Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 84 C 3062-Gerald B. Cohn, Magistrate.
Before WOOD, JR., and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
WOOD, JR., Circuit Judge.
Plaintiff Margaret Davlan injured her back as she attempted to step into an elevator. The elevator allegedly failed to level with the floor at which it had stopped, which caused plaintiff to trip and fall onto her side. Plaintiff brought this diversity suit for strict liability in tort against the manufacturer of the elevator, Westinghouse Electric Corporation, and for negligence against the maintainer of the elevator, Otis Elevator Company, the two defendants to this lawsuit. At the conclusion of a jury trial, the jury returned a verdict in favor of Westinghouse, but against Otis. The verdict against Otis was in the amount of $105,195.40, reduced by plaintiff's comparative negligence of 25% ($25,298.85), for a resulting verdict of $78,896.55. The magistrate who presided over the case denied Otis's post-trial motions for judgment notwithstanding the jury's verdict or for a new trial and entered judgment on the jury's verdict. Otis appeals the denial of its post-trial motions.
Plaintiff worked at the St. Clair County Sheriff's Department in Belleville, Illinois, located in the St. Clair County Building. On November 3, 1982,*fn1 plaintiff parked her automobile in the subbasement of the county building. She then walked to the bank of three passenger elevators to ride up to the sheriff's offices on the first floor. Plaintiff was alone. She pressed the button to call an elevator. Plaintiff testified she looked at the individual floor lights above the elevators to determine which elevator was coming down first, floor-by-floor, to the subbasement. She later admitted, however, that the only visual indicator in the subbasement was "an arrow-type light" at chest-level, not a separate light for each floor above the elevators. Plaintiff stepped in front of the first elevator and, without looking down, attempted to step into it when the doors opened. She testified: "I went to enter into the elevator and caught my foot on the floor of the elevator and fell." As plaintiff fell onto her right side, she testified she quickly twisted around and saw that the elevator floor was five or six inches higher than the level of the subbasement floor. Plaintiff arose and pressed the elevator button to take her to the first floor. When the elevator's doors opened at the first floor, plaintiff stepped out and noticed that the elevator was level with the first floor.
When she finished work that evening, plaintiff went to see a plastic surgeon with the idea that he could refer plaintiff to another physician, perhaps even a specialist. Instead, the plastic surgeon advised plaintiff to take physical therapy. Plaintiff took the plastic surgeon's advice and received heat and massage treatment for five consecutive days. She also testified she "missed a few days" of work. Plaintiff did not seek or receive any other treatment or miss any days of work on account of her back condition, however, until October 1983, nearly a year after she completed the physical therapy. In October 1983 plaintiff sought additional treatment for her back. She missed a week of work. Plaintiff attempted to return, but then missed three and one-half months of work. At the end of this time away from work, in January 1984, plaintiff filed this lawsuit against Westinghouse and Otis, claiming in excess of $15,000 against each. However, her evidence for lost wages amount to $2800 and her medical expenses were $4065.90, a total of less than $7000.
Otis argues that the magistrate improperly denied its motions for judgment notwithstanding the verdict of the jury and for a new trial. The magistrate's disposition of these alternative motions and our review on appeal are governed by divergent legal standards.
As for our review of the magistrate's denial of defendant's motion for judgment notwithstanding the verdict of the jury, "the standard to be applied by the court of appeals is the same as that applied by the trial court." Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.), cert. denied, 454 U.S. 1092, 70 L. Ed. 2d 631, 102 S. Ct. 658 (1981). In other words, our review is de novo. That standard applied by a district court in a diversity case and by us on appeal, is created by the law of the forum state. Cook v. Hoppin, 783 F.2d 684, 693-94 (7th Cir. 1986); F.W. Hempel & Co. v. Metal World, Inc., 721 F.2d 610, 613 (7th Cir. 1983). In Illinois a trial judge, or in this case the magistrate, can grant a motion for judgment notwithstanding the verdict of the jury "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern Railroad, 37 Ill. 2d 494, 229 N.E.2d 504, 513 (1967); Jardine v. Rubloff, 73 Ill. 2d 31, 382 N.E.2d 232, 234, 21 Ill. Dec. 868 (1978).
Our review of the magistrate's denial of defendant's motion for a new trial, on the other hand, is governed by federal law. Cook v. Hoppin, 783 F.2d 684, 687-88 (7th Cir. 1986). In this circuit, our review of a disposition of a motion for new trial is governed by the abuse of discretion standard. Id.; Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir. 1983) ("Since 'a motion for a new trial is addressed to the sound discretion of the trial judge,' the standard of review is abuse of that discretion.") (quoting Durant v. Surety Homes Corp., 582 F.2d 1081, 1088 (7th Cir. 1978)).
"Under the 'abuse of discretion' standard of review, the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court." Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir. 1984) (emphasis in original). In other words, "if reasonable men could differ as to the propriety of the [district] court's action, no abuse of discretion has been shown." Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 796 (7th Cir. 1980).
