FOURTH DIVISION FILED: October 26, 2006
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IRENE E. SIMICH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) ) v. ) No. 02 L 16432 ) EDGEWATER BEACH APARTMENTS ) CORPORATION, an Illinois Corporation, ) Honorable SUDLER AND COMPANY, and KENNETH ) Ralph Reyna ORTIZ, ) Judge Presiding. Defendants-Appellees. )
JUSTICE MURPHY delivered the opinion of the court:
On June 16, 2002, plaintiff, Irene C. Simich, suffered multiple injuries after tripping over
a pneumatic hose and falling near the garage entrance of her residence at the Edgewater Beach
Apartments, 5555 North Sheridan Road, Chicago, Illinois. Plaintiff filed a complaint sounding
in negligence against defendants Edgewater Beach Apartments Corporation (Edgewater), the
property owner, Sudler and Company (Sudler), the property management company, and
defendant Kenneth Ortiz, property manager for Sudler. On January 27, 2005, the jury returned a
verdict in favor of defendants.
Plaintiff timely filed a posttrial motion and now appeals the verdict with respect to 1-05-2098
defendants Edgewater and Sudler. Plaintiff argues: (1) that the trial court erroneously found
Sudler to be an agent of Edgewater and denied plaintiff’s proposed general negligence instruction
for Sudler; (2) that Illinois Pattern Jury Instruction, Civil, No. 120.08 (2005) is defective and
prejudicial; (3) that the court improperly granted defendants’ motion in limine refusing the
testimony of George Maniates and evidence of subsequent remedial measures; (4) that defense
counsel’s closing argument was not derived from evidence produced at trial and was therefore
improper and prejudicial; and (5) that the jury verdict was contrary to the manifest weight of the
evidence. For the reasons that follow, we reverse the jury verdict and remand this matter for a
new trial.
I. BACKGROUND
Edgewater Beach Apartments is a 307-unit property owned by Edgewater, a shareholder
cooperative controlled by a 15-member board of directors (board). A shareholder resident is
qualified to serve as a board member after being a shareholder resident for a minimum of two
years. Defendant Sudler has been managing the property since it was hired by the board in 1995.
Sudler’s on-site property manager was Ken Ortiz, assisted by Adora Manalo.
In 1978, plaintiff and her husband entered into a proprietary lease (lease) whereby they
became shareholder residents of the cooperative. The lease includes 16 separate covenants, one
of which provides “[n]o provisions, milk, ice, marketing, groceries or like merchandise shall be
taken through the front door of the building.” On May 1, 1992, the board issued a memorandum
noting this provision and reminding shareholders to utilize alternative entrances to carry in
packages or groceries.
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There are three entrances located at the property - the front lobby, a service entrance
located on the north side of the building, and a garage ramp located on the south side of the
building. Residents and visitors may enter the lobby doors with a small parcel, handbag,
briefcase or plastic grocery bag. As noted above, when carrying larger loads, residents and
visitors are to utilize one of the two other entrances.
When residents carried groceries or packages covered by the covenant, they typically used
the garage entrance as it was easier to gain access and safer than the service entrance. There is a
wide concrete drive which slopes down to the garage with a pneumatic hose on the ground of the
right side of the driveway which activates the garage door for entering automobiles. Pedestrian
shareholders could either jump or step on the pneumatic hose to activate the door, or ring a
doorbell and wait for an employee to open the door.
Accident of June 16, 2002
On June 16, 2002, plaintiff, 78 years old at the time, walked approximately one mile to
the grocery store and returned home with a purchase of three pounds of meat. Plaintiff, while
carrying her purchase, intended to enter the building through the garage entrance, which she had
testified to using countless times without incident. However, upon walking down the drive,
plaintiff tripped over the pneumatic hose on the ground.
An ambulance was called and plaintiff was taken to Weiss Hospital, where she was
admitted for treatment of a fractured left wrist, dislocated right shoulder, and fractured left
periorbital. Dr. John O’Keefe, an orthopedic surgeon at Weiss Hospital, testified that he treated
plaintiff. Plaintiff presented with multiple fractures of her left wrist, dislocation of her right
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shoulder, and ecchymotic hematoma around the left periorbital area. Plaintiff’s wrist was
splinted and aligned, surgery was performed on her right shoulder and the doctor attended to her
eye trauma. After two months including six weeks of therapy, Dr. O’Keefe determined that
plaintiff had a probable rotator cuff tear and an orbital fracture and recommended surgery to
repair an injury to her left thumb.
On December 31, 2002, plaintiff filed a personal injury lawsuit against defendants.
Plaintiff alleged that Edgewater, Sudler and Ortiz were jointly and severally liable for her
injuries. Plaintiff claimed that each defendant breached its individual duty to maintain the
premises in a safe condition. She argued that their negligence in maintaining the property, in
particular the pneumatic hose at the garage entrance, was the proximate cause of her injuries.
Pretrial Motions
On June 23, 2004, defendants filed a motion for summary judgment. Defendants argued
that the danger posed by the pneumatic hose was open and obvious. Furthermore, based on
plaintiff’s continual use of the entrance, defendants argued that she clearly knew of the existence
of the hose.
Following a hearing on defendants’ motion, the circuit court entered a written order
denying the motion. The court found that defendants clearly owed plaintiff a duty of care and
that the small diameter hose was not an open and obvious condition. Furthermore, the court
opined that even if the condition were considered open and obvious, the distraction exception
would apply under the facts to overcome the motion for summary judgment. Defendants filed a
motion to reconsider based on a claimed misapplication of Illinois law, which was denied and the
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matter was set for trial.
Both parties filed several motions in limine to exclude certain testimony and arguments
from trial. Plaintiff argued that the trial court erred in granting defendants’ motions in limine
barring testimony regarding the garage ramp signage and pavement and subsequent remedial
measures to the ramp area. In particular, the trial court barred the testimony of plaintiff’s witness
George Maniates, a board member who was to testify to the conditions of the entrances and
board discussions regarding the same.
Jury Trial
At trial, plaintiff testified on her own behalf. Plaintiff admitted to seeing the hose before
tripping, but could not provide more detail regarding how she had fallen. She testified that she
did not jump on the pneumatic hose, but it must have tangled into her feet somehow. Plaintiff
admitted that she never requested that the board or Sudler remove or change the hose. Further,
plaintiff testified that she had never considered the hose a danger prior to the date in question.
Rosemarie Craig, a 20-year shareholder resident at Edgewater Beach Apartments,
testified to how residents would utilize the garage entrance. Craig testified that residents could
activate the garage door by jumping on the pneumatic hose or ring the doorbell and wait for an
employee to open the door. On May 2, 2002, after a walk with her husband, Craig activated the
garage door by jumping on the pneumatic hose, but fell to the ground when her feet got tangled
up in the hose. Craig did not call an ambulance, but went back to her apartment and iced her leg.
She later went to the hospital, where doctors discovered that Craig had fractured her right shin.
Although she later informed several residents how the injury occurred, Craig did not report her
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injury to defendants or the board, nor did she take any legal action.
Adora Manalo, Sudler’s on-site property manager at Edgewater Beach Apartments from
April 2001 to September 2004, testified to the condition of the property and her duties. Manalo
testified that she attended the monthly meeting of the board of directors. The board, through the
board president, directed her and Sudler with respect to operations and maintenance issues.
Manalo emphasized that her interaction was mostly with the board president and all direction as
to what projects to implement would come directly from the board president to either her or
Ortiz.
Manalo affirmed that either the service or garage entrances were to be used if residents
were unloading large parcels or more than a bag or two of groceries. Manalo further testified that
she considered the pneumatic hose at the garage entrance and the wooden ramp at the service
entrance to be tripping hazards. However, she did not believe the conditions rose to the level of a
possible safety issue and never reported same to management. Furthermore, Manalo testified
that she never received complaints from any residents about dangerous conditions at either
entrance.
Jury Instructions
After the close of testimony, the trial court considered the parties’ proposed jury
instructions. Plaintiff submitted two separate sets of proposed instructions, one for each
defendant. For Edgewater, plaintiff submitted instructions with respect to duty and the burden of
proof for claims against an owner or occupier of land, Illinois Pattern Jury Instructions, Civil,
Nos. 120.02 and 120.08 (2005) (hereinafter IPI Civil (2005)). For Sudler, plaintiff submitted the
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pattern instructions on duty, burden of proof and the elements for a general negligence claim, IPI
Civil (2005) Nos. 10.01, 20.01 and 21.02.
During the jury instruction conference, defendants contended for the first time that Sudler
was an agent of Edgewater; thus, only the owner and occupier instructions were proper to submit
to the jury for both parties. Defense counsel, who represented both Edgewater and Sudler,
argued that Sudler admitted its role as agent for Edgewater. Defense counsel further argued that
the testimony at trial by Manalo indicated that she took direction from the board. Manalo further
testified that the board maintains the building and decides what needs to be fixed on the property
and what changes are to be made.
