The opinion of the court was delivered by: Justice Cook
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
Honorable Paul C. Komada, Judge Presiding.
Appeal from Circuit Court of Coles County
On May 7, 1997, plaintiffs Debra and Gary Reed went to a Wal-Mart store in Charleston, Illinois, to purchase some cherry trees. While looking around the garden area, Debra stepped on a rusty nail protruding from a board in the middle of a pathway. Debra was injured and sued defendant Wal-Mart for negligence. The complaint alleged that Wal-Mart committed one or more of the following acts: (1) caused an unreasonably dangerous condition to exist on the premises; (2) permitted the condition to exist, although it knew or should have known of its existence; (3) failed to remove the condition, although it knew it constituted an unreasonable risk; and (4) failed to have an inspection system in effect that would have discovered the condition. Gary sued Wal-Mart for loss of consortium. A jury trial was held in October 1997.
Debra testified she was injured in the garden area of Wal-Mart located in the parking lot. She testified the garden area was delineated with wooden pallets with aisles between them. The wooden pallets were used to display shrubs, trees, and other materials. She was looking at some rhododendrons when she stepped back and felt a stick in her heel. She looked down and noticed she had stepped on a board with rusty nails in it. She pulled her shoe off and saw blood on her stocking and the inside of her shoe. Debra claimed the board was three feet long, three inches wide, unpainted, and made of weathered wood. The board was located in the middle of the pathway, but within an inch of the nearest pallet. The pallets were also unpainted and made of weathered wood. Debra did not know where the board came from and did not notice any pallets with boards missing.
Gary Reed testified he was in the store paying for the cherry trees when Debra was injured. After paying for the trees, he returned to the garden area and saw that Debra had stepped on the board. The board appeared to be the same material as the wooden pallets. The wooden pallets were about three feet by three or four feet. Gary did not notice if any pallets had boards missing.
Timothy Driscoll, the manager of the Wal-Mart store, testified he talked with Debra about the incident that day and filled out a report. Driscoll went to the garden area and saw the board with nails in it in a shopping cart. The board may have come from one of the pallets. Driscoll checked the pallets, but did not find any missing boards. The pallets are not sold by Wal-Mart for resale, but are used to display lawn and garden products. Several stores sold lawn and garden products in the same outdoor complex where Debra was injured. The other stores, including an Osco drugstore, also used wooden pallets to display merchandise. Driscoll testified the Osco pallet display was about 20 yards from the Wal-Mart pallet display.
Ronald Reardon, the Wal-Mart department manager of lawn and garden products, testified the rhododendrons were about 15 feet from the nearest pallets. He testified the policy was to remove broken pallets, and he had no knowledge of any broken pallets during May 1993. He had no knowledge of the incident or how the board got there.
At the jury instruction conference, plaintiffs and Wal-Mart submitted different instructions on negligence. Plaintiffs submitted a general instruction on negligence, based upon Illinois Pattern Jury Instructions, Civil, No. B21.02 (3d ed. 1995) (hereinafter IPI). WalMart's instruction was based on IPI 120.09 (Illinois Pattern Jury Instructions, Civil, No. 120.09 (3d ed. 1995)) and required that plaintiffs prove Wal-Mart had actual or constructive knowledge of the dangerous condition on the property. The trial court accepted Wal-Mart's instruction and instructed the jury accordingly. Plaintiffs' attorney limited his argument, in accordance with the instructions, to the idea that the board had been there long enough (as shown by the rusty nails) that Wal-Mart should have noticed it. The jury returned a verdict for Wal-Mart.
Plaintiffs appeal, arguing the trial court erred in instructing the jury that plaintiffs had the burden of proving actual or constructive notice of the board. Plaintiffs contend they are not required to prove notice when the facts and circumstances show that the dangerous condition was caused by the actions of the defendant or its employees. We reverse and remand.
Adequate jury instructions should fairly, fully, and comprehensively inform the jury of the applicable legal principles. Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 105, 634 N.E.2d 448, 457 (1994). The trial court has the discretion to determine which issues have been raised by the evidence and which instructions should be read to the jury. A litigant is entitled to an instruction on his theory of the case if there is some evidence, even very slight evidence, to support that theory. People v. Jones, 175 Ill. 2d 126, 131-32, 676 N.E.2d 646, 649 (1997). We will not grant a new trial based on a trial court's decision to give or not give a particular instruction unless that decision was an abuse of discretion and caused serious prejudice to the complaining party. Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 736, 680 N.E.2d 416, 427-28 (1997).
In Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472 (1976), the supreme court established the standard for a landowner's liability for a dangerous condition on the land. Genaust adopted section 343 of the Restatement (Second) of Torts, which stated: "'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable ...