Opinion
Case No. 01 C 6959
December 3, 2003
Rulings on Motions in Limine
This document addresses motions in limine as to which ruling was reserved at the final pretrial conference and the motion of defendants Lettuce Entertain You Enterprises, Inc., and 1204 N. State Parkway Corp. ("collectively, "Lettuce") to reconsider a previous ruling on plaintiffs motion in limine No. 5. The court rules as follows:
A. Reserved Motions in Limine
1. Plaintiff's Motion for the Admission of Evidence of Post-Occurrence Conduct of Lettuce and Related Motion for Sanctions for Lettuce's Destruction of the Non-slip Friction Strips at Issue (Plaintiffs Motion # 1)
Plaintiff alleges that Lettuce knew or should have known that the friction strips were a crucial piece of evidence that should have been preserved. It appears from the deposition testimony, however, that The Sexton Group, Inc. ("Sexton"), not Lettuce, destroyed the strips. Plaintiff has not presented any evidence to show that Sexton knew or should have known that the strips were potential evidence. Nor has plaintiff shown that Lettuce instructed Sexton to destroy the strips, though they may have asked Sexton to replace the strips. Thus, unless plaintiff can establish that Lettuce was somehow involved in the destruction of the strips or instructed Sexton to replace them and knew or should have known that they would be destroyed, sanctions are not appropriate.
2. Plaintiffs Motion to Bar Evidence of a Purported Absence of Other Slips and Falls on the Subject Stairs (Plaintiffs Motion # 2)
In Walker v. Trico Manuf. Co., 487 F.2d 595, 599 (7th Cir. 1973), the Seventh Circuit held that the machines at issue in a products liability case must be "substantially identical" and the settings and circumstances must be "sufficiently similar" to "allow the jury to connect past experience with the accident sued upon." Given that the plaintiffs theory of liability rests on allegations about the build-up of polyurethane on the stairs, defendants may offer evidence to show that there were no slip-and-falls on the stairs since the last coating of polyurethane was applied. 3. Plaintiffs Motion for the Admission of Evidence of Kathleen Cercone's Slip on the Subject Stairs Minutes Before the Plaintiffs Accident (Plaintiffs Motion # 5)
"Evidence of prior accidents, occurring in the same place or with the same instrumentality is admissible as tending to show that the common cause of such accidents was a dangerous and unsafe condition." Grewe v. West Washington Court Unit District, 707 N.E.2d 739 (5th Dist. 1999). This evidence is admissible. Defendant's argument that Halvorsen was carrying dishes while Cercone was empty-handed goes to the weight of the evidence, not its admissibility.
4. Plaintiffs Motion for the Admissibility of Statements Made By Employees of Defendant Lettuce (Plaintiffs Motion # 6)
Plaintiffs seeks the admission of the following statements:
(1) The day after the plaintiffs fall, Lettuce's manager, Mark O'Sullivan, telephoned Claudia Poe, in whose honor the wedding shower at P.J. Clarke's was being held, and stated that "I know [the stairs] are slippery; the skids are a little worn out; I guess we need to get some new skids."
(2) Kathleen Cercone, a party attendee, testified at her deposition that, immediately after the accident, a male waiter came down from the third floor of the restaurant and stated that the stairs were "really slippery" and that he had fallen down them before. (Plaintiff has recently filed a supplement to Motion # 6. In a deposition on November 12, 2003, the waiter in question, Robert Holmberg, admitted that he made the comment. He also admits that he filed a workers' compensation form after his fall in which he stated that he fell "while going downstairs," though he testified that he actually fell several feet from the stairs on the landing.)
(3) Plaintiff testified in her deposition that, immediately after the accident, a woman employed by P.J. Clarke's came down a set of stairs leading to the upstairs office of the restaurant and offered to allow the women gathered around the plaintiff the use of her camera and commented that the stairs were slippery.
The court ruled at the pretrial conference that statement number 3 for lack of foundation was not admissible. Statements 1 and 2 are clearly admissible against Lettuce as admissions by a party-opponent. However, the statements are hearsay as to Sexton. Sexton argues that both statements should be excluded because a limiting instruction would be ineffective. Furthermore, since Sexton is the party directly responsible for the alleged slippery condition of the stairs, Sexton argues that admitting the statements would be particularly prejudicial against it.
Surprisingly, there is little case law dealing with this problem. Admitting the statements with a limiting instruction is the formal solution, but Sexton's concerns about the effectiveness of a limiting instruction are justified. An alternate, and perhaps more equitable, solution would focus on the reliability of the statements themselves. O'Sullivan denies making the first statement, and there are no other indicia of the reliability of the statement. The unreliability of the statement plus the potential prejudice to Sexton shifts the balance towards excluding the statement. Robert Holmberg, however, admits to making the second statement and filed a worker's compensation form documenting his fall. Though the statement is still hearsay as to Sexton, there are sufficient indicia of reliability to admit the statement against Lettuce with an appropriate limiting instruction. Assuming Holmberg is called as a witness, both defendants will have the opportunity to question him about the statement. The court will, therefore, admit the Cercone statement with a limiting instruction as to Sexton. Claudia Poe may be called to impeach O'Sullivan if the occasion arises. The court will be instructed to consider the testimony only in evaluating O'Sullivan's credibility.
5. Motion to Bar Chicago Department of Buildings Evidence
(Plaintiffs Motion # 9)
Ruling is reserved pending a determination whether defendants can lay a proper foundation for the testimony.
6. Sexton's Motions to Bar Opinion Testimony of Plaintiff's Expert (Sexton's Motion #3, #7)
7. Lettuce's Motion to Bar Van Ostrand's Testimony Based on Speculation and Conjecture (Lettuce's Motion #4)
Sexton and Lettuce move to bar plaintiffs expert, John Van Ostrand, an architect, from testifying about the slip resistance of the stairs on which plaintiff fell. Sexton contends that Mr. Van Ostrand is not qualified to opine on the matter and, even apart from his qualifications, they both argue that he failed to perform a coefficient of friction test, which is the only test accepted within the architecture/engineering community as indicative of slip resistance. Plaintiff responds that Mr. Van Ostrand should be allowed to opine on slip resistance based on both his knowledge of architecture and structural engineering and his experience building stairs, including experience with the type of anti-skid strips that were on Sexton's stairs and his belief that the coefficient of friction test is unreliable. The court believes Mr. Von Ostrand will be able to assist the jury in determining whether the stairs were reasonably safe in light of applicable codes and customs. On the other hand, he may not testify that the stairs were unsafe because coating the treads with polyurethane would make them slippery, an inference which is merely intuitive for him as it would be to a juror. Unlike defendant's expert, who is able to demonstrate that the coating reduced the friction on similar stairs but did not bring it below an architectural standard, Mr. Van Ostrand's opinion is not moored to the science in which he is trained. The same ruling applies to the use of steel wool on the strips. This motion is granted to this extent and otherwise denied.
Plaintiff argues that all challenges to plaintiffs expert should be denied because they are untimely under the scheduling order entered in this case. The court will not exclude Mr. Von Ostrand's testimony based on any general lack of qualification. Nevertheless, it considers particular issues of relevance and admissibility on the basis that the court has responsibility to keep the case focused on the probative facts and opinions.
Sexton's motion also seeks to bar von Ostrand from testifying that he ceased performing coefficient of friction testing for any reason other than based on a disclosed publication. (Sexton Motion #3) Von Ostrand testified that he ceased performing coefficient of friction testing because he deemed it unreliable, stating that his experience with the test demonstrated that the results were too variable. See Van Ostrand dep. 71-72 ("The test I ran, for instance, I would have to repeat the one test 12 times . . . I would get values all over the place. . . . .") He also stated that his opinion was based on reading an October, 1991, article entitled "Slip Resistance Surfaces Advisory Guideline," published by Performance Transportation Institute. Mr. Von Ostrand has disclosed no other bases for his opinion and thus may testify about the one article he identified and his own experience running the coefficient of friction test. The motion is granted in part and denied in part.
Lettuce seeks to bar testimony that Mr. Von Ostrand "guesses" that plaintiffs right foot slipped because plaintiff has not stated which foot slipped. This motion is denied. Because Mr. Von Ostrand was not present when the accident happened he must necessarily endeavor to reconstruct what happened. As long as his testimony is not inconsistent with what plaintiff herself remembers, he may make reasonable assumptions and deductions therefrom.
Lettuce seeks to bar testimony that Mr. Von Ostrand "suspects" that plaintiff fell on a different stair from the one she identified. Ruling on this motion depends on plaintiffs testimony as to how the fall occurred. Although both parties characterize her deposition testimony, neither has attached it to the motion. Thus, ruling is reserved.
