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