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04/05/89 Otis L. Bargman, v. Economics Laboratory

April 5, 1989





537 N.E.2d 938, 181 Ill. App. 3d 1023, 130 Ill. Dec. 609 1989.IL.480

Appeal from the Circuit Court of Will County; the Hon. Rodney Lechwar, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.


Plaintiff's cause of action for injuries he sustained on defendant's premises was first tried to a jury in July of 1985. After a verdict for plaintiff, the trial court granted defendant's post-trial motion for a new trial, which this court affirmed in Bargman v. Economics Laboratory, Inc. (1986), 144 Ill. App. 3d 24. A second jury trial was held in October of 1986, resulting in a verdict in favor of defendant. Plaintiff's amended post-trial motion was subsequently denied by the trial court on January 6, 1988, and this appeal followed. No questions are raised on the pleadings.

Plaintiff owned a semitractor trailer rig, which he operated as an employee of Chicago-St. Louis Transport Company, and defendant operated a manufacturing plant south of Joliet, Illinois. On August 28, 1982, plaintiff drove his semitractor to defendant's plant, arriving about 5:45 a.m. to pick up his trailer he had left there the night before to be loaded with defendant's products. After hooking up to the trailer, plaintiff drove the rig onto a platform of a scale located at the exit which all trucks were required to use when exiting defendant's premises. Plaintiff stopped his rig on the platform and exited his semitractor. After both feet reached the ground and he started to turn towards the front of the semitractor, plaintiff's left foot slipped off of the concrete slab bordering the scale, causing him to fall to the ground. The slab bordering the scale was 12 inches wide and was built up four to eight inches above the adjacent ground level.

Plaintiff suffered a rupture of the four large muscles in his leg which extend from the hip to the kneecap. The muscles were reattached by running a heavy thread through the muscles and a hole drilled in plaintiff's kneecap. Plaintiff subsequently developed thrombophlebitis in his leg due to the fall and the treatment made necessary by the fall. Plaintiff was unable to work until April 1983 and then worked until he retired at age 62 in March 1984.

The case went to jury on plaintiff's allegations that defendant failed to provide a safe place for drivers to exit their semitractors and transact the business required of them, failed to fill and elevate the ground adjacent to the concrete slab to eliminate the change in level between the concrete and the adjacent ground, failed to warn of the change in level, and constructed a scale and platform with a concrete slab that was not wide enough to be walked upon with safety. The jury found for the defendant. Plaintiff's post-trial motion was denied.

Plaintiff raises a number of issues on appeal. As to all of these issues, our standard for review is whether the trial court abused its discretion in making its ruling. Plaintiff first insists that the trial court erred in refusing to give plaintiff's proposed Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1981) (hereinafter IPI Civil 2d) to the jury regarding defendant's failure to produce a witness. The witness, Jack Pastore, was retained by defendant and identified as an expert prior to the first trial. He was not, however, called by defendant as a witness in that trial, nor was he called as a witness in the second trial. The record reveals that, prior to the second trial, an order was entered on September 8, 1986, requiring the respective parties to disclose their expert witnesses within a stated time period. Plaintiff did not disclose an expert, and defendant disclosed Edmund T. Dorner, Ph.D., as its expert. Plaintiff subsequently subpoenaed Jack Pastore as a witness for trial, prompting defendant to file a motion to bar Mr. Pastore's testimony. Accordingly, the trial court ordered that plaintiff was barred from calling Jack Pastore as a witness in his case in chief but reserved for the trial Judge any ruling on whether plaintiff could call Mr. Pastore as a rebuttal witness. At trial, plaintiff did not call Mr. Pastore as a rebuttal witness; instead, the parties read a stipulation to the jury that defendant had retained Jack Pastore as an expert witness in this case but did not call him as a witness at either trial. IPI jury instruction No. 5.01, commonly referred to as the "missing

"If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:

1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.

2. The witness was not equally available to an adverse party.

3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the ...

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