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06/30/94 DOLORES URBAS v. SAINTCO

June 30, 1994

DOLORES URBAS, GUARDIAN OF THE ESTATE AND PERSON OF MITCHELL S. URBAS, JR., A DISABLED PERSON, PLAINTIFF-APPELLEE,
v.
SAINTCO, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit of St. Clair County. No. 88-L-931. Honorable Roger M. Scrivner, Judge Presiding.

Goldenhersh, Rarick, Chapman

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant, Saintco, Inc., appeals from a judgment entered by the circuit court of St. Clair County on a jury verdict in the amount of $1,391,700 in favor of plaintiff, Dolores Urbas, guardian of the estate and person of Mitchell S. Urbas, Jr. (hereinafter Mitch), a disabled adult. On appeal, defendant contends that (1) the circuit court erred in denying its motions for a directed verdict and/or judgment notwithstanding the verdict (judgment n.o.v.), (2) the circuit court erred in directing a verdict against defendant on its affirmative defense that plaintiff's exclusive remedy was workers' compensation, (3) the jury reached its verdict by an impermissible quotient procedure, (4) the verdict was excessive, (5) the circuit court erred in instructing the jury, (6) the circuit court improperly restricted defendant's cross-examination of plaintiff's expert, and (7) the trial court improperly permitted a nonexpert, Mark Prosser, a licensed emergency medical technician (EMT), to express an opinion regarding the cause of Mitch's condition. We affirm.

I. FACTS

As plaintiff aptly points out in her brief, the evidence in this case is full of inconsistencies and overlaps. Therefore, a somewhat exhaustive statement of facts is necessary for a sufficient understanding of this case and necessary to show the jury's verdict is supported by the evidence. Defendant owned and operated an adult entertainment nightclub, P.T.'s, in Sauget. Mitch was an employee of P.T.'s. On the evening of April 28, 1988, Mitch was found on the parking lot of P.T.'s in his car in an unconscious state. He had been missing since the night before when he left his shift early due to illness. Mitch was transported by ambulance to a local hospital where he was diagnosed as being in a coma. He eventually came out of the coma but suffered permanent brain damage. He has no recollection of the events surrounding the onset of his illness and did not testify at trial.

Plaintiff filed suit against defendant for Mitch's injuries. Plaintiff also filed suit against Hal Lowrie, individually, who owned 100% of the stock in P.T.'s. However, the jury returned a verdict in favor of Hal Lowrie; therefore, Hal Lowrie takes no part in this appeal. In its final version, plaintiff's complaint against defendant alleged, in pertinent part:

"4 That at approximately 10:00 p.m. on April 27, 1988, the plaintiff's ward became ill and so advised the management of the defendant.

5. That thereafter, the plaintiff's ward returned to his motor vehicle parked in the parking lot of the defendant in clear view of the defendant's agents and employees.

6. That it was the policy and practice of the defendant to provide security personnel on its parking lot to periodically check the parking lot for any disturbances and for any persons who might have become intoxicated or ill.

V. That the plaintiff's ward collapsed in his motor vehicle and remained in the same from at or about 10:00 p.m. on April 27, 1988, until approximately 10:30 p.m. on April 28, 1988, by which time the plaintiff's ward had become dehydrated from high body temperatures and suffered severe and permanent brain damage therefrom.

8. That the defendant was then and there guilty of one or more of the following negligent acts or omissions:

(a) failed to discover the plaintiff's ward while ill although he could and should have been discovered;

(b) failed to adequately patrol the parking lot of the defendant's business establishment so as to discover persons who were ill;

(c) failed to provide medical attention to the plaintiff's ward in violation of the defendant's standards, policies and procedures;

(d) failed to perform the patrol of the parking lot once it had undertaken to do so for other persons.

9. That as a result of one or more of the foregoing negligent acts or omissions, the plaintiff's ward suffered severe and permanent brain injuries and other anatomical results from dehydration and high fever * * *."

Plaintiff's theory is that a duty to assist Mitch arose by virtue of defendant establishing a courtesy patrol to patrol its parking lot at P.T.'s and to render assistance to those in need. The courtesy patrol was in operation daily between 8 p.m. and 4 a.m. A copy of the written duties of the courtesy patrol was introduced at trial. Art Feole, director of operations for P.T.'s, assisted in authoring the duties of the courtesy patrol, which stated, in pertinent part:

"RESPONSIBILITY

. . To insure the safety of the employees, guests, P.T.'s and Roxy's property, the property of the employees and the property of the guests!

Your primary responsibility is to insure the physical safety of the arriving and departing female employees. They are to be escorted to and from the club. You must have a watch to be aware of the shift changes, which are; 8:00pm, 9:00pm, 10:00pm and closing. When escorting a lady to her vehicle always inspect the interior of the vehicle to insure no potential danger exists.

B.) If any intoxicated person leaves the club and tries to drive, be courteous, but try to discourage the person from driving. Offer to call the courtesy van or a cab. If person agrees, do not leave the person alone. Have him come back into the club with you. Contact Director immediately. He will take care of the guest from there. If the guest is belligerent and refuses your assistance, make a note who, what, where and when (be sure to include license #, color of the car, make, model, and year). Notify the Director immediately.

E.) Escort all unescorted ladies to and from the club. This includes female guests as well as employees.

F.) At closing time Courtesy Patrol should not be outside of the club without a partner. When clearing the lots, stay close enough to assist each other, should it be necessary. All guests must be off the lot prior to any employees leaving the club. Be alert for guests waiting across the street or on one of the adjacent streets. If you suspect a guest waiting just off the property, advise the Director. If you have a guest that refuses to leave the premises advise the Director, again take notes of who, what, when, where! Any person waiting on the lot who claims to be there to give an employee a ride, take notes and verify this with the employee. If the employee verifies the ride, have the individual wait in the front of the club (Advise your partners of the status of the vehicle). If the employee denies the ride, inform the Director. Once the lot is cleared inform the Director. All female employees are to be escorted from the club to their vehicles. Escort in small groups; make sure that the people being escorted are parked in the same area. Advise the Director of any employee that just walks out without a security escort. Male employees may leave together in groups of 2 or more without a courtesy patrol. All females must have courtesy patrol escort. Advise the Director when all employees are escorted to their vehicles. Remember the closing time is the most critical time of your courtesy patrol shift. Always work in pairs and be aware that your fellow employees are relying on you to insure their physical safety."

Several employees of P.T.'s testified about their understanding of the courtesy patrol.

Harold Lowrie said it was the function of the courtesy patrol to protect employees and their property. Larry Tyler, supervisor of P.T.'s at the time in question, testified that the courtesy patrol operated to greet people, survey parking areas, assist patrons, and patrol the area. Tom Kelly, manager of P.T.'s at the time in question, testified that the courtesy patrol operated to greet guests, escort entertainers to cars, and secure the parking lot. Kelly added that courtesy patrolmen had no duty to patrol the lots; however, some patrolmen did patrol the lots while others did not. John Kistner, a bartender at P.T.'s for seven years, testified that it was the duty of the courtesy patrol to ensure that the female employees of the club were able to get into and out of the club without incident. He also stated that he believed it was the patrolmen's responsibility to go up and down the lot looking into cars. Christine Kufskie, a waitress at P.T.'s for five years, testified it was common practice for the courtesy patrolmen to go up and down the parking lots checking the cars. Michael Bloodworth, who occasionally worked as a courtesy patrolman at P.T.'s, would look into the cars of the entertainers he was escorting to their car. As the written responsibilities indicate, closing time at P.T.'s is most critical, and all witnesses agreed that extra precautions were taken at that time to ensure employees' safety.

At trial, conflicting evidence was adduced as to Mitch's activities on the night of April 27, 1988. By all accounts, Mitch was to work from 8 p.m. to 4 a.m. as a courtesy patrolman. As usual, Mitch reported early for work, somewhere between 7 and 7:30 p.m. Sometime between 8 and 9:30 p.m., Mitch told his supervisor, Tom Kelly, that he was not feeling well and wanted to go home. According to Kelly, Mitch waited for his replacement until 10 or 10:30 p.m., at which time Kelly walked Mitch to his car and watched him exit P.T.'s parking lot and drive down Monsanto Avenue to Route 3. Kelly reported that even though Mitch did look ill, he watched Mitch leave because it was his experience that employees would feign illness and then retreat to a bar on the corner of Route 3. Kelly wanted to make sure that that did not happen with Mitch. Kelly testified that he did not see Mitch until the next evening when he discovered Mitch lying unconscious in his car. According to Kelly, Mitch's car was in a different spot on April 28 and facing a different direction than it had been on April 27.

