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Hawkes v. Casino Queen

January 29, 2003


Appeal from the Circuit Court of St. Clair County. No. 00-L-313 Honorable Richard A. Aguirre, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman

Corrected Opinion

A jury rendered a verdict in favor of Rick G. Hawkes (plaintiff) and against Casino Queen, Inc. (defendant), for injuries sustained by plaintiff while using the restroom aboard defendant's casino cruise ship. Defendant now appeals. The issues for review are as follows: (1) whether the circuit court erred in prohibiting defendant from performing a psychiatric examination upon plaintiff, (2) whether the court erred in granting plaintiff's motion in limine, which prevented the admission of evidence of plaintiff's prior injuries, (3) whether the circuit court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case, (4) whether the circuit court erred in submitting certain jury instructions, (5) whether the jury's award of damages was against the manifest weight of the evidence, and (6) whether the circuit court erred in denying defendant's motion for a judgment notwithstanding the verdict. We affirm.


On November 12, 1994, plaintiff boarded defendant's casino for an afternoon cruise. During his visit plaintiff entered the men's restroom. While in the restroom, plaintiff tripped and fell to the floor, sustaining injuries to his head, neck, and back. Plaintiff was later taken by ambulance to St. John's Mercy Hospital for medical treatment. After being released from the hospital, plaintiff received medical care from Dr. David Schreiber for head, neck, and shoulder pain, as well as for weakness in his arms and inability to grip. Dr. Schreiber eventually referred plaintiff to Dr. George Schoedinger, an orthopedic surgeon. Dr. Schoedinger diagnosed plaintiff as suffering from a ruptured disc at the C5-C6 level and later performed an anterior cervical discectomy and fusion upon him. Dr. Schoedinger believed that plaintiff's ruptured disc, or the symptoms he experienced that necessitated his surgery, had been caused by his November 12, 1994, fall. Plaintiff also received a submuscular ulnar nerve transposition, performed by Dr. David Haueisen, to cure cubital tunnel syndrome also caused by the fall.

Plaintiff filed a complaint against defendant in the circuit court of Madison County. Plaintiff's complaint, as amended on August 18, 1995, alleged that he was an invitee using the bathroom aboard defendant's casino boat when he was caused to trip and fall by an open cabinet door immediately below one of the bathroom sinks. Plaintiff alleged that defendant had been negligent in (1) opening and leaving open the cabinet door below the bathroom sink, (2) failing to warn him of the open door and the dangerous condition it created, (3) failing to close the door or correct the dangerous condition it presented, (4) failing to ascertain that he was lying in a position of danger while its agents repeatedly attempted to open the bathroom door, or (5) carelessly operating its gaming boat. Plaintiff alleged that these incidents of defendant's negligence proximately caused his fall and resulting injuries. Plaintiff's suit was later transferred to St. Clair County on grounds of forum non conveniens. On December 30, 1998, defendant amended its answer to include a third-party complaint against Boatmen's National Bank. Defendant alleged that the bank might be liable in part for plaintiff's damages under the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq. (1994)). The bank had the case removed to federal court, relying on the court's federal question and pendent jurisdiction over the matter. However, the matter was remanded to the circuit court of St. Clair County on May 18, 1999, after the federal district court entered a summary judgment on all the issues forming the basis of its federal question jurisdiction.

In February 2000, while the suit was still pending in federal district court, plaintiff sought psychiatric care from Dr. Edwin Wolfgram. Dr. Wolfgram diagnosed plaintiff as permanently and chronically suffering from major depression, mood disorder secondary to cerebral concussion, and anxiety disorder resulting from his chronic pain. On August 4, 2000, after the matter had been remanded to the circuit court, defendant filed a motion pursuant to Supreme Court Rule 215 (166 Ill. 2d R. 215) to allow a psychiatric examination of plaintiff by Dr. Richard Wetzel. Defendant's motion asserted that its psychiatrist needed to examine plaintiff before he could offer testimony. Defendant further asserted that it would be severely prejudiced if Dr. Wetzel were not able to examine plaintiff, allowing him to form his own opinion on plaintiff's claimed psychiatric or psychological injuries. On August 28, 2000, defendant's motion was summarily denied by the circuit court.

