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01/25/96 ANNE CAREY v. J.R. LAZZARA

January 25, 1996

ANNE CAREY, PLAINTIFF-APPELLANT,
v.
J.R. LAZZARA, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 91-L-14208. Honorable Irwin J. Solganick, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

The plaintiff, Anne Carey, appeals from a judgment entered in favor of the defendant, J.R. Lazzara, Inc., following a jury trial on her action for negligence. On appeal, we must determine whether the trial court committed reversible error by (1) giving Illinois Pattern Jury Instruction, Civil, No. B120.09 (3d ed. Supp. 1993) (hereinafter IPI Civil 3d No. B120.09) and refusing the plaintiff's tendered jury instruction concerning her burden of proof, (2) responding to a note from the jury by directing it to rely on previously given instructions without first consulting the parties, and (3) ruling as it did on certain objections during the parties' closing arguments. We hold that the trial court properly instructed the jury using IPI No. B120.09 because it accurately stated the applicable law in this case as required by Illinois Supreme Court Rule 239(a). (134 Ill. 2d R. 239(a).) We also conclude that the trial court did not commit reversible error in ruling on several objections made during closing arguments. Finally, under the circumstances of the case, both the trial court's decision to respond to the jury's note without first alerting the parties and the substance of the court's answer did not constitute reversible error. Therefore, we affirm.

On March 7, 1990, the plaintiff, Anne Carey, attended a luncheon and book review at the Martinique Drury Lane ("Martinique") in the Village of Evergreen Park, Illinois ("Village"). As she descended a winding spiral staircase which led from the first to the second floor, she slipped and fell.

At trial, the plaintiff testified that the stairway was crowded. She further explained that she fell down the stairs as she attempted to grasp the handrail on her left, which she was unable to reach. However, the plaintiff could not recall the events leading up to her fall, such as where she was standing when she tripped. As a result of the fall, the plaintiff broke her left hip.

The record shows that the staircase at the Martinique was built in 1971. The record further shows that at the time of the plaintiff's fall handrails were located only to the right and left of the staircase.

James Peterson, a licensed architect and structural engineer, testified that in his opinion the staircase was unreasonably dangerous because it violated the Chicago Building Code, regulations of the Occupational Safety and Health Act (OSHA), the National Life Safety Code and the Building Officials Conference of America Code (BOCA). All of these guidelines state that center handrails should be placed on staircases that are more than 88 inches wide. The parties agree that the staircase at the Martinique was 102 inches wide and did not contain a center handrail.

The president and owner of J.R. Lazzara, Inc., Raymond Lazzara, testified that he never received notice of any code violations with respect to the staircase. Anthony DiSantis, owner of the Martinique from 1946 until 1988, testified that the architectural building plans for the ballroom and staircase were approved by the Village and that the Village issued a permit for construction. DiSantis testified that the Village never cited him for any building code violations.

Edwin Lammel, a building and fire inspector for the Village, testified that the Martinique had never been cited for any staircase code violations. However, Lammel agreed that the staircase at the Martinique should have had a center handrail.

Following a jury trial, the court entered a judgment on the verdict in favor of the defendant, J.R. Lazzara, Inc. The court denied the plaintiff's post-trial motions. The plaintiff now appeals seeking a reversal, a judgment notwithstanding the verdict and new trial as to damages; or, in the alternative, a reversal and a new trial.

The plaintiff first contends that the trial court erred by giving IPI No. B120.09 to instruct the jury on her burden of proof, and refusing her tendered, modified version of the instruction. The propositions contained in IPI No. B120.09 that are at issue here provide that the plaintiff had to prove:

"First: That there was a condition of the defendant's property which presented an unreasonable risk of harm to persons on the premises.

Second: That the defendant knew or in the exercise of ordinary care should have known, that the condition of its property involved an unreasonable risk of harm to persons on the premises.

Third: That the defendant should have anticipated that persons on the premises would not discover or realize the danger, or would otherwise fail to protect themselves ...


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