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Fernando Caburnay v. Norwegian American Hosptial

December 23, 2011

FERNANDO CABURNAY,
PLAINTIFF-APPELLANT,
v.
NORWEGIAN AMERICAN HOSPTIAL, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, AND
PHOENIX ELEVATOR CONCEPTS, INC., AN ILLINOIS CORPORATION,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 05 L 013391 The Honorable Mary A. Mulhern, Judge Presiding.

The opinion of the court was delivered by: Justice Joseph Gordon

JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion. Presiding Justice Epstein and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 On August 20, 2005, Dr. Fernando Caburnay tripped and fell while waiting for an elevator in the lobby of Norwegian American Hospital (Norwegian), where he worked as an anesthesiologist. Caburnay struck the back of his neck when he fell, rendering him quadriplegic. At the time, the adjacent elevator was being serviced by Phoenix Elevator Concepts (Phoenix). Caburnay sued both Phoenix and Norwegian, alleging that a fold or buckle in the mat caused his fall, and that their negligence in using and failing to secure the mat caused his injuries. Caburnay ultimately settled with Phoenix after Phoenix lost its motion for summary judgment. Norwegian moved for summary judgment and prevailed. Caburnay now appeals.

¶ 2 I. BACKGROUND

¶ 3 On the morning of August 20, 2005, Caburnay entered Norwegian's lobby of through the emergency room doors and walked down a corridor towards an elevator bank containing two elevators. He was carrying an umbrella in his right hand and a duffel bag over his left shoulder. At the time, the right elevator was fully functional but the left was being repaired by Phoenix. Norwegian had placed a single six foot by ten foot rubber and fabric mat in front of both elevators to protect its floors and to prevent slipping. That mat, or one similar, had been used intermittently in front of the elevators for approximately six months.

¶ 4 As Caburnay approached the right elevator, he walked onto the mat, pushed the elevator call button, and stepped backwards. As he did so, he fell backwards and the back of his head and neck struck a couch adjacent to the elevator. Caburnay fractured his cervical spine, instantly rendering him quadriplegic.

¶ 5 A Norwegian surveillance video indicates that immediately after Caburnay fell, several Norwegian personnel came to Caburnay's assistance. A backboard was placed on the mat and Caburnay was placed upon it. Staff members wheeled a gurney onto the mat, lifted Caburnay onto it, and carried him away. The video does not show Caburnay's feet or the portion of the mat underneath his feet. Caburnay did not look at the mat, either before or after he fell, because he was looking at the elevator.

¶ 6 In November 2005, Caburnay sued both Norwegian and Phoenix, alleging that their negligence in maintaining the area around the elevator caused him to "slip, trip and fall and thereby injure himself." Caburnay alleged, among other things, that Norwegian "failed to properly, routinely and adequately inspect the floor of the [elevator area] to ascertain whether any dangerous and hazardous conditions existed;" and "failed to place a clean and secured floor mat." Caburnay filed his second amended complaint in September 2008, in which he additionally alleged that Norwegian "failed to place a level and secured floor mat on the floor" and "improperly placed the floor mat so that it was subject to become hazardous, movement, wrinkles and folds." Caburnay additionally brought a claim of spoliation of evidence against Norwegian for its failure to produce the mat.

¶ 7 Phoenix moved for summary judgment, based primarily on the deposition testimony of Caburnay, arguing that there was insufficient evidence that a condition of the mat caused his fall. This motion was denied and Phoenix subsequently settled with Caburnay.

¶ 8 After Caburnay filed his complaint, Norwegian served interrogatories upon him. Caburnay objected to most questions on grounds that they were improper and were more appropriate during a discovery deposition. When asked to "describe how the alleged occurrence happened, giving all events in complete detail in the order in which they occurred which had any bearing whatsoever on the occurrence," Caburnay answered:

"Objection, said interrogatory is improper because it is compound question, requests a narrative answer and requests information that is most appropriately the subject of a discovery deposition. Subject to objection, an oral interrogatory at plaintiff arrived at Norwegian American Hospital and slipped and fell while attempting to enter the elevator in the lobby."

¶ 9 On July 16, 2007, Caburnay, in a supplemental Rule 214 request, requested the production of the mat at issue. Norwegian was unable to produce the mat because it had been destroyed or lost and was not available for inspection. The record indicates that at some time after the accident, Norwegian ceased using its own mats and contracted the job of supplying floor mats to an outside vendor. Norwegian did, however, ultimately produce a mat with a rubber non-slip backing which, despite being smaller in size, was, according to its head of housekeeping, similar to the one at issue here.

¶ 10 After Phoenix settled, the case was assigned to a new judge for trial. On October 15, 2009, Norwegian moved for summary judgment on both the negligence and spoliation claims, arguing that there was insufficient evidence to establish that a condition of the mat caused Caburnay's fall. In support of its motion, Norwegian included the depositions of Caburnay himself as well as several Norwegian and Phoenix employees, including Sophie Serrano, Rosa Cruz, Frank Krause, and Ben Gonzalez.

¶ 11 Caburnay was deposed twice in this case, first for purposes of discovery and again for purposes of evidence. In his first deposition, taken in November 2006, Caburnay stated that he reviewed Norwegian's surveillance video the prior evening, but still recalled the events on the day of his fall before watching that video. When asked by Norwegian's counsel to tell him what he remembered about what happened the morning of the fall, Caburnay responded "I was walking down the aisle to the elevator door. Then I touched the button for the elevator to come down. Then I fell on my back." When asked if he had a recollection of his feet tripping over anything, Caburnay took a moment to "recall and remember" and then answered "I feel the sole of my shoe got caught in a--it's like a fold from the area rug."

¶ 12 At the close of the deposition, Norwegian's counsel again asked Caburnay about the circumstances of his fall, and the following colloquy occurred:

Q. You're not certain the fold caused you to fall, isn't that right?

MR. MEYER [Caburnay's Counsel]: Objection. I think that's contrary to his testimony. MR. BLUMENSHINE [Caburnay's Counsel]: It's also argumentative.

Q. You can answer.

A. That's what my lawyer says.

Q. He just objected. You still have to answer the question.

MR. MEYER: You want to hear the question again? Would you read it back; Miss Court Reporter.

(WHEREUPON, the Reporter read back the following: 'Q. You're not certain the fold caused you to fall, isn't that right?')

A. I am certain.

Q. You are certain that it caused you to fall, right?

A. Correct.

Q. And that is based on not seeing it, true?

A. Correct.

Q. That's ...


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