Appeal from the Circuit Court of the Ninth Judicial Circuit Fulton County, Illinois No. 97-L-41 Honorable William D. Henderson, Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Plaintiffs, Janet Worsley (Janet) and Frank Worsley (Frank), brought this action for personal injuries sustained by Janet in a fall in defendant's restaurant, Farmington Pizza Company, alleging that defendant failed to place warning devices on or near a step in the restaurant. After a trial, the jury rendered a verdict in favor of plaintiffs. Defendant appeals. We affirm.
In January, 1996, plaintiffs were walking from the bar area to the dining area of defendant's restaurant when Janet failed to see a seven-inch step down, walked off the step and fell, injuring her right shoulder. The step was covered with blue carpet identical to that in the bar area and dining area. The stair lacked a hand rail or warnings that would have brought attention to the step.
Prior to trial, defendant filed a motion for summary judgment. Defendant argued that it was not under a duty to warn plaintiff of the step because it was an open and obvious condition. The trial court denied defendant's motion.
Defendant then filed a motion in limine to prevent plaintiff from introducing evidence that it had once placed reflective tape on the step and a warning sign nearby, but later removed them because the tape came loose and the sign kept falling down. Defendant argued that the removal of the safety features was irrelevant and prejudicial. The trial court denied the motion, and plaintiffs introduced the evidence at trial.
The jury returned a verdict in favor of plaintiffs but reduced the award by 35% because of Janet's comparative negligence. The jury awarded Janet net damages of $21,914.75 as well as $2,145 to Frank for loss of consortium. Defendant filed a motion for judgment notwithstanding the verdict, and in the alternative a new trial. The trial court denied defendant's motion.
Defendant argues that the trial court abused its discretion by denying its motion in limine to exclude testimony that defendant had removed a lighting strip and warning sign prior to Janet's fall. Defendant complains that it was prejudiced by the admission of the testimony since previous safety measures were not relevant to determine the condition of the step at the time of the fall.
Relevant evidence is evidence which has a tendency to make the existence of any material fact more or less probable than it would be without the evidence. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303, 309 (1998); See also, Fed. R. Evid. 401. The relevance and admissibility of evidence at trial is within the discretion of the trial court. Wojcik, 299 Ill. App. 3d at 971, 702 N.E.2d at 309. We will not overturn the decision of the trial court absent an abuse of that discretion resulting in substantial prejudice. Wojcik, 299 Ill. App. 3d at 971, 702 N.E.2d at 309.
Evidence of a defendant's post-accident remedial measures is not admissible as proof of negligence (Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 14, 541 N.E.2d 643, 647 (1989)), because 1) public policy encourages the adoption of safety improvements for unsafe conditions, 2) subsequent improvements may be an attempt to exercise the highest standard of care and are not considered probative of prior negligence, and 3) a jury may view remedial measures as an admission of negligence. Herzog v. Lexington Township, 167 Ill. 2d 288, 300, 657 N.E.2d 926, 932 (1995).
In urging us to extend the same policy concerns to pre-injury safety measures, defendant cites post-manufacture, pre-injury remedial measures in product liability cases. See Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 589 N.E.2d 569 (1991); Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451, 650 N.E.2d 1108 (1995). The instant case, however, is a premises liability action, and different policy concerns are implicated, i.e., the condition of the premises at the time of the accident and defendant's knowledge of the dangerous condition.
To be liable for a dangerous condition, a defendant must have knowledge that the condition existed.
"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 risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to ...