to inspect for defects. The court refused to give appellant's instructions Nos. 1 and 6, which stated that the plaintiff, as a business invitee, had the responsibility for her own safety and was held to be as aware of "obvious and normal hazards" on the premises as the landowner. Although not objected to by plaintiff, defendant's instruction No. 2 was withdrawn by the court after plaintiff's closing argument. It stated that if the condition alleged to be the cause of plaintiff's injury was not latent or concealed, appellant could expect her to discover and appreciate the risk of the condition. Appellant's definitions of the duties of landowner and invitee were based on its interpretation of Longnecker v. Illinois Power Co. (1978), 64 Ill. App.3d 634, 381 N.E.2d 709, rather than pattern instructions. After approximately two hours of deliberation, the jury returned its verdict in favor of Piper and awarded her damages of $31,000. Judgment was entered on the verdict on December 16, 1982.

In a post-trial motion filed on January 11, 1983, Moran's Market sought a judgment in its favor notwithstanding the verdict because plaintiff's complaint stated no cause of action, that as a matter of law plaintiff had failed to show defendant had time for notice of the defect, had breached a duty or proximately caused plaintiff's injury. In the alternative, appellant contended that it was entitled to a new trial because the verdict was against the manifest weight of the evidence. It also alleged error in the submission of instructions and prejudice because of comments made to jurors by plaintiff's counsel. The court denied the post-trial motion on March 30, 1983. Notice of appeal was filed on April 28, 1983.

Appellant states four issues: (1) whether defendant was free of negligence as a matter of law, (2) whether the fourth amended complaint was insufficient as a matter of law, (3) whether the jury was properly instructed, and (4) whether the verdict was against the manifest weight of the evidence.

• 1 With regard to the last of these issues, we would point out that the appellant had a positive duty to support each point made in its appeal with contentions, citation of authorities, and references to pages of the record. If a point is not argued, it is waived and may not be raised in a reply brief, oral argument or petition for rehearing. (87 Ill.2d R. 341(e)(7).) As it did in the post-trial motion for a new trial, appellant asserts that the verdict is against the manifest weight of the evidence and it is therefore entitled to a new trial, but it offers as argument and authority only a direction to the court to reread what has been said in the preceding 13 pages with regard to another issue. In its brief the single citation to "I.L.P., New Trials § 26, p. 28" fails to enlighten us as to its contentions concerning the weight of the evidence. We do not think such a presentation to this court satisfies the rule that appellant marshal and present contentions, authorities, and ...

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