Ostry v. Chateau Limited Partnership

608 N.E.2d 1351, 241 Ill. App. 3d 436, 181 Ill. Dec. 877, 1993 Ill. App. LEXIS 235
CourtAppellate Court of Illinois
DecidedFebruary 26, 1993
Docket2-92-0579
StatusPublished
Cited by12 cases

This text of 608 N.E.2d 1351 (Ostry v. Chateau Limited Partnership) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ostry v. Chateau Limited Partnership, 608 N.E.2d 1351, 241 Ill. App. 3d 436, 181 Ill. Dec. 877, 1993 Ill. App. LEXIS 235 (Ill. Ct. App. 1993).

Opinion

JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiff, Dina Ostry, sued defendant, Chateau Limited Partnership, to recover damages for injuries allegedly suffered in a fall on a mound of icy snow in defendant’s parking lot. A jury returned a verdict in plaintiff’s favor in the amount of $30,633.94. The trial court subsequently granted plaintiff’s motion for a new trial on damages only, and it entered judgment on the jury’s award of $97,877.44. Defendant appeals.

Defendant contends on this appeal that: (1) the trial court erred by denying defendant’s motion for leave to amend its answer to file the affirmative defense of plaintiff’s comparative negligence before the trial on damages only; (2) the trial court improperly instructed the jury during the trial on damages only; (3) the jury verdict in the trial on damages only was against the manifest weight of the evidence; and (4) the trial court erred by denying defendant’s motion for a directed verdict in the first trial on liability and damages.

Plaintiff testified during the first trial that on December 31, 1987, she parked her car in defendant’s lot, exited her vehicle, and fell on a mound of icy snow located at the back of the car. Plaintiff stated that the mound of snow was five inches high, one foot wide, and ran the length of the parking lot.

Susan Muller Sisson, the property manager of defendant’s Chateau Village Apartments in December 1987, testified that her job required her to make sure that someone was removing snow in a proper fashion and that the parking lots were cleaned off and salted as necessary. During December 1987, Sisson walked through the lots twice a day. During these walks, she noticed icy conditions that could be hazardous for people walking to and from their cars.

Gadi Cohen, Sisson’s supervisor, contracted with George Lipp to provide snow removal in the parking lots. Lipp asked Robert Burns to plow defendant’s lot. Burns began plowing after a snowfall on Decernber 15, 1987. Lipp testified that Burns told him that he was at Chateau Village for approximately five hours. However, his truck broke down, and he had to return on December 16. Tenants complained that Burns was late getting to the job and that he failed to return to plow out parking stalls or clear away spill off. Responding to these complaints, Cohen hired James Fitzgerald, who plowed on December 21, 1987. Fitzgerald testified that the prior plower had angled the plow in such a manner that snow discharged to the rear of the vehicles.

Following another snowfall on December 28, 1987, Cohen gave Lipp’s service another chance. Lipp testified that Burns plowed for 71/2 hours on December 28 and 29. Sisson and Cohen testified that he plowed for a much shorter period of time. Lipp further testified that defendant fired him on December 29. Although Cohen and Sisson denied that Lipp’s services were terminated, neither Lipp nor Burns returned to plow. No further snow fell between December 29 and December 31, and Sisson ordered no salting or plowing between the time that Bums discontinued plowing and plaintiff was injured.

The jury returned a verdict in favor of plaintiff for $30,633.94, with $10,000 attributed to disability, $14,230.94 attributed to the reasonable value of medical care, treatment and services rendered, and $6,403 to the value of lost earnings. It awarded no damages for pain and suffering. The trial court granted plaintiff’s motion for a new trial on damages only because it could not harmonize the determination that plaintiff suffered necessary and reasonable medical expenses and disability without experiencing any pain and suffering. The second jury’s award of $97,877.44 attributed $54,900 to disability, $22,500 to pain and suffering, $14,293.94 to medical care and treatment, and $6,183.50 to lost earnings.

Defendant first contends on appeal that the trial court erred by denying its motion for leave to amend its answer to assert the affirmative defense of plaintiff’s comparative negligence prior to the trial on damages only. The trial court decided that the determination of plaintiff’s comparative negligence involved questions of liability and negligence and that defendant waived the issue by not raising it during the first trial.

The decision whether to allow a party to amend its pleadings is within the sound discretion of the trial court, and such a decision will not be disturbed without a showing of an abuse of that discretion. (Trans World Airlines, Inc. v. Martin Automatic, Inc. (1991), 215 Ill. App. 3d 622, 627.) Defendant argues that the trial judge should have allowed the amendment to its answer because a new trial is a trial de novo, and the subsequent trial judge is not bound by the findings of his predecessor. (In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 801.) Further, defendant asserts that the issue of plaintiff’s comparative negligence is relevant in a trial on damages only.

Although a new trial is a proceeding de novo, a new trial on damages is limited to damages only. Questions of liability are not relevant in a new trial on damages only. (Carter v. Chicago & Illinois Midland Ry. Co. (1986), 140 Ill. App. 3d 25, 28.) The issue of plaintiff’s comparative negligence is a factor in determining liability commensurate with total fault. (American Pharmaseal v. T E C Systems (1987), 162 Ill. App. 3d 351, 357, citing Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1064.) Therefore, since the determination of plaintiff’s comparative negligence necessarily involves questions of liability, defendant cannot raise that issue for the first time in a trial on damages only. We hold that defendant waived the issue of plaintiff’s comparative negligence by not raising it during the first trial. The trial court did not abuse its discretion by denying defendant’s motion to amend its answer.

Defendant’s second contention is that the trial court erred during the trial on damages only by giving several of plaintiff’s instructions and refusing several of defendant’s tendered instructions. The trial court is given considerable discretion in determining the form in which an instruction shall be given. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 390.) The criterion for determining the adequacy of jury instructions is whether, taken as a whole and in series, they fairly, fully, and comprehensively apprise the jury of the applicable legal principles. Lurz v. Panek (1988), 172 Ill. App. 3d 915, 925.

Defendant argues that the trial court erroneously submitted plaintiff’s instruction No. 5A, the long form of Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1992) (hereinafter IPI Civil 3d), which reads as follows:

“When I use the expression ‘proximate cause,’ I mean any cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

The trial court overruled defendant’s objection to using the bracketed part of IPI Civil 3d No.

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Cite This Page — Counsel Stack

Bluebook (online)
608 N.E.2d 1351, 241 Ill. App. 3d 436, 181 Ill. Dec. 877, 1993 Ill. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostry-v-chateau-limited-partnership-illappct-1993.