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Garcia v. Goetz

Court of Appeals of Illinois, First District, First Division

June 25, 2018

LAZARO GARCIA, Plaintiff-Appellant,
LAURA GOETZ and DAWN BRISKEY, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County, No. 14 L 12425 Honorable Larry G. Axelrood, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Griffin concurred in the judgment and opinion.



         ¶ 1 Plaintiff Lazaro Garcia fell down a flight of stairs while on a service call to fix a boiler that belonged to defendants Laura Goetz and Dawn Briskey. He filed a one-count complaint against them. A jury found in favor of defendants and against Mr. Garcia. On appeal, Mr. Garcia argues that the trial court erred by (1) instructing the jury, over his objection, on a theory of premises liability rather than ordinary negligence, (2) barring testimony or evidence that defendants removed and remodeled the stairs on which Mr. Garcia fell and rejecting Mr. Garcia's tendered instructions on missing evidence about those alterations, and (3) barring any evidence of defendants' home inspection report from the time they purchased the house, almost 10 years before the accident occurred. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On December 1, 2014, Mr. Garcia filed his complaint, in which he alleged a single, unlabeled claim. Mr. Garcia alleged that defendants owned the single-family residence located at 5318 North Melvina Avenue in Chicago, Illinois; that he was at defendants' residence on October 8, 2014, "for the purpose of servicing their heating system"; and that he "was present at the invitation of Defendants to perform that task." Mr. Garcia alleged that, as a result of one or more acts or omissions of defendants, he fell while descending the basement stairway and was injured. After setting out the background facts, Mr. Garcia alleged:

"5. At said time and place, Defendants had a duty to exercise ordinary care and caution in the ownership, control and maintenance of their premises [s]o as to not cause harm to people invited on their premises, including the plaintiff herein.
6. Disregarding that duty at said time and place defendants were guilty of one or more of the following negligent acts and/or omissions:
a. Failed to properly maintain the stairs leading from the first floor into the basement such that when plaintiff was walking down the stairs to service the defendants' heating system he was caused to fall and be injured;
b. Allowed wood or other items to accumulate at the bottom of the stairs in question causing an unreasonable and unnecessary danger to invited individuals, including the plaintiff herein, who were descending the stairs;
c. Failed to maintain the stairs in the premises in question leading from the first floor to the basement in such a way that the stairs were reasonably safe for invited individuals, like the plaintiff herein, to descend when invited to do so;
d. Failed to warn plaintiff of the dangerous condition of the stairs in question; e. Was otherwise careless and negligent in their control and maintenance of the stairs in question such that plaintiff was caused to fall and be injured."

         ¶ 4 Defendants filed an answer on January 12, 2015, in which they generally denied having committed any negligent acts or omissions that caused Mr. Garcia's fall and injury.

         ¶ 5 The parties filed multiple motions in limine before trial. Mr. Garcia sought to bar any statements or questions pertaining to an inspection report dated December 28, 2004, detailing the findings of an inspector defendants hired when they bought their house. Defendants sought to bar evidence about Mr. Garcia's inability to access defendants' home to inspect and photograph the stairs and evidence that defendants had removed and replaced the basement stairway after the accident, on the basis that this evidence was inadmissible as evidence of a subsequent remedial measure.

         ¶ 6 The trial court denied Mr. Garcia's motion in part, ruling that defendants would be permitted to testify that they went through the "normal processes" when they purchased their home, "including a home inspection, and that they were not given any information that they were not in compliance." The court granted defendants' motions, agreeing that the removal and replacement of the stairs was a subsequent remedial action, and barring any evidence that Mr. Garcia was unable to inspect the basement stairway before it was removed. The court noted both that the parties had stipulated that a photograph of the stairway taken by defendants' insurance company a few days after the accident was "a true and accurate depiction of the stairs at the time of th[e] event," and that both sides' experts were only able to inspect the premises after the remedial work was done. The court ruled that, "unless somebody opens the door, there will be nothing further other than they [the experts] relied on the photographs and the subsequent inspection to come up with their opinions."

         ¶ 7 The jury trial began on March 28, 2017. Mr. Garcia testified that, before October 2014, he had worked at defendants' home on 14 occasions and had used the basement stairway each time, sometimes multiple times per visit. A photograph of the stairway, taken from just above the last rectangular step, shows the stairway as it existed on the day of the accident and is included in the record on appeal. The basement stairway had eight steps with rectangular treads and then the four bottom steps had "winder," or wedge-shaped treads-which made a 90-degree turn to the right, going down into the basement. The handrail ended after the second winder step, so the final two winder steps at the bottom of the stairway did not have a handrail. At the bottom of the stairway, on the last stair, was a vertical pipe.

