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Bosman v. Riverside Health System

Court of Appeals of Illinois, Third District

October 6, 2016

AUGUST BOSMAN, as Special Administrator of the Estate of Joan Bosman, Deceased, Plaintiff-Appellant,
v.
RIVERSIDE HEALTH SYSTEM d/b/a Miller Health Care Center and Riverside Senior Living Center, Defendant-Appellee.

         Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Circuit No. 11-L-9 Honorable Kendall O. Wenzelman, Judge, Presiding.

          JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion.

          OPINION

          LYTTON JUSTICE

         ¶ 1 Plaintiff, August Bosman, as special administrator of the estate of Joan Bosman, appeals from the denial of his motion for a new trial. Plaintiff argues that the court erred in replacing a holdout juror with an alternate juror. We reverse and remand.

         ¶ 2 FACTS

         ¶ 3 In June 2011, plaintiff filed a complaint alleging that Joan Bosman suffered multiple necrotic pressure ulcers while she was a resident of a long-term care facility operated by defendant, Riverside Health System. The case proceeded to a jury trial.

         ¶ 4 The court initially advised the jury venire about the trial process and read the general instructions regarding the jury's role. The court then began voir dire. The court asked the venire whether there was anything about the case that would prevent them from being fair and impartial. The 12 jurors who were later impaneled and the 2 alternates indicated that they would be fair and impartial. The court then asked the potential jurors if any of them had personally been involved in or knew someone who was involved in an incident that resulted in personal injuries or damages, and if the incident resulted in a lawsuit. Juror Dariel Dewit said that her friend had filed a lawsuit against a nursing home after her friend's mother died from injuries sustained while she resided at the facility. Dewit assured the court that her prior experiences would not affect her ability to sit as a juror. Dewit also agreed that she would wait until she heard all of the evidence before reaching any opinions or conclusions, she would follow the law even if she disagreed with it, and she would not use sympathy, bias, or prejudice in reaching her verdict.

         ¶ 5 Defense counsel asked juror Dewit whether she personally had any experience receiving rehabilitation care or knew someone that had received care. Dewit said that she had no experience receiving rehabilitative care and that she could set aside her friend's experience with the nursing home and decide the case on the evidence presented.

         ¶ 6 At the conclusion of voir dire, a 12-person jury was impaneled, and 2 alternate jurors were selected. Dewit was impaneled as a juror.

         ¶ 7 After closing arguments, the court read the jury instructions to the jury and the two alternate jurors. The court sent the jury to deliberate. While discussing whether to discharge the alternate jurors, defendant said that it would not agree to a verdict of less than 12 jurors. Plaintiff agreed that the alternate jurors would have to be retained if defendant was not going to agree to a verdict of less than 12 jurors. The court retained the alternates and admonished them not to have any discussion about the case. The alternates were segregated in a separate room during the deliberations.

         ¶ 8 During the second day of deliberations, the court received three notes from the jury. The first note indicated that the jury was deadlocked. According to the court, the note stated the issues that the jurors agreed and disagreed on and gave some indication as to the breakdown, which the court did not disclose. The court called the jurors and alternates into the courtroom and instructed them, using Illinois Pattern Jury Instructions, Civil, No. 1.05 (2011) (hereinafter, IPI Civil No. 1.05), that the verdict must be unanimous and that it was the jurors' duty "to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment."

         ¶ 9 After returning to deliberations, the jury sent a second note, which the court read to the parties. The note indicated that the jury had continued deliberations without any change in result and the deliberations were devolving into argument. The court sent a responsive note that instructed the jury to continue to deliberate.

         ¶ 10 In the afternoon, the court received a third note from the jury, which the court paraphrased to avoid disclosing the juror's positions on the issues. The note indicated that the jury had made no progress and that some individuals felt they would be coerced to sign a verdict form. The court brought the jury and alternates into the courtroom and read Illinois Pattern Jury Instructions, Civil, No. 1.06 (2011) (hereinafter, IPI Civil No. 1.06), which instructed the jury that if it failed to agree on a verdict, the case must be retried. The court instructed the jury to retire and reconsider the evidence in light of its instruction. The court then stood in recess until the next morning.

         ¶ 11 On the third day of deliberations, the court tendered copies of the three notes to the parties. Each of the notes was ...


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