Lettuce seeks to bar testimony that any so — called steepness of the stairs was a cause of plaintiffs fall, arguing that because witness Cercone testified that the steepness of the stairs was not a cause of her earlier fall, there is no basis to say that steepness was a causal factor. This motion is denied. Cercone is probably not competent to give an opinion about whether the steepness of the stairs caused her fall. Van Ostrand is competent to say, based on the facts and circumstances, that steepness contributed to the accident.
Lettuce seeks to bar testimony that the nosing of the third step below the landing had a slope of greater than 6 percent on the basis that plaintiff fell before she reached that step. Again, ruling on this motion depends on plaintiffs testimony. Ruling is reserved for trial.
Lettuce seeks to bar testimony that the Chicago Building Code has shortcomings and references to the "BOCA Code." That the Chicago Building Code was violated may indicate negligence but the fact that the Code did not impose a particular rule does not exonerate defendants. Von Ostrand may refer to building codes to present his testimony as to how safe stairs are constructed.
Lettuce seeks to bar testimony regarding human factors that might have been involved in the accident, arguing that Von Ostrand has no expertise in human factors. The court reserves ruling until it determines whether a proper foundation can be laid for the testimony at trial.
The following motions are granted as unopposed: Sexton's motion to bar Von Ostrand from testifying that he ceased performing coefficient of friction testing for any reason other than the one he disclosed (reading an October, 1991, article entitled "Slip Resistance Surfaces Advisory Guideline," published by Performance Transportation Institute); Lettuce's motion to bar testimony suggesting that the Chicago Building Code requires walking surfaces to be slip resistant; morion to bar testimony suggesting that had there been a second railing on the stairway, plaintiff would not have fallen; motion to bar testimony regarding the width of the stairs and need for second railing; motion to bar testimony concerning lighting conditions.
B. Lettuce's Motion to Reconsider
Lettuce moves this court to reconsider its ruling on Plaintiffs Motion in Limine No. 5 admitting into evidence testimony that "minutes before" the plaintiffs fall on the stairway at issue, Kathleen Cercone, another party attendee, slipped on the same stairway. Defendants argue that the case law cited by plaintiff in support of her motion allows evidence of prior accidents only for the purpose of showing notice to property owners, not to show that the common cause of the accidents was a dangerous or unsafe condition. Since there was no notice given to defendants of Cercone's alleged incident, defendants argue that the evidence is not admissible.
Regrettably, Lettuce misrepresents the holdings of the cases cited by plaintiff. For example, defendants claim that the Illinois Supreme Court held in City of Bloomington v. Legg, 151 HI. 9, 37 N.E. 696 (1894), that "evidence of prior accidents caused by the shape of a spout at a fountain used for watering horses was admissible to show the owner's notice of a dangerous condition." (Mot. to Recon., at 2, emphasis in original.) The court actually held that evidence of prior accidents is "competent . . . to show the cause of these accidents is a dangerous unsafe thing. . . . In addition to being evidence material to the issue, to show a dangerous condition, it is also evidence material as tending to show notice." Id. at 13-14, 37 N.E. at 697 (emphasis added). Defendants similarly misrepresent the holding of Grewe v. West Washington County Unit District #10, 303 Ill. App.3d 299, 707 N.E.2d 739 (5th Dist. 1999). Defendants claim that the Grewe court reversed a directed verdict "where defendant had notice of prior slip and fall, its superintendent inspected the area, and the superintendent admitted that he may have missed seeing the condition at issue." (Mot. to Recon., at 2, emphasis in original.) In fact, the court held quite clearly that "evidence of prior accidents, occurring at the same place or with the same instrumentality, is admissible as tending to show that the common cause of such accidents was a dangerous and unsafe condition." The court added that "the frequency of such accidents also tends to raise the presumption of knowledge on the part of the offending parties." Id. at 304, 707 N.E.2d at 743 (emphasis added). Defendants have not cited a single Illinois case holding that evidence of prior accidents is inadmissible to show that the common cause of such accidents was a dangerous or unsafe condition. Defendants' motion to reconsider is, therefore, denied.
ORDER
All outstanding motions in limine (contained in the pretrial materials) are ruled on as stated above. Lettuce's motion to reconsider [#113] is denied.