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08/25/87 Rachelle Shiner, v. Myron Friedman Et Al.

August 25, 1987





513 N.E.2d 862, 161 Ill. App. 3d 73, 112 Ill. Dec. 253

Appeal from the Circuit Court of Cook County; the Hon. Walter Kowalski, Judge, presiding. 1987.IL.1237


JUSTICE STAMOS delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.


Defendants, Myron Friedman and Phil Friedman, individually and d/b/a Myron & Phil's Restaurant, appeal from the jury's verdict in favor of plaintiff for $125,000. Plaintiff fractured her ankle falling in the ladies' room of defendants' restaurant in Lincolnwood, Illinois. On appeal, defendants allege that: (1) the trial court erred in denying defendants' motion to dismiss plaintiff's amended complaint; (2) the trial court erred in giving instruction Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1971) (hereinafter cited as IPI Civil 2d) to the jury; (3) the trial court erred in instructing the jury that damages may be awarded for the value of earnings lost; (4) defendants were prejudiced by plaintiff's opening statement, which included reference to a doctor's findings which were not offered into evidence; (5) the trial court erred in instructing the jury that damages are allowed for aggravation of a pre-existing condition; (6) the trial court erred in instructing the jury that damages are allowed for future pain and suffering; (7) the trial court erred in not finding that plaintiff was comparatively negligent as a matter of law; (8) the trial court erred in giving instruction IPI Civil 2d No. 15.01 relating to proximate cause to the jury; and (9) the trial court erred in giving instruction IPI Civil No. A21.02 (Supp. 1981) because it failed to inform the jury as to plaintiff's burden to prove actual or constructive notice to defendants of the alleged defective condition.

On November 30, 1981, plaintiff filed a complaint against defendant, Myron & Phil's Northbrook Corporation, individually and d/b/a Myron & Phil's Restaurant, for injuries she suffered at Myron & Phil's Restaurant in Lincolnwood, Illinois, on July 2, 1980. Myron Friedman was served with summons on December 13, 1981. On January 11, 1982, defendant corporation filed a general appearance and an answer in the form of a general denial. On January 12, 1982, defendant corporation sent interrogatories to plaintiff. Thereafter, the parties engaged in discovery, including the exchange of additional interrogatories and the taking of depositions of various occurrence witnesses.

On January 20, 1986, Myron Friedman testified at his deposition that the Myron & Phil's corporation had owned the Myron & Phil's Restaurant located at the Northbrook Holiday Inn, but that the restaurant in Lincolnwood, of the same name, was owned in partnership by himself and his brother, Phil Friedman. On January 27, 1986, plaintiff filed an amended complaint adding Myron Friedman and Phil Friedman, individually and d/b/a Myron and Phil's Restaurant, as additional defendants. On the same day, the trial court granted plaintiff leave to file the amended complaint. On February 13, 1986, defendants filed an answer to plaintiff's amended complaint. On April 21, 1986, defendants filed a motion to dismiss plaintiff's amended complaint on the basis that it was time barred pursuant to section 2-619(5) of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(5).) On May 9, 1986, the trial court denied defendants' motion to dismiss. After a jury verdict in favor of plaintiff, defendants filed a post-trial motion which was denied by the court on August 8, 1986.

On July 2, 1980, plaintiff Rachelle Shiner entered Myron & Phil's Restaurant at approximately 7 p.m. She first met her friend Patricia Goldbortin, who was waiting to be seated. After being seated and having appetizers, Goldbortin decided to go to the ladies' room. Plaintiff accompanied her to the washroom. Plaintiff entered the washroom first. After pushing the washroom door open and taking one or two steps, plaintiff's right foot "went out from under her" and she slipped and fell to the floor. Plaintiff testified that she slipped due to water on the tile floor; that there were also toilet tissues on the floor and her clothes were drenched in water. Goldbortin testified that approximately one hour prior to the accident, she observed that the washroom was messy; that it was wet and there was some toilet paper on the floor and there was not enough toilet paper in the washroom stalls. Goldbortin informed the bartender, Johnnie Unger, of the condition of the ladies' room. Goldbortin also testified that after plaintiff slipped, she rushed out to find Myron Friedman; that she told Myron to call the Lincolnwood paramedics; that she was right behind plaintiff when plaintiff fell and that she, Goldbortin, almost fell because of the water; that the floor of the ladies' room was messy, sloppy and wet; that it looked worse than it was when she had seen it an hour before; that she thought she smelled urine; and that she saw no matting or rubber mats or carpeting on the floor.

