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12/30/94 ERIC DECKER v. DOMINO'S PIZZA

December 30, 1994

ERIC DECKER, PLAINTIFF-APPELLEE,
v.
DOMINO'S PIZZA, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 89-L-870. Honorable Phillip J. Kardis, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Maag, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant, Domino's Pizza, Inc., appeals from the denial of its posttrial motion for a judgment notwithstanding the verdict, a directed verdict in its favor, or in the alternative, a new trial, by the circuit court of Madison County. The underlying cause of action filed by plaintiff, Eric Decker, was a negligence action brought by plaintiff for injuries he sustained during an armed robbery at one of defendant's stores located in North Alton. The case was tried to a jury, and at the close of all evidence, the jury returned a verdict in favor of plaintiff for $400,000 but found plaintiff 25% at fault for a net verdict of $300,000.

Defendant presents these issues for our review: (1) the trial court erred in not ruling that defendant's duty was limited to the extent of its undertaking; (2) the trial court erred in failing to strike the testimony of plaintiff's expert because plaintiff failed to establish that plaintiff's expert was qualified to render his opinions; (3) plaintiff's expert based his opinions on hearsay testimony from a cellmate of the robber and there was no foundation that this basis for plaintiff's expert testimony was the type reasonably relied upon by experts in the field; (4) the trial court erred in limiting the testimony of defendant's expert; and (5) the trial court erred in denying defendant's motion for a mistrial based upon plaintiff's counsel's improper plea for the jury to act as "the conscience of this community." We affirm.

I

On the day of the incident, December 18, 1988, plaintiff was working the evening shift at defendant's store in North Alton. Shortly before the robbery, some employees drove up to the store and observed a suspicious person in the store's vicinity. Two of these employees went inside the store and reported the suspicious-looking person to the employees, including plaintiff. Plaintiff and another employee, Mario Voyles, went outside to investigate this suspicious person. Once outside, plaintiff stopped to talk with another employee who was sitting in her car. Voyles walked toward the suspicious person. Plaintiff then heard Voyles scream, "He's got a gun." Voyles ran back into the store. By the time plaintiff realized what was happening and started for the door, the robber had reached plaintiff, began to hit him over the head with a pistol, and kicked him in the lower back. The robber then grabbed plaintiff by the collar, lifted him up, and forced him into the store. Once inside the store, the robber demanded money. Rod Kalina, plaintiff's coemployee, informed the robber that the safe was a time-delay safe and then gave the robber the money in the till.

After taking the money, the robber shot Kalina in the leg and began to pistol-whip plaintiff, demanding that plaintiff open the safe. Plaintiff told the robber, "I can set this, but you're going to have to wait 15 minutes before we can open it." The robber responded: "You're lying, you're lying. Open the safe. Open the safe." The robber continued to hit plaintiff on the head and attempted to shoot plaintiff in the face several times; however, the gun did not fire. Shortly thereafter, the robber fled from the store.

As a result of this attack, plaintiff sustained lacerations to his head and hands and was hospitalized for three days. Plaintiff's family and friends testified to the changes they observed in plaintiff's personality since the robbery. Plaintiff also complains of back problems since the attack and reportedly continues to suffer from nightmares and headaches at least several times a week. At trial, plaintiff presented no medical testimony as to his injuries and no testimony with respect to the medical bills or lost wages.

Prior to this incident, defendant formed a standards committee to review proposed security measures for implementation at defendant's stores. The committee would make recommendations as to what security measures should be adopted. The standards committee was composed of elected franchisees and defendant's corporate representatives. Mark B. Raterman, the franchisee and owner of the North Alton store where plaintiff worked and the robbery occurred, was a member of this committee.

The standards committee reviewed various crime-prevention studies, including a study done by the Southland Corporation. This study found that a cash-management system tended to prevent robberies. The committee adopted the cash-management system, and defendant made the system mandatory for all stores. In addition to the cash-management system, defendant, through its protective services department created prior to the robbery in question, produced and distributed to all franchisees a store safety kit and other literature related to robbery prevention.

Defendant also employed a franchise consultant to assure that local franchise stores comply with defendant's standards, including robbery prevention. Also, the franchise consultant is to make sure that MIT's (management in training), such as plaintiff, were beingtrained in safety and security. However, the franchise consultant is not directly responsible for the training of MIT's, which is the responsibility of the franchise owner. Although the training of MIT's is the franchise owner's responsibility, defendant requires certification of the local franchisee's trainer/manager.

At trial, four experts testified, three for defendant and one for plaintiff. Plaintiff's expert was David Hayes, an assistant chief of detectives, who was the detective in charge of the investigation of this robbery. Edward McGunn, a safe manufacturer, Dr. Lawrence Sherman, a security consultant, and George Ralph, defendant's national director for security, testified for defendant.

Plaintiff's witness gave opinion testimony that the robber beat plaintiff up because he did not believe that plaintiff could not open the safe. Detective Hayes' testimony concerning the time-delay safe as one of the causes of plaintiff's injuries was based on a statement made by a cellmate of the robber. This testimony was elicited by defendant's counsel on cross-examination. No timely objection was made. Later during the cross-examination, defendant objected to this testimony on the grounds that it was not the ...


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