Griffin v. Prairie Dog Limited Partnership

2019 IL App (1st) 173070

• Court: Appellate Court of Illinois
• Decided: May 23, 2019
• Docket: 1-17-3070
• Status: Unpublished

Opinion

2019 IL App (1st) 173070 No. 1-17-3070 Third Division May 22, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

MICHAEL GRIFFIN, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 L 9737 ) PRAIRIE DOG LIMITED PARTNERSHIP, ) Honorable d/b/a Mullen’s Bar and Grill, ) Patrick Foran Lustig and ) Edward Harmening, Defendant-Appellant. ) Judges, presiding. ) ______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and opinion. OPINION

¶1 Defendant, Prairie Dog Limited Partnership, doing business as Mullen’s Bar and Grill

(hereinafter referred to as defendant, Mullen’s, or the bar), appeals the jury verdict and

judgment entered in favor of plaintiff, Michael Griffin, for injuries sustained as a result of

defendant’s negligent hiring and training of security personnel at Mullen’s. After a second

trial, the jury awarded $275,000 in damages, reduced by Griffin’s 15% contributory

negligence, for a total judgment of $233,750. On appeal, defendant asks this court to No. 1-17-3070

(1) grant a new trial, (2) enter a remittitur of $145,000, or (3) reinstate the verdict and

judgment from the 2016 trial. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 On Saturday, September 13, 2014, Griffin fractured his wrist when he was roughly

escorted out of the bar by Trent Washington, one of defendant’s employees. The second

amended complaint alleged that defendant was negligent in failing to interview, conduct

background checks, review personal references, keep records, and provide training for the

bar’s bouncers and that such negligence resulted in Griffin’s injuries.

¶4 A. 2016 Jury Verdict and Motion for New Trial

¶5 After a three-day jury trial, the jury returned a verdict in favor of Griffin on September 2,

2016. The jury found damages to be $46,122 and itemized the award as follows on the

provided verdict form:

“Loss of a normal life experienced and reasonably certain to be experienced in the future. $46,122

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries. $0”

The jury also found that Griffin was 49% negligent and reduced his award for damages

accordingly to $23,522.22. 1

¶6 Griffin moved for a new trial solely on the issue of damages, arguing that the jury’s

verdict was manifestly inadequate for awarding $0 for pain and suffering. Defendant

responded that the jury properly discredited Griffin’s subjective evidence of his pain and

suffering. Defendant requested that, if a new trial was granted, it be on all issues because

liability and damages were closely intertwined in this case. The motion was denied by the

1 This is the corrected amount from the judgment entered on September 6, 2016. The jury listed $22,600 as the final award after reducing the award by 49%, which was a calculation error. -2- No. 1-17-3070

trial court after briefing and oral arguments. 2 In addressing the motion, the court only noted

that it believed the jury was subject to confusion over the wording on damages due to lines in

the verdict form that were combined. On January 17, 2017, the trial court, sua sponte,

granted a new trial on all issues. 3

¶7 B. 2017 Jury Trial

¶8 Prior to the second jury trial, Griffin filed an emergency motion on June 5, 2017, to

continue the trial and reopen discovery due to newly discovered evidence of Washington’s

out-of-state criminal convictions. The motion was denied, and the case proceeded to a

hearing on the pending motions in limine. The trial court ruled on over 50 motions in limine,

including one addressing Washington’s convictions. A majority of these were granted

without objection, and those pertinent to this appeal will be discussed with defendant’s

claims. The evidence adduced during the second trial was as follows.

¶9 1. Plaintiff’s Account

¶ 10 Griffin testified that around 10:30 p.m. on September 13, 2014, he and his then-girlfriend,

Shauna Nugent, met Nugent’s roommate, Ruth Cawley, at Mullen’s. That night, Griffin

consumed six or seven drinks, including wine at dinner before beer and mixed drinks at the

bar. At closing time, around 2 a.m. on September 14, Griffin finished his drink, grabbed a

jacket, and was the first of their group to walk towards the exit. He heard Cawley, who was

about 10 paces behind him, calling after him to say that he had grabbed the wrong jacket.

Griffin stopped approximately 10 feet from the exit to turn and look back; however, the next

thing he recalled was sitting on the ground outside the bar.

2 The hearing transcript from November 30, 2016, containing the full arguments on the motion is not included in the record. 3 The record is unclear regarding the trial court’s reasoning for acting sua sponte. There is no explanation in the report of proceedings nor in the written order from the common law record. -3- No. 1-17-3070

¶ 11 Griffin was unsure of how long he sat on the ground and had no recollection of how he

ended up outside with his back against the wall and his legs out in front of him. He felt a lot

of pain in his left wrist and had scratches behind his ear and a big lump on the back of his

head. Nugent and Cawley were in front of him and eventually helped him to his feet while

other people were standing nearby. Griffin was taken to the hospital by ambulance where he

completed a CT scan and X-rays. His left wrist was placed in a splint with instructions to

follow up with an orthopedic doctor because he likely had a wrist fracture. He spent the rest

of the night at the hospital and filed a police report in the morning. He also delayed his return

home to New York due to the pain in his wrist and to retain legal representation in Chicago.

¶ 12 Griffin denied being intoxicated to the point of slurring his words or stumbling around.

He further denied being cut off from ordering drinks, dancing, and provoking or resisting the

actions of the security staff at Mullen’s. It was also established for the record that Griffin had

black hair and a black beard.

¶ 13 2. Washington’s Account

¶ 14 Washington testified that on September 13, a regular customer was having a birthday

party and Griffin was a part of the “birthday entourage.” That night, the bar was crowded and

Washington was alerted to a bar patron, who he identified as Griffin, bumping into the

deejay’s equipment. According to Washington, this information was relayed by a manager.

Washington positioned himself near the deejay and monitored the situation. Griffin continued

dancing with a woman and enjoying the birthday party until the end of the night. Although he

was behaving “wild,” Washington did not eject Griffin because he was with the group that

included regular customers.

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¶ 15 However, as the bar was clearing out, Griffin did not want to leave. His girlfriend had

already walked out, but Griffin did not follow. Washington put his arm out to stop Griffin

from returning to the bar, either to try grabbing a jacket or to finish his drink. Griffin tried to

push past him. Washington “swung [Griffin] around and showed him *** the door.” Griffin

then called Washington a derogatory name and tried to hit Washington with his elbow.

Washington blocked Griffin’s elbow by grabbing it with one hand and then pushed him out

the door in one motion. Griffin went out the door face forward. Washington further testified

that he acted alone, although another employee, Brian Page, may have opened the front door

as they approached. Washington did not see Griffin fall. After pushing Griffin out,

Washington walked back into the bar to resume his duties and never saw Griffin again. He

was not asked to file an incident report, and he left shortly after his shift ended.

¶ 16 Washington’s identification of Griffin was challenged on cross-examination, and he

stated that he did not know the names of the parties involved and could not give a description

of Griffin. He simply “ha[d] a good memory” and could remember the individual involved in

the incident “once I s[aw] him.”

¶ 17 3. Witness Accounts

¶ 18 Nugent testified that she married Griffin in December 2016, but at the time of the

incident, Nugent and Griffin were newly dating. They went to Mullen’s to meet up with her

then-roommate Cawley and other friends. Between 10:30 p.m. or 11 p.m. to closing around 2

a.m. Nugent had three or four drinks in addition to an earlier glass of wine at dinner. Nugent

believed that Griffin appeared sober and recalled that their group remained on the other side

of the bar away from the deejay throughout the night.

-5- No. 1-17-3070

¶ 19 Nugent confirmed Griffin’s testimony regarding their departure from the bar. Nugent

further testified that she saw a bouncer suddenly come from the left, grab Griffin by the

chest, and aggressively shove him out the door in a manner similar to a rugby or football

tackle. She believed that the action was completely unprovoked and denied hearing any

exchange of words or seeing Griffin resist. Nugent did not see or hear Griffin hit the wall

outside. She ran to him and found him sitting against the wall, unconscious, with his head

down. His shirt was ripped and there was blood on the back of his head. She could not recall

how long he remained unconscious, but she waited with him for the ambulance.