         ¶ 8 Mr. Garcia explained that, on October 8, 2014, as he followed Ms. Briskey down the basement stairway, he was holding a small wet-vacuum and had a shoulder-strap bag containing some of his tools over his shoulder. He was not holding a bucket and stated that he never kept his tools in a bucket. Mr. Garcia testified that the lighting on the stairs was "[l]ike always, dim." Mr. Garcia testified that he was holding onto the handrail on his left. When he reached the point where the handrail ended, on the winding portion of the stairs, he saw items on the floor at the bottom of the stairway: "a table, like a type of dresser," and "a pile of wood" between the table and the stairs. Mr. Garcia moved to the right "to avoid what was there," then his right foot "got caught," his "right knee landed on the floor, and [his] other knee landed on top of the wood," his "shoulder hit the pipe," and his arm hit the wall. Mr. Garcia's back was to the handrail at the time he fell. He was in terrible pain after he fell and, after a short delay, was taken to the hospital.

         ¶ 9 Mr. Garcia's architectural expert, Matthew Filippini, testified that he reviewed multiple depositions and the exhibits accompanying the depositions, completed a site inspection, reviewed a series of photographs of the stairs, and reviewed the Chicago Building Code (Building Code or Code) to prepare for trial. Mr. Filippini explained that under the Building Code, the basement stairway would be considered a "vertical exit" and testified that the Code is "very strict about exits." Mr. Filippini testified that the Building Code requires all existing buildings to comply with "minimum requirements of the exit portion of the main Code." So even though defendants owned an older home, the main portion of the Building Code still applied.

         ¶ 10 Mr. Filippini explained that he conducted his measurements using a photograph of the stairway. He concluded that none of the four winders complied with the Building Code because they were at "too sharp an angle" or "too skinny." Mr. Filippini testified that this sort of measurement mattered because when a stair tread is too narrow, it is more likely that when someone puts their foot down on the stair, it will "slide off the nosing ([the front edge of the tread]) because [they are] not getting a full plant of [their] foot."

         ¶ 11 Mr. Filippini testified that defendants' basement handrail was also not up to code because such a narrow stairway requires a continuous handrail throughout. Defendants' handrail stopped at the second winder and did not continue around the corner, "so somebody traversing the winders runs out of handrail. There is nothing for them to use to guide them, to support them, or to grab onto if they are starting to fall."

         ¶ 12 Dawn Briskey testified, as an adverse witness, that she and Laura Goetz had purchased their home 12 years before the trial and that she had no idea whether the basement stairs and handrail complied with the Building Code. Ms. Briskey testified that in 2014 she made mosaics using reclaimed items and she would sometimes store the collected items in the basement. Everything in the basement at that time was owned and placed in the basement by either Ms. Briskey or Ms. Goetz. Ms. Briskey stated that she regularly used the basement stairway, generally would use the handrail when going down, and would also grab the pole at the bottom of the stairway because there was no handrail at that location. Ms. Briskey testified that she was never notified or aware that the basement stairway was in a dangerous condition. She used that stairway "at least once a day" and had never fallen.

         ¶ 13 Ms. Briskey testified that, on October 8, 2014, Mr. Garcia was carrying the wet-vacuum in his right hand and a five-gallon bucket in his left hand. She did not agree that he had a shoulder bag or tool bag over his left shoulder. Because he was behind her as they went down the basement stairway, she was already in the basement with her back to the stairs when she heard Mr. Garcia yell out or scream. Ms. Briskey turned around and saw Mr. Garcia "falling around the curve of the stairs." She did not believe Mr. Garcia was on the second winder when he fell, she believed he was higher than that because she "saw his left foot coming off of a straight stair right where the railing ends." Ms. Briskey did not agree with Mr. Garcia that there was a table and a pile of wood at the bottom of the stairs. Ms. Briskey agreed, however, that if those items were where Mr. Garcia said they were, they would have created an obstruction at the bottom of the stairs. Ms. Briskey did not know what caused Mr. Garcia to fall.

         ¶ 14 The trial court denied defendants' motion for a directed finding.

         ¶ 15 At the jury instruction conference, which was held at the close of Mr. Garcia's case, the parties argued over whether the trial court should instruct the jury as to negligence or premises liability. Counsel for Mr. Garcia proffered an instruction modeled after Illinois Pattern Jury Instructions, Civil, No. 20.01 (2011) (hereinafter IPI Civil No. 20.01), an instruction for ordinary negligence, while defense counsel proffered an instruction modeled after IPI Civil No. 120.09, for premises liability.

         ¶ 16 Counsel for Mr. Garcia argued that he had pled a "straight negligence case, alleged allegations of negligence," and that "the first time anything about this case being a premises liability case came up was yesterday when we first started going over instructions." Mr. Garcia's counsel argued that if the court instructed the jury as to premises liability, Mr. Garcia would be prejudiced because he had litigated the case as a negligence case "since the beginning." In response, defense counsel argued that Mr. Garcia had not presented the case as one strictly based on ordinary negligence and had put on an expert witness whose testimony related only to elements of premises liability based on violations of the Building Code. Defense counsel also argued that ...

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