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03/13/95 IRENE HALLECK v. COASTAL BUILDING

March 13, 1995

IRENE HALLECK, PLAINTIFF-APPELLANT,
v.
COASTAL BUILDING MAINTENANCE COMPANY, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF (MARSHALL FIELD AND COMPANY, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 91-L-587. Honorable Robert R. Thomas, Judge, Presiding.

Rehearing Denied April 12, 1995. Released for Publication April 12, 1995.

The Honorable Justice Bowman delivered the opinion of the court: Colwell, J., concurs. Justice Doyle, specially concurring:

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Irene Halleck, brought this action against defendant, Coastal Building Maintenance Corporation (Coastal), seeking to recover damages for injuries she suffered in a workplace slip-and-fall incident. Coastal filed a third-party complaint for contribution against plaintiff's employer, Marshall Field and Company (Marshall Field). Prior to trial, plaintiff settled her worker's compensation claim against Marshall Field. The cause proceeded to trial, and a jury assessed plaintiff's damages at $240,000, but reduced that figure by 50% to account for her contributory negligence. The trial court entered judgment on this verdict, resulting in recoverable damages of $120,000. Coastal then filed a motion to set off the worker's compensation payments made by Marshall Field to plaintiff, which totaled $119,018.99. The trial court granted this motion and reduced the judgment to $981.01. This appeal followed.

Plaintiff makes two principal contentions on appeal: (1) the trial court committed a number of errors at trial concerning the admissibility of evidence; and (2) the trial court erred when it found plaintiff's settlement with Marshall Field to be in good faith and allowed Coastal to set off plaintiff's worker's compensation recovery against the final judgment. Plaintiff seeks a new trial based on the alleged evidentiary errors, as well as vacatur of the trial court's order granting Coastal a setoff.

Plaintiff testified to the following facts at trial. On Sunday April 9, 1989, at 10:30 a.m., she arrived for work at Marshall Field's Oak Brook store, where she was a sales associate in the second floor fur salon. To reach the fur salon, plaintiff rode the escalator to the second floor. At the top of the escalator, she met Jerry Smith, a Coastal employee. Coastal is responsible for housekeeping and floor care at Marshall Field's. Smith was waxing the marble tile that runs down the center of the second floor's east-west corridor. The east-west corridor is 300 feet long and 8 feet wide. The fur salon is situated at the opposite end of the corridor from the escalator.

Plaintiff testified that she said good morning to Smith. After they exchanged pleasantries, Smith asked plaintiff what time the other sales associates were due to arrive, and she replied that they would arrive around 10:45 a.m. Plaintiff then proceeded down the corridor toward the fur salon. She avoided the wet portion of the marble corridor by walking on the carpeting which ran parallel to it until she reached the fur salon. Over the next 10 to 15 minutes, while preparing to open the store, plaintiff made three trips to and from the stockroom, each time crossing the marble floor adjacent to the fur salon. On each of these three trips, the floor was dry. At no time did she observe any "wet floor" signs or see Smith waxing the floor. On her fourth trip across the floor, her feet slipped out from under her, and she fell. Immediately after her fall, Smith rushed over to her and, according to plaintiff, said "I'm sorry, I didn't know you would be leaving the fur salon." Plaintiff testified that she had slipped on "something wet" and that after her fall there was a wet, sticky substance on her clothes. On cross-examination, plaintiff recalled telling an investigator that, when she first encountered Smith at the top of the escalator, he told her to be careful because the floor was wet near the escalator. She also recalled that he said the floor was dry at the other end, and she replied that she would be careful.

Shortly after plaintiff's fall, Jeanette Ertl, a Marshall Field's sales associate who also worked on the second floor, came over to assist plaintiff. At trial, Ertl corroborated plaintiff's testimony that there were no signs in the marble corridor indicating the floor was wet and testified to the presence of a sticky substance on plaintiff's clothing. Jerry Smith did not testify at trial, as neither party was able to locate him or serve him with a subpoena.

Plaintiff first contends the trial court committed a number of reversible errors regarding the admission of evidence, each of which warrants a new trial. The first evidentiary ruling which plaintiff challenges is the trial court's decision to strike her testimony about statements allegedly made by Smith before and after the accident. The statements in issue are (1) Smith's question as to what time the other sales associates would arrive, followed by plaintiff's response; (2) Smith's statement to plaintiff that the floor was wet at the end of the corridor nearest the escalator, but dry at the other end; and (3) Smith's post-accident statement "I'm sorry, I didn't know you would be leaving the fur salon."

