The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
A jury trial commenced in this case on May 4, 2009, and concluded on May 7, 2009. The jury found in favor of Plaintiffs and against Defendant. The jury awarded $135,000 for the claim brought on behalf of Justin Harris (Justin) (#74) and awarded $55,000 for the claim brought by Justin's parents, Candy L. Harris (Candy) and Lynn Harris (#75). The jury verdict (#75) provided that the parents' damages amounted to $100,000 but were reduced by 45% due to the negligence attributable to Candy, so that the award to the parents was $55,000. Judgment was entered on the jury's verdict for a total award in favor of Plaintiffs and against Defendant in the amount of $190,000.00 (#76). This case is now before the court for ruling on the Post Trial Motion (#79) filed by Defendant, Wal-Mart Stores, Inc. Following this court's careful review of the arguments of the parties, Defendant's Post Trial Motion (#79) is DENIED.
On May 18, 2009, Defendant filed it Post Trial Motion (#79) and Memorandum in Support (#80). On May 21, 2009, Plaintiffs filed a Memorandum in Opposition to Defendant's Motion for Contribution from Candy Harris (#81). On May 22, 2009, Plaintiffs filed a Memorandum in Opposition to Defendant's Post Trial Motion (#82). On June 4, 2009, Defendant filed a Memorandum in Support of its Contribution Claim (#83).
MOTION FOR JUDGMENT AS A MATTER OF LAW
In its Post Trial Motion, Defendant first argued that it is entitled to judgment notwithstanding the verdict because Plaintiffs failed to present sufficient evidence to establish all of the elements of a claim for negligence. Defendant argued that, based upon the evidence presented, Justin was looking to the side when he struck his eye and did not see the clothing rack before the alleged incident. Defendant contended that the alleged negligent act of covering the lower bar could not have proximately caused the claimed injury because Justin, the minor Plaintiff, would have run into the clothing rack anyway.
This court notes that it must consider Defendant's Post Trial Motion as a renewed Motion for Judgment as a Matter of Law and Motion for New Trial brought under Rule 50(b) of the Federal Rules of Civil Procedure. This court concludes that Defendant is not entitled to judgment as a matter of law. "The issue of proximate cause in a negligence action is generally an issue of material fact to be decided by the trier of fact." Strutz v. Vicere, 906 N.E.2d 1261, 1264 (Ill. App. Ct. 2009). It is only when the facts "show that the plaintiff would never be entitled to recover" that "proximate cause can be determined by a court as a matter of law." See Strutz, 906 N.E.2d at 1264. In this case, Plaintiffs presented evidence that the lower bar of the clothing rack in Defendant's store was covered by blouses hanging on the upper rack and that Justin severely injured his eye when his eye came in contact with the lower bar. This court agrees with Plaintiffs that, based upon the evidence introduced at trial, the jury could reasonably infer that Justin was unable to appreciate the hidden risk of the lower bar of the clothing rack which was covered by blouses hanging from the upper rack and that Defendant's negligence in covering the lower bar was the proximate cause of Justin's injury.
This case is not similar to the cases relied on by Defendant, Strutz and Kellman v. Twin Orchard Country Club, 560 N.E.2d 888 (Ill. App. Ct. 1990). In both Strutz and Kellman, there was no eyewitness to the incident and no evidence as to the cause of the injury. See Strutz, 906 N.E.2d at 1265-66; Kellman, 560 N.E.2d at 974-75. In this case, there were eyewitnesses to the incident and they provided testimony from which the jury could determine that Defendant's negligence was the proximate cause of Justin's injury. This court therefore agrees with Plaintiffs that they produced sufficient evidence to establish all of the elements for their claims of negligence. Plaintiffs introduced sufficient evidence to establish that Defendant owed a duty, that Defendant breached that duty, and that Defendant's breach was the proximate cause of the injuries sustained by Justin and his parents. See Am. Nat'l Bank & Tr. Co. v. Nat'l Advertising Co., 594 N.E.2d 313, 318 (Ill. 1992).