Over plaintiff’s objection, the trial court found that Sudler was an agent of Edgewater and
the jury was not presented with that question. Plaintiff’s proposed separate general negligence
instructions for Sudler were also denied. Therefore, the premises liability instruction for owners
and occupiers of land, IPI Civil (2005) No. 120.08, was given to the jury for both defendants.
Closing Arguments and Posttrial Motions
During closing arguments, defense counsel noted that plaintiff admittedly had made
“countless” trips down the ramp to the garage entrance and had never tripped before the incident
in question. Counsel then noted that “not one single person has tripped on that hose as described
by Ms. Simich.” Finally, based on the number of residents at the apartments, defense counsel
completed some rough calculations to estimate that over a 20-year period, 146,000 trips had been
made by residents down the garage ramp without incident.
Plaintiff’s counsel objected to these comments, arguing that no evidence had been
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presented at trial that there were no injuries over such a time period. The trial court overruled
plaintiff’s objection. Specifically, the trial court noted that the jury had heard the evidence and
would rely on the evidence for its decisions and that arguments by counsel were not evidence.
Plaintiff timely filed a posttrial motion requesting a new trial, which was denied, and this appeal
arguing the aforementioned issues.
II. ANALYSIS
A. Determination of Agency
Plaintiff first claims that the trial court erred in it’s determination that Sudler was an
agent of Edgewater. Plaintiff argues that the issue of agency was only raised at the jury
instruction conference, after evidence had been concluded, and resulted in crucial decisions
regarding proposed jury instructions. In particular, the finding that Sudler was an agent of
Edgewater resulted in a jury instruction with respect to Sudler based on the duty and burden of
proof for premises liability, not the simpler common law negligence instruction that plaintiff
proposed.
As noted by plaintiff, if an agency relationship is indisputable, the issue is not a question
only for the trier of fact. Gasbarra v. St. James Hospital, 85 Ill. App. 3d 32, 43 (1979). Where
the relationship is so clear as to be indisputable, the trial court may determine that an agency
relationship exists as a matter of law. Amigo’s Inn, Inc. v. License Appeal Comm’n, 354 Ill. App.
3d 959, 966 (2004). Therefore, these questions are subject to a de novo standard of review.
Plaintiff states that the typical argument for the existence of an agency relationship is
asserted by a party wishing to impose liability upon a principal. In this case, however, defense
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counsel asserted, and admitted, an agency relationship, ostensibly to shield Sudler from a general
negligence claim. Plaintiff argues that defendants’ admission does not close the issue. Instead,
plaintiff concludes that the question of agency was not indisputable from the evidence presented
and remained a question of fact for the jury that must be proven by a preponderance of the
evidence. Israel v. National Canada Corp., 276 Ill. App. 3d 454, 459 (1995).
Defendants counter that, beyond their admission, the record clearly demonstrated that
Sudler is an agent of Edgewater and, therefore, the jury instructions given comport with the law.
Even if an error was made by the trial court, defendants argue that the record demonstrates that
no substantial prejudice resulted and the judgment should not be disturbed. See Belleville
Toyota, Inc. v. Toyota Motor Sales, USA, 199 Ill. 2d 325, 364 (2002).
Defendants rely primarily on two factors for asserting that the agency relationship
between Sudler and Edgewater was clear. First, they note defense counsel’s admission during
the jury instruction conference that Sudler stood in an agency relationship with Edgewater.
Second, they argue that the testimony of Manalo established an indisputable agency relationship.
Defendants further argue a complete lack of evidence presented by plaintiff that Sudler was an
independent contractor and not an agent.
Although there is no rigid rule for determining whether an agency or an independent
contractor relationship exists, the four major factors to consider are: (1) the right to control the
manner in which work is performed; (2) the method of payment and whether taxes are deducted;
(3) the level of skill required to perform the work; and (4) furnishing of necessary tools, materials
and equipment. Lang v. Silva, 306 Ill. App. 3d 960, 972 (1999). The right to control the manner
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in which work is performed is considered the “hallmark of agency.” Kaporovskiy v. Grecian
Delight Foods, Inc., 338 Ill. App. 3d 206, 210 (2003). Conversely, an independent contractor
undertakes to produce a certain result, but is not controlled as to how that result is achieved.
Lang, 306 Ill. App. 3d at 972.
In this case, Manalo testified that she was employed by Sudler to manage the Edgewater
property. Sudler was under contract with Edgewater to perform management duties, including
oversight of the maintenance of common and exterior areas of the building. The contract
between Edgewater and Sudler was not presented at trial.
Manalo was one of two Sudler employees who worked at the apartment building and she
was supervised by a Sudler employee, Ken Ortiz. Ortiz was the liaison between Sudler and the
board, but both Manalo and Ortiz would attend board meetings. Manalo’s testimony on cross-
examination cited by defendants, and upon which they heavily rely for their agency argument,
went as follows:
“DEFENSE COUNSEL: And can you describe with a little bit more detail
your duties and responsibilities when you were the property manager at 5555
North Sheridan?
MS. MANALO: To manage the staff and maintain the property, operation
and maintenance of the property, and manage the projects there [sic] were going
on. There was a series of renovation projects that were going on while I was on
site.
DEFENSE COUNSEL: Would you then coordinate with the contractors?
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MS. MANALO: I would.
DEFENSE COUNSEL: Describe for me the interaction you had with the
Edgewater Beach Apartment Corporation in your roll as a property manager.
MS. MANALO: I would meet with the board of directors monthly. My - -
we would implement at their direction, but the direction would solely come from
the board president. My interaction would be mostly with the board president.
DEFENSE COUNSEL: Did you generally take your orders from the board
president?
MS. MANALO: Yes.
***
DEFENSE COUNSEL: ... What entity actually maintains the building?
Who decides what to fix and what not to fix, what changes to be made, and what
changes not to be made?
MS. MANALO: The board of directors.
DEFENSE COUNSEL: Do you take direction from them?
MS. MANALO. Yes, but through the board president.”
Upon redirect examination by plaintiff’s counsel, the following testimony of Ms.
Manalo was elicited:
“PLAINTIFF’S COUNSEL: Now, you were asked questions about the
board of directors. If Sudler and Company saw a safety hazard, a tripping hazard
that they thought a resident might get injured on, whether it’s a ramp, they had a
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responsibility to see that that was corrected, correct?
PLAINTIFF’S COUNSEL: And they should report to the board if they
couldn’t do it themselves. If you didn’t have the funds or the manpower or those
things, a report should be made to the board, we have this problem, it needs to be
corrected, and here is what we need to do to correct it. That is partly the
responsibility of the management company, correct?
MS. MANALO. Yes.
PLAINTIFF’S COUNSEL: Okay. And if you do that, and the board then
says forget it, we don’t want it, you have carried out and fulfilled your
responsibility as the property manger, correct?
MS. MANALO. Yes.”
Accordingly, Manalo’s day-to-day duties were to manage the Edgewater staff who were
hired and paid by Edgewater. In particular, Manalo would instruct the staff to act, including
fixing unsafe conditions on the property. Manalo testified that she felt it was her, and Sudler’s,
obligation to fix unsafe conditions on the property, even if unreported. With respect to the
pneumatic hose, Manalo also testified that she felt it posed a tripping hazard but was not
unreasonably dangerous and that she had never received complaints that it was hazardous.
As this court noted in Villa v. Arthur Rubloff & Co. of Illinois, 183 Ill. App. 3d 746
(1989), there is little case law on the precise agency question at issue. Most cases considering
property management companies concern the scope of agency, not the fact of agency itself. In
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Villa, the plaintiff only argued on appeal that the defendant was a subcontractor and not an agent.
This court denied the untimely argument, agreeing that the property manager was clearly an agent
of the owner. The evidence presented showed that the defendant and the property owner entered
into a management agreement, under which the defendant specifically would manage a shopping
center as the owner’s agent. Villa, 183 Ill. App. 3d at 749.
Under the agreement in Villa, the defendant was authorized to lease storefronts (with the
owner’s prior written approval); collect rentals; employ, pay and discharge all employees
required to maintain the property; to make ordinary repairs and purchases; and pay utilities from
collected monies. Villa, 183 Ill. App. 3d at 748. Citing to the Restatement (Second) of Agency,
the Villa court noted that it is inferred that a general grant of authority to manage a business
includes duties to make contracts, to employ, supervise and discharge employees, to receive and
make payments for the principal, and to direct ordinary operations. Furthermore, the court noted
that an agent can be in charge of the principal’s entire business or a portion thereof. Villa, 183
Ill. App. 3d at 750, citing Restatement (Second) of Agency §73 (1957).
As in Villa, here there is evidence of an agency relationship between Sudler and
Edgewater; however, it cannot be said that it is so obvious or overwhelming to be considered a
matter of law. As in Villa, Manalo and Ortiz, on behalf of property manager Sudler, managed the
property. Ortiz or Manalo would meet monthly with the board, generally taking orders from the
board president to complete tasks as required. Manalo was granted authority to complete these
tasks with minimal to no oversight.
