The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County
Honorable Richard J. Billik, Jr., Judge Presiding.
Plaintiff brings this appeal from the trial court's entry of judgment on a jury verdict for defendant in his personal injury action. He contends that the jury verdict was tainted because (1) the court improperly instructed the jury during its deliberations, and (2) a note that the jury sent out during its deliberations revealed that physical coercion had occurred in the jury room in arriving at the verdict. For the reasons explained below, we find the errors have been waived and, further, are without merit. Accordingly, we affirm.
In May 1992 plaintiff Angelo Palanti filed suit against defendant Dillon Enterprises, Ltd. Plaintiff's complaint alleged that plaintiff was injured when he slipped and fell in a parking lot near which defendant was doing remodeling work. The case went to trial in July 1997, and the jury returned a verdict in favor of defendant. The record contains neither a transcript nor a bystander's report of the trial, any pre-trial proceedings, or of any proceedings which occurred during the jury deliberations. Because of this state of the record, the only indications of what transpired before the jury reached its verdict are plaintiff's post-trial motion, the argument at the hearing on that motion (which was transcribed), the common-law record (including the notes which the jury sent out during its deliberations), and the court's written order denying the motion.
Plaintiff's post-trial motion contended that the verdict was against the manifest weight of the evidence and that plaintiff was entitled to a new trial because of error committed by the trial court in certain actions it took during jury deliberations. Specifically, plaintiff contended that the court committed reversible error "by allowing these proceedings to continue subsequent to receipt of notation from Jury foreman, on August 1, 1997, at or about the hour of 5:00 p.m." Plaintiff attached the jury note to which he referred as an exhibit to his motion; it read in full as follows:
"We have one juror who has stated emphatically he will not change his mind and basically refuses to deliberate in good faith. At this point, the remaining eleven are of the firm belief that there will never be any unanimous decision. This is not through lack of effort. One person refuses to consider the FACTS and several people are becoming agitated to the point of possible physical confrontations.
"If you have any suggestions that will resolve this problem we need to hear them now.
"I'm not sure what you are able to legally do to offer myself or other jurors advice or solving this stalemate.
"We simply cannot deliberate with a single juror if he refuses to do so." (Emphasis in original.)
The note was signed by the jury foreman. Plaintiff contended in his post-trial motion that the court erred when it proceeded to poll the jury without a court reporter present and to give the Prim instruction "as per I.P.I. 1.05," *fn1 even though counsel for both plaintiff and defendant "expressed opinion that mistrial should be declared."
Plaintiff further alleged in the post-trial motion that at or about 6:30 p.m., the jury sent out another note; the court again conferred with counsel for plaintiff and defendant; and the court again instructed the jury "as per I.P.I. 1.05." In addition, plaintiff contended in his motion that "it was agreed that mistrial would be granted should jury not return by 8:00 p.m." Nevertheless, plaintiff stated, the court "held [the] jury beyond the agreed time and at approximately 10:15 p.m. verdict was returned." Plaintiff argued that by giving the jury Illinois Pattern Jury Instruction 1.05 twice, orally, without a court reporter present, "no evidence exists as to the propriety of instruction and accuracy of same." Plaintiff stated that the court "did hasten the action of the jury, irrespective of its worthy motive and *** by so doing its conduct was improper."
At the hearing on plaintiff's motion, in addition to repeating a number of factual assertions from the motion, plaintiff also asserted that the jury foreman was a police officer and was in possession of a weapon in the jury room. He also contended that the jury had deliberated from approximately 1:00 to 6:30 p.m. on Thursday, July 31, and from approximately 9:30 a.m. to 10:15 p.m. on Friday, August 1, before returning a verdict. In his reply argument in support of the motion, plaintiff further stated as follows:
"And I would like to bring to the Court's attention that IPI 1.05, as read by the Court, uses the term violence. Not physical, but violence. That is reflected in 1.05. In the note that we got back from the ...