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Meeks v. Great America, LLC

Court of Appeals of Illinois, Second District

May 31, 2017

SHATOYA MEEKS, Plaintiff-Appellee,
GREAT AMERICA, LLC, d/b/a Six Flags Great America and Six Flags Hurricane Harbor, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County, No. 15-L-24 Honorable Diane E. Winter, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.



         ¶ 1 Following a jury trial in the circuit court of Lake County, plaintiff, Shatoya Meeks, obtained a judgment against defendant, Great America, LLC, doing business as Six Flags Great America and Six Flags Hurricane Harbor, awarding her $1, 514, 670.57 for a disabling hand injury that she sustained on a waterslide at a water park operated by defendant. As a sanction for defendant's failure to disclose the identity of certain occurrence witnesses and to produce written incident reports that witnesses were believed to have completed, the trial court gave a modified pattern jury instruction on missing witnesses and evidence. Defendant argues that the trial court committed reversible error by doing so. We affirm.

         ¶ 2 The incident giving rise to this action occurred in July 2011. Plaintiff filed a timely complaint, which she voluntarily dismissed pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2010)). She timely refiled the complaint in September 2014. In count I of her complaint, plaintiff alleged that, while riding a waterslide, she sustained lacerations and torn ligaments to her wrist and hands. She alleged that defendant carelessly and negligently operated the waterslide, failed to provide adequate warning to guests of the hazards associated with riding the waterslide, failed to inspect the waterslide to ensure that it was safe for its intended use, and "[w]as otherwise careless and negligent in the operation, maintenance and control of [the waterslide]." Count II advanced a negligence claim under a theory of res ipsa loquitur, alleging that "the manner and circumstance surrounding the occurrence and injury *** is of the kind which does not ordinarily occur without someone's negligence." Defendant filed its answer and raised the affirmative defense of contributory negligence, alleging that plaintiff failed to keep a proper lookout.

         ¶ 3 During pretrial discovery, plaintiff requested the names of the dispatcher and the "run out attendant" who were running the waterslide when the accident occurred. She also requested the name of an employee who "cycled" through the waterslide after the incident in order to identify any hazardous conditions. Defendant initially indicated that those three individuals could not be identified. Plaintiff took the discovery deposition of Nicholas Hollendonner, who was an employee of defendant when the incident occurred. Hollendonner supervised the waterslide and other rides. He was on a break when the incident occurred, but he attended to plaintiff immediately afterward. Another employee had been supervising the waterslide during Hollendonner's break. At Hollendonner's discovery deposition, he testified that he believed that he had completed an incident report. Although the report was within the ambit of plaintiff's discovery requests, defendant was initially unable to locate the report. Defendant also did not disclose the identity of the employee who supervised the waterslide while Hollendonner was on his break.

         ¶ 4 With trial scheduled for the week of April 18, 2016, plaintiff took Hollendonner's evidence deposition on April 14, 2016. After Hollendonner's evidence deposition, defendant disclosed-for the first time-the identities of the waterslide's dispatcher, its "run out attendant, " and the individual who "cycled" through the ride after the incident. Later that day, defendant's counsel tendered two documents prepared by Hollendonner on the date of the incident. One document was entitled "Witness Statement." The other was entitled "Lifeguard Rescue Report." A note from counsel stated that the witness statement had just been located. The witness statement named the employee who supervised the waterslide during Hollendonner's break. The witness statement also indicated that a medical technician employed by defendant attended to plaintiff after the incident.

         ¶ 5 On April 18, 2016, plaintiff filed a motion for sanctions against defendant for: (1) its failure to produce Hollendonner's witness statement and lifeguard report and (2) its failure to disclose the identities of the various witnesses discussed above. Plaintiff also argued that, pursuant to defendant's standard operating procedures, each of those witnesses would have filled out an incident report. Plaintiff argued that the discovery violations warranted entry of a default judgment against defendant. Alternatively, plaintiff proposed that defendant's affirmative defense be stricken and that the jury be given Illinois Pattern Jury Instructions, Civil, No. 5.01 (2011) (hereinafter IPI Civil (2011) No. 5.01), which instructs jurors that they may draw inferences against parties who fail to offer evidence or to produce witnesses within their control and not equally available to their opponents. Defendant filed a written response in which it argued that its conduct did not warrant any sanction. Defendant alternatively argued that, if a sanction were warranted, the court should (1) declare a mistrial;[1] (2) order defendant to pay "court costs and Plaintiff's trial costs to date"; (3) order defendant to arrange and pay for depositions of the previously undisclosed witnesses; and (4) set a new trial date within 60 days.

         ¶ 6 At the hearing on plaintiff's motion, plaintiff's counsel opposed delaying trial in order to conduct additional discovery. Counsel noted that plaintiff developed posttraumatic stress disorder as a result of the incident and that preparing for trial had caused her to relive the trauma. Counsel argued that putting plaintiff through the process of preparing for trial again would essentially exacerbate the emotional harm caused by the incident. Counsel alternatively argued that, if the trial court deemed entry of a default judgment to be too harsh a sanction, defendant's affirmative defense of contributory negligence should be stricken. Counsel argued that, in that event, IPI Civil (2011) No. 5.01 should be given, but the instruction would need to be modified. As written, IPI Civil (2011) No. 5.01 states:

"If a party to this case has failed [to offer evidence] [to produce a witness] within his power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have been produced by the exercise of reasonable diligence.
2.The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have [offered the evidence] [produced the witness] if he believed [it to be] [the ...

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