Appeal from the Circuit Court of Cook County. Honorable Thomas E. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Tully
PRESIDING JUSTICE TULLY delivered the opinion of the court:
Plaintiff, Patricia Newmann, filed this negligence action in the circuit court of Cook County against defendant, Showbiz Pizza Place, Inc., for injuries she sustained on November 23, 1985, after falling on defendant's premises in Arlington Heights, Illinois. After a jury trial, a verdict was returned for defendant and judgment was entered on it. Plaintiff filed a post-trial motion requesting a new trial which the trial court granted. Defendant then petitioned this court, pursuant to Supreme Court Rule 306(a)(1)(i) (134 Ill. 2d R. 306(a)(1)(i)), for leave to appeal from the trial court's order granting plaintiff a new trial. We granted defendant's petition and the instant appeal ensued.
For the reasons which follow, we affirm and remand.
On November 23, 1985, plaintiff had spent approximately two hours at defendant's restaurant with her husband and three children. Plaintiff, a handicapped person wearing an artificial leg, testified that she and her family left the main entrance of the restaurant and walked south along the sidewalk on the east side of the building to their car. Plaintiff then put her three children in the car's rear seat. Once the children were in, plaintiff had to step back and to the right in order to shut the door; while doing this that she stepped back onto a curb ramp slope and fell. Plaintiff recounted that she was standing in the ramp area and not on any portion of the parking lot at this time. Plaintiff's husband and children, who were in the car, did not witness the fall.
Plaintiff premised defendant's liability upon the ramp flare's being in an unreasonably dangerous condition occurring as a result of the failure of the ramp flare to comply with the Illinois Accessibility Standards. Defendant responded that the ramp met all the accessibility requirements, but even if it did not, it was irrelevant because plaintiff did not fall on the flare area of the ramp.
The cause proceeded to trial in November 1991. The jury returned a verdict for defendant and judgment was entered accordingly.
Plaintiff filed a post-trial motion requesting a new trial. On April 6, 1992, the trial court granted plaintiff's motion finding that the verdict of the jury was contrary to the manifest weight of the evidence given the evidence presented at trial. In so finding, the trial court ruled that the testimony of Martin Munsen, the director of building and zoning for the Village of Arlington Heights (hereinafter the Village) testifying on behalf of defendant, did not help the defense's case. Munsen stated that the Village would do a final inspection of business premises prior to issuing an occupancy, and that to the best of his knowledge, such a certificate was issued here. Munsen further stated that the Village's inspection records did not refer specifically to the ramp.
The trial court also found that the testimony of Richard Ver Halen, an independent consulting engineer testifying on behalf of defendant, was weak and could not have been persuasive to an objective jury. The trial court noted that Ver Halen's bases for his opinion that the ramp was safe included personal examination, data, review of professional guidelines, guidelines of the engineering profession and documents provided by the Village. The trial court found Ver Halen's references to the Village's progress and inspection sheets, which stated nothing about the ramp, unpersuasive. It was also indicated by the trial court that Ver Halen's opinion that the ramp was "suitable" for pedestrian traffic was not persuasive. Moreover, the trial court explained that frequent visits to the construction site by Village inspectors and the Village's requirement that the premises be in "conformity with all Codes" was not persuasive as to any issue in the case. In addition, the trial court held that Ver Halen's opinion that the ramp did not violate standards could not possibly have been persuasive to an objective jury in light of his failure to measure where plaintiff claimed to have fallen. Ver Halen's reason for not measuring the ramp was he did not "know where she fell." Furthermore, Ver Halen could not recall where he measured the curb height which ranged from 4 3/4" to 6". Thus, after cross-examination, the trial court believed Ver Halen's opinion had little basis.
Finally, the trial court held that plaintiff and her witnesses clearly sustained the burden of proof as to the flare of the ramp and liability.
ISSUE PRESENTED FOR REVIEW
Did the trial court abuse its discretion in granting ...