Shortly before the trial, plaintiff submitted a motion in limine in which he sought to bar defendant from mentioning or referring to prior neck injuries and related treatment he received before his fall. Plaintiff's motion, relying upon the Illinois Supreme Court's recent decision in Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000), sought to bar defendant from suggesting that plaintiff's injuries were a result of a pre-existing condition involving his neck. On October 2, 2000, before the trial began, the court heard arguments from the parties on plaintiff's motion. The court granted plaintiff's motion in limine and barred defendant from mentioning plaintiff's prior neck injuries and treatment, as well as any opinions or cross-examination concerning whether plaintiff had a prior bulging disc in his cervical area. Defendant objected to the court's barring of this evidence and submitted, as an offer of proof, the evidence deposition of plaintiff's former chiropractor, Dr. Robert Engelmann, and nearly three full pages of cross-examination from the evidence deposition of plaintiff's orthopedic surgeon, Dr. Schoedinger.

At the close of plaintiff's case, defendant moved for a directed verdict. Defendant argued that plaintiff had failed to make a prima facie case. The court denied defendant's motion. On October 5, 2000, the jury returned a verdict in favor of plaintiff in the amount of $1.87 million, which included a $1.25 million award for plaintiff's impaired earning capacity. The jury also found plaintiff 30% contributorily negligent and reduced the award to $1.309 million. On November 2, 2000, defendant filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. On December 13, 2000, the circuit court denied defendant's posttrial motion entirely. Defendant made a timely appeal.


Motions for Directed Verdict and Judgment Notwithstanding the Verdict

Defendant first argues that the circuit court erred in denying both its motion for a directed verdict at the close of plaintiff's case and its later motion for a judgment notwithstanding the verdict, because plaintiff failed to prove, to a reasonable certainty, that his fall had occurred from tripping over an open vanity door. Defendant contends that, though plaintiff alleged that his injuries had resulted from tripping over an open vanity door in defendant's restroom, he failed to actually prove that an act of negligence had proximately caused his injuries. Defendant claims that plaintiff offered no testimony on direct examination explaining how the accident happened and that his own testimony makes it just as likely that he slipped in soapy water dripping from his hands. We disagree.

In a negligence action, the plaintiff is required to prove that the defendant owed him a duty of reasonable care, that the defendant breached its duty, and that the defendant's breach proximately caused the plaintiff's injuries. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 795, 721 N.E.2d 614, 620 (1999). "[L]iability cannot be predicated upon surmise or conjecture as to the cause of an injury, and therefore proximate cause can be established only when there is a reasonable certainty that the defendant's act caused the injury." Wiegman, 308 Ill. App. 3d at 795, 721 N.E.2d at 620. However, causation need not be shown by direct evidence and "may be established by facts and circumstances which, in the light of ordinary experience, reasonably suggest that the defendant's negligence operated to produce the injury." Wiegman, 308 Ill. App. 3d at 795, 721 N.E.2d at 620.

"[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple v. Gustafson, 151 Ill. 2d 445, 452-53, 603 N.E.2d 508, 512 (1992). A directed verdict or a judgment notwithstanding the verdict is properly entered only where all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967); Grewe v. West Washington County Unit District No. 10, 303 Ill. App. 3d 299, 303, 707 N.E.2d 739, 742 (1999). In directing or setting aside a verdict, the circuit court cannot reweigh the evidence or assess the credibility of witnesses; instead, it may only consider the evidence and any inferences that may follow, in the light most favorable to the non-movant. See Maple, 151 Ill. 2d at 452-53, 603 N.E.2d at 512; Grewe, 303 Ill. App. 3d at 303, 707 N.E.2d at 742. Further, the circuit court cannot ignore circumstantial evidence, including any reasonable inferences of negligence that may be properly drawn. Grewe, 303 Ill. App. 3d at 303, 707 N.E.2d at 742. However, circumstantial facts must make the conclusion reached more probable, as opposed to merely possible. Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 398, 742 N.E.2d 401, 408 (2000).

