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October 28, 1994


Appeal from the Circuit Court of Cook County. The Honorable William D. Maddux, Judge Presiding.

Released for Publication December 16, 1994.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, Diane Esser, brought an action against the defendant, Joseph McIntyre, for injuries she suffered when she slipped and fell on unpopped popcorn kernels that the defendant allegedly spilled. The dispositive issue is whether the Judge properly instructed the jury on the proper standard of care. A jury returned a verdict for the defendant.

On October 18, 1983, the plaintiff travelled to Acapulco, Mexico, with Joseph O'Brien, Sr., and two other couples, Joseph McIntyre, Susan Pence, Don Fett and Joanne Walden. At that time, McIntyre lived in Wilmette, Illinois, and Diane Esser lived in Chicago, Illinois. *fn1 Through a mutual friend, Eva Myers, the plaintiff had met O'Brien once before the trip. The plaintiff met the other members of their group for the first time at O'Hare Airport. Prior to the trip, McIntyre, O'Brien, Fett, Pence and Walden knew one another.

The group stayed in a villa at the Villa Vera Hotel in Mexico. McIntyre and O'Brien had stayed in the same villa on three previous occasions. Pence had accompanied them on the second and third trips, and Fett had joined them for the third trip. In October 1983, the villa was reserved in McIntyre's name, and the three men split the bill for the villa. O'Brien paid for the plaintiff's plane ticket, meals and accommodations at the villa.

The rooms in the villa were on multiple levels. On the lower level was a bedroom, where the plaintiff and O'Brien stayed. A few stairs above that level was a terrace area. Above the terrace level, there was a pool area. On the level above the pool area, there was a common dining area, kitchen/bar area, living room and stairs leading to the two upstairs bedrooms, where the other two couples stayed. There were several entrances to the villa, and there were no doors or gates that separated the common areas of the villa from the hotel grounds. Each bedroom door had a lock. McIntyre believed the villa was privately owned because some doors and cabinets in the villa were locked and inaccessible to his group.

McIntyre described the housekeeping services at the villa as "excellent." He believed the housekeepers would come in the middle of the night because, in the morning, the common areas would be clean, the pool would be clean and there would be clean towels on the chairs in the common area. Pence also noticed that, every morning, the villa was clean, room service dishes were gone and there were clean towels. In addition, Pence testified: "There were always staff walking around, day and night. They would just come up now and then. Because it's outside, anybody can walk through. We always saw staff people, changing light bulbs, checking this, taking bugs out of the pool."

The plaintiff testified that the group arrived at the villa during mid-afternoon. They went out to dinner, where drinks were served. At about 11 p.m., the plaintiff and O'Brien went to bed and locked their bedroom door. Around midnight, the other two couples pounded on the plaintiff's bedroom door and told her and O'Brien to come out to party with them. The plaintiff believed they were intoxicated. The plaintiff and O'Brien remained in the bedroom.

The plaintiff awakened at around 7 a.m. She dressed herself, and went onto the deck area to read. She then went to the kitchen area to use the telephone to order coffee. On her way to the telephone, she slipped on unpopped popcorn kernels on the glazed tile floor. The plaintiff fell on her spine, injuring her neck, lower spine and left leg. After she fell, she noticed that there were kernels in the kitchen, hall and dining area.

When McIntyre came downstairs 15 to 30 minutes later, the plaintiff asked him why someone did not clean up the kernels. The plaintiff testified on direct examination that McIntyre said, "When we opened the bag, it spilled and we tried to look for something to clean up." On cross-examination, the plaintiff testified that McIntyre said, "Gee, I'm sorry, I spilled the popcorn, and we tried to look for a broom." McIntyre then called housekeeping, and the manager of the hotel, a houseboy and a housekeeper came to remove the spilled popcorn.

O'Brien, McIntyre and Pence testified that they did not see the plaintiff fall and that, during the Acapulco trip, she did not claim that she fell. Joanne Walden testified that the plaintiff did not complain about falling until the middle of the trip.

There is also a dispute concerning whether or not there was popcorn in the villa during the October 1983 trip. The plaintiff claims that McIntyre brought popcorn to the villa from Chicago. McIntyre denies bringing any popcorn to the villa, and he denies that he or anyone in the group brought popcorn to the villa or bought popcorn in Mexico during the October 1983 trip. Fett and O'Brien also testified that they never saw popcorn in the villa during the ...

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