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Lakin v. Casey's Retail Co.

Court of Appeals of Illinois, Fifth District

June 14, 2018

JAMES LAKIN, Plaintiff-Appellee,
CASEY'S RETAIL COMPANY, d/b/a Casey's General Store, Inc. #1972, a/k/a Casey's General Stores, Inc., an Iowa Corporation, Defendant-Appellant.

          Appeal from the Circuit Court of Madison County. No. 14-L-655 Honorable William A. Mudge, Judge, presiding.

          John P. Cunningham, Brown & James, P.C., T. Michael Ward, Brown & James, P.C., Douglas S. Teasdale Attorneys for Appellant

          Roy C. Dripps, Charles W. Armbruster III, Michael T. Blotevogel, Courtney C. Stirrat, Armbruster, Dripps, Winterscheidt & Blotevogel, LLC Attorneys for Appellant

          GOLDENHERSH JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Barberis and Justice Chapman concurred in the judgment and opinion.



         ¶ 1 Plaintiff, James Lakin, filed a personal injury action in the circuit court of Madison County after he slipped and fell at a store owned by defendant, Casey's Retail Company doing business as Casey's General Store, Inc. #1972, also known as Casey's General Stores, Inc. (Casey's). After a jury trial, plaintiff was awarded $550, 000. The two issues raised by Casey's on appeal are (1) whether the trial court erred in instructing the jury and (2) whether the trial court erred in refusing to allow defendant to cross-examine plaintiff about statements he made before trial regarding a job offer he did not accept. We affirm.

         ¶ 2 FACTS

         ¶ 3 On the evening of December 27, 2013, plaintiff slipped and fell inside a Casey's store and injured his right shoulder. Plaintiff filed a complaint against Casey's; Tanya Powell, the store manager; and Paul Morence, the assistant store manager. Morence was working the night plaintiff fell; Powell was not on the premises. On the day before trial, plaintiff dismissed Powell.

         ¶ 4 Prior to trial, plaintiff filed a motion in limine seeking to bar the defense from asking plaintiff about any job offers he received. Casey's filed a motion to allow cross-examination of plaintiff concerning an alleged job offer he received from Thomas Wuller. During his deposition, plaintiff said he received a job offer from Wuller as an assistant general manager at a truck stop that would have paid him $75, 000 per year. Plaintiff said he was unable to accept the job because he needed to undergo surgery for injuries he sustained in the fall. The defense later deposed Thomas Wuller, who denied offering plaintiff a job or even knowing plaintiff, and sought to impeach plaintiff with this information. Plaintiff argued that, because he was no longer pursuing a claim for lost wages, the offer from Wuller was a collateral issue. The trial court agreed and denied the motion and granted plaintiff's motion in limine.

         ¶ 5 At trial, Paul Morence agreed that Casey's safety procedures require employees to check the stores for spills and leaks and to immediately clean up any spills. If an employee finds a spill, he or she should put out a "wet floor" sign, clean up the spill, and alert customers that the floor may be slick. Morence testified he checked the area where plaintiff fell right before the incident and he did not see any liquid on the floor. Casey's provided videotape of plaintiff's fall. The recording begins approximately four minutes prior to the fall. The videotape shows Morence walking through the area but does not show Morence looking down at the floor. Morence admitted he did not look at the floor.

         ¶ 6 Morence testified that the store is actually outfitted with three cameras, each of which shows a different angle. During discovery, Casey's only produced the video from one camera, the camera mounted over the front door. Morence testified that prior to trial he reviewed a different video from the one disclosed during discovery. He reviewed video from the camera that provided "an angle from the kitchen." As to the video introduced into evidence, Morence agreed that two parts of the video were missing, specifically files AVI 300 and AVI 800. Morence could not explain the missing files.

         ¶ 7 After plaintiff fell, Morence went to assist plaintiff. Plaintiff told Morence he could not move his arm and asked Morence what was on the floor. Morence testified that there was a colorless liquid, which he believed to be water, on the floor. He estimated the liquid was approximately one square foot in diameter. Morence got a towel and cleaned it up and then got a mop and mopped the area. He looked around to see if any machines were leaking but did not find any leaks. Morence agreed that he did not follow Casey's procedure in that he did not put out a "wet floor" sign nor did he take pictures of the spill, which he is supposed to do.

