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Mueller v. Phar-Mor

December 29, 2000

PATRICIA MUELLER,
PLAINTIFF-APPELLANT,
V.
PHAR-MOR, INC., A FOREIGN CORPORATION, D/B/A PHAR-MOR,
DEFENDANT-APPELLEE
PHAR-MOR, INC.,
THIRD-PARTY PLAINTIFF,
V.
BESAM AUTOMATED ENTRANCE SYSTEMS, INC.,
THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Justice McBRIDE

Not Released For Publication

PATRICIA MUELLER,
PLAINTIFF-APPELLANT,
V.
PHAR-MOR, INC., A FOREIGN CORPORATION, D/B/A PHAR-MOR,
DEFENDANT-APPELLEE
PHAR-MOR, INC.,
THIRD-PARTY PLAINTIFF,
V.
BESAM AUTOMATED ENTRANCE SYSTEMS, INC.,
THIRD-PARTY DEFENDANT.

The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County. The Honorable Susan G. Fleming, Judge Presiding

Plaintiff Patricia Mueller filed a complaint in the circuit court seeking compensation for injuries she sustained when she was struck by a sliding electric glass door while entering a store owned by defendant Phar-Mor, Inc. (Phar-Mor). A jury trial was commenced. At the close of plaintiff's case-in-chief, the trial court granted defendant's motion for a directed verdict, finding that plaintiff had failed to prove the notice element of her premises liability claim. The court dismissed plaintiff's complaint in its entirety. Plaintiff now appeals, contending that the trial court erred in granting a directed verdict and committed various errors in its pre-trial and trial rulings.

 The facts are as follows. On the evening of February 6, 1994, plaintiff and her husband attempted to patronize a Phar-Mor store in Skokie, Illinois. The store's entrance consisted of two automatic sliding glass doors and two glass side panels which were adjacent to the sliding doors. The side panels were stationary by design, but could be popped out in case of emergencies.

As plaintiff and her husband approached the entrance, they noticed that the side panel on the left side of the sliding glass doors was not in place, leaving an opening where it should have been. As plaintiff attempted to pass through the side panel opening, the sliding doors activated, striking plaintiff in the right side. The sliding door pushed plaintiff into the left side of the open side panel frame, and then struck her a second time, pinning her against the door's outer frame. Plaintiff was able to extricate herself from the door by twisting her body and lunging forward.

At trial, Boris Sigal, a customer who witnessed plaintiff being struck by the door, testified that he went to the store's customer service counter to get help. Sigal further testified that after he informed the employee behind the counter that he had just seen a woman get hit by the sliding door, the employee told him that such an event had occurred before. In a subsequent sidebar, the trial court ruled that the statement made by the Phar-Mor employee to Sigal was inadmissible pursuant to Supreme Court Rules 213(f) and (g) (177 Ill. 2d R. 213(f),(g)) because plaintiff had not advised defendant prior to trial of such testimony by Sigal. The court then instructed the jury that it was to disregard Sigal's testimony regarding the statement.

Dennis Kiedrowski, the general manager of the Phar-Mor store at the time of the incident, estimated that there were probably about 20 employees working in the store at the time plaintiff was injured. He testified that there was a single entrance to the store. About once a month he would check the side panel doors by pushing them open from the inside. He testified that the emergency door panels could be pushed out with not much force. Although plaintiff made an offer of proof, Kiedrowski was not allowed to testify that he found the side panel doors open three or four times in the six months he worked at the store.

Plaintiff's husband at the time of the incident, Peter Mueller, testified that a store manager came and spoke with him and plaintiff after plaintiff was injured. The manager first said of the door: "[O]h, it's off its track again." Peter Mueller had to ask the manager for a piece of paper in order to make a report. When the Muellers left the store, Peter saw the store manager and some other people trying to fix the side panel door.

Daniel Spychalla, the co-manager of the Phar-Mor at the time of the incident, testified that the side panel doors were for emergency use.

Ronald Gosney was a service technician employed by the company with whom Phar-Mor contracted to maintain the doors and repair them when necessary. He testified that the side panel doors were stationary with the exception that they could be pushed out in the event of an emergency. Gosney made service calls to Phar-Mor on January 27, 1994, just prior to the incident, and on February 22, 1994, two weeks after the incident. At the completion of each call, Gosney noted that the doors appeared to be working properly. When Gosney went to Phar-Mor to check the operation of the doors on February 22, 1994, no one employed by defendant informed him that a woman had recently been injured in the front door or that the sliding doors had allegedly operated when the side panel was out-of-place. At the conclusion of each service call, Gosney would go over certain safety tests and door functions with Phar- Mor personnel, including instruction on how to do an emergency break-out of the side panel doors.

Dr. George Prieto testified that he treated plaintiff's injuries in the years following her being struck by the sliding door. He diagnosed plaintiff as having trochanteric bursitis, which is an irritation or inflamation in an area on the thigh. At different times, plaintiff was treated with oral anti-inflammatory medication, physical therapy, cortisone injections, and, eventually, surgery. After all of the treatment, plaintiff continues to have chronic pain in the area of her thigh.

George Tune, an operations manager of the company that had contracted to repair and maintain the doors, testified regarding the operation of the four-panel door system at the Phar-Mor store in question. Among other things, Tune testified that the system was designed so that the sliding doors should have been inoperable if a side panel door had been removed.

Plaintiff filed suit against defendant on a theory of simple negligence and premises liability. Defendant, in turn, filed a third- party action against the company that had ...


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