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Pease v. Ace Hardware Home Center

OPINION FILED SEPTEMBER 24, 1986.

CARL PEASE ET AL., PLAINTIFFS-APPELLANTS,

v.

ACE HARDWARE HOME CENTER OF ROUND LAKE NO. 252C, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF AND CROSS-APPELLANT (LOZIER STORE FIXTURES, THIRD-PARTY DEFENDANT AND CROSS-APPELLEE).



Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiffs Carl Pease (Dick) and Mark Tomasetti (Mark) appeal from the judgment of the circuit court of Lake County entered on jury verdicts in their favor on their negligence action against defendant Ace Hardware Home Center of Round Lake No. 252c (Ace). In their complaint, Dick and Mark asserted that Ace failed to exercise ordinary care in stacking paneling on a display rack and that as a result of Ace's careless acts, plaintiffs sustained serious injuries. On appeal, Dick and Mark challenge the jury's finding that they were both 50% comparatively negligent. Mark and Dick also assert that the trial court erred in tendering a jury instruction on the law of agency and in allowing the testimony of Ace's expert witness. Plaintiff Susan Pease (Susan) asserts on appeal that the jury returned inconsistent verdicts when it found Ace liable to Dick, but also found Ace not liable to Susan on her consortium action. Ace as third-party plaintiff cross-appeals from the judgment entered on the jury verdict in favor of third-party defendant, cross-appellee Lozier Store Fixtures (Lozier), the manufacturer of the paneling display rack. Ace asserts the trial court erred in excluding the testimony of its expert witness. We affirm the jury's finding that Mark and Dick were each 50% comparatively negligent, we reverse the jury verdict against Susan on her consortium claim, direct entry of judgment in her favor, and remand that action for a new trial to assess her damages, and we reverse the jury's verdict in favor of Lozier and remand that action for a new trial.

The incident which precipitated the instant case occurred on July 19, 1982. On that date, Dick and Mark entered the Ace store to purchase wood paneling. After several minutes, Dick and Mark located paneling in the home improvement department which satisfied their needs.

Positioned on a display rack manufactured by Lozier, the paneling stood in a nearly vertical position to the floor. The rack contained approximately 84 pieces of paneling. After Mark opened the two restraining bars securing the paneling, Dick removed the first piece of paneling and then backed away from the display rack. As Mark stepped forward to remove a second piece of paneling, the entire stack fell forward onto both Mark and Dick.

After store employees extricated Dick and Mark from underneath the paneling, both were taken to Condell Memorial Hospital. Following this incident, Dick was hospitalized for 19 days and returned to the hospital on several subsequent occasions for treatment of problems related to his back. His treating physician, Dr. John Bellucci, diagnosed Dick's condition as lumbar disc syndrome. Another physician, testifying for Ace, stated he found no evidence that Dick suffered from any physical abnormality involving the lower part of his back. A licensed psychologist, Dr. James Devine, testified that as a result of the accident Dick developed extreme psychological problems and diagnosed the condition as post-traumatic stress disorder.

The injuries sustained by Mark required less hospitalization. He remained in the hospital for several hours on the day of the incident and returned at a later date for a series of X rays. Mark complained that as a result of the accident, he commonly experiences neck stiffness.

On January 17, 1984, Dick and Susan filed their first amended complaint at law against Ace. In count I, Dick sought damages as a result of Ace's negligence in stacking the paneling in an unsafe manner and in its use of an unsafe display rack. In count II, Susan sought damages for consortium, for Dick's medical expenses and for his lost wages. On February 28, 1984, Ace filed a third-party complaint against Lozier based upon a strict-liability theory, alleging that Lozier sold Ace the display rack which was unreasonably dangerous and defective when it left the control of Lozier.

Both the original and third-party actions were tried before a jury. In the original action, the jury found Ace liable to Dick and awarded Dick $40,000 in damages, but found Dick 50% comparatively negligent. The jury also found Ace negligent as to Mark, assessed his damages at $2,300 and found him 50% comparatively negligent. After the reductions for their comparative negligence, Dick was awarded $20,000 and Mark was awarded $1,150. With respect to Susan's consortium action, the jury found in favor of Ace. As to Ace's third-party complaint, the jury determined that Ace was not entitled to contribution from Lozier.

On September 6, 1984, plaintiffs filed a post-trial motion, and Ace also filed a post-trial motion asserting various trial errors. After the trial court denied both motions, plaintiffs and Ace filed timely notices of appeal.

Plaintiffs' first two arguments request this court to review the evidence. The differences in the two arguments are the standard of review and the relief requested. Plaintiffs first assert that the trial court erred in denying their motion for a directed verdict at the close of all the evidence and thus assert entitlement to judgment as a matter of law.

To the extent plaintiffs are arguing that they were entitled to a directed verdict on the question of Ace's negligence, we agree with Ace that we need not address the argument because the jury returned a verdict in their favor. In their reply brief, however, plaintiffs argue that the trial court should have directed a verdict in their favor as to the question of their comparative negligence. Plaintiffs also request a new trial because the jury's verdict of comparative negligence is against the manifest weight of the evidence. Since a conclusion by this court that the jury's verdict of comparative negligence is not against the manifest weight of the evidence would also require the conclusion that the trial court did not err in denying plaintiff's motion for a directed verdict, we review the evidence of comparative negligence in light of the manifest-weight standard.