However, unlike in Villa, there is no contract of record stating that this was an agency
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relationship with a grant of general control. There is no evidence of payment or receipt of any
monies by Sudler. Further, testimony revealed that all employees were hired and terminated by
Edgewater. It is clear by the testimony at trial that Sudler and Manalo had control over
implementing at least some maintenance projects, but not a general grant of authority. If projects
were labor or cost intensive, Edgewater controlled decisions, though the extent of that control
remained largely in question.
Furthermore, inquiries of both parties by this court underscore the lack of clarity on this
issue. Questioned on whether Sudler had the wherewithal, for example whether they had the
tools, manpower or funding, to complete a project such as removing the pneumatic hose, the
parties did not know. Likewise, it was unknown whether such a project would require board
oversight, or if Sudler had the authority to undertake such efforts.
While it cannot be said that plaintiff conclusively proved that Sudler was an independent
contractor, considering the evidence of record, it cannot be said that the four factors for agency
outlined in Lang were overwhelmingly evident to allow a determination either way as a matter of
law. As more fully explained in discussion of the jury instruction issue below, the trial court’s
finding during the instruction conference that an agency relationship existed between Edgewater
and Sudler constituted reversible error. On remand, more evidence must be presented developing
the relationship between Sudler and Edgewater in order for the trial court to find an agency
relationship as a matter of law. The four factors in Lang must be addressed, or overwhelming
evidence of less than all four is required. Alternatively, as in Villa, a contract or management
agreement clearly outlining an agency relationship could be introduced to allow a determination
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as a matter of law. Otherwise, the law is clear that an agency relationship is a question of fact for
the jury.
B. Jury Instructions With Respect to Defendant Sudler
Plaintiff contends that the trial court committed reversible error by instructing the jury on
the wrong standard of care and that the cause must be remanded for a new trial. Esser v.
McIntyre, 169 Ill. 2d 292, 302 (1996). Specifically, plaintiff argues that her request for IPI Civil
(2005) No. 21.02 should have been given with respect to Sudler because it was not an owner or
occupier of the property subject to the lesser premises liability standard under IPI Civil (2005)
No. 120.08.
The determination of what standard of care a party owes another is a question of law.
Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445 (1996). A particular jury instruction
given by the trial court is proper if it is sufficiently clear, fairly and correctly states the law, and is
supported by some evidence in the record. Rios v. City of Chicago, 331 Ill. App. 3d. 763, 776
(2002). In determining whether jury instructions were inadequate, this court will remand for a
new trial on that basis only if the trial court clearly abused its discretion. Villa v. Crown Cork &
Seal Co., 202 Ill. App. 3d 1082, 1087 (1990). Likewise, the trial court’s determination as to what
issues are raised by the evidence will be disturbed only if the court abused its discretion. Bryant
v. LaGrange Memorial Hospital, 345 Ill. App. 3d 565, 573 (2003). Not only are the pattern jury
instructions preferred, if applicable, the IPI instruction must be given. Hobart v. Shin, 185 Ill. 2d
283, 294 (1998).
1. Whether the trial court instructed the jury on the proper standard of care
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First, plaintiff argues that Sudler was an independent contractor and subject to the general
negligence standard outlined under IPI Civil (2005) No. 21.02. Even if the trial court properly
determined agency in this case, plaintiff asserts that the premises liability jury instructions were
improperly applied to Sudler. Plaintiff argues that there is no support in Illinois law for the
position that the owner or occupier burden of proof for negligence may be applied under an
agency theory. Rather, plaintiff contends that the law is clear that, for liability under a premises
liability theory, a party must be an owner or occupier of the property in question. Kotecki v.
Walsh Construction Co., 333 Ill. App. 3d 583, 589 (2002). To be considered an owner or
occupier, and for a duty to arise under the Act, it is clear that “the defendant must possess and
control the real property on which the injury occurred.” Kotecki, 333 Ill. App. 3d at 589, citing
Godee v. Illinois Youth Soccer Ass’n, 327 Ill. App. 3d 695, 699 (2002).
Plaintiff asserts that it is clear that Sudler is not an owner of the property so as to fall
under the owner and occupier requirement for premises liability. Plaintiff contends that, as under
Esser, Sudler did not occupy the land with the intent to control the land to be considered an
occupier. Esser, 169 Ill. 2d at 302. Therefore, on its own, Sudler did not fall under the premises
liability standard and was subject to liability under general negligence standards.
Plaintiff further argues that no court has ever held that the burden of proof in claims
against an agent of an owner or occupier is determined by the premises liability standard.
