Varner v. Johnson

40 F. App'x 997
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 18, 2002
DocketNo. 01-3284
StatusPublished
Cited by1 cases

This text of 40 F. App'x 997 (Varner v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Varner v. Johnson, 40 F. App'x 997 (7th Cir. 2002).

Opinion

ORDER

Vernon Varner sued Amoco Oil Company and Karen Johnson after he slipped and fell outside an Amoco service station run by Johnson in Waukegan, Illinois. The district court granted Amoco summary judgment, but the case against Johnson proceeded to trial. A jury returned a verdict in Johnson’s favor. Varner ap[998]*998peals, arguing that the district court erred in instructing the jury. We affirm.

I.

On February 5, 1997, Dr. Vernon Var-ner, his then-wife Mary, and his attorney, James Shipman, were in the Chicago metropolitan area to inspect documents in connection with a medical malpractice and products liability lawsuit. At about 8:00 a.m. Shipman stopped at an Amoco station operated by Karen Johnson. Unfortunately, when Dr. Varner got out of the car he slipped and fell, striking his head. Mary, who was a nurse, went to Dr. Varner’s assistance. He was later treated for a three-inch laceration to his head, which required eight or nine staples, and also for a bone chip in his left elbow.

After Dr. Varner’s fall, Shipman inspected the ground, seeing a patch of “black ice” of about three feet square near where Dr. Varner was lying. Shipman described the ice as: “[W]hat happens if you pour water, when it’s freezing on a piece of pavement. It was not snow or slush that had been compacted or driven over; it was just clear ice, and there was a pinkish or reddish material that was in part of this. It wasn’t all a constant hue, but it looked like someone had poured water to try to wash away a pinkish or reddish fluid.”

Shipman then went into the station to, in his own words, “confront” the station attendant. Shipman asked the attendant, Roger Taylor, whether he had seen the fall, and Taylor said that he had not. Shipman then asked him whether he knew that there was black ice on the driveway, but Taylor did not respond. Shipman then told Taylor to write out a statement concerning the incident, which Taylor did, stating: “I did not see him fall on a small patch of ice, however, a customer asked me to call the police for assistance.” With this statement in hand, Shipman returned to Dr. Varner and Mary. An ambulance then took Dr. Varner to the hospital. Karen Johnson arrived at the station a little later that morning, and Taylor informed her of the accident and showed her where it occurred. Johnson did not notice any ice in the area, but decided to salt the pump area where Dr. Varner fell anyway.

Dr. Varner eventually filed suit against Karen Johnson and Amoco alleging negligence. The district court granted Amoco summary judgment, but the case against Johnson, as the operator of the service station, proceeded to trial. At trial, in addition to the above evidence, the jury heard evidence that on the morning of Dr. Varner’s fall there was no precipitation, either rain or snow, and that it was 30-31 degrees Fahrenheit.

The jury also heard Mary Varner’s deposition testimony concerning the fall: “All of a sudden it was like in a split second he was down. He fell. It wasn’t like he stumbled. It was like he was gone in an instant.” She then described the area near Dr. Varner’s fall, explaining that she did not recall seeing any ice, and that she would have noticed ice, but that she observed a pinkish-colored substance in the seams or cracks in the driveway. She explained that she did not know whether the pinkish-colored substance was liquid or solid, but explained that she “believe[d] it was like if there had been something like rain, and then its gotten cold and it’s just kind of — you see the concrete, but it’s like maybe there’s just this roughened kind of — I don’t know how to explain it. It’s like you see sometimes on the ground.” Dr. Varner also testified, but he did not know how the accident occurred and remembered little from the morning of the fall.

At the close of evidence, the court gave the jury Instruction 17:

[999]*999The plaintiff claims that he was injured and sustained damage as a result of a fall on an unnatural accumulation of ice on the property of Karen Johnson that presented an unreasonable risk of harm to the plaintiff.

The plaintiff claims that Karen Johnson was negligent in one or more of the following ways:

a. Invited and allowed its customers, including Plaintiff, to use said service area when it knew or should have known that it was unsafe and dangerous to do so due to the unnatural accumulation of ice;
b. Failed to make a reasonable inspection of said service area.

Dr. Varner had requested a more extensive instruction, based on his alleged theory of the case, namely that Johnson was negligent because Johnson, or one of her employees, sprayed or dumped water over the pavement to wash away the pink substance, and that the water froze, creating the “black ice” on which he fell.1 The district court rejected Dr. Varner’s proposed instruction, concluding that the evidence did not support the instruction as drafted.

Following deliberations, the jury returned a verdict in favor of Johnson and against Dr. Varner. Dr. Varner filed a motion for a new trial, but the district court denied that motion. Dr. Varner appeals, arguing that the district court erred in rejecting his proposed jury instruction.

II.

On appeal, Dr. Varner argues that the district court erred in refusing his proposed jury instruction because the evidence was sufficient to create “a reasonable inference that the Defendant created the condition upon which the Plaintiff fell.” Specifically, Dr. Varner claims that the district court erred in striking subsections a and b of his proposed jury instruction. As excerpted above, subsection a presented a theory of negligence based on Johnson permitting and allowing ice to accumulate due to the manner in which she cleaned the surface of the service area, and subsection b presented a theory of negligence premised on Johnson causing and permitting an unnatural accumulation of ice to remain on the service area for an unreasonably long period of time. This court reviews jury instructions deferentially, considering only whether the instructions, taken as a whole, adequately inform the jury of the applicable law. Molnar v. Booth, 229 F.3d 593, 602 (7th Cir.2000). Courts may refuse jury instructions that [1000]*1000do not comport with the evidence. Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1344 (7th Cir.1995) (“A party is entitled to have his tendered instruction read to the jury only if the instruction is, first and foremost, supported by the evidence received at trial, and if: the instruction correctly states the law; it does not repeat material covered by other instructions; and the substantial rights of the party offering the instruction would be prejudiced if it were not given.”).

Initially, we note that while his proposed jury instruction framed Dr. Varner’s theory of the case as one involving an “unnatural accumulation” of ice, on appeal he claims that Johnson is liable, not under the law governing “unnatural accumulations of ice” but for “creating the condition upon which the Plaintiff fell.” Johnson claims that Dr. Varner never presented this “creating the condition” theory of negligence to the district court. Rather, according to Johnson, Dr.

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40 F. App'x 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varner-v-johnson-ca7-2002.