         ¶ 8 Tim Peters, the emergency medical technician (EMT) who responded to the scene, testified that he made a written report of the incident as required by his employer. His report was admitted into evidence as plaintiff's exhibit 1. The report indicates he was called to the scene because a man fell and was complaining of shoulder pain. When Peters arrived, an unidentified worker at the store directed him to the area where plaintiff was sitting on the floor near the coffee machines. Peters refers to the unidentified worker as "staff" in his report. Peters's report states, "Staff noted to [EMT] that another customer of theirs had spilled something earlier and that [they] have not quite had time to clean it up, and this [patient] happened to slip and fall." The report goes on to state that plaintiff told him he "walked around the corner *** and noted that his feet went out on him, slipping and falling." Peters could not remember who the staff person was who gave him this information.

         ¶ 9 Plaintiff was initially treated at the emergency room. The emergency room doctor who treated plaintiff referred plaintiff to Dr. Felix Ungacta, a board-certified orthopedic surgeon. Dr. Ungacta testified that plaintiff told him he injured his right shoulder when he slipped and fell on a liquid with his right arm outstretched. Dr. Ungacta thought plaintiff might have a partial rotator cuff tear. He ordered magnetic resonance imaging (MRI), which appeared normal, and gave plaintiff a cortisone injection.

         ¶ 10 After the MRI and the injection, plaintiff's pain continued, so Dr. Ungacta performed arthroscopic surgery. Dr. Ungacta testified that it is not unusual for an MRI to look normal, even though the patient suffers from a tear. On March 25, 2014, Dr. Ungacta performed surgery on plaintiff and found a tear in plaintiff's superior labrum, which he repaired. Dr. Ungacta ordered two rounds of physical therapy (six weeks each) for plaintiff's right shoulder postsurgery. He noted that physical therapy can be painful. Dr. Ungacta testified that plaintiff followed his directions, was not a malingerer, yet still had some residual pain. According to Dr. Ungacta, residual pain is normal with the type of injury plaintiff suffered.

         ¶ 11 Plaintiff's girlfriend, Tammy Prestito, testified that, on the date of the occurrence, she and plaintiff stopped at Casey's to get a soda. She entered the store before plaintiff, who was pumping gas. She did not notice any spills in the area and did not spill anything herself. She did not know plaintiff had fallen until an ambulance arrived on the scene and a store employee came out to the car to tell her that plaintiff had fallen. She testified that plaintiff can no longer bowl, ride a motorcycle, or ride a WaveRunner, activities he enjoyed prior to falling in the store. Plaintiff is also limited in his ability to throw a ball to his dog, something he did much more frequently before he injured his right shoulder.

         ¶ 12 On cross-examination, Ms. Prestito admitted she previously owned and managed a gas station with plaintiff and part of her job was to clean up spills. She said she did not notice any spills on the floor prior to plaintiff's fall. On redirect, Prestito testified the store she owned was equipped with floor mats in case there was a spill. The Casey's store where plaintiff fell did not have mats in the drink area. She also testified there were no warning signs posted in the area.

         ¶ 13 Plaintiff testified that he stopped at Casey's in order to get gas, windshield wiper fluid, and soda. While he was pumping gas, his girlfriend went into the store to get a soda. As to his fall, plaintiff testified, "I went into the store and turned the corner and fell." He said both feet went out from under him and he tried to catch himself with his right arm. He landed on his right side and immediately felt pain. While he was on the floor, he saw a clear liquid. He thinks the liquid was water. He said his pant legs were wet. He testified an employee went to get towels and wiped up the liquid. That same employee then got a mop and mopped around plaintiff as he was waiting for the ambulance to arrive.

         ¶ 14 Plaintiff went to the emergency room, where his right arm was X-rayed and later immobilized with a sling. The emergency room doctor told him to follow up with Dr. Ungacta. He said he was initially in a lot of pain. While the surgery reduced his pain, he still experiences pain when he lifts his arm past parallel. He can no longer go bowling, an activity he previously enjoyed. Prior to the fall, he was on two different teams and bowled twice a week. He said he has become more isolated since his injury. He takes two Aleve tablets each day for pain, but even that does not completely eliminate the pain. On cross-examination, plaintiff agreed that Dr. Ungacta removed all physical restrictions after plaintiff completed physical therapy.

