*1 the circuit reasons, the order of foregoing we reverse For the to Rooks. We summary judgment County granting court of Cook enter sum- the trial court to this cause with instructions remand remaining compute of Stevens and mary judgment favor interest, him. costs due to compensation, prejudgment departure and remanded. Reversed SOUTH, JJ., concur.
HOURIHANE and al., Fritz, Guardian, GREEN, