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Gerwig v. Bruere

March 29, 1989




Appeal from the Circuit Court of Lake County; the Hon. Raymond McKoski, Judge, presiding.

The opinion of the court was delivered by: JUSTICE McLAREN

JUSTICE McLAREN delivered the opinion of the court. DUNN and LINDBERG, JJ., concur.

Plaintiffs appeal the decision of the trial court striking certain testimony in evidence and denying plaintiffs' motion to amend their complaint to conform to the proof. The trial court held that the testimony in question was not relevant to the allegations in the complaint and the proposed amendments did not, as a matter of law, constitute a lack of reasonable care given the facts of this case. We affirm.

Defendant, Lakehurst Joint Venture (Lakehurst), is an Ohio limited partnership which owned, operated, managed and maintained the Lakehurst Mall in Waukegan, Illinois. Harriet Bruere, Inc., a codefendant, owned and operated a restaurant in the mall. At all times relevant to this cause, Lance Bruere, also a codefendant, was employed by the restaurant.

On March 9, 1985, Mr. Bruere was carrying a container of used cooking grease from the restaurant through a service corridor to a dumpster located outside the mall. There is some dispute as to the time that this occurred. It could have been as early as 10 a.m. or as late as 1 p.m. There were fire doors located in the service corridor that were closed at all times. As Mr. Bruere pushed open the fire doors and proceeded through them, he lost control of the container, and the grease spilled on the floor. Mr. Bruere attempted to clean up the spill by wiping the floor with paper towels. Mr. Bruere then returned to the restaurant and continued to work. Mr. Bruere did not inform his employer or the mall security of the incident.

Plaintiff, Janet Gerwig, was employed by Shaver's World, a store located in the mall. At approximately 1 p.m. on March 9, Mrs. Gerwig was walking through the service corridor to the Shaver's World warehouse. As Mrs. Gerwig passed through the fire doors, she slipped and fell. Mrs. Gerwig managed to summon help, and paramedics were called. They attended to Mrs. Gerwig and then transported her to a hospital.

The service corridor is used for employee access, deliveries, and transporting debris to the designated areas outside the building. The floor is smooth concrete, and the walls are made of cement blocks. The corridor is cleaned every morning between 5 a.m. and 10 a.m. by a cleaning service under contract with Lakehurst. Security officers employed by Lakehurst inspect the corridor every morning at approximately 9:15 a.m. Other security checks are made throughout the day as needed. Lakehurst also employs a housekeeping staff to clean up any debris or spills.

Janet Gerwig filed suit against Harriet Bruere, Inc., Harriet Bruere, Lance Bruere, and Lakehurst Joint Venture. Charles Gerwig, Janet's husband, also filed suit against the above-named defendants. The jury returned a verdict in favor of both plaintiffs and against defendants Harriet Bruere, Inc., and Lance Bruere. The jury also returned a verdict in favor of Lakehurst Joint Venture and against both plaintiffs. This appeal pertains only to Lakehurst.

Plaintiffs' complaint against Lakehurst is based upon the theory of negligence. Specifically, plaintiffs allege that Lakehurst did not adequately inspect the corridor during the business day and should have known of the grease spill.

At trial, plaintiff called Bruce Griffith, director of security at Lakehurst, as an adverse witness. Griffith was asked if there were closed circuit cameras in the mall, and he stated there were. Counsel for Lakehurst objected on the basis that the existence of cameras is irrelevant. The court overruled the objection. Griffith was later asked if provisions were made for placing grease drums inside the service corridor. He stated that there could not be anything in the corridor because it would be a safety hazard. Griffith was then asked if buckets or carts were provided by Lakehurst for the transportation of cooking grease from the restaurants to the dumpsters. He answered that he was not aware of these items being provided by Lakehurst. Griffith was next asked if there was cleaning equipment in that area of the mall. Counsel for Lakehurst objected, again arguing that this information was irrelevant. The court indicated that it would allow the evidence but would hear argument later to determine if the evidence was properly admitted.

On cross-examination, Griffith was asked by defendant Lakehurst what a security officer would do if he discovered a spill. Griffith responded by stating that, if it were a larger spill the security officer would call the control room and a housekeeper would be dispatched. If the housekeepers were busy, the officer would place "little horses that say 'wet floor'" next to the spill.

On redirect, Griffith was asked to describe the "wet floor" signs. He did so and stated he was not aware if the tenants were informed of the existence of the signs or their location. Griffith also stated that the signs were for use by the housekeeping or security staff, not the tenants.

At the close of plaintiffs' case, defendant Lakehurst made a motion for a directed verdict. The court denied the motion, stating there was a question of fact as to how long the grease was on the floor. The court went on to state that the complaint against Lakehurst alleges that the grease was on the floor long enough that Lakehurst should have known about it. Also, the failure to discover the grease was based upon a failure to conduct inspections that would comply with ordinary care. With this in mind, the court informed counsel for all parties that it was going to instruct the jury to disregard the following evidence: the existence of closed circuit cameras in the hallway; the existence of grease receptacles in the service hall; the existence of special buckets or carts to move the grease; whether Lakehurst supplied cleaning equipment in the hall; and whether or not "wet floor" signs were made available to the tenants in case of spills.

The plaintiffs made an oral motion to amend their complaint to conform to the proof. Specifically, they wanted to add allegations stating that Lakehurst failed to perform the above acts. The court denied this motion to amend, stating that, as a matter of law, the acts complained of are ...

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