         ¶ 15 Carrie Knebel Tolbert testified she was working in the kitchen of the Casey's store at the time plaintiff slipped and fell. She walked through the area where plaintiff fell about 5 to 10 minutes before he fell. At the time, she was carrying a tray of sandwich ingredients. She said she looked down to make sure she did not step in anything. She did not notice any liquid on the floor. When she went back to the area after plaintiff fell, she saw a puddle of clear liquid on the ground. She denied knowing about the spill before plaintiff fell. She also testified she did not tell an EMT that an employee knew about the spill but did not have time to clean it up.

         ¶ 16 She watched the video that Casey's produced during discovery, which goes back approximately four minutes before plaintiff's fall. She is not shown in the video. She said she saw a different video prior to being deposed in this case, which showed a different angle than the one shown in court. The video she saw prior to her deposition "showed me coming through the doors carrying the tray and going around that center island with all the creamers on it going past the coffee. I don't know if it was-but it wasn't from this angle."

         ¶ 17 Tolbert admitted that the Casey's safety manual requires pictures to be taken of the area if a customer falls. No pictures were taken of the area in question. She said that after plaintiff fell, she checked machines to see if any were leaking. She did not find any machines that were leaking. She agreed that if no machines were leaking, it was reasonable to think the water came from a spill, which was consistent with what the EMT said he was told by one of defendant's employees.

         ¶ 18 During a jury instruction conference, the trial court denied a request by Casey's to tender an instruction to the jury on contributory negligence (defendant's instruction 24). Plaintiff's counsel objected that defendant's instruction 24 failed to tell the jury how to separately apportion liability between Casey's and Morence or how to distinguish the allegations between the two defendants. In denying the instruction, the trial court stated, "Well, I saw no evidence presented that the plaintiff contributed at all to the situation."

         ¶ 19 After the trial court rejected defendant's instruction 24, the defense submitted another liability instruction, instruction 25, based on Illinois Pattern Jury Instructions, Civil, Nos. 120.08 and 128.02 (2011) (hereinafter IPI Civil (2011) Nos. 120.08, 128.02). Plaintiff argued that instruction was inapplicable where a defendant's business activity causes the damage because a plaintiff is not required to prove the customer would not discover the danger in such circumstances. Defense counsel argued that plaintiff's instruction 11 failed to include the notice requirement. Plaintiff then suggested using plaintiff's instruction 11, without the notice requirement, as to Morence, and Defendant's Instruction 25 as to Casey's, but with the discovery element removed. Neither defendant objected at that point. The trial court noted it was giving Casey's "partial relief."

         ¶ 20 The trial court approved plaintiff's tendered instruction 20, based upon IPI Civil (2011) No. 50.11, which provided that Casey's "is a corporation and can act only through its officers, agents and employees. Any act or omission of an officer, agent or employee within the scope of their agency is the action or omission of the defendant corporation." The trial court recalled, "[M]y recollection is that both parties initially produced this one." Defense counsel replied, "I have no objection."

         ¶ 21 During trial, plaintiff made two separate motions for sanctions based upon the missing video. The trial court denied plaintiff's motions for sanctions based upon the missing video, finding that defense counsel had not intentionally withheld the video. During a break in the trial before the defense presented its case, the trial court realized that defense counsel was in possession of a video that depicted a different angle than the one produced to plaintiff during discovery. At that time, defense counsel agreed there should be a sanction, specifically stating, "I certainly think an appropriate sanction would be not to allow us to play it and not to refer to it." Defense counsel also agreed with a prepared statement read by the trial court to the jury, telling the jury to disregard references made to a video showing plaintiffs right arm was not outstretched but his left arm was during the fall. The trial court ended the statement by saying, "The parties agree that the video in evidence does not show this."

         ¶ 22 The trial court also allowed, over defendant's objection, the following adverse inference instruction (based on IPI Civil (2011) No. 5.01) ...

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