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Ashpole v. Bowling

July 20, 1998

MIKEAL ASHPOLE AND DAWN ASHPOLE, PLAINTIFFS-APPELLANTS,
v.
BRUNSWICK BOWLING AND BILLIARDS CORPORATION, INDIVIDUALLY AND D/B/A BRUNSWICK DEER PARK LANES, AND RICK BARBERA, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Inglis delivered the opinion of the court:

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Lake County.

95--L--1604

Honorable Terrence J. Brady, Judge, Presiding.

This case arose when plaintiff Mikeal Ashpole slipped and fell at a bowling alley owned and operated by defendants, Brunswick Bowling & Billiards Corporation and Rick Barbera. Mikeal and his wife, Dawn Ashpole (collectively, plaintiffs), brought an action for personal injuries and loss of consortium. Following a jury verdict in favor of defendants, plaintiffs appeal the order of the circuit court of Lake County denying their posttrial motion. Plaintiffs contend that, as a sanction for discovery violations, the testimony of Patricia Baughn should have been precluded or stricken. We reverse and remand for a new trial.

Concerning the facts in controversy, plaintiffs maintain that Mikeal fell and fractured his ankle when he slipped on some lane oil that contaminated the approach, the area from which the bowler throws his ball. Defendants maintain that Mikeal crossed over the foul line, got lane oil on his shoes, then slipped and fell. At trial, Patricia Baughn was the only defense witness who testified that she observed the accident.

During the course of discovery, plaintiffs filed interrogatories requesting, among other things, the identities of the witnesses to the accident, the identities of the employees working at the time of the accident, and the identities of all persons who might possibly testify on behalf of defendants. Defendants disclosed Baughn as an employee on duty at the time of the accident, but she was never identified either as a witness or as a potential witness.

Plaintiffs admit that "Pat" was assisting them with the scoring computer as they began to bowl. After Mikeal fell, Dawn testified that she needed to call to "Pat" and other employees in order to get their attention.

Before trial, plaintiffs filed a motion in limine to bar the testimony of any witnesses not already disclosed by defendants. At the end of the second day of trial, defendants disclosed that they wished to call Baughn to testify. Plaintiffs objected off the record at that point because the court reporter had left for the day. The next morning, plaintiffs objected on the record to allowing Baughn to testify. Following her testimony, plaintiffs moved to strike her testimony, but the trial court denied their motion.

Plaintiffs filed a posttrial motion, seeking the entry of judgment in their favor or a new trial based on defendants' discovery violation. After hearing argument, the trial court denied plaintiffs' motion. Plaintiffs timely appeal.

On appeal, plaintiffs argue that the trial court erred by allowing Baughn's testimony into evidence. Plaintiffs contend that they were surprised and prejudiced by Baughn's testimony and that the trial court abused its discretion by failing to bar it, strike it, or declare a mistrial. We agree.

Preliminarily, we note that defendants do not argue that they did not violate Supreme Court Rule 213 (166 Ill. 2d R. 213). Accordingly, we are left with the question of what, if any, sanction is appropriate for defendants' violation of the rules of discovery.

Supreme Court Rule 219 (166 Ill. 2d R. 219) empowers the court to impose a number of sanctions, including barring a witness from testifying, for discovery violations. In determining whether the exclusion of a witness is a proper sanction for nondisclosure, the court must consider "(1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness." Curran Contracting Co. v. Woodland Hills Development Co., 235 Ill. App. 3d 406, 411 (1992). As the imposition of sanctions for the failure to comply with discovery rules lies within the trial court's discretion, we will not reverse the trial court's decision absent a clear abuse of discretion. Blott v. Hanson, 283 Ill. App. 3d 656, 661 (1996).

Plaintiffs were completely surprised by Baughn's testimony. Plaintiffs submitted interrogatories requesting, among other things, the identity of possible witnesses on January 19, 1996. Defendants' answer, submitted on March 18, 1996, did not list Baughn as a possible witness. Defendants provided supplemental answers to the interrogatories on December 12, 1996, and March 31, 1997, neither of which included Baughn as a possible witness. Defendants also failed to include ...


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