The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County Honorable Barbara J. Disko, Judge Presiding
Brenda Engram (plaintiff), as special administrator of the estate of Dorothy Williams, filed this lawsuit against the Chicago Housing Authority (defendant) to recover damages for the death of her mother, Dorothy Williams (decedent). Decedent died of carbon monoxide poisoning after covering the vents in her oven and leaving her oven door open to heat her apartment.
Following a jury trial in the circuit court of Cook County, the court declared a mistrial due to an improper communication to the jury. However, the court allowed the jurors' deliberations to continue, and the jury later returned a verdict that the trial Judge received "under seal." The jury found in favor of plaintiff and assessed damages at $280,612.24. The jury assessed the contributory negligence of the plaintiff's decedent at 49%, but reduced plaintiff's damages by 51% to $137,500.
The trial court granted plaintiff's motion to vacate the mistrial and entered judgment on the verdict in favor of the plaintiff in the amount of $137,300. The trial court subsequently denied defendant's posttrial motion wherein it moved that judgment be entered in its favor pursuant to section 2-1116 of the Code of Civil Procedure (735 ILCS 5/2-1116 (West 1993)), and renewed its motion for directed verdict and objections to a number of the trial court's rulings. Pursuant to plaintiff's motion, the court changed the verdict to increase plaintiff's damages from $137,500 to $143,112.24.
Defendant then filed this appeal, arguing that the trial court erred by (1) denying defendant's motion for directed verdict where defendant owed no duty to warn decedent about the practice of using her oven to heat her apartment; (2) admitting medical opinion testimony from an undisclosed physician which, if excluded under Rule 213(g) (166 Ill. 2d R. 213(g)), would have required the entry of a directed verdict for the defendant; (3) admitting opinion testimony from plaintiff's expert witness about undisclosed standards and warnings and the defendant's alleged duty to warn its tenants about the dangers of gas ovens; (4) ignoring section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102 (West 1993)) and supreme court precedent to instruct the jury that the defendant owed a duty to exercise ordinary care for the plaintiff's safety and to be free from negligence; (5) refusing to give Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1992) while simultaneously instructing the jury that the missing witnesses could recover damages for loss of society; (6) allowing the jury to continue deliberating and accepting a "sealed verdict" after the court had already declared a mistrial; (7) vacating its order of mistrial and entering judgment on the verdict where a discharged alternate juror had been communicating with the jurors and the court did not ascertain whether these communications affected the deliberations; and (8) changing the amount of the jury's inconsistent verdict to negate a finding that required entry of judgment in favor of defendant and considering unsworn written statements from a group of jurors after they had been discharged. Furthermore, defendants allege (1) the jury's verdict was against the manifest weight of the evidence; and (2) the cumulative effect of the trial court's errors deprived the defendant of a fair trial. Because we agree with defendant's first argument regarding duty, we need not address the remaining issues on appeal. We reverse and enter judgment in defendant's favor.
In September 1992, decedent was 72 years old and the mother of five adult children. Decedent had been a tenant of defendant's buildings for much of her adult life. She lived by herself in an apartment in defendant's low-rise housing at 1440 South Blue Island Avenue in Chicago. She was not in good health, as she suffered from diabetes, high blood pressure, a previous heart attack, iron and hemoglobin deficiency and a recent knee fracture.
It had been decedent's long-standing practice to use the gas oven in her apartment for heat. She did so at her current apartment and her former apartment on Throop Street. Decedent would turn the oven up to 350 or 400 degrees, open the door and use the oven to heat her apartment.
Decedent also lined the entire oven with aluminum foil to cover the air vents. This practice prevented the oven from obtaining sufficient oxygen, which resulted in an incomplete combustion of the gas and caused the oven to generate excess amounts of carbon monoxide. Decedent's practice of running the oven with the door open resulted in the gas flame burning continuously, rather than cycling on and off as would occur if she had closed the oven door.
At some time between September 9 and September 12, 1992, decedent turned on her oven lined with aluminum foil and opened the oven door as was her habit, and went to take a bath. Plaintiff's daughter, Kimberly Engram, testified that she went to decedent's apartment in the evening of Saturday, September 12, 1992, after plaintiff had been unable to contact decedent by phone. Plaintiff had last spoken to decedent on Wednesday, September 9. When Kimberly Engram arrived at the apartment, the doors were locked. No one answered the door, so Kimberly called plaintiff, who called the police. Decedent was subsequently found dead in the bathtub. The space heater plaintiff had given decedent was still in the apartment unused.
Before trial, defendant propounded interrogatories to the plaintiff pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220), and when the new rules took effect in 1996, pursuant to Supreme Court Rule 213 (166 Ill. 2d R. 213(g)). Defendant requested that the plaintiff disclose all trial witnesses, all opinion witnesses, the substance of each witness's testimony, and the bases of each opinion plaintiff intended to adduce from her witnesses at trial. Plaintiff filed answers to Rule 213 interrogatories disclosing one opinion witness, a "consulting engineer" named Robert Stanis, and three trial witnesses. Notably, plaintiff did not disclose any witness who would testify as to the cause of decedent's death.
After being assigned to trial, defendant brought a motion in limine to preclude plaintiff from presenting any testimony, medical or otherwise, as to the cause-of-death of decedent. Plaintiff's only disclosed opinion witness, Robert Stanis, had admitted during his discovery deposition that he did not have any medical qualifications or opinions about the cause of death. However, the trial court denied defendant's motion and allowed plaintiff to elicit cause of death and other opinion testimony from Dr. Mitra Kalelekar, a deputy physician in the Cook County medical examiner's office, though plaintiff failed to disclose Dr. Kalelekar as a witness in answers to Rule 213 interrogatories. The court allowed defendant to depose Dr. Kalelekar one hour before opening statements.
During the trial, plaintiff testified that, during the winter of 1991-92, she informed defendant's janitor that the heat in her mother's apartment was low and that condensation formed when decedent ran the oven to gain heat. Plaintiff added that the same janitor had once entered her mother's apartment to mop up condensation and that he told decedent she could get a space heater from defendant. According to plaintiff, neither the janitor nor anyone else from defendant's office warned decedent about the danger of using her oven for heat. The janitor confirmed that it was defendant's policy to give a space heater to any tenant who asked for one, free of charge.
Melvin Brooks was the superintendent of the group of buildings where decedent resided. He testified that he was aware some tenants would use their ovens for heat and he instructed his staff, on finding such a person, to inform the tenant not to use the oven for heat. Whenever Brooks personally learned that a tenant was using his or her oven for heat, he would tell the tenant to stop, advise him or her that free space heaters were available, and inform defendant's heating plant personnel of low heat in that tenant's apartment.
The plaintiff's expert, Robert Stanis, testified that he inspected the oven in decedent's apartment on October 15, 1992, along with plaintiff's attorney. Stanis conceded that he had no knowledge of and no opinions about the condition of the oven on that date or at any other time. The court then allowed Stanis to testify about the ...