¶ 20 As they waited, she was approached by Justin Flynn, another bar patron, who provided

his number and expressed his concern over what happened. She also stated that a bar

manager named Bill checked in with them, but she did not remember much else. She

accompanied Griffin to the hospital and stayed until he was released. In the morning, Griffin

was “more himself,” and he remembered the bouncer grabbing him. She accompanied him to

the police station so that he could file a police report before bringing him back to her place.

Griffin managed to sleep for a few hours but woke up crying from the pain in his arm.

¶ 21 Cawley testified consistently with Griffin and Nugent about the incident resulting in

Griffin’s removal from the bar around closing. She further testified that she had arrived at the

bar around 8 p.m. for dinner and drinks and to celebrate a friend’s birthday. She remembered

Griffin and Nugent arriving around 11:30 p.m. and that they stayed at the same table at the

bar with her for the rest of the night. Around 12:30 p.m., Cawley’s friend, Martin Gallagher,

who had fair brown hair with no facial hair, was escorted out of the bar. Gallagher was

drunk, stumbling, and even “banging” into people and the deejay’s speaker system. The

bouncers checked in on Gallagher before taking him from the dance floor to the front door.

-6- No. 1-17-3070

During this time, the bar was still busy and full, music was playing, and the lights were off.

Cawley could not clearly see the entire incident with Gallagher, but she did not see him

struggling with the staff.

¶ 22 Unlike Nugent, Cawley heard a loud thump, “like a bang” when Griffin was shoved out

the door. She and Nugent ran out to see Griffin, and she noted that the bouncer was still

standing by the door. He then went back into the bar and locked the door. Cawley also

recalled a bar manager sticking his head out the door and exchanging words with Nugent

before popping back inside and locking the door again. Cawley denied seeing Griffin dance

at any point that night or hearing any exchanges between Griffin and the staff.

¶ 23 Flynn testified that he had no relationship or connection with the parties in this case. At

closing time, he recalled that the bar’s lights were on and no music was playing. Flynn heard

a noise behind him, turned around, and saw a bouncer holding onto Griffin and “running him

out the door.” He was standing approximately 20 feet from Griffin and the bouncer, and the

bar was fairly empty. He did not hear any other commotion or exchange between Griffin and

the bouncers prior to Griffin being thrown out. The bouncer’s action was not quite a tackle

but was “as forceful as you can get.” Flynn and his friends stood in the bar unsure about what

to do next. Another bouncer guided the original bouncer, who showed no resistance, back

toward the bar. Flynn left the bar and saw Griffin sitting on the ground a few steps from the

front door with his back against a brick wall. Griffin was conscious but appeared confused

and his girlfriend was next to him. Flynn spoke with Nugent and gave his phone number.

¶ 24 Jeffrey Heytow was a deejay, employed by Mullen’s, working the night of the incident.

His hours typically ran from 9 p.m. to 4:30 a.m., which included equipment setup and

breakdown. He played music starting at 10 p.m. until last call at 2:30 a.m., and the bar closed

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at 3 a.m. On the night of September 14, 2014, Heytow recalled a rowdy bar patron who was

leaning on his equipment while dancing. Heytow identified Griffin in court as the rowdy

patron, but later on cross-examination, he could not remember whether the patron had facial

hair or glasses, blaming it on the passing of time. Heytow stated that he asked Washington

for help in dealing with the rowdy patron at least three times during the night. Heytow gave

conflicting testimony about when the ejection occurred and whether he was still playing

music before and after the incident. He testified that, eventually, the bouncers came together

to eject the patron from the bar. His view was obstructed because the bouncers stood with

their backs to him, forming a wall; however, he saw the patron flailing his arms.

¶ 25 Brian Page was the head of security at Mullen’s and worked with Washington the night

of the incident. He corroborated Heytow’s testimony that Washington had been asked to deal

with a rowdy patron and had issued two warnings prior to removal. Page described himself

“opening a path” for Washington to escort the patron out. Washington walked behind the

patron who was intoxicated, “throwing elbows,” and name calling as they escorted him out.

Page denied ever forming a “human wall” and claims he did not touch the patron. Page

acknowledged that the patron fell once outside, but he had previously testified that the patron

fell face forward with his hands out in front of him. Page went outside to check on the patron,

who was walking away. The patron’s girlfriend did not want to leave and insisted on

speaking to a manager. Bill Hohenadel came out to speak with her. Page stated that the police

were not called, he did not personally ask for any witness accounts, and he never filed an

incident report about the matter. If any discussions about the incident were had, Page

believed they were discussed casually that night between the employees inside the bar after

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they closed. Page recalled a separate meeting after the lawsuit was filed with the general

manager and lawyers but could not recall who else was present or the content of the meeting.

¶ 26 4. The Injury and Treatment

¶ 27 Griffin returned to New York on Monday, September 15, and later met with Dr.

Schildhorn who treated him over the course of three months. Throughout this time, Griffin

testified to having limited mobility, soreness, and a lack of strength in his left hand. Griffin

tried physical therapy sometime after his final visit with Dr. Schildhorn but did not go more

than twice. Griffin gave up his hobbies such as mountain biking, snowboarding, and golfing

due to lingering aches and pain in his wrist, which would be aggravated by these activities.

He stated that the pain had become more frequent over time and had grown in intensity,

including sharp pains followed by periods of dull, aching pain. Additionally, he struggled

with completing daily activities from the time his arm was in a cast or splint to present day.

Griffin’s work as a construction supervisor was also impacted by his injury because it was

difficult to maneuver around the work site and climb ladders.

¶ 28 Dr. Schildhorn, an orthopedic surgeon with a subspecialty in sports medicine and

shoulder injuries, testified 4 as a medical expert. Griffin first came to Dr. Schildhorn with his

left wrist in a splint on September 25, 2014. Dr. Schildhorn removed the splint, took an X-ray

of the wrist, and sent Griffin for a MRI. He could not establish a definitive injury but noted

symptoms characteristic of a fracture. On October 10, 2014, Dr. Schildhorn reviewed the

MRI and diagnosed a clear fracture of the scaphoid bone, a sprain in the wrist’s ligaments,

and swelling within the bone. He also found contusions and internal bleeding in the

surrounding bones and soft tissue.

4 Dr. Schildhorn’s testimony taken via video deposition on June 23, 2016, was entered as evidence and played for the jury. -9- No. 1-17-3070

¶ 29 Dr. Schildhorn discussed common complications with scaphoid fractures, which may

include avascular necrosis or non-union of the fracture site. Avascular necrosis is a

complication that results in no blood flow across the fracture site leading to the death of some

pieces of bone and further complications. Fractures that do not heal within six months are

considered as non-union cases, at which point surgical intervention is often recommended.

¶ 30 Dr. Schildhorn placed Griffin in a long-arm cast, which extended from the wrist to the

elbow for two weeks instead of the recommended four weeks, recognizing that it is difficult

to tolerate and two weeks were likely sufficient at that time. On October 21, 2014, Dr.

Schildhorn reexamined Griffin’s wrist and transferred him from a long-arm cast to a short-

arm cast for four weeks. On November 18, 2014, Dr. Schildhorn found the soft tissue

swelling had dissipated and the fracture appeared to be slowly disappearing and approved

switching Griffin from the short-arm cast to a thumb spica splint.

¶ 31 On December 16, 2014, Dr. Schildhorn examined Griffin once more and noted that he

still displayed a level of tenderness and difficulty gripping. However, there was no noted

change in the position of the fracture. At three months out from the injury, Dr. Schildhorn

was worried about the possibility of a delayed union of the fracture. He sent Griffin for a CT

scan for a more detailed imaging before drawing any conclusions about the necessity for

surgical intervention. The CT scan showed that bridging across the fracture was about 90%

completed so surgery was unnecessary and Griffin was nearly completely healed.

¶ 32 Dr. Schildhorn last saw Griffin on December 18, 2014. He had not permanently restricted

Griffin from normal activities but cautioned that the bone was not 100% healed. He warned

that smoking could slow the healing process and suggested avoiding normal sporting

activities. Dr. Schildhorn spoke in general terms that using the casts and splints created short

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term pains such as stiffness of the wrist and elbow joints, which in some circumstances could

become permanent issues. He also noted the possible residual effects from a fracture included

bruised, delaminated, or fractured cartilage, which would limit the individual’s ability to

move in a smooth, fluid fashion. Dr. Schildhorn further testified that he did not know

whether Griffin would develop avascular necrosis because it could not be assessed at the

time, but from the final visit, he thought Griffin’s chances of avoiding such a complication

seemed “promising.”

