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Schultz v. Richie





Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.


Rehearing denied December 1, 1986.

Plaintiffs, George D. and Karen Schultz, appeal from a judgment of the circuit court of Sangamon County entered on a jury verdict in favor of defendants, Oscar Lee Richie, Oscar Wayne Richie, and Eldra Spice. We affirm.

The pertinent facts, as disclosed by the record, are undisputed. On January 21, 1982, at approximately 5:30 p.m., plaintiff George D. Schultz, then a Springfield police officer, was escorting a suspect from the suspect's mother's house. The house located at 1413 East Jackson Street in Springfield, was owned at that time by defendants Oscar Lee Richie and Oscar Wayne Richie, and leased to defendant Eldra Spice.

As Schultz, another police officer, and the suspect were exiting the house, proceeding across the porch and down the porch step to the squad car, Schultz slipped and fell on ice that had accumulated on the "porch step and sidewalk area." Upon falling, Schultz landed on his backside and sustained back injuries and lacerations of the hand. As an alleged result of these injuries, Schultz' employment with the police department was terminated "for medical reasons," his physical abilities were impaired, he lost income and wages, and incurred medical bills.

At the time of Schultz' fall, the aforementioned house had one front-porch step, which was located directly below the "slope of the front porch roof." The porch roof had no gutters, and water dripped from the roof onto the front-porch step, where it froze. The ice that covered the porch step was described as "jagged" in areas, formed "uneven mounds," and "sloped in a downward fashion" toward the sidewalk. Icicles could be seen hanging from the porch roof, directly above the porch step.

Plaintiffs subsequently instituted an action in the circuit court of Sangamon County, alleging that defendants were negligent in failing to:

"provide any gutters to cause melting snow to be diverted away from the sidewalk/porch step and sidewalk area when said snow melted off the sloping roof thereby either causing an unnatural accumulation of ice or aggravating a natural accumulation of ice."

At the jury trial, evidence, as previously outlined, was introduced regarding the condition of the house and porch at the time the accident occurred, including the absence of gutters on the porch roof. However, the trial court excluded evidence that (1) there were gutters on the porch roof from 1957 to 1973, when the house was occupied by a prior owner; (2) the gutters had come loose from the roof during a storm and were removed by defendant Oscar Lee Richie in 1981; (3) defendant Oscar Lee Richie was issued a building permit to remodel the front porch in 1981; and (4) two years after Schultz' accident, the Richies made repairs to the front porch and installed gutters for the porch roof. In addition, the trial court excluded the testimony of Martin McEvoy, tendered by plaintiffs as an expert in the field of residential and commercial construction.

At the conclusion of the trial, the jury was instructed, inter alia:

"The Plaintiffs claim that they were injured and sustained damage, and that the Defendants were negligent in the following respect:

Failed to divert melting snow, water or moisture from the roof of the structure away from the front porch step which resulted in a buildup of ice on the step."

Following deliberations, the jury returned a verdict in favor of all defendants and against all plaintiffs. The trial court entered judgment on the verdict. The plaintiffs' post-trial motion was denied, and this appeal followed.

• 1 Plaintiffs first contend that the trial court abused its discretion by excluding evidence of the prior existence of gutters on the front porch of the house, the removal of those gutters, and the failure to replace the gutters. Specifically, plaintiffs offered the testimony of Mary Opel Bessie. Plaintiffs' offer of proof reflected Bessie's testimony that her mother-in-law resided in the house at 1413 East Jackson Street from 1957 to 1973. Bessie testified that during that time she visited the house approximately once or twice a week in wintertime. She further testified that throughout that period, there were gutters on the front-porch roof and she never noticed an accumulation of ice on the front-porch step. In addition, plaintiffs sought to introduce the testimony of Jim Herrin, a building-permit supervisor for the city of Springfield. Plaintiffs' exhibit No. 51, a building permit issued in 1981 to Oscar Richie to remodel the front porch of the house, was offered in connection with this witness. Further, plaintiffs sought to introduce certain testimony of the Richies. The offer of proof regarding the Richies' testimony disclosed that the house in question was purchased by the Richies from the Bessies in 1973. At the time of the purchase there were gutters on the front-porch roof. After a storm, the gutters became loose and were thereafter removed by the Richies in 1980 or 1981. The Richies' testimony also revealed that gutters were not reinstalled when the front ...

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