Plaintiff continues that agents are liable for their own torts, while the principal is liable for its
agent’s torts if done within the scope of their agency relationship. Brubakken v. Morrison, 240
Ill. App. 3d 680, 686 (1992); IPI Civil (2005) No. 50.01. Therefore, she concludes that Sudler
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had a common law duty of reasonable care in maintaining the property separate and apart from
any duty Edgewater owed plaintiff as owner of the property. Plaintiff claims that she was
prejudiced by the use of the more exacting standard of care under premises liability law.
Defendants argue that the cases cited by plaintiff are distinguishable and have no
application to the facts of this case. Defendants claim that Esser did not involve issues of
agency, but only involved the determination of whether a vacationer was an occupier of a
common area of a rented home. They argue that Kotecki involved issues of construction related
injuries, and again, no agency issues. Defendants argue that Israel involved motions to dismiss
claims for fraud and intentional interference with contractual relations and not premises liability.
Defendants also claim that the Premises Liability Act (Act), (740 ILCS 130/1 et seq.
(West 2004)), and relevant jury instructions apply equally to an agent of an owner or occupier as
well as to the direct owner. Defendants do not cite to any authority for this argument in their
brief. However, as support during oral argument, defendants referenced the committee
comments to IPI Civil (2005) No. 120.08. IPI Civil (2005) No. 120.08, at issue and fully
addressed in the next section, is the jury instruction that was recently created to combine the
issues and burden of proof instructions for premises liability cases. Defendants requested and the
court gave IPI Civil (2005) No. 120.08, for both Edgewater and Sudler. Defendants highlight
that the comments state that, for cases where there is a dispute as to ownership of the property,
“[f]irst, the defendant, [owned] [controlled] [managed] the property,” should be added to the
instruction. Defendants offer that the use of “manages” in the notes to IPI Civil (2005) No.
120.08 further supports their argument that agents such as property manager Sudler fall under
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this instruction.
However, from the record, there is no dispute as to ownership of the property and it is
clear that Sudler is neither an owner nor occupier of the Edgewater Beach Apartments. Sudler
maintains one to two employees on the property and coordinates the maintenance staff on the
property. There was no evidence that Sudler maintained possession and control over the
property. As the court improperly determined that Sudler was an agent, that theory fails to
support defendants’ contention that the Act applies to agents as well as principals. The
comments to IPI Civil (2005) No. 120.08 also fail to support defendants’ position because that
language is only to be used in the event of a dispute over the ownership of the property, which is
not the case here.
We agree with plaintiff that even if agency had been properly established, that does not
lead to the use of premises liability instructions for the agent. There is no doubt that Edgewater
owned, possessed and controlled the property as outlined under Esser, Kotecki and Godee, to fall
under the Act. Plaintiff alleged that Sudler was hired to undertake certain tasks for Edgewater
and, as such, its duty to the residents at Edgewater arose from that agreement. Therefore, even
assuming an agency relationship, Sudler would be liable for its own negligent acts. Accordingly,
reversal and remandment is necessitated by the improper instructions rendered by the trial court.
2. Illinois Pattern Jury Instruction Civil (2005) No. 120.08
Plaintiff next contends that, even if IPI Civil (2005) No. 120.08 was properly given, the
instruction itself is defective and/or misleading. Plaintiff argues that this instruction improperly:
(1) requires the jury to determine a defendant’s duty; (2) misstates Illinois law by limiting
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landowner liability to a landowner’s reasonable expectation that people on the property would
not discover the danger; and (3) does not provide for the distraction or deliberate encounter
exceptions to open and obvious conditions.
The question of a defendant’s duty of care is a matter of law to be determined by the trial
court and is reviewed de novo. Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). In
determining whether a duty is owed in a premises liability case, the court considers: (1) the
likelihood of injury; (2) the reasonable foreseeability of such an injury; (3) the burden of
guarding against such an injury; and (4) the consequences of placing that burden on a defendant.
Ward, 136 Ill. 2d at 140. Plaintiff notes that section 343 of the Restatement (Second) of Torts
sets out the factors used by courts when analyzing the foreseeability prong of the duty analysis
under a premises liability theory. Ward, 136 Ill. 2d at 145-46. That section provides in full:
“A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the
danger.” Restatement (Second) of Torts §343 (1965).
As noted above, IPI Civil (2005) No. 120.08 is the jury instruction that was recently
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created for premises liability cases. This instruction combines the instructions for premises
liability issues and burden of proof into one instruction. IPI Civil (2005) No. 120.08 states in
full:
“[In Count ___], [plaintiff’s name] seeks to recover damages from the
defendant [defendant's name]. In order to recover damages, the plaintiff has the
burden of proving:
First, there was a condition on the [property] [land] [building] [other]
which presented an unreasonable risk of harm to [people] [children] on the
property.
