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12/12/88 Helen Delores Soderquist, v. St. Charles Mall

December 12, 1988





532 N.E.2d 903, 177 Ill. App. 3d 207, 127 Ill. Dec. 74 1988.IL.1783

Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.


Helen Delores Soderquist brought an action in the circuit court of Kane County against defendants, St. Charles Mall, Associates, Ltd., and St. Charles Mall, Inc., for personal injuries she suffered when she slipped and fell in a puddle of water on the floor inside defendants' shopping mall. A jury returned a verdict in plaintiff's favor in the amount of $83,666 upon which the trial court entered judgment.

On appeal, defendants contend that (1) the trial court erred in limiting the testimony of defendants' expert, Dr. Martin Greenberg, to the contents of a written report prepared by the doctor; (2) the trial court erred in allowing plaintiff to examine Scott Bonine as an adverse witness; (3) the trial court erred in excluding testimony of plaintiff's treating physician regarding other causes of plaintiff's injuries; (4) the trial court erred in giving plaintiff's non-Illinois Pattern Jury Instructions instruction on the issue of aggravation of preexisting injuries; (5) the trial court erred in permitting plaintiff to use a poster board blowup of the aggravation instruction during closing argument; (6) the trial court erred in refusing to submit to the jury defendants' special interrogatories; and (7) the jury's verdict was excessive.

The evidence showed that on August 10, 1985, plaintiff was walking through the St. Charles Mall with her husband and grandson when she slipped and fell in a puddle of water on the terrazzo floor of the shopping mall, striking her left knee as she hit the floor. The testimony of all three of these individuals showed that none of them saw any water on the floor prior to plaintiff's fall.

Moments before plaintiff's fall, Scott Bonine and Donald Stewart, who were employed by defendants as maintenance personnel at the time of plaintiff's injury, noticed the puddle of water as they were walking the mall area. At trial, Bonine was called by plaintiff as an adverse witness under Supreme Court Rule 238 (107 Ill. 2d R. 238). Defendants objected to plaintiff's calling of Bonine as an adverse witness since he no longer worked for the defendants at the time of trial. The court ruled that under Supreme Court Rule 238, plaintiff could call Bonine without treating him as an adverse witness and could ask leading questions. The court stated: "I will give latitude under 238 without designating him a hostile witness." As a result of this ruling, plaintiff asked the following leading question:

"Q. The policy [about finding puddles on floor] was, if there were two of you together and you were walking through the mall and you found a puddle, one person would stay with the puddle and the other person would go and get the mop and signs and clear it up; is that correct?

A. Right."

Later, the witness was asked:

"Q. And it was your decision to send Mr. Stewart off to get a mop and bucket and signs?

A. Yes.

Q. And it was your job to stay with the puddle?

A. Right.

Q. And you decided not to?

A. Right."

On cross-examination Bonine stated that the mall had no written policy regarding cleanup of the mall floor. Bonine agreed that common sense dictated that when a puddle was noticed it should be immediately mopped up.

Donald Stewart, testifying on defendant's behalf, stated that no set cleanup policy existed with respect to the spotting of a puddle or spill when two individuals were policing the mall area together. Stewart related that the cleanup procedure was to get the mop, bucket and signs and to return to the area as quickly as possible. If two maintenance individuals were present, sometimes one would stay by the puddle or spill. On the date of the incident in question, Stewart went to get the cleanup supplies. As he returned, Bonine met him and informed him that someone had fallen. When Stewart arrived at the area of the puddle, he saw plaintiff on the floor.

On cross-examination, Stewart was questioned regarding answers he gave during a deposition taken by plaintiff prior to trial. Stewart agreed with a statement he made at that deposition wherein he stated that his understanding of the mall's policy regarding the puddles was that Bonine should have remained at the puddle until it had been wiped up. Stewart testified at trial that this policy was not written but that it was a procedure which made common sense when two individuals were together.

James Bowie, building superintendent at the mall at the time of plaintiff's accident, and Elizabeth Murphy, general manager of the shopping mall, both testifying on defendant's behalf, stated that no written policies existed regarding the duties of the mall's maintenance crew. Both witnesses testified that the mall's policy regarding spills was to get the mop, bucket, and "wet floor" signs and to clean up the spill as quickly as possible. Murphy also testified that the mall had had problems with leaks in its roof but that to her knowledge none existed prior to the day of plaintiff's fall.