In the instant case, four witnesses provided the only testimony concerning the cause of the fall. These witnesses were present before, during, or immediately after plaintiff's fall in the bathroom. The first of these witnesses to testify was Roosevelt Jordan, a porter employed by defendant. Jordan testified that he had been assigned to clean the bathroom in which plaintiff fell on the day of the incident. He had entered the bathroom and proceeded to the handicapped stall. Before he entered the stall, someone spoke to him, inquiring how he was doing. Jordan passed this person as he left the urinal and headed toward the bathroom's vanity. Jordan testified that as he left the handicapped stall, he saw that another man, who had not been present at the time he entered the stall, was standing at the urinal. Jordan also noticed that a man was lying on the bathroom floor. This man looked like the man who had spoken to him earlier. Jordan then left the bathroom to report the incident to security and contact his supervisor. He then stood by the bathroom door until a security guard told him to go downstairs. Once downstairs, Jordan completed a written report of the incident. Jordan testified that cleaning supplies for porters were kept under the sink in the bathroom's vanity, but he could not recall whether the vanity door was open while he was cleaning in the bathroom that day. Jordan noted, however, that if the vanity door had been open, it would have stuck out far enough so that a man standing at the sink could trip over it as he turned to walk out of the bathroom. Jordan testified that he returned to the bathroom later that evening and saw a maintenance person (Jose) "messing around" with the vanity cabinets and taking pictures. When questioned about the maintenance person's activities, Jordan provided the following testimony:

"Q: Well, what was Jose doing?

A: He was just-he was-already bent down over there. That's all I know, you know, because they said, you know, something about-said the man tripped over the door. That's all I remember, you know."

Next, Patrick York, a security guard employed by defendant at the time of the incident, testified that he was the first to respond to plaintiff's fall in the bathroom. York testified that once he entered the bathroom, he observed plaintiff lying on the floor. York said that plaintiff informed him that he had tripped over an open vanity door. York was required to complete a report on plaintiff's fall. His report indicated that plaintiff had complained that he had tripped over an open cabinet door and suffered head, neck, and back pain. York said that, in accordance with defendant's policy, two to three photographs were taken of the bathroom after plaintiff's fall. York testified that these photographs showed that a vanity door had been ripped off of its hinges.

Next, Craig Loepker, who was in the bathroom at the time plaintiff fell, testified by way of a videotaped evidence deposition that was played before the jury. Loepker testified that upon entering the bathroom, he went to wash his hands and noticed that the vanity door under the sink was open. After washing his hands, he proceeded toward the urinals, at which time he noticed someone back in the handicapped stall. Someone else entered the bathroom while he was using the urinals. He later heard a loud noise, heard somebody hit the floor, and then saw a man and the vanity door lying on the floor of the bathroom. Loepker noted that the door on the floor was the same vanity door he had seen open under the sink earlier and that the door had been ripped off the vanity. Loepker also noted that the man on the floor appeared to be in a lot of pain and was complaining about his back. Loepker did not observe anything on the bathroom floor that would have caused the man to slip.

Plaintiff testified at the trial that he walked into the bathroom and went to the urinal. As he turned to leave the urinal, he noticed someone (Loepker) enter the bathroom. In walking away from the urinal, he actually passed the person entering the bathroom and proceeded to the vanity. As plaintiff proceeded to the vanity, he noticed an African-American man enter the bathroom. Plaintiff thought that the man was an employee of the casino. Plaintiff said "hi" to the man and then turned back to look in the mirror above the vanity before beginning to wash his hands. As plaintiff was washing his hands, he noticed, peripherally, that the employee was stooping next to him on his left side. The man then came around to his back side and then over to his right side. Plaintiff testified that he engaged in chitchat with the man for a few seconds and finished washing his hands. After plaintiff finished washing his hands, his legs went out from under him, his body corkscrewed, and he landed on his back.

On cross-examination by defendant, plaintiff was asked about the cause of his fall.

"Q: Okay. And isn't it true, Mr. Hawkes, that you've told us before that you may have felt something clip your leg and that occurred during your fall; is that correct?

A: I believe that's what caused my fall, yes, sir.

Q: But did you tell us before you may have felt something clip your leg during the fall?

A: I think I might have mentioned, and I could look at my testimony[-]it's been a long time[-]but I think what I said was that I felt something clip my leg, yes.

Q: During the fall?

A: Yes, on the left leg I believe I said toward the back side, back of the left leg.

Q: And you think you may have felt that during your actual fall when you were in the process of falling?

A: I'd have to review my testimony. I don't know that I can actually say that.

MR. BURKE [defense counsel]: Page 76.

Q: (by Mr. Burke) Page 76. And this is your deposition, correct? [']Deposition of Rick G. Hawkes[']?

A: Yes, uh-huh.

Q: And the question is, 'Did it clip your leg before you fell or after you fell?' And your answer is, ...

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