When the paramedics arrived, they examined plaintiff's right leg, placed an air cast on her right leg and took her to St. Francis Hospital in Evanston, Illinois. John Wagner, an emergency room paramedic for the Lincolnwood police department for 10 years, testified that when he arrived at the restaurant and walked into the ladies' room, he noticed water on the floor because he almost fell. He also testified that there was no mat on the washroom floor.

In the emergency room of St. Francis, Dr. Maylahn, a board-certified orthopedic surgeon, examined plaintiff's right leg on July 2, 1980. He observed a gross deformity in plaintiff's right ankle and that she was unable to bear weight on the leg or to move it. X rays revealed that plaintiff was suffering from a "tri-malleolar fracture." On July 7, 1980, Dr. Maylahn performed surgery on plaintiff's ankle in order to correct the alignment of bones fractured. Before plaintiff was discharged from the hospital on July 23, 1980, Dr. Maylahn placed a new long-leg cast on plaintiff's right leg. The cast stretched from plaintiff's groin to her toe. During plaintiff's hospital stay, plaintiff was confined to her bed and needed help bathing.

On September 3, 1980, plaintiff's cast was removed and X rays were taken. Dr. Maylahn determined that there was sufficient healing to discontinue the cast. Maylahn prescribed rehabilitation exercises and crutches for plaintiff and informed plaintiff not to place any weight on her right foot. On January 22, 1981, Dr. Maylahn examined plaintiff and observed that plaintiff complained about the lack of lateral movement of her ankle and the tendons in her right calf; that she was, however, responding well to rehabilitation and had increased her range of motion. On March 19, 1981, Dr. Maylahn observed that plaintiff had some complaints of swelling and pain when bearing weight on the ankle.

In May of 1981, plaintiff fell and sustained fractures of the metatarsal bones or bones of the mid-foot. Dr. Maylahn testified that plaintiff might be more susceptible to an injury to her foot because she had not regained full strength in her right leg. In August of 1981, plaintiff fell and sustained a fracture to her pelvis. Plaintiff told Dr. Maylahn that she fell when her ankle gave out.

The day prior to trial, Dr. Maylahn examined plaintiff's two ankles. He testified that X rays revealed evidence of some traumatic arthritis in the right ankle. He further testified that traumatic arthritis can result from a fracture of the type that plaintiff suffered; that based on his experience in treating fractures, and seeing this type of change, he would have to correlate the arthritis with the initial fracture.

Plaintiff testified that she had been employed by MCI since 1978. She was an outside saleswoman and her duties included traveling from business to business seeking new subscribers for long-distance services. She was able to perform these services despite the fact that she had been using a cane since 1976. She had a prior injury to her left foot and right knee, and used a cane because it made her feel more secure. In 1979, plaintiff earned $31,438.50 from MCI and during the six months from January 1, 1980, until June 22, 1980, she had earned $21,957 from MCI. Plaintiff did not return to MCI during 1980. MCI eliminated its outside sales force, including plaintiff's position, due to a change of marketing strategy one week before the July 2, 1980, occurrence. As a result, plaintiff had begun to make arrangements with Patricia Goldbortin to work as an outside saleswoman for Goldbortin's company. After her injury, plaintiff did return to work for MCI in March of 1981. She worked there until August 10, 1981, when her right ankle gave out, causing her to fall and resulting in a broken pelvis.

Patricia Goldbortin testified that she was president of a corporation called Borden Studios which manufactured wall decor. The company had nationwide distribution and utilized outside salesmen in each State to generate business. Goldbortin testified that she had Discussions with plaintiff relating to plaintiff's becoming an outside saleswoman for Borden Studios; that plaintiff was qualified for the job even though it involved a change in product; that ...

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