Under the circumstances presented here, defendant cannot claim surprise as to Schreiber's existence as an occurrence witness. A party cannot claim surprise or prejudice when he knows of the existence of a witness even where answers to interrogatories are incomplete. ( Mantia v. Kaminski (1980), 89 Ill. App.3d 932, 936; accord Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254.) Schreiber's identity as Groboski's treating physician was fully disclosed by defendant's deposition of Schatzlein and in Schatzlein's rehabilitation report five months before trial. Schatzlein stated in response to questioning by defense counsel that Schreiber was the main physician then responsible for Groboski's care as well as her therapy. He indicated, repeatedly, throughout his deposition, that Schreiber had advised him of Groboski's deficits and defense counsel asked questions about Schreiber.
Even had defendant's attorney asked those questions of A.C., there is no dispute the complaint is not verified by him. "An unsigned complaint cannot be used to impeach a witness" even where the witness testifies as to the allegedly impeachable matter. Mantia v. Kaminski, 89 Ill. App. 3d 932, 937 (1980). ¶ 82 In Mantia, the plaintiff sought to impeach testimony that the defendant was driving carefully with the allegations of negligence in a complaint. Id.
Generally, an unsigned complaint cannot be used to impeach a witness. Ryan v. Mobil Oil Corp., 157 Ill.App.3d 1069, 1081–82, 110 Ill.Dec. 131, 510 N.E.2d 1162 (1987) ; Mantia v. Kaminski, 89 Ill.App.3d 932, 937, 45 Ill.Dec. 300, 412 N.E.2d 651 (1980). Accordingly, we conclude defendant has failed to demonstrate the trial court abused its discretion in limiting cross-examination of M.S. and B.S.
They also claim that they have stated a cause of action for breach of contract by alleging that Hallmark failed to use due diligence in the management of the building and failed to obtain their approval of the subject leases, in violation of the management agreement. Hallmark responds that the applicable contract provision precludes liability for a breach of contract action seeking recovery for solely economic loss. It also maintains that theories of willful misconduct and gross negligence are confined to tort actions. See Coleman v. Hermann (1983), 116 Ill. App.3d 448, 457, 452 N.E.2d 620; Mantia v. Kaminski (1980), 89 Ill. App.3d 932, 936, 412 N.E.2d 651 ("Wilful and wanton conduct has been defined as `an intentional or reckless disregard for the safety of others'"). The trial judge relied on Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill.2d 87, in dismissing the Owners' complaint.
Dr. Velasco's identity and function were disclosed to defendant by plaintiff, and thus plaintiff cannot claim surprise or prejudice. (See Waterford v. Halloway (1986), 142 Ill. App.3d 668, 491 N.E.2d 1199; Mantia v. Kaminski (1980), 89 Ill. App.3d 932, 412 N.E.2d 651.) The in limine order does not bar Dr. Velasco's testimony.
Wilful and wanton conduct has been defined as "an intentional or reckless disregard for the safety of others." ( Mantia v. Kaminski (1980), 89 Ill. App.3d 932, 936.) It may include a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. ( Hering v. Hilton (1958), 12 Ill.2d 559, 562.) Failure to keep a proper lookout may amount to wilful and wanton misconduct under certain circumstances.