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June 10, 1997


Appeal from the Circuit Court of Cook County. Honorable Shelvin Louis Hall, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Tully delivered the opinion of the court. Rakowski and McNULTY, JJ., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiff, Howard Jenkins, brought this action in the circuit court of Cook County against defendant, Dominick's Finer Foods, Inc. (hereinafter Dominick's), seeking damages for injuries to his foot sustained after stepping on one or two nails on defendant's premises. Following a jury trial, the circuit court entered judgment for defendant and against plaintiff based upon the jury's verdict. Plaintiff filed a motion for new trial which the circuit court denied. It is from that order that plaintiff appeals to this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).


In October 1988, plaintiff was employed by A . N. Webber as an over-the-road truck driver. On October 3, 1988, plaintiff was assigned to deliver a load of dog food to Dominick's in Northlake, Illinois. Plaintiff arrived at Dominick's at 7 a.m., but was not able to unload his truck until 1 p.m. According to plaintiff, by the time he was able to unload his truck, damaged wooden pallets and other debris were on the ground overflowing from a 55-gallon garbage receptacle in the dock area. As plaintiff was walking around the trailer area preparing to unload his truck, he stepped on some shrink wrap that was covering a damaged pallet with one or two nails protruding from it. Plaintiff claims that one or two of the nails penetrated his shoe and punctured his right foot. Plaintiff allegedly reported the incident to a forklift operator and suggested that they clean up the area before someone gets injured. However, plaintiff did not report his injury to any other Dominick's employees. X.L. Feazell, a Dominick's employee, testified at his deposition that he learned of plaintiff's injury through his co-worker, O.C. Walton. Feazell testified that he recalled seeing an injured man sitting on a stack of pallets examining his foot.

On October 13, 1988, plaintiff developed flu-like symptoms and was hospitalized for six days in Tennessee, in order to receive intravenous antibiotics. Dr. Larry Scarborough diagnosed plaintiff with cellulitis in his lower right leg. Dr. Scarborough also found a recent puncture wound on the bottom of plaintiff's right foot. He testified that, since the puncture wound was in close proximity to the infection, it is assumed that the infection could have come from that wound. However, Dr. Scarborough also testified on cross-examination that plaintiff's hospital chart contained a notation by nurse Evelyn Jacobs referencing a statement made by plaintiff that his foot had been sore with an open wound for years.

In addition, plaintiff testified at his deposition that, while he was hospitalized in Tennessee, he took photographs of his leg which showed redness extending from his ankle to his thigh. At trial, he also testified that someone else had taken photographs of the bottom of his foot during that same hospital stay.

One day after his release from the hospital in Tennessee, plaintiff was again hospitalized for two or three days in South Carolina where he received the same treatment. In November 1988, plaintiff saw his family physician, Dr. Philip Zumwalt. Dr. Zumwalt testified that plaintiff complained of injuries to his right leg and foot and described to him an incident where he had stepped on two nails.

The following year, plaintiff was hospitalized twice after bumping his right leg and developing a fever. He was again placed on intravenous and oral antibiotics. Plaintiff continued to have periods of swelling during the next two years and continued taking medication.

In a separate cause of action, plaintiff filed a worker's compensation suit against his employer, A.N. Webber. A.N. Webber retained a physician, Dr. Joseph McConaughy, to examine plaintiff for purposes of the litigation. In addition to examining plaintiff, Dr. McConaughy recommended that plaintiff be fitted for a Jobst stocking (a custom-fit, thigh-high support stocking), have a venous Doppler examination and take certain medications. Dr. McConaughy also wrote prescriptions for medication for plaintiff. In response to defendant's interrogatory requesting the names and addresses of all physicians who have treated or consulted plaintiff regarding these injuries, plaintiff listed Dr. McConaughy. Defendant chose to use Dr. McConaughy as its expert witness.

At the trial in the case at hand, defendant requested and, over plaintiff's objection, the trial court tendered to the jury IPI 5.01 for plaintiff's failure to produce the photographs of his leg and foot taken while he was hospitalized in Tennessee. The trial court also denied plaintiff's request to bar the testimony of defendant's expert witness, Dr. McConaughy. In addition, the trial court deemed inadmissible as hearsay the statements about plaintiff made by Walton to Feazell. Following the ...

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