Second, the defendant knew or in the exercise of ordinary care should have
known of both the condition and the risk.
Third, the defendant could reasonably expect that [people] [children] on
the property [would not discover or realize the danger] [or] [would fail to protect
themselves against such danger].
Fourth, the defendant was negligent in one or more of the following ways:
a) _________________________________________________________,
b)_________________________________________________________,
c)_________________________________________________________,
Fifth, the plaintiff was injured.
Sixth, the defendant's negligence was a proximate cause of the plaintiff's
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injury.” IPI Civil (2005) No. 120.08.
Plaintiff claims that, by its own terms, IPI Civil (2005) No. 120.08 insulates a landowner
from liability for all hazards except those dangerous conditions that the landowner could
reasonably expect that people on the property would not discover or realize. Therefore, she
argues that the instruction must be closely scrutinized to assure that it properly states the law.
Plaintiff points out that four of the six elements required under IPI Civil (2005) No.
120.08 are virtually identical to the foreseeability factors under section 343 of the Restatement.
Plaintiff notes, however, that only one prong of the Ward duty analysis is considered under IPI
Civil (2005) No. 120.08. As such, plaintiff argues that a jury may undertake an incomplete
analysis of the duty owed by defendants and that they must analyze all four factors highlighted in
Ward. Therefore, plaintiff argues that it is logically inconsistent to have the jury undertake an
incomplete duty analysis at trial when that precise issue is determined as a matter of law by the
court before the matter gets to trial. In this case, the question of defendants’ duty was determined
by the circuit court in earlier proceedings on defendants’ motion for summary judgment and,
plaintiff argues, that issue should not have been revisited by the jury.
Defendants counter that plaintiff has confused questions of duty and liability. Defendants
argue, without citation to authority, that Illinois courts follow a two-prong inquiry for premises
liability cases by examining first the question of a defendant’s duty and then the liability of the
defendant. Defendants note that landowner or occupier liability was defined by the supreme
court in Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976), in the same manner as defined
in section 343 of the Restatement, and now IPI Civil (2005) No. 120.08, quoted above, and this
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definition remains unchanged.
Our supreme court recently noted that the question of duty in this area is “very involved,
complex and indeed nebulous.” Marshall v. Burger King Corp., No. 100372, slip op. at 10 (June
22, 2006), quoting Micher v. Brown, 54 Ill. 2d 539, 545 (1993). The consideration of duty
involves a complex question of fact, law, and public policy that the trial court must determine as
a matter of law. This question is made more complex upon review by courts’ use of the
Restatement sections on the broader subject of liability to determine duty. Marshall, slip op. at
12. Indeed, for example, the Ward and Bucheleres courts specifically note that this section of the
Restatement is informative to the question of duty. However, they both also note that the
analyses undertaken for duty and liability are separate and distinct. Bucheleres, 171 Ill. 2d at
447.
The Ward court further bears this out by outlining a three-step process in common law
negligence actions. First, the court must determine that the defendant owed a legal duty to the
plaintiff. In making this determination, the court must examine the four factors found in Ward:
(1) likelihood of injury; (2) reasonable foreseeability of injury; (3) burden of guarding against
injury; and (4) consequences of burden. Second, if the court has determined that defendant owed
plaintiff a duty, the trier of fact then considers the three factors under section 343 of the
Restatement ((1) whether the defendant knew or by exercise of reasonable care would discover,
and should realize, the condition presents an unreasonable danger to invitees; (2) whether the
defendant should expect invitees will fail to discover or realize the danger or fail to protect
themselves against it; and (3) whether the defendant failed to exercise reasonable care to protect
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invitees against danger) to determine a defendant’s negligence or lack thereof. Finally, the trier
of fact also may consider the plaintiff’s fault, if any, in determining whether the defendant was
negligent. Ward, 136 Ill. 2d at 145-46.
As noted in Bucheleres, foreseeability of injury has never been dispositive of the issue of
duty in negligence cases. Bucheleres, 171 Ill. 2d at 457. Further, the existence of a duty turns in
large part on considerations of public policy. In fact, the supreme court has phrased the
Ward factors that comprise the duty inquiry as “policy considerations.” Marshall, slip op. at 11-
12. Therefore, the court’s determination that a defendant owes a plaintiff a duty is not a
dispositive ruling on the facts so as to relieve the plaintiff of her burden of proving the factors
enumerated in IPI Civil (2005) No. 120.08.