¶ 33 5. Hiring and Training

¶ 34 a. Employees

¶ 35 Salim Ani testified that he had responded to interrogatories as the “District Manager” for

Mullen’s, however, his job duties only included visiting the premises during nonbusiness

hours, typically between 5 a.m. and 6 a.m., to collect money, balance the books, sign checks,

and manage payroll. He repeatedly stated that he was not involved in any hiring, training, or

day-to-day operations in 2014 although he had previously worked in this role several years

earlier.

¶ 36 Ani was asked to read aloud from a manual alleged to be Mullen’s employee handbook.

Ani had previously testified that he believed a manual existed, but that he was unsure if it

was used at this particular Mullen’s location. Ani reviewed the alcohol policies in the manual

line-by-line and repeatedly stated that he did not know whether these practices were

employed by the staff at Mullen’s. Ani did testify that, to his knowledge, it was not in

Mullen’s business model to anticipate the use of force or violence, thus, defendant did not

employ anyone trained or qualified in techniques involving the use of force. Ani was also

asked to review a printout purporting to establish the Illinois Liquor Control Commission’s

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new requirement for all on-premise alcohol servers and others required to check

identification on entry to undergo mandatory BASSET 5 training, effective July 1, 2018.

¶ 37 Griffin’s counsel posed a series of questions about what business practices should be

followed in the hiring and training process, specifically for employees authorized to use

force, and why a business would choose to not follow these practices. Ani repeatedly stated

that he did not know the answers. He later testified that to his knowledge, the security

personnel’s main job was to check identification at the door. Counsel then asked very

specific hypothetical questions about whether Ani would hire individuals with various

convictions, arrests, or anger management issues. Ani responded that he could not speak on

behalf of defendant but that his personal hiring decision would depend on the circumstances,

e.g., the age of the conviction and his gut feeling about the person. Ani explained he believed

that some people deserved second chances.

¶ 38 Ani verified defendant’s discovery responses, which stated that there were no personnel

files, disciplinary files, nor surveillance videos to turn over. Ani confirmed that he had

previously testified that approximately nine cameras were set up around the premises to

monitor the front and rear exits, upstairs area, kitchen, bar, and one camera gave a 360-view

of the main room. These cameras recorded footage and stored them on a digital video

recorder and would have been positioned to capture the events of September 14, 2014.

However, according to Ani, the cameras had been out of working order for anywhere

between 6 to 12 months preceding the incident. Ani explained that sometime in 2012 or

2013, defendant had received notice that the bar would be demolished due to new

developments on the block. The bar was not demolished until April 2016, but there were no 5 Beverage Alcohol Sellers and Servers Education and Training (BASSET) is a training offered by the Illinois Liquor Control Commission that teaches employees of establishments serving alcohol how to monitor, manage, and respond to a customer’s intoxication levels. - 12 - No. 1-17-3070

significant capital investments put into the bar during the intervening period. Thus, the

cameras, among other things, were not functioning properly in September 2014 and

defendant could not comply with counsel’s written request or the court order asking for the

preservation and disclosure of that night’s surveillance video.

¶ 39 Page testified that he had worked for Mullen’s from 2010 to 2016. His job duties

included checking identification, monitoring intoxication levels, and preventing “wild

antics.” Before he was hired, he was interviewed by Justin Puckett. Puckett also conducted

his training, which included review of the bar’s rules, policies, and procedures. He was never

given an employee manual but recalled reading it at some point. Page also completed

BASSET training, which consisted of an eight-hour online course. He gave conflicting

testimony about why he underwent the training, first saying it was State law and later stating

that bars in close proximity to the Cubs stadium required the training because of a decision

by the Board of Wrigleyville Directors. Page acknowledged that the use of force was

required in some situations for self-defense or defense of others but insisted that defendant

had never authorized him or other security employees to use force. Lastly, Page described

having monthly review sessions with Puckett to discuss any complaints received and review

policies.

¶ 40 Page further testified that he personally knew Washington from playing semipro football

together and had recommended him for the position. He considered Washington to be a

nonviolent, reliable person, with a “laid-back” attitude. Page recalled that he and Puckett

both interviewed Washington separately. Page did not check any of Washington’s references

since he was one of the people vouching for Washington. Page testified to being qualified for

and responsible for Washington’s on-the-job training.

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¶ 41 Washington testified that he worked at Mullen’s in 2014 and 2015. He had heard about

the job from Page, who also conducted his interview. Washington stated that Mullen’s owner

also interviewed him. The application form consisted of collecting his personal information

and did not ask for any job experience. Washington confirmed that he had a criminal record,

which he did not disclose to defendant when he applied. He was not aware of defendant

conducting any criminal background check prior to hiring him.

¶ 42 Washington stated that he was not required to do any training prior to starting work and

instead received on-the-job training about his duties and the bar’s expectations. His duties

included dealing with unruly guests and general crowd control. He stated that if he was

alerted that a patron needed to be cut off from drinking further, and the manager gave the

okay, then he would escort the intoxicated patron out of the bar. He was never tested or

assessed in regards to personality or use of force, nor was he given an employee manual.

¶ 43 Heytow’s testimony also briefly touched on defendant’s hiring practice. At the time of

the incident, he had been regularly working for defendant on weekends, holidays, and other

special events for approximately two years. He did not formally apply for the job nor did he

provide defendant with his date of birth, social security number, or other information. He was

not provided with W-2, W-9, or 1099 tax forms documenting his pay. Heytow also denied

ever receiving a copy of Mullen’s employee manual or written materials regarding his duties.

¶ 44 b. Plaintiff’s Expert Witness

¶ 45 Peter Tomares was a part-time hotel and restaurant consultant working under the Apollo

Hotel Consulting company. He held degrees in economics and business administration, and

had 60-plus years of practical experience in the hotel and restaurant industry. He was also

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TIPS 6 certified and stayed current on security and safety standards in the industry by

attending seminars. For 18 years, he taught restaurant and hotel management at Parkland

College in Champaign, Illinois. He also owned and managed several college bars from 1966

until they were sold or closed down in the 1990s. Starting in the early 2000s, Tomares

developed his consulting business and worked as a consultant and expert witness on a

number of cases involving issues such as slip and falls, rape, invasion of privacy, bed bugs,

and double murder. Tomares reviewed the complaint, answer, and all the documents and

depositions obtained during discovery, excluding the medical evidence which is not his field

of expertise.

¶ 46 From the materials provided, Tomares concluded that the hiring process at Mullen’s was

particularly careless, bordering on indifference, and noted that defendant claimed to have an

application form, but one was never produced. He could not find evidence of a formal

screening process of potential employees. He emphasized that proper training and

supervision was essential in security. Any force exerted should be used for restraint only, and

in selecting security personnel, “brains are more important than brawn.” In particular, he

noted that security personnel should be screened for their temperament to see if they are

capable of keeping a level head in response to any situation. He noted that interviews are not

reliable for determining this factor and reviewing a candidate’s work history and speaking to

references is more important. The industry practice to run background checks is helpful in

screening applicants that are appropriate for the specific, sensitive positions such as security.

¶ 47 Tomares believes that training was practically nonexistent at Mullen’s. He opined that

verbal training for security purposes was insufficient and there should be more than someone

6 TIPS is an alcohol training course administered via a private organization similar to BASSET. - 15 - No. 1-17-3070

just “show[ing] the ropes” to a new hire. Instead, it would be important to have written

protocols that everyone would be trained in to have continuity and consistency in addressing

various scenarios, such as, dealing with unruly and disruptive patrons. In 2015, Illinois

passed a law requiring training in the BASSET course, but implementation had been slow

and the statewide mandate would be enforced in 2018. Prior to that, whether it was required

was a county matter. In his opinion, it was essential to prudent bar management even if not

previously required by law.

¶ 48 Tomares explained the training procedure employed at his bars, dubbed the “5 C’s”:

circulate, cut off, converge, control, and call. To start, Tomares emphasized the importance

of identifiable security, moving through the bar to act as a deterrent. Secondly, identifying

potential customers who are overintoxicated requires alerting the bartenders and servers to

stop serving the individual alcohol. Tomares noted that offering food to slow the absorption

of alcohol in the body was an option but that it “doesn’t do a heck of a lot.” If trouble still

occurs, the security people on the floor and a manager should converge on the individual and

attempt to verbally defuse the situation. If that does not work, then a mild restraint, such as a

bear hug from behind to keep the individual’s arms down, should be used to control the

situation. Lastly, the employees should call the police. Tomares also discussed the

importance of creating and maintaining incident reports, which can be used to further train

security personnel.

