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05/19/88 Wesley Lovelace, v. Four Lakes Development

May 19, 1988

WESLEY LOVELACE, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

FOUR LAKES DEVELOPMENT COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 1335, 170 Ill. App. 3d 378, 120 Ill. Dec. 424 1988.IL.797

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff filed this negligence action in the circuit court of Du Page County against defendant, Four Lakes Development Co. (Four Lakes), to recover for injuries he suffered when he fell while ice skating at defendant's outdoor skating rink in the Village of Lisle. Plaintiff alleged that Four Lakes negligently failed to maintain the ice or to warn plaintiff of its unsafe condition and that his injury was a direct result of defendant's conduct. The jury returned a verdict for Four Lakes, and the trial court entered judgment accordingly. Plaintiff appeals, arguing that the court improperly excluded evidence regarding the closure of other skating rinks on January 4, 1982, the date of plaintiff's injury.

During the trial, James Heffernan testified for plaintiff as an expert in forming and maintaining outdoor ice skating rinks. Heffernan's expertise was acquired during his 40 years of experience as general foreman of maintenance with the Chicago Park District. He had the responsibility each winter for forming and maintaining 22 ice ponds or rinks on the northwest side of Chicago. In preparation for trial, Heffernan reviewed weather records maintained by the United States Department of Commerce for late December 1981 and early January 1982. The records, which were admitted in evidence, contained hourly temperature and precipitation readings recorded at the Du Page Airport and at a weather station in the city of Wheaton. We note Wheaton and Lisle are abutting municipalities. Heffernan testified that it was his opinion that the relatively warm weather and long periods of precipitation recorded on January 4, 1982, and the immediately preceding days, caused the ice in defendant's rink to become rough and easy to crack. He stated that it was his opinion that defendant should not have allowed skating on its rink on the day plaintiff was injured. The court sustained defendant's objection to Heffernan's additional statement that he had closed the 22 ice rinks under his control in Chicago on that date. The court instructed the jury to disregard the remark.

On cross-examination, defendant's counsel produced Department of Commerce weather records containing temperature readings at O'Hare Airport on January 4, 1982, and questioned Heffernan regarding them. Heffernan stated, both on direct examination and during cross-examination, that, during the winter, temperatures are warmer near Lake Michigan than in outlying areas. After reviewing several hourly temperature readings from the O'Hare weather records, however, Heffernan acknowledged that the O'Hare temperatures were a few degrees colder than the corresponding hourly readings from the Du Page Airport and Wheaton stations, which are farther from the lake than O'Hare.

At the close of all the evidence, plaintiff was permitted to make an offer of proof regarding the closure of Heffernan's rinks on the date of plaintiff's injury. Plaintiff argued that defendant's cross-examination regarding temperatures at O'Hare had opened the door to this testimony, because Heffernan's rinks were located close to O'Hare. During his offer of proof, plaintiff offered in evidence Chicago Park District records which Heffernan had maintained for January 1982. The records indicated that the 22 rinks under Heffernan's control were open every day that month except January 3, 1982, when they were only partially open, and January 4, 1982, when they were closed. Heffernan testified that the rinks are all within 10 miles of O'Hare Airport. In its rulings, made after the offer of proof and in subsequently denying plaintiff's post-trial motion, the trial court concluded that evidence regarding Heffernan's subjective decision to close certain Chicago skating rinks was not material to a determination of whether defendant was negligent in permitting skating on its rink on the day of plaintiff's injury. The court also ruled that the closure of the Chicago rinks was not an appropriate basis for Heffernan's opinion that defendant's rink should have been closed, and the evidence therefore was not admissible to explain the basis for his opinion. Plaintiff contends that these rulings were erroneous.

Plaintiff contends that Heffernan's personal knowledge that he had closed 22 skating rinks in Chicago on the day of plaintiff's injury was one of the facts on which Heffernan based his opinion that defendant's rink should have been closed that day. Plaintiff argues that the evidence was therefore admissible to explain Heffernan's opinion.

In Wilson v. Clark (1981), 84 Ill. 2d 186, the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705. Rule 705 provides that, unless the trial court requires otherwise, an expert witness may render an opinion without first disclosing the facts or data on which that opinion is based. (Fed. R. Evid. 705.) Rule 703 states:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Fed. R. Evid. 703.

In People v. Anderson (1986), 113 Ill. 2d 1, the supreme court again reviewed Rules 703 and 705 and held that, in addition to being permitted to offer his opinion, an expert, on direct examination, "should be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the basis of his opinion." (113 Ill. 2d at 9.) The court concluded that, because expert opinions based on facts and data meeting the qualifications of Rule 703 are admissible, "it would be both illogical and anomalous to deprive the jury of the reasons supporting that opinion." (113 Ill. 2d at 10.) The court rejected the argument that its holding would create an exception to the hearsay rule where the underlying facts or data revealed by the expert constituted otherwise inadmissible hearsay testimony, because the testimony is not offered to demonstrate the truth of the matter asserted. The court concluded that such evidence does not constitute hearsay testimony when admitted for the limited purpose of explaining the basis for an expert's opinion. (113 Ill. 2d at 11-12.) The Anderson court thus clearly contemplated that its ruling would allow the limited use of otherwise inadmissible testimony.

There is no hearsay issue presented in the case at bar, as Heffernan had personal knowledge of the Chicago rink closings. The issues are related, however, because the trial court found the disputed testimony to be substantively inadmissible as irrelevant to a determination of whether Four Lakes ...


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