It follows that plaintiff’s argument that IPI Civil (2005) No. 120.08 is an inaccurate
statement of Illinois law fails. Plaintiff claims that the instruction improperly limits landowners’
liability to situations where the landowner could “reasonably expect that people on the property
would not discover or realize” the dangerous condition. Plaintiff argues that open and obvious
conditions are not an absolute bar to liability, but that the instruction allows such a bar if the jury
finds that the defendant “could reasonably expect” that the plaintiff knew of the condition.
However, as can be gleaned from the citations above, IPI Civil (2005) No. 120.08 is an accurate
recitation of Illinois law as found in Genaust, Ward, Bucheleres, and Marshall.
Finally, along the same lines, plaintiff argues that IPI Civil (2005) No. 120.08 does not
allow for the distraction or deliberate encounter exceptions. Ward, 136 Ill. 2d at 145;
Restatement (Second) of Torts, §343A, Comment F (1965). First, by the very language
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specifically cited by plaintiff, the instruction takes into account the distraction exception. A
distracted person “would not discover or realize the danger” and as a result fail to protect him or
herself. Furthermore, throughout the opinion in Ward, the supreme court limited the distraction
exception to reasonably foreseeable activities and injuries as the instruction does. As for the
deliberate encounter exception, that issue is covered under IPI Civil (2005) No. 120.09;
therefore, its absence does not render IPI Civil (2005) No. 120.08 invalid.
C. Barring Evidence of Subsequent Remedial Measures
While we have reversed the jury’s verdict, we choose to address plaintiff’s argument that
the trial court erred in granting defendants’ motion in limine to bar any testimony referring to
documents and discussions regarding subsequent remedial measures as this issue is likely to arise
during retrial. Plaintiff notes that the generally accepted rule is that post-occurrence remedial
measures are inadmissible to prove negligence. Schaffner v. Chicago & North Western
Transportation Co., 129 Ill. 2d 1, 14 (1989). However, she argues that the evidence at issue was
not evidence of a subsequent remedial measure. Even if it were, plaintiff argues that the actions
were not taken by defendants or their agents, but by an informal floor committee of Edgewater’s
resident shareholders.
A challenge made to the trial court's ruling on the admissibility of evidence is reviewed
under an abuse of discretion standard. Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d
706, 711 (2005). The trial court is vested with the discretion to determine the relevance and
admissibility of this evidence regardless of whether it is expert or lay testimony. Mulloy, 358 Ill.
App. 3d at 711-12. A trial court abuses its discretion only when no reasonable person would
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agree with the trial court. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).
Plaintiff argues that the trial court improperly barred the testimony of resident shareholder
and floor committee chairperson George Maniates and any communications regarding his floor
committee. The trial court barred testimony and meeting minutes as evidence of subsequent
remedial measures by defendants. Plaintiff claims that the floor committee was an informal
group that discussed issues, including the unsafe condition of the alternate entrances, at the
apartment building. Therefore, plaintiff concludes that this was not the action of defendants, nor
any evidence of subsequent measures but rather constituted evidence of knowledge of the hazard.
Defendants argue that the committee was an agent of Edgewater. Defendants point to the
testimony of Manalo that the board president appointed committees to look at issues. Therefore,
defendants claim that it is clear that the committee is an agent of Edgewater and if the evidence
was admitted, it would have been an admission of negligence by Edgewater. Furthermore,
defendants argue that if this testimony and correspondence were admitted, it would be
duplicative of evidence established by other witnesses at trial.
The evidence at trial supports defendants’ claim that the committee chaired by Maniates
was an arm of the board for Edgewater and acted subsequent to plaintiff’s accident on remedial
measures at the property. While informal, the evidence established that Maniates was appointed
by the board to discuss issues at the apartment complex, including the safety of the entrances, and
report to the board. Subsequent remedial measures were taken with respect to the building
entrance. It was within the trial court’s discretion to bar this testimony regarding Edgewater’s
analysis of and action addressing the hazards posed by the hose. Furthermore, plaintiff’s
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argument that this evidence was necessary to show the hazard posed by the hose is hollow as that
was clearly established by the testimony of Manalo, Simich and Craig and would be duplicative
for that purpose. As we have reversed the jury verdict in this case, we need not discuss plaintiff’s
two final arguments.
III. CONCLUSION
Accordingly, for the aforementioned reasons, the decision of the trial court is reversed.
This cause is remanded for a new trial consistent with the holdings herein.
Reversed and remanded.
QUINN, P.J., and CAMPBELL, J., concur.