¶ 49 Tomares concluded that defendant exhibited a pattern of inadequate management because

it did not maintain personnel records, incident reports, or documentation of the training

offered, if any was indeed offered, nor did Mullen’s conduct background checks, check

references, or engage in essential screening of applicants. Tomares continued that these

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business practices did not show a direct cause for the incident in September 2014, but

certainly was a contributing factor. In his opinion, Mullen’s did not follow the widely

accepted prudent practices of most bars in the training of its staff, in particular with

Washington, and made the choice to not employ sufficient procedures for the safety of its

customers.

¶ 50 c. Rebuttal Expert Witness

¶ 51 Ronald Hauri testified that he was a security consultant, former chief of police, and had

written and taught regarding security in the past. As the current managing director of an

independent consultant agency, he was retained by defendant for this case and reviewed the

pleadings, depositions, police, fire, and medical reports, as well as Griffin’s expert witness

disclosures. The opinions he formed based on his 40 years in law enforcement and security

work and his 20 years as an expert witness were as follows.

¶ 52 Hauri believed that the application, interview, and training processes were sufficient. He

stated that Washington was properly instructed to not put his hands on patrons and to “guide

them” if they needed to be ejected. He believed that Washington had been properly taught to

not get emotionally charged by any insults a patron might say. Hauri further opined that the

depositions showed defendant’s employees properly issued warnings prior to ejecting the

patron. He believed that Washington’s use of force was appropriate in response to the patron

resisting the ejection attempt.

¶ 53 Hauri also stated that a lack of record keeping as to personnel files, or the failure to check

references, did not have an impact on the incident because these background issues would

not reveal if an employee has a tendency to “manhandle” customers. Hauri stated that, in his

experience working with other bars in Chicago, it was a common practice to trust a current

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employee’s vouching for a potential employee. This was typically sufficient in small

businesses because a background check would not provide any additional information that

would change the employer’s mind. Hauri did not find that the bar failed to comply with

local ordinances. Furthermore, in 2014, TIPS and BASSET certifications were completely

optional. Hauri also noted that video surveillance cameras were optional for a bar like

Mullen’s, which is not a “late-license establishment” because it was not open past 3 a.m.

Although he would advise all establishments to have a working, up-to-date video system, he

acknowledged that many neighborhood bars in Chicago simply do not have functioning or

well-placed and high quality cameras.

¶ 54 On cross-examination, Hauri was pressed on whether Mullen’s was appropriately

classified as a “small operation” where there were multiple locations throughout the

Chicagoland area and even other states. Hauri was aware of, but not familiar with these other

locations. However, this particular Mullen’s had a capacity of 81 patrons when not using

their patio, so Hauri believed this location was a small operation. Hauri was also asked about

whether a candidate for a security position should be considered if they had a criminal

conviction for a violent crime. Hauri responded that in general, yes, employers would avoid

these candidates, but it also depends on the age and circumstances of the conviction. In the

case of intentional nondisclosure by the candidate, most companies would terminate the

employee for giving false information. Hauri also acknowledged that psychological

screening is used in human resources and employment regulations but only as an indicator

rather than a deciding factor for hiring decisions.

¶ 55 Hauri believed that defendant was not negligent in relation to Griffin’s incident because it

took reasonable security measures, instituted appropriate policies and procedures, and

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conformed to the guidelines, practices, and protocol for a Chicago neighborhood bar of this

size and type to secure the operation of its bar and the safety of the patrons and employees.

¶ 56 C. Jury Verdict and Posttrial Motion

¶ 57 After four days of testimony, the jury returned a verdict in favor of Griffin and

determined Griffin was due $275,000 in damages. The verdict form itemized the damages as

follows:

“Loss of a normal life experienced; $65,000

Loss of a normal life reasonably certain to be experienced in $72,500 the future;

The pain and suffering experienced; $65,000

The pain and suffering reasonably certain to be experienced in $72,500” the future as a result of the injuries.

The jury attributed 15% of the fault to Griffin’s contributory negligence and reduced the total

award accordingly to $233,750. Judgment was entered on June 9, 2017.

¶ 58 Defendant requested posttrial relief pursuant to section 2-1202 of the Code of Civil

Procedure (735 ILCS 5/2-1202 (West 2016)). After briefing and argument, the trial court

denied the posttrial motion on November 22, 2017. Defendant timely appealed and now

raises many of the same issues.

¶ 59 II. ANALYSIS

¶ 60 Defendant argues that the judgment entered against it cannot stand because it was denied

a fair trial by the court’s errors relating to (1) expert witness testimony, (2) references to

evidence not before the jury, (3) irrelevant and prejudicial lines of questioning, (4) improper

jury instructions, and (5) the use of prior criminal convictions. In the alternative, defendant

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contends that the second trial was granted erroneously and requests reinstatement of the

original judgment.

¶ 61 A. Defendant’s Motion to Strike

¶ 62 As a preliminary matter, we note that defendant’s motion to strike portions of Griffin’s

brief and his appendix relating to Washington’s criminal arrest record in the state of Illinois

was taken with the case. Defendant argues that these records have no relevance to the present

appeal and were appended to the brief in an improper attempt to supplement the record.

Griffin responds that this court may take judicial notice of the criminal record as a public

record. Griffin contends that the records are relevant to the litigated issue of negligent hiring

as they show Washington’s background and are necessary to have a full understanding of the

contested motions in limine rulings.

¶ 63 We find that, contrary to Griffin’s assertion, Washington’s criminal arrest record in

Illinois is irrelevant to the present appeal. The trial court barred admission of the arrest record

over Griffin’s objection that his expert witness relied upon and should be allowed to testify

about the basis of his opinion. This ruling is not being challenged by either party on appeal,

thus we find that Griffin’s assertion of the record’s relevance is misleading. Regardless of

whether this court has the right to take judicial notice of such appended materials, we grant

defendant’s motion to strike Griffin’s appendix.

¶ 64 B. Plaintiff’s Expert Witness

¶ 65 Defendant argues that the trial court erred in denying its motion in limine which sought to

bar Griffin’s expert, Tomares, from testifying because he was unqualified. Griffin objected to

the motion arguing that defendant’s sole complaint on qualifications centered on the fact that

Tomares was from downstate Illinois rather than Chicago. Griffin maintained that such

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objection went solely to the weight of the testimony rather than admissibility. The court

agreed, finding that Tomares had a sufficient background to be considered an expert.

¶ 66 On appellate review, we are mindful that a trial court maintains broad discretion in the

admission of evidence and in ruling upon a motion in limine. See Green v. Union Pacific

R.R. Co., 269 Ill. App. 3d 1075, 1082 (1995). A trial court’s decision on a motion in limine

will not be disturbed absent an abuse of discretion. Hallowell v. University of Chicago

Hospital, 334 Ill. App. 3d 206, 210 (2002). Similarly, the decision of whether to admit expert

testimony is within the sound discretion of the trial court and is also reviewed for abuse of

discretion. Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006). A trial court abuses its

discretion only when “no reasonable person would take the view adopted by the trial court.”

Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

¶ 67 “A person will be allowed to testify as an expert if his experience and qualifications

afford him knowledge that is not common to laypersons, and where his testimony will aid the

trier of fact in reaching its conclusions.” Thompson, 221 Ill. 2d at 428 (citing People v.

Miller, 173 Ill. 2d 167, 186 (1996)). “ ‘There is no predetermined formula for how an expert

acquires specialized knowledge or experience and the expert can gain such through practical

experience, scientific study, education, training or research. ’ ” Id. at 428-29 (quoting Miller,

173 Ill. 2d at 186). An expert’s qualifications by knowledge, skill, experience, training, or

education in a field require “ ‘at least a modicum of reliability.’ ” Turner v. Williams, 326 Ill.

App. 3d 541, 552 (2001).