• 1 Prior to reviewing the evidence, we must first dispose of plaintiffs' contention that the trial court erred in giving an instruction on agency. The only ground for objecting to the instruction raised by plaintiffs during the instruction conference and on appeal is that the record contained no evidence of agency. Inconsistently, however, plaintiffs tendered and the trial court accepted an agency instruction, predicated on Illinois Pattern Jury Instruction, Civil, No. 50.10 (2d ed. 1971) (IPI Civil 2d), which defined the terms agent and independent contractor. The language in plaintiffs' agency instruction contains virtually all of the language in defendant's agency instruction (based upon IPI Civil 2d No. 50.05). While the instructions arguably are redundant, plaintiffs never in the trial court or this court objected to defendant's agency instruction on the basis that it was redundant. Moreover, we can see no prejudice to plaintiffs because both agency instructions were given. As plaintiffs tendered their own agency instruction which was accepted by the trial judge, we find unpersuasive plaintiffs' argument that the record contained no evidence of any agency warranting the trial court's acceptance of defendant's agency instruction. See Erwin v. Sears, Roebuck & Co. (1976), 65 Ill.2d 140 (a party may not assert error on the basis of an instruction which he has caused to be given to the jury); Country Life Insurance Co. v. Goffinet (1969), 117 Ill. App.2d 338, 254 N.E.2d 281 (party precluded from objecting to instruction which contained same language as that given to jury on voir dire by agreement of the parties).

Turning to our review of the evidence, we need only consider the evidence regarding plaintiffs' comparative negligence because defendant does not challenge the jury's verdict as to its liability. The testimony reveals the following. Mark and Dick arrived at the Ace store on July 19, 1982, at approximately 4:30 p.m. Three Ace employees, working in the home improvement section of the store, were present at the time the accident occurred: Robert Lindley, the manager of the home improvement department, Joseph Mueller, assistant manager, and Matthew Gorsuch, a stock boy. Upon entering the store, Mark and Dick explained to Mueller that they were looking for discontinued or damaged paneling. Mueller directed them to those products and then returned to his desk where Lindley was situated, approximately 45 feet from the location of the accident. Mark and Dick found these materials unsatisfactory, and so continued walking down the aisle in the direction away from where Mueller and Lindley were situated. Eventually, Dick and Mark located the paneling involved in their lawsuit. Photographs of the rack involved in the accident were introduced as Stipulated Exhibit A (1 through 11) which revealed that the rack was positioned at the end of the aisle.

Lindley testified the rack contained 84 sheets of paneling prior to the accident. Each sheet was 4 feet wide, 8 feet long and 5/32 inches thick. Mueller testified that each panel weighed 10 to 15 pounds. Two metal arms running across the front of the rack kept the paneling in place. Lindley stated the lower bar was 4 1/2 feet above the base of the rack and the higher bar was approximately 7 feet above the base. The bars were not locked and required an upward movement and then a forward movement to gain access to the paneling. Lindley said the paneling was bowed toward the front of the frame and thus the top of the paneling rested against the 7-foot bar. Mueller stated the bottom of the paneling intentionally was positioned against the wooden runner at the base prior to the accident to prevent the paneling from slipping. Despite the higher bar, Gorsuch and Mueller stated the paneling continued to lean out toward the aisle prior to the accident.

Mark and Dick were the only eyewitnesses to the accident. Mark testified he opened both bars away from the paneling, swinging them open like a door. Dick then took one piece of paneling off and held the piece in front of him with one hand on each side. Mark then began to remove a second piece of paneling and then sensed the rest of the paneling falling forward. Mark admitted he saw the thickness of the panels prior to opening the bars because the edge of the rack was exposed. He also admitted the low price of the paneling, which he noticed prior to the accident, indicated to him that the paneling was very thin. Mark stated the higher bar was positioned over his head. Dick testified that when Mark opened both bars of the rack, he noticed that the paneling was "warped."

• 2 We believe the jury's verdict of comparative negligence as to Mark and Dick is not against the manifest weight of the evidence. Defendant's employees testified the paneling was warped and leaned outward against the top bar. The rack provided an open view of the paneling both from the front and the side. Given the condition of the paneling against the rack, the jury could have concluded plaintiffs were negligent in opening the bar and removing the paneling. Moreover, the jury's province is to determine the comparative negligence of the parties. (Blacconeri v. Aguayo (1985), 132 Ill. App.3d 984, 478 N.E.2d 546.) Its verdict finding both Dick and Mark 50% negligent relative to defendant is not against the manifest weight of the evidence.

• 3 Plaintiffs next assert the trial court erred in allowing the testimony of defendant's expert witness Douglas Morita, a mechanical engineer. Morita visited the store where the accident occurred and measured the specific rack involved in this accident. Morita testified the rack had only four levels from which the restraining arm could be secured. Based upon his measurement of the rack, Morita stated the highest level was 88.6 inches. Plaintiffs apparently complain that Morita's testimony was allowed improperly because he did not know for certain that the restraining arm was on the highest level on the day of the accident. Although plaintiffs argue Morita's testimony amounts to reconstruction experiment testimony, this characterization is inaccurate. Morita did not give his opinion on how the accident happened, but rather gave testimony on the measurement of the rack. Therefore, the reconstruction case cited by plaintiffs, Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App.3d 789, 358 N.E.2d 1142, is inapposite.

Moreover, this testimony on the height of the highest level was instructive to the jury in its understanding of the design of the rack. Although plaintiffs complain vehemently about the paucity of evidence regarding the position of the arm on the day of the accident, the record contains ample testimony that the higher arm was positioned at the highest possible of the four settings of the rack. Mark testified the higher arm was above his head, and Lindley testified the higher bar was 7 feet high. Plaintiffs never presented any testimony that the higher bar was, in fact, at a lower height than the 7 foot estimate made by Lindley. We therefore conclude Morita properly ...


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