Preliminarily, we note that the trial court struck only two of the three statements allegedly made by Smith to plaintiff. Plaintiff claims that, in addition to Smith's other statements, the trial court struck Smith's statement that the floor was wet near the escalator, but dry at the other end of the corridor. However, the record does not support this claim. That statement, unlike the other two, did not come into evidence during plaintiff's direct examination. Instead, it was elicited by Coastal on cross-examination. In instructing the jury as to which statements it was striking, the trial court expressly stated that it was striking only the two conversations elicited during plaintiff's direct examination. Thus, Smith's statement that the floor was wet near the escalator, but dry at the other end, which came into evidence separately from the other two statements, was never stricken from the record. Accordingly, we address plaintiff's claims of error only as they relate to (1) Smith's question about the arrival time of the other sales associates, and plaintiff's response; and (2) Smith's post-accident apology.

Plaintiff argues that the decision to strike these two statements as hearsay was error. Although the admission of evidence is ordinarily within the sound discretion of the trial court, the initial determination that a particular statement constitutes hearsay is a legal issue which does not require any exercise of discretion, fact finding, or evaluation of credibility. ( People v. Aguilar (1994), 265 Ill. App. 3d 105, 109, 202 Ill. Dec. 485, 637 N.E.2d 1221.) The trial court exercises its discretion as to admissibility only after it has made a determination of whether a statement is hearsay. (See Aguilar, 265 Ill. App. 3d at 109.) Thus, a trial court's determination that a particular statement is hearsay is subject to a de novo standard of review. Aguilar, 265 Ill. App. 3d at 109.

Plaintiff argues that Smith's query as to when the other associates were to arrive, and her response, should not have been stricken because they were not offered for the truth of the matter asserted and therefore do not constitute hearsay. Hearsay is defined as "testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." ( People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738; see also Kochan v. Owens-Corning Fiberglass Corp. (1993), 242 Ill. App. 3d 781, 806, 182 Ill. Dec. 814, 610 N.E.2d 683.) An out-of-court statement offered for some independent purpose, rather than for the truth of the matter asserted, is not hearsay. Kochan, 242 Ill. App. 3d at 806; Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 1021, 107 Ill. Dec. 893, 507 N.E.2d 1262.

Plaintiff asserts that she did not offer this conversation to show that the other sales associates did, in fact, arrive at 10:45 a.m. Instead, she maintains, she offered it to show that, at the time of plaintiff's arrival at work, Smith intended to continue waxing the floor. Plaintiff contends that the only possible reason for Smith's inquiry as to the arrival time of the other sales associates was his concern about the timing of the waxing. If he had completed his waxing, plaintiff reasons, "his question would make no sense." According to plaintiff, Smith's question and her answer are probative of one of the central issues at trial -- whether Smith continued waxing the floor after plaintiff's arrival. She argues the jury should have been allowed to consider this testimony as evidence that he did, in fact, wax the floor after plaintiff's arrival, but failed to warn her that he had done so.

Nothing in the record indicates the conversation was offered to prove the arrival time of the other associates. As a result, we must agree with plaintiff that the conversation, offered as evidence thatSmith waxed the floor after plaintiff's arrival, was not hearsay. However, an erroneous evidentiary ruling does not require reversal unless the error was prejudicial and affected the outcome of the trial. ( Bafia v. City International Trucks, Inc. (1994), 258 Ill. App. 3d 4, 10, 196 Ill. Dec. 121, 629 N.E.2d 666.) Accordingly, we must evaluate the degree of prejudice caused plaintiff by the exclusion of this testimony in light of plaintiff's other claims of evidentiary error.

Plaintiff's next assertion of error concerns the statement allegedly made by Jerry Smith to plaintiff after her fall. Plaintiff testified that immediately after she fell, Smith rushed over to her and said: "I'm sorry, I didn't know you would be leaving the fur salon." On appeal, plaintiff contends the trial court erred in striking the statement because (1) it was a party admission; (2) it qualified as an excited utterance; and (3) it constituted a declaration against pecuniary interest. Because ...


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