¶ 68 We cannot say that the trial court’s in limine ruling allowing Tomares’s testimony as an

expert was an abuse of discretion. He testified that he had years of experience personally

working in and managing bars as well as teaching courses on hotel and restaurant

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management. The practical experience of managing bars, even if not in the Chicagoland area,

is sufficient to qualify Tomares as an expert. Although the security needs of bars may not be

identical to hotel and restaurants, the practices in hiring, training, and supervising security

staff across the establishments may be transferrable. It is clear that Tomares’s experience set

him apart from a layperson’s knowledge on the issues of negligent hiring and training for

security staff and that such experience could be helpful to aid the jury in making its

determination of fault.

¶ 69 Furthermore, the basis for a witness’s opinion generally does not affect his standing as an

expert; such matters go only to the weight of the evidence, not its sufficiency. See National

Bank of Monticello v. Doss, 141 Ill. App. 3d 1065, 1072 (1986). The weight to be assigned to

an expert opinion is for the jury to determine in light of the expert’s credentials and the

factual basis of his opinion. Treadwell v. Downey, 209 Ill. App. 3d 999, 1003 (1991). The

burden is placed upon the adverse party during cross-examination to elicit the facts

underlying the expert opinion. Wilson v. Clark, 84 Ill. 2d 186, 194 (1981). Defense counsel

was given ample opportunity to question Tomares’s credentials, experience, and the basis for

his opinions. Thus, we find that the trial court properly admitted Tomares as an expert

witness, allowing the jury to determine the weight of Tomares’s testimony.

¶ 70 Defendant also contends that the expert opinion offered was based on pure speculation

and the trial court erred in allowing the testimony. Expert opinions lacking a sufficient

factual basis are properly barred. Torres v. Midwest Development Co., 383 Ill. App. 3d 20,

28-31 (2008). Defendant argued that Griffin’s expert could only point out indirect causes,

such as the failure to maintain personnel files and require TIPS and BASSET training, which

may or may not have prevented the incident between Washington and Griffin. The court

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noted that defense counsel could highlight the lack of clear proximate cause in cross-

examination and allowed the testimony.

¶ 71 Tomares’s conclusion that defendant exhibited a pattern of inadequate management was

based on clear evidence as to the lack of personnel files and testimony about the hiring and

training processes at the bar. Tomares was also able to plausibly connect his conclusion to

imply that defendant was negligent in its hiring and training process. We do not agree that

these conclusions were based on speculation. Tomares was not called to prove exactly how

the bar could have prevented the incident between Washington and Griffin. His testimony

was intended to aid the jury in determining whether defendant was negligent. In order to do

so, the jury needed to understand what was the reasonable and ordinary care expected of

similar establishments in hiring and training. Thus, Tomares was properly allowed to testify

about his knowledge of common practices and industry standards as to hiring and training in

comparison to defendant’s practices.

¶ 72 C. Surveillance Video

¶ 73 Defendant claims it was denied a fair trial where Griffin was allowed to mislead the jury

and draw attention to the lack of a surveillance video documenting the incident. Defendant

also contends that the video surveillance at issue was not under its control. Defendant

maintains it is entitled to a new trial where the court allowed the jury to hear the irrelevant

and inflammatory evidence.

¶ 74 During the motion in limine hearing, the court denied defendant’s request to bar

references to the missing surveillance video, noting that defendant’s witness testimony could

not be taken as “gospel” and the credibility of the surveillance system malfunction had to be

taken into account. Thus, the court allowed Griffin to establish that there was video

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equipment and that there should have been a video recording but did not allow Griffin to

argue that the video recording had been purposely destroyed. Defendant would be given an

opportunity to respond and explain the video’s absence, i.e., that the business was closing,

there was no incentive to put capital investment in the building’s security system, and the

system may have been inoperable for several weeks or months prior to the incident.

¶ 75 In opening statements, Griffin’s counsel stated that written and formal requests were

made to defendant for the video. Defense counsel argued that Griffin had to request a specific

instruction about the spoliation of evidence but that, even if he did, the trial court should

deny such an instruction. The trial court did not make a ruling about a special jury

instruction, but later reminded Griffin’s counsel to avoid arguing that defendant had thrown

away the video recording or “ditched it.” Ani testified about the positioning of the cameras

and explained the reason behind the missing videos. Heytow, Page, and Washington were

questioned about the positioning of the cameras and whether the cameras would have

recorded the incident. Hauri testified that it was a common issue in Chicago bars that funds

were not invested in updating and maintaining surveillance cameras, especially because

establishments like Mullen’s were not required by law to have working surveillance cameras.

¶ 76 Defendant’s arguments conflate two questions regarding the surveillance video. The first

question is whether the trial court erred in ruling on the motion in limine and allowing

argument related to the video in part. The second question, if the court ruled correctly, is

whether counsel violated the motion in limine by insinuating that defendant was willfully

withholding evidence.

¶ 77 The purpose of a motion in limine is to permit a party to obtain a pretrial ruling excluding

inadmissible evidence and prohibiting interrogation concerning such evidence to avoid

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making objections in the presence of the jury. Rutledge v. St. Anne’s Hospital, 230 Ill. App.

3d 786, 792 (1992). Courts caution against granting such motions due to the potential danger

of unduly restricting the opposing party’s representation of its case. Id. at 793. As stated

earlier, a trial court’s ruling on a motion in limine is reviewed for an abuse of discretion.

Hallowell, 334 Ill. App. 3d at 210. On review, we find that the trial court did not abuse its

discretion in allowing testimony about the video surveillance tapes. There is no indication

that a surveillance video of the event, if it had been properly recorded, would be inadmissible

evidence. See Carroll v. Preston Trucking Co., 349 Ill. App. 3d 562, 566 (2004) (a video

recording may be introduced as evidence if it is properly authenticated and relevant to a

particular issue).

¶ 78 Defendant did not present definitive proof about the breakdown of the surveillance

system but nevertheless sought to prohibit references to and questions about the lack of such

evidence. Defendant claimed such questioning would be prejudicial and draws comparisons

to Rutledge, in which counsel was found to have misled the jury about evidence not

presented. In Rutledge, the parties stipulated to the fact that the plaintiff’s doctor was

unavailable to testify due to an illness and that the doctor was under neither party’s control.

230 Ill. App. 3d at 790. Nonetheless, defense counsel highlighted the missing testimony in

closing arguments and questioned why the plaintiff did not call the doctor. Id. at 790-91.

¶ 79 In this case, we disagree with defendant’s contention that the surveillance video was not

under its control. An alleged equipment malfunction is not analogous to the unavailability of

a third-party witness due to illness as the equipment was, at all times, in defendant’s

possession. Only defendant had access to the video, and we accordingly find that the video

was under its control. Even if the malfunction was due to forces outside of defendant’s

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control, it was defendant’s burden to prove the malfunction. As the parties did not stipulate to

the matter of the missing evidence, it would be unreasonable for the court to take defendant’s

word at face value. The court explicitly addressed defendant’s concerns about the potential

for prejudice by allowing testimony about the circumstances surrounding the lack of footage.

Thus, the court’s ruling properly left it for the jury to determine the credibility of defendant’s

employee and whether the evidence was omitted for a good reason.

¶ 80 We further find that counsel’s questions and statements in this case do not rise to the

egregious level seen in Rutledge. The parties in Rutledge stipulated to the reason for the

omitted testimony, but counsel nonetheless insinuated that the omission stemmed from the

plaintiff’s anger with the witness for giving him an unfavorable assessment regarding his

injury. Id. Conversely, the parties here have divergent claims over what happened to the

video footage. Thus, it was appropriate for Griffin’s counsel to highlight that during opening

statements. Counsel laid out, both in opening statements and the questioning of Ani, that

requests to preserve the video were sent and defendant responded that the video was lost due

to a malfunction. Questions to defendant’s other employees were posed about whether they

were aware if their actions would have been caught on video. Questions to Hauri focused on

the standard business practices regarding surveillance videos. None of these questions rose to

the same level of insinuations as the statements in Rutledge. Counsel never attempted to

indicate that the witnesses or defendant did anything untoward regarding the review of and

preservation of the video. Thus, we find that there was no prejudicial error to defendant by

admission of the testimony about the surveillance video.