Edward Beuten, owner of Action Roofing, stated that he had repaired prior leaks inside the mall and that he was contacted to repair the roof after plaintiff's accident. Beuten testified that the leak above the area where plaintiff had fallen was about five inches in diameter, indicating that it had just recently begun leaking.

Prior to trial plaintiff had made a motion in limine to bar Dr. Martin Greenberg, an orthopedic surgeon hired by the defendants to conduct an independent medical examination of plaintiff, from testifying. Counsel for plaintiff stated that the motion was based on the provisions of Supreme Court Rules 219(c) and 220. (107 Ill. 2d Rules 219(c), 220.) Counsel argued that the doctor had failed to appear for a deposition and that, as a sanction for his failure to appear, he should be barred from testifying. Additionally, counsel maintained that it was his understanding that the doctor's testimony would drastically change the proof in the case and that, therefore, without having been able to take the doctor's deposition, it would be prejudicial and unfair to the plaintiff to allow the doctor to testify at trial. Defense attorney presented a detailed explanation regarding the mix-up over the time and date of Dr. Greenberg's deposition and the reasons for his failure to appear.

The defense also explained to the court how the doctor's testimony might differ from the doctor's written report of the independent examination he had conducted of plaintiff. Prior to trial, that report had been sent to counsel for both parties, pursuant to Supreme Court Rule 215 (107 Ill. 2d R. 215). The court pointed out the problems it foresaw with the doctor's testimony. It also determined that the doctor's failure to appear for his deposition was not intentional but, rather, "an error, mistake, a blunder." The court concluded that "a blunder should not work to the disadvantage of a party" and that it was going to limit the doctor's testimony to the parameters of his written report.

At trial plaintiff's counsel renewed his motion in limine with respect to Dr. Greenberg when counsel learned, on the last day of trial, that Dr. Greenberg, due to emergency surgery, would be unable to testify until 3 p.m. that afternoon rather than in the morning as originally scheduled. The court asked plaintiff's counsel if he would be willing to permit the doctor's written report to be read into evidence. With a few deletions, counsel agreed. As the court had previously ruled that the doctor's testimony would be limited to the parameters of his written report and since, as plaintiff maintained, the last two paragraphs of the report were the only part of the report containing the doctor's opinion, the court concluded that it would "accomplish very little more by having the Doctor present" to testify. Counsel for the defendants did not object but did point out that although the doctor's testimony was to be limited to his report, the doctor would have been examined regarding his opinions about statements within that report. The court gave defendants' counsel permission to read the report to the jury and to explain to the jury why Dr. Greenberg would not be present to testify.

The evidence deposition of Dr. Eugene Wittenstrom, plaintiff's treating orthopedic surgeon, was also read to the jury in lieu of his in-court appearance. Dr. Wittenstrom's deposition revealed that plaintiff had been having problems with her left leg and knee since 1952, when she was involved in an automobile accident requiring an ankle fusion, bone grafts, and insertion of metal plates. In 1963, plaintiff underwent a meniscectomy to remove cartilage from her left knee. Plaintiff first saw Dr. Wittenstrom in 1973 for treatment of pain in her left knee due to the onset of arthritis in that knee. In 1978 the doctor performed a hitibial osteotomy to correct a bowlegged deformity which had developed on the inner half of her knee joint because of the advancing arthritis. According to the doctor, the surgery was designed to alleviate an individual's pain until such time that one could undergo a complete knee replacement. In the doctor's opinion, nearly 90% to 100% of those having a hitibial osteotomy would require a knee replacement within 5 to 10 years of the time of surgery.

In 1982 and 1983 the doctor prescribed anti-inflammatory drugs. The doctor did not see plaintiff between 1983 and August 10, 1985, the date of plaintiff's accident. On that date, Dr. Wittenstrom examined plaintiff in the hospital, determining that she had fractured her left kneecap when she fell and that surgery would be necessary to get the kneecap back ...

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