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Morton v. F.b.d. Enterprises

OPINION FILED MARCH 11, 1986.

CYNTHIA MORTON, PLAINTIFF-APPELLEE,

v.

F.B.D. ENTERPRISES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Glenn C. Stevens, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 10, 1986.

The plaintiff, Cynthia Morton, brought suit in negligence against the defendant, F.B.D. Enterprises, after having been injured in a fall on the defendant's business premises when another patron, Mary Helen Bevirt, fell and struck her, thereby causing the plaintiff to fall. The plaintiff maintained that, as a result of the fall, she had suffered a fractured coccyx and a herniated lumbar disc. A jury rendered a verdict in favor of the plaintiff, assessing damages in the amount of $750,000. The trial court denied in its entirety the defendant's post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The defendant has raised seven issues for review, namely; (1) whether the plaintiff failed to prove that "any charge of negligence against this defendant was a proximate cause of the plaintiff's injuries"; (2) whether the trial court erred in allowing "extensive testimony" regarding medical expenses and in admitting "numerous" medical bills into evidence "without sufficient foundation"; (3) whether the trial court erred in instructing the jury that "it is not a defense that a lack of care by a physician may have aggravated plaintiff's damages"; (4) whether the court erred in "denying this defendant the right to present evidence of compliance with applicable ordinances and in denying this defendant's right to an appropriate jury instruction with respect to compliance"; (5) whether the trial court abused its discretion in severing the defendant's third party contribution claim against Mary Helen Bevirt; (6) whether the trial court erred in instructing the jury "with respect to the value of earnings lost instead of instructing the jury as to the value of lost profits where the plaintiff is self-employed"; (7) whether "the conduct of the Court and plaintiff's counsel coupled with other errors den[ied] this defendant a fair trial." Because of the disposition we make in this appeal, we consider only the first issue the defendant raises, that concerning causation. Accordingly, we set forth only those facts relevant to that issue.

The incident in question occurred on December 13, 1980, during a Christmas party held at the Good Times Dinner Theatre in Fairview Heights. The plaintiff was standing near the foot of a two-step stairway waiting to go through a buffet line. Mary Helen Bevirt was standing near the top of this stairway when she fell. In paragraph five of the plaintiff's fourth amended complaint she alleged that the defendant had

"committed one or more of the following negligent acts or omissions:

(A) Negligently and carelessly failed to adequately guard said stairway contrary to Section 616.5 of the B.O.C.A. Code as adopted by the City of Fairview Heights.

(B) Negligently and carelessly failed to have adequate handrails in the stairway contrary to Section 616.5 of the B.O.C.A. Code as adopted by the ordinance of Fairview Heights.

(C) Negligently and carelessly failed to adequately maintain the stairway.

(D) Negligently and carelessly failed to warn persons standing in line that an unguarded stairway without handrails was in the path of the line when they knew, or should have known, that such was a hazard to plaintiff."

At the close of the plaintiff's evidence, she moved orally to amend

"the complaint dealing with the particulars of negligence that I charge. I previously charged negligently and carelessly failed to adequately guard contrary to the B.O.C.A. code, negligently and carelessly failed to have adequate handrails, contrary to the B.O.C.A. code. I would ask leave of the Court to strike the references to the B.O.C.A. code in A and B in the particulars of that complaint. In addition, I would ask to add paragraph 3 which states, negligently and carelessly failed to adequately light the stairway, to the particulars of negligence. D remains the same."

The trial court granted leave to amend in the respects mentioned.

Mary Helen Bevirt testified for the plaintiff, stating that she had followed the rest of her party, which was numerous, to stand in the "food line." She and her husband and another couple, she said, were at the end of the line. To get to the buffet table patrons had to descend the two-step stairway. The plaintiff was standing in line in front of the witness, and the witness' husband was, she said, standing to the left of the witness and behind her. She acknowledged that she knew there was a step there. Asked, "How close to the edge were you standing?" she answered, "Well, I wouldn't have went [sic] right to the edge. Maybe a couple of inches from the edge." She stated that she did not know that she was standing right at the edge of the step but that she knew she was at the top of the step. She said there was no guardrail or handrail at the top of the steps. When she was asked, "What caused you to fall?" she responded, "I believe that the step was too heavily carpeted and I thought I was standing on a step and there was nothing under the carpeting." Asked further, "You just kind of slipped off?" she answered, "And my foot just folded over." Asked, "Now, there wasn't any rail for you to catch yourself on?" she responded, no. She said she thought that the front part of her foot, as opposed to her heel, had slipped. She responded in the negative to the following: "Did you realize there was too much carpet there? Did you realize that you were standing there, that you were standing that close to the edge of the step?" She likewise responded in the negative to the question whether there was anything to indicate to her that she was standing "that close" to the edge of the step unless she looked directly down. Asked what happened when she fell, she responded, "I just fell completely backwards. I don't know why. I didn't get hurt." She said she "landed" on "[m]y seat and my back."

On cross-examination the witness said that the plaintiff and her husband had gone down the steps in front of the witness, who had stopped at the top of the steps. She stated that her husband was on her left and that her right shoulder was "aimed down the step." She had felt, she said, no pressure from the line to move forward and had not been pushed. She stated further that the lighting was not a problem and that she knew the step was there, having seen both steps. She indicated that her right foot had slipped out and that she had fallen back. She had, she said, been "shifting." She did not know where her arms were. She had nothing in her hands. She indicated that she had fallen because the front part of her right foot had slipped over the edge of the step. Asked, "And if I understood you correctly, it felt to you like there was too much carpeting on the step?" she answered, "Correct." She did not, however, look after she fell to see ...


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