¶ 81 D. Cross-Examination

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¶ 82 Defendant contends that the lines of questioning about patron safety, Washington’s

football history, and whether Griffin was a racist were prejudicial, irrelevant, and improper

and denied it a fair trial. The scope of cross-examination rests within the discretion of the

trial court and will not be disturbed on review absent a clear abuse of that discretion resulting

in manifest prejudice to the party claiming error. McDonnell v. McPartlin, 192 Ill. 2d 505,

533 (2000). Defendant asks this court to apply principles discussed in Cancio v. White, 297

Ill. App. 3d 422 (1998), to the questions posed here. In Cancio, the court noted “[i]t is

improper to ask a question when counsel has no good-faith reason for asking that question.”

Id. at 431 (citing People v. Nuccio, 43 Ill. 2d 375 (1969)). The challenged line of questioning

in Cancio implicated that the plaintiff omitted the testimony of one doctor in favor of

introducing the testimony of another who was a “ ‘hired gun.’ ” Id. Griffin responds that

these questions, when viewed in context, were properly raised.

¶ 83 Taking the questions defendant challenges out of order, we first reject defendant’s claim

that a question directed to Washington asking if he wanted the jury to believe Griffin was a

racist was prejudicial. The trial court sustained the objection to this question, and we

presume, absent clear evidence to the contrary, that any prejudice stemming from such

question was cured. See Garcia v. City of Chicago, 229 Ill. App. 3d 315, 320-21 (1992). All

other questions relating to the alleged racist remarks were asked in good faith as there was

conflicting testimony regarding what transpired prior to Griffin’s ejection from the bar.

¶ 84 Secondly, we reject defendant’s contention that counsel improperly asked Tomares

whether Mullen’s cares about the safety of its customers because it depicted defendant as an

uncaring, unsympathetic business. Defense counsel objected to this question as speculative.

However, Tomares responded that he could not speak to whether defendant cared, but it was

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clear that defendant chose to forgo additional measures for safety and security. We note that,

in negligence cases, juries are asked to consider whether a defendant has exercised a

reasonable standard of care. In this instance, the challenged question appears to draw

attention to whether defendant’s business practices exhibited a certain level of care and

concern for the patron’s safety. Thus, we do not find that the question itself was wholly

inappropriate or that counsel’s inquiry was in bad faith.

¶ 85 Lastly, defendant challenges questions posed to Washington about his personal history as

a linebacker and whether he enjoyed hitting people. Defendant claims that these questions

gave rise to innuendo and impermissibly suggested that Washington hit Griffin during the

incident. Defendant cites cases where evidence of prior conduct was found inadmissible or

irrelevant to the issues of the case. See Timothy Whelan Law Associates, Ltd. v. Kruppe, 409

Ill. App. 3d 359 (2011); Belshaw v. Hillsboro Hotel, Inc., 229 Ill. App. 3d 480 (1992). In

Belshaw, the court examined whether evidence regarding the plaintiff’s propensity to fall was

relevant to her contributory negligence in a slip-and-fall case. 229 Ill. App. 3d at 484. The

court found that the plaintiff’s prior falls had no legitimate tendency to prove that she should

have taken extra precautions due to her propensity to fall and were improperly admitted. Id.

at 485-86. Similarly in Kruppe, the court rejected evidence of prior nonpayment in a breach

of contract case disputing nonpayment of fees. 409 Ill. App. 3d at 369. We disagree with

defendant’s characterization of this line of questioning as an improper use of propensity

evidence to prove the actions Washington took that night.

¶ 86 There was no dispute that Washington did in fact use force to eject Griffin from the bar

that night. The conflicting testimony centered on how much force was used and the impetus

for the use of force. However, the main consideration before the jury was whether defendant

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should have done more in hiring and training Washington to prevent incidents like this one.

With this consideration in mind, we find that questions about Washington’s temperament as

exhibited by his history of playing football were not entirely baseless. Thus, the trial court

did not abuse its discretion in allowing this line of questioning.

¶ 87 E. Jury Instruction

¶ 88 Defendant contends that the jury instructions on future pain and suffering and future loss

of normal life were given erroneously. He argues that Griffin’s lay testimony, alone, was

insufficient to support any award because expert medical testimony is necessary to establish

such damages. Defendant maintains that this was a reversible error and requests a new trial

on these grounds. In the alternative, defendant requests remittitur in the amount of $145,000,

which was awarded for future loss of normal life and future pain and suffering.

¶ 89 It is within the trial court’s considerable discretion to give or deny a jury instruction.

Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 121 (2003). In determining

whether this discretion was abused, we will consider the instructions in their entirety and

determine whether the jury was fairly, fully, and comprehensively informed as to the relevant

legal principles. Id. at 122. Even where a trial court has given faulty instructions, a reviewing

court ordinarily will not reverse unless the instructions clearly misled the jury and resulted in

serious prejudice to the appellant. Schultz v. Northeast Illinois Regional Commuter R.R.

Corp., 201 Ill. 2d 260, 274 (2002); Bulger, 345 Ill. App. 3d at 121.

¶ 90 1. Expert Medical Testimony

¶ 91 The trial court has discretion to review the evidence presented and decide whether that

evidence raised an issue which requires a particular jury instruction. Stapleton v. Moore, 403

Ill. App. 3d 147, 163 (2010). During the jury instructions conference, defendant’s counsel

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and the trial court disagreed over what evidence was required when giving a jury instruction

on future pain and suffering under Stift v. Lizzadro, 362 Ill. App. 3d 1019 (2005). The trial

court stated it found Griffin’s testimony as to his limitations due to the injury was sufficient

to warrant the jury instruction. The court explained its interpretation of the case law as

“if you have a soft tissue injury, such as a neck and back injury, and there’s no

demonstrable evidence of an injury, there’s no x-ray, nothing of that nature, then you

may need more than the plaintiff’s own testimony. *** If there’s an objective injury,

which a fracture I think would be *** I think that’s the type of injury then that the jury

can take into consideration and evaluate.”

Defendant responded that the analysis could not turn on the classification of a soft versus

non-soft tissue injury and the court must consider whether the pain can be articulated and

apparent to the jury at the time of testimony. Defendant argued that the medical testimony

demonstrated that Griffin’s injury was mostly healed and the doctor did not impose any

permanent restrictions. Griffin also exhibited no apparent signs of pain during trial such as

cradling his arm. Thus, defendant contends that the trial court erred in submitting an

instruction for future pain and suffering to the jury on the basis of pain that was not readily

observable.

¶ 92 Maddox v. Rozek, 265 Ill. App. 3d 1007, 1011 (1994), and Stift set forth the objective-

subjective test allowing for lay testimony to establish a basis for a future pain and suffering

instruction if “the ongoing pain and suffering would be readily apparent to a lay jury from the

nature of the injury.” Stift, 362 Ill. App. 3d at 1026. In both Maddox and Stift the plaintiffs

were injured as a result of car accidents. Id. at 1021; Maddox, 265 Ill. App. 3d at 1008.

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Neither plaintiff suffered any broken bones, and both plaintiffs complained of lingering pain

in the soft tissue of the shoulders, back, or neck. Stift, 362 Ill. App. 3d at 1023; Maddox, 265

Ill. App. 3d at 1008. At trial, neither plaintiff displayed symptoms of pain that were readily

apparent to the lay jury. Stift, 362 Ill. App. 3d at 1027; Maddox, 265 Ill. App. 3d at 1011.

Thus, the court found in both cases that the plaintiff’s testimony, without more, was

insufficient to warrant a jury instruction on future pain and suffering. Stift, 362 Ill. App. 3d at

1027; Maddox, 265 Ill. App. 3d at 1011.

¶ 93 The court in Maddox, 265 Ill. App. 3d at 1009-10, cited cases to show examples of the

types of injuries which would not require expert medical testimony. See, e.g., A.O. Smith

Corp. v. Industrial Comm’n, 69 Ill. 2d 240, 242, 245 (1977) (plaintiff’s penis was crushed,

causing loss of use of his testicles); Burnett v. Caho, 7 Ill. App. 3d 266, 270-72, 276 (1972)

(plaintiff lost his eye and was given an artificial eye). In such cases, the juries could

objectively determine permanency and related future pain and suffering from the nature of

the injury alone. Maddox, 265 Ill. App. 3d at 1009-10. The court in Stift, 362 Ill. App. 3d at

1027, went one step further and gave an example of a case that would pass the objective-

subjective test, despite the permanent nature of the injury being less readily apparent. See

Neyzelman v. Treitman, 273 Ill. App. 3d 511, 518 (1995) (minor-plaintiff suffered post-

traumatic stress syndrome after a car accident). The court in Stift, 362 Ill. App. 3d at 1027,

noted that the injury in Neyzelman had “manifested itself in a permanent condition of

stuttering,” which was readily apparent to the jury and thus was sufficiently objective to

warrant a jury instruction on future pain and suffering without medical testimony.