Under federal law, a new trial can be granted only when the jury's verdict is against the clear weight of the evidence. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 85 L. Ed. 147, 61 S. Ct. 189 (1940); First National Bank v. United States, 763 F.2d 891, 896 (7th Cir. 1985). Thus, our review on appeal is determining whether the magistrate abused his discretion in concluding that the jury's verdict was not against the clear weight of the evidence.
Finally, in reviewing these alternative motions we must examine the facts to some extent. If we set aside any of the magistrate's findings of fact, we may only do so in accord with the strictures of Rule 52: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed. R. Civ. P. 52(a).
A Judgment Notwithstanding the Jury's Verdict
Otis first argues that the magistrate improperly denied its motion for judgment notwithstanding the verdict of the jury because plaintiff did not meet her legal burden of proving negligence on Otis's part.*fn2
We believe it did not quite meet the requirements of res ipsa. There's always the "flying dirt" cause submitted by elevator companies they could use and that wouldn't necessarily be the negligence of Otis. We didn't believe we could have gone on res ipsa.
Because the case was submitted to the jury solely on the theory of negligence, we do not make any further inquiry into the possible legal ramifications had this case been submitted on the theory of res ipsa loquitur. See Daniels v. Standard Oil Realty Corp., 145 Ill. App. 3d 363, 495 N.E.2d 1019, 1022, 99 Ill. Dec. 284 (1st Dist. 1986) (although defendant elevator maintainer presented evidence that "the failure of the elevator brake to function properly could have been caused by airborne dirt and that it is not possible to prevent airborne dirt by maintenance," could held evidence of other possible causes of brake failure sufficient to sustain jury's verdict for plaintiff based on res ipsa loquitur and negligence); see also Annotation, Liability of Owner or Operator for Injury Caused by Failure of Automatic Elevator to Level at Floor, 64 A.L.R.3d 1020, 1025 (1975) ("[T]he rule of res ipsa loquitur has been recognized to be particularly applicable to an injury occurring to a passenger of an automatic elevator who trips over an uneven landing.").
The elements of common law negligence are described and governed by state law. A federal court deciding a diversity negligence case must apply the same state's law that the forum state would apply. Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 531 (7th Cir. 1985). Illinois would apply its own law to this negligence claim. E.g., Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593, 595 (1970) ("In our opinion, the local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case, the law of Illinois should apply.").
"For a defendant to be liable for the tort of negligence [in Illinois], he must have had a duty towards plaintiff, defendant must have breached that duty, the breach must have been the proximate cause of the plaintiff's injury and there must be a resulting compensable injury." Illinois Housing Development Authority v. Sjostrom & Sons, Inc., 105 Ill. App. 3d 247, 433 N.E.2d 1350, 1359, 61 Ill. Dec. 22 (2d Dist. 1982). Plaintiff, therefore, must establish each of the four elements of negligence tore cover against Otis as the maintainer of the elevator in which plaintiff was injured. Otis argues that, as a matter of law, plaintiff did not make out a prima facie case of negligence against Otis because even viewing the evidence in the light most favorable to plaintiff she failed to establish one or more of the four elements of negligence.
The first element of a negligence claim is duty. This duty is "the legal obligation imposed upon one for the benefit of another," Fancil v. Q.S.E. Foods, Inc., 60 Ill. 2d 552, 328 N.E.2d 538, 540 (1975), that requires "one to conform to a certain standard of conduct for the protection of another against an unreasonable risk." Barnes v. Washington, 56 Ill. 2d 22, 305 N.E.2d 535, 538 (1973).
In most instances, that standard of conduct owed by a defendant to a plaintiff is the standard of due care. "Due care is that degree of care which ordinarily prudent persons would use under the same or similar circumstances." Morehead v. Mayron, 3 Ill. App. 3d 425, 279 N.E.2d 473, 474 (1st Dist. 1972). In other limited situations, however, a greater degree of the special relationship that defendant has with a particular plaintiff. In the case of common carriers, for example, Illinois has long required a greater degree of care because of the relationship between carrier and passenger of protection on the one hand and trust on the other. Springer v. Ford, 189 Ill. 430, 59 N.E. 953, 953-54 (1901).
In this case the question is whether Otis, as the contractual maintainer of the elevator, is subject to the typical standard of due care to the higher standard of care exacted from common carriers. The Supreme Court of Illinois has answered that question:
Although owners of buildings with elevators are viewed as common carriers who owe their passengers the highest degree of care, that degree of care has not been applied in this jurisdiction to those who undertake to inspect and maintain elevators; they need only exercise due care.
We see no reason to impose a higher degree of care on Otis than that imposed on any defendant charged with negligence.
Jardine v. Rubloff, 73 Ill. 2d 31, 382 N.E.2d 232, 236-37, 21 Ill. Dec. 868 (1978). Thus, Otis owes a legal duty to its passengers, including plaintiff, to exercise due care. This means that Otis is required to exercise the same degree of care that an ordinarily prudent ...