Defendant next argued that it is entitled to a new trial because this court erred in excluding evidence that Candy had been convicted of theft under $300 and in excluding evidence that Defendant had not experienced any prior injuries with children injuring themselves on lower bars of clothing racks. Defendant also argued that this court erred in instructing the jury on simple negligence rather than premises liability.
This court agrees with Plaintiffs that Defendant is not entitled to a new trial in this case. This court adheres to its ruling that evidence of Candy's prior conviction of theft under $300 was not proper impeachment evidence. Defendant did not show that "establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." See Fed. R. Evid. 609(a)(2); see also United States v. Owens, 145 F.3d 923, 927 (7th Cir. 1998) (district court acted within its discretion in excluding conviction of theft); Jones v. Sheahan, 2003 WL 21654279, at *4 (N.D. Ill. 2003) (conviction of theft of services not admissible for impeachment). This court concludes that the case relied upon by Defendant, United States v. Papia, 560 F.2d 827 (7th Cir. 1977), does not help its position.*fn1 In Papia, the Seventh Circuit declined to decide whether a conviction of theft involved dishonesty or false statement, stating "we are not anxious to enter the fray and, fortunately, are able to decide this case without having to rule on the general question of whether all crimes involving stealing necessarily involve 'dishonesty' within the meaning of Rule 609(a)(2)." Papia, 560 F.2d at 847. Instead, the court determined that the trial judge properly allowed evidence of a conviction of theft under $100 to be used for impeachment on "the basis of the Government's uncontested assertion that [the] theft conviction rested on facts revealing fraud and deceit." Papia, 560 F.2d at 847-48. In this case, Plaintiffs vigorously contested whether Candy's conviction involved fraud and deceit, and Defendant was unable to show that it did, either in its filings with the court or in its offer of proof during trial.
This court also adheres to its ruling that Defendant could not properly present evidence concerning the lack of any prior similar accidents involving the clothing racks. In arguing that this court erred in precluding this evidence, Defendant relied on the decision in Gallick v. Novotney, 464 N.E.2d 846 (Ill. App. Ct. 1984). In Gallick, the plaintiff brought an action to recover for injuries she sustained when she fell as she was leaving the defendant's store, alleging that the fall was caused by a 1 1/2 inch change in elevation between two sidewalk slabs. Gallick, 464 N.E.2d at 847. The Illinois Appellate Court held that the circuit court properly allowed testimony "that there were no prior complaints of falls occurring at the exit of the store." Gallick, 464 N.E.2d at 848. In doing so, the court noted that a proper foundation was laid for this evidence because the "defendants testified that no material changes were made in the exit way between the time it was constructed and the time of the accident." Gallick, 464 N.E.2d at 848-49. This court agrees with Plaintiffs that Defendant did not adequately show that the evidence it proposed was admissible. The testimony proposed by Defendant did not include evidence that the condition of the clothing racks was the same, with no changes made, during the time period where no similar accidents occurred. Therefore, this court concludes that the evidence was properly excluded.
Finally, this court concludes that the jury was appropriately instructed in this case. This court instructed the jury regarding the elements of a cause of action for negligence because Plaintiffs' claim was based on negligence. See Reed v. Wal-Mart Stores, Inc., 700 N.E.2d 212, 215 (Ill. App. Ct. 1993). This court notes that it did also instruct the jury that, if Defendant proved that Candy failed to properly supervise Justin and failed to protect him against an obvious danger, its verdict should be in favor of Defendant. This was based upon the case law which stated that, in a case which involves an injury to a minor child who is being supervised by a parent, the defendant is "absolved of a duty where the child was injured due to an obvious danger while under the supervision of his or her parent, 'or when the parents knew of the existence of the dangerous condition that caused the child's injury.'" Harlin v. Sears Roebuck & Co., ...