¶ 94 Thus, the test requires first looking at whether a jury could objectively determine

permanency based on the nature of the injury alone. If the nature of the injury allows for an

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objective determination of permanency, then no expert medical testimony is required, and in

some cases, even the plaintiff’s testimony is not required. However, if the nature of the injury

does not allow for an objective determination of future pain and suffering, then either expert

medical testimony is needed or lay testimony coupled with an objective manifestation of the

injury’s permanency or sustained pain and suffering.

¶ 95 Here, the trial court determined that a jury could objectively determine the permanency of

the wrist fracture and its related pain and suffering without medical testimony and thus

neither expert medical testimony regarding, nor an objective manifestation of, the injury’s

permanence was required at trial. We can find support for the trial court’s determination that

a bone fracture does not require expert testimony in Ziencina v. County of Cook, 188 Ill. 2d 1

(1999). Although our supreme court did not fully examine the question of whether expert

medical testimony was required, it held that the nature of the injury and the plaintiff’s

testimony regarding his continued pain were sufficient to uphold the jury award. Id. at 16.

¶ 96 The plaintiff in Ziencina suffered, inter alia, rib fractures, bruised lungs, and was

diagnosed with respiratory distress syndrome. Id. at 8. In the medical expert’s deposition, she

testified that the plaintiff’s respiratory distress syndrome had resolved itself prior to

discharge and most patients had few residual problems after recovery. Id. She further opined

that it was conceivable for plaintiff to have continued pain, but she had not seen the plaintiff

since his discharge and could not testify to the permanency of the injury. Id. The plaintiff and

his wife testified that he continued to suffer, such that his work had been affected, he tired

easily, and he found physical contact painful. Id. at 7, 16. The court, citing A.O. Smith, held

that evidence regarding the nature of the plaintiff’s injuries combined with his and his wife’s

testimony was sufficient grounds for the jury to base its award. Id. at 16 (citing A.O. Smith,

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69 Ill. App. 2d at 245). A.O. Smith, was a case highlighted by Maddox as the type of injury

from which permanency can be determined without expert medical testimony.

¶ 97 In this case, we have clear testimony that Griffin’s scaphoid bone was fractured. Dr.

Schildhorn, at the time of his deposition, had not recently examined Griffin’s wrist and could

not testify conclusively about the permanency of the injury. However, there was a possibility

of continued complications. Griffin testified that he continued to suffer pain and restrictions

in his daily life due to the injury. We see no reason for Griffin’s wrist fracture to be treated

differently than the plaintiff’s rib fractures in Ziencina. Accordingly, we find that the trial

court did not abuse its discretion in giving a jury instruction on future pain and suffering.

¶ 98 Defendant contends that a major difference between Ziencina and Griffin can be found in

the length of hospitalization and complications which required surgery. However, we find

that the nature of the injury, which is the determining factor of whether expert testimony is

required, is the same here. A bone fracture, regardless of where it occurs in the body, is the

type of injury that can be readily understood by laypersons on the jury, and the trial court

correctly distinguished this case from Maddox, Stift, and Neyzelman.

¶ 99 2. Remittitur

¶ 100 Defendant’s claim for remittitur stems from its arguments that the jury was improperly

instructed and that either a new jury trial or remittitur should be granted. Defendant does not

address the applicable standard of review for granting a remittitur, and we have already

found that the jury instruction was properly given. Consequently, we will not consider

defendant’s remittitur claim.

¶ 101 F. Prior Criminal Convictions

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¶ 102 During the motion in limine hearing on June 5, 2017, Griffin’s counsel argued that he had

only recently discovered Washington’s criminal convictions in the state of Iowa and sought

permission to introduce them during the trial. These convictions included charges for

criminal mischief, disorderly conduct, assault, interference with an official, bribery,

solicitation, and aggravated assault. Counsel referenced Washington’s deposition testimony

on September 8, 2015, during which he answered that he had never been convicted of a

felony nor had he been convicted of a misdemeanor involving dishonesty and he declined to

provide counsel, off the record, with his social security number. 7 Counsel pointed to

Washington’s actions as causing the delayed discovery and highlighted the impermissible

perjury.

¶ 103 Griffin’s counsel noted that the main purpose for bringing in the convictions, through the

testimony of Griffin’s expert witness, was to prove defendant’s negligence in hiring a

security guard with a criminal history. Counsel claimed that impeaching Washington would

only be the secondary purpose of introducing the convictions. Defendant’s counsel responded

that the first stated purpose should be barred because it would constitute an Illinois Supreme

Court Rule 213(f) (eff. Jan. 1, 2007) violation, given that Washington’s social security

number was provided years ago and it was counsel’s failure to exercise due diligence that the

expert witness had not received the information in a timely manner to prepare disclosures

prior to trial. Furthermore, defendant’s counsel argued against the admission of a number of

the convictions based on their age and lack of relevance to Washington’s credibility.

¶ 104 The court responded that Griffin was barred from introducing the convictions through his

expert witness because it would result in a Rule 213(f) violation. However, if Washington 7 Two case management orders entered on September 1 and September 9, 2015, required defendant to provide the last four digits of Washington’s social security number or be barred from presenting Washington’s testimony at trial. - 34 - No. 1-17-3070

denied his convictions on the witness stand, then he would be subject to impeachment

because he had denied his convictions under oath and counsel had discovered his record. If

Washington admitted his convictions, then the motion in limine was moot.

¶ 105 Defendant argues that the trial court violated Rule 609 of the Illinois Rules of Evidence

(Ill. R. Evid. 609 (eff. Jan. 1, 2011)) in failing to bar the references to Washington’s criminal

convictions. Defendant further contends that Griffin violated the motion in limine limiting

any use of Washington’s prior criminal convictions to impeachment purposes. Defendant

maintains that it was clearly prejudiced by the discussion of Washington’s prior criminal

convictions in the second trial as reflected by the jury’s determination of Griffin’s

contributory negligence. Defendant asserts that the jury in the first trial, which did not hear

the impermissible evidence, allocated 49% of fault for the incident to Griffin, whereas the

second jury found Griffin was only 15% at fault.

¶ 106 First, we find that Rule 609 is inapplicable because Washington’s criminal convictions

were not introduced to attack his credibility as a witness. Rule 609 provides that

impeachment by evidence of conviction of a crime is to “attack[ ] the credibility of a

witness” (Ill. R. Evid. 609(a) (eff. Jan. 1, 2011)), yet here, the convictions were allegedly

being brought in to show that Washington had previously perjured himself. Perjury is a

different attack on credibility than the fact that the witness has prior convictions. Rule 609

was inapplicable, and the trial court did not err in failing to bar the convictions based on the

categorical and time limits proscribed by Rule 609.

¶ 107 Next, we note that a violation of a motion in limine is not per se reversible error. Jones v.

Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1132 (2000). We consider whether the

order is specific, the violation is clear, and the violation deprived defendant of a fair trial.

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Garden View, LLC v. Fletcher, 394 Ill. App. 3d 577, 589 (2009). Here, the court’s ruling

specified that plaintiff’s expert was barred from testifying about Washington’s convictions in

relation to defendant’s negligence in failing to conduct a background check. The court also

stated that the convictions could be used only if Washington was not honest about his

convictions and needed to be impeached by showing his perjury. Defendant argues that, other

witnesses, who testified before Washington, were asked about his convictions. Even if

Washington had testified first, he admitted his convictions on the stand and there was no

reason to impeach him.

¶ 108 We find that the court’s ruling was inherently confusing where, in order to bring the

convictions into evidence, Washington had to first deny his convictions when asked on the

stand. To resolve this inconsistency, it is possible that the court may have considered that the

convictions would be appropriately raised during trial and intended to rule only on the use of

the deposition transcript in conjunction with the specifics of Washington’s criminal record to

prove perjury. At trial, Washington admitted he had been convicted of a felony and other

misdemeanors on direct examination, yet Griffin’s counsel brought in the issue of his perjury

during discovery depositions and his specific convictions. Even so, the jury was already

aware of the convictions and the fact that defendant did not conduct a background check to

screen Washington. Proof of Washington’s perjury affected his credibility, which was

already called into question by his conflicting testimony, as well as the testimony of Heytow,

Page, and other witnesses, and also Washington’s inability to recall details about Griffin. The

perjury and discussion of Washington’s actual convictions did not change the fact that

defendant did not conduct background checks or other forms of screening for potential

employees. Thus, defendant cannot show that it was substantially prejudiced.