Mitch's car was in the repair shop earlier on April 27. The mechanic who worked on the car testified that he wrote down the odometer reading when Mitch dropped off his car. After completing the repairs, the mechanic test-drove the car exactly 3.8 miles. Mitch picked up his car from the mechanic at 5 or 5:30 p.m. Mitch's mother testified that Mitch ate dinner at home and then left at approximately 6 p.m. Mitch's girl friend picked up his car at P.T.'s parking lot on Friday, April 29. At that time, there were 73 more miles on the odometer than when Mitch dropped off his car at the mechanic's shop. Accounting for the mileage between Mitch's home, the garage, and P.T.'s, Mitch's car was driven an additional 50 miles.

Two Sauget police officers, Parisi and Lee, who were working the 11:30 p.m.-to-7:30 a.m. shift, testified that they saw Mitch at the entrance of P.T.'s performing his duties as courtesy patrolman at approximately midnight. Mitch explained he did not feel well and was waiting for a relief worker so he could leave. Another Sauget police officer, Ed Bastin, went to P.T.'s on the evening of the 28th around 8 p.m., inquiring as to Mitch's whereabouts after the Sauget Police Department received a call from Mitch's mother concerned about Mitch's well-being. According to Bastin, he was informed by Tom Kelly and the doorman for the evening that no one had seen Mitch since 8 a.m. that morning. The doorman then went out on the lot to assist Officer Bastin in locating Mitch's car. Bastin testified that Mitch's car was not on the lot at that time. Kelly denied telling Bastin that he had not seen Mitch since 8 a.m. that morning. Kelly insisted that he did not see Mitch after he left on April 27 until he found Mitch unconscious on April 28.

Another employee of P.T.'s, Otis Bloodworth, testified that he relieved Mitch on the evening of April 27. Bloodworth was supposed to get off at 8 p.m. but stayed until another worker could arrive to take Mitch's place. According to Bloodworth, Mitch left around 8 p.m. with another man. Bloodworth saw Mitch's car return sometime before midnight. At that time, the man who left with Mitch returned to P.T.'s. Mitch's car then drove away again. Bloodworth could not say if Mitch was in the car at that point. Because it was Mitch's car, Bloodworth assumed that Mitch was driving it at that time. On the following morning, Bloodworth returned to work sometime between 11 and 11:30 a.m. At that time Bloodworth noticed Mitch's car parked in the employee parking lot. Throughout the day, according to Bloodworth, at least three persons telephoned P.T.'s to inquire about Mitch's whereabouts. Bloodworth went to the bank at approximately 4 p.m. on the 28th, and Mitch's car was on the parking lot at that time, but it was now in a different parking space than it was when Bloodworth arrived that morning. Upon Bloodworth's return from the bank, Mitch's car was again in another parking space. Bloodworth testified that Mitch's mother and girl friend came to P.T.'s inquiring about Mitch's whereabouts. Bloodworth told both to talk to the director. Bloodworth testified that Mitch's car was still on the parking lot when Bloodworth left at approximately 8 p.m. on April 28.

Both Mitch's mother and his girl friend denied talking with Bloodworth on April 28. Mrs. Urbas testified that she did call P.T.'s, as well as the Sauget police department, attempting to locate her son. Connie Arnold, Mitch's girl friend, also made some telephone calls attempting to locate Mitch. Larry Tyler, supervisor of P.T.'s, testified he went to P.T.'s at approximately 9 or 9:15 a.m. on April 28. At that time, Mitch's car was not on the parking lot. Tyler further testified that he received a call from Mitch's mother between 12:15 and 12:30 p.m. Mrs. Urbas was concerned because Mitch did not come home from work the previous evening. Tyler returned to P.T.'s about 1:30 p.m. in an attempt to locate Mitch but did not see Mitch's car on the parking lot. Mrs. Urbas testified she called Tyler at approximately 11 a.m. on the 28th to say Mitch did not return from the previous evening. Tyler told her he would go to P.T.'s and look for Mitch. Tyler called Mrs. ...


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