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¶ 109 We also note that the court was never asked to consider whether other witnesses and

defendant’s expert could be questioned about the convictions. An in limine order always

remains subject to reconsideration by the court during trial. Konieczny v. Kamin Builders,

Inc., 304 Ill. App. 3d 131, 136 (1999). Failure to object to the evidence at trial forfeits the

issue on appeal. Id. During the motion hearing, Griffin’s counsel presented a “primary” and

“secondary” reason for bringing in the convictions, first to show what the defendant, as the

employer, should have known of the convictions and separately to impeach Washington. The

court only considered whether the convictions could be used to show what the employer

should have known in the context of plaintiff’s expert testimony. We believe that the court’s

in limine ruling was unclear as to use of criminal convictions outside of testimony offered by

plaintiff’s expert.

¶ 110 The only reason the court offered for barring plaintiff’s expert from testifying about the

convictions was that it would violate rules about the timeliness of expert witness disclosures.

The trial court did not comment on whether the convictions could be used to show what

defendant should have known about Washington during the hiring process if raised in other

contexts, such as through Ani or Hauri’s testimony. Defendant did not object when Griffin’s

counsel questioned Ani, 8 Heytow, Page, and Hauri about Washington’s convictions. Had

defendant objected, the court could have addressed the remaining concerns not covered by

the initial in limine ruling. Defendant’s failure to object and permit the trial court an

opportunity to clarify its order results in waiver of the issue on appeal.

¶ 111 G. Griffin’s Motion for New Trial

8 Counsel did object when Ani was questioned about a hypothetical candidate with a history of domestic violence arrests, which was the subject of a separate motion in limine, and to an incomplete hypothetical. - 37 - No. 1-17-3070

¶ 112 Lastly, defendant contends that the trial court erroneously granted Griffin’s motion for a

new trial on January 17, 2017, where the only ground for reversal was Griffin’s failure to

abide by the Illinois Pattern Jury Instructions, Civil (2011) (hereinafter IPI Civil (2011)).

Griffin responds, firstly, that defendant waived this claim because it failed to move for

reconsideration or file an interlocutory appeal prior to the second trial. Furthermore, Griffin

maintains that he correctly followed IPI Civil (2011) No. 30.05 and a new trial was

warranted because the jury ignored the law, evidence, and common sense in awarding $0 for

the pain and suffering experienced and reasonably certain to be experience as a result of the

injuries.

¶ 113 Griffin first argues for waiver under section 2-1202 of the Code of Civil Procedure (735

ILCS 5/2-102 (West 2016)), which governs posttrial motions in a jury. However, he fails to

cite a specific provision of section 2-1202 under which defendant’s challenge to the order

granting a new trial may be found forfeited. Griffin only cites Arient v. Shaik, 2015 IL App

(1st) 133969, ¶¶ 25-28, which discusses the difference between subsections (c) and (e) of

section 2-1202 in comparison with section 2-1203. Presuming that Griffin intended to direct

our attention to these subsections, the statute provides that:

“(c) Post-trial motions must be filed within 30 days after the entry of judgment or the

discharge of the jury, if no verdict is reached, or within any further time the court may

allow within the 30 days or any extensions thereof. A party against whom judgment is

entered pursuant to post-trial motion shall have like time after the entry of the judgment

within which to file a post-trial motion.

***

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(e) Any party who fails to seek a new trial in his or her post-trial motion, either

conditionally or unconditionally, as herein provided, waives the right to apply for a new

trial, except in cases in which the jury has failed to reach a verdict.” 735 ILCS 5/2-

1202(c), (e) (West 2016).

¶ 114 Defendant contends that it did not have to preserve any error resulting from the trial

court’s order because it was not asking for a new trial, instead, defendant challenges the

order entered on Griffin’s posttrial motion. We agree that, under the plain language of the

statute, subsection (e) is inapplicable here. See Maschek v. City of Chicago, 2015 IL App

(1st) 150520, ¶ 44 (“If the statutory language is clear, we must apply it, without resort to any

aids of statutory construction.”). Similarly, the circumstances of this case do not come under

the first half of section 2-1202(c). However, the latter half of section 2-1202(c) provides a

30-day window to challenge “judgment” entered on posttrial motions. See 735 ILCS 5/2-

1202(c) (West 2016). Thus, we consider whether the order granting Griffin’s motion for a

new trial is a judgment. An entry of judgment is a term of art referring to the recording of a

court’s final decision. Black’s Law Dictionary (10th ed. 2014). An order is final if it

terminates the litigation between the parties on the merits or disposes of the rights of the

parties on the entire controversy. In re Marriage of Blanchard, 305 Ill. App. 3d 348, 351

(1999). An order that leaves a cause still pending and undecided or leaves matters regarding

the ultimate rights of the parties for future determination is not a final order. In re Petition to

Incorporate the Village of Greenwood, 275 Ill. App. 3d 465, 470 (1995). Thus, an order

granting a new trial is not considered an entry of judgment, and it would not trigger the latter

half of section 2-1202(c). Accordingly, we find that defendant was not required to file an

additional posttrial motion to avoid waiver. However, Griffin also maintains that waiver

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applies due to defendant’s failure to file an interlocutory appeal under Illinois Supreme Court

Rule 306(a)(1) (eff. Mar. 8, 2016).

¶ 115 Defendant contends that it did not have to invoke Rule 306(a)(1) and petition this court

for an interlocutory appeal. Defendant argues that interlocutory appeals are not final and

relies on Kemner v. Monsanto Co., 112 Ill. 2d 223, 240-41 (1986), and Koenig v. National

Super Markets, Inc., 231 Ill. App. 3d 665, 667 (1992), as support for its claim that nothing

prevents appellate review of the interlocutory order after the entry of judgment in the second

trial. However, we find that neither of these cases aids in our resolution of the issue

presented.

¶ 116 Although there is little case law addressing the effect of failing to petition for an

interlocutory appeal on a party’s right to later challenge an order granting a new trial, we

found two cases which inform our decision. In Ford v. Narup, 38 Ill. App. 2d 245, 246

(1962), the Fourth District found that the plaintiff, who elected to move forward with a new

trial without first seeking review of the order granting the new trial, could not later challenge

the order by seeking leave of the appellate court. The First District’s statement in Simmons v.

Chicago Housing Authority, 267 Ill. App. 3d 545, 554 (1994), echoes the court’s sentiments

in Ford. Although not dispositive of the issues on appeal, the court stated in dicta that failure

to file a timely petition for leave to appeal from the trial court order granting the new trial

resulted in waiver of the right to contest the order. Id. (citing Feucht v. Clarke, 299 Ill. App.

477 (1939)). We agree with these cases and find that defendant has waived any challenge to

the trial court’s order granting a new trial after it declined to file an interlocutory appeal. In

proceeding to the second trial without objection, defendant has lost the right to raise a

challenge against the order granting a new trial.

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¶ 117 The question before us is different from the questions posed by the parties in the cases

cited by defendant. In Kemner, the Illinois Supreme Court considered the propriety of a trial

court order addressing a motion that had already been the subject of a denied petition for

interlocutory appeal. 112 Ill. 2d at 241. In Koening, the appellate court considered the

preclusive effect of its earlier denial of an interlocutory appeal on the party’s ability to re-

raise the issue on an appeal following a second trial. 231 Ill. App. 3d at 667. In this case,

there was no attempt to petition for interlocutory appeal and therefore no denial and related

questions of preclusion or other effect. We find that defendant’s acquiescence to the order for

new trial resulted in waiver and precludes defendant’s challenge to the order in the present

appeal. Thus, we do not reach defendant’s claims of invited error and arguments regarding

the pattern jury instructions and verdict forms.

¶ 118 III. CONCLUSION

¶ 119 For the reasons stated, we affirm the circuit court’s judgment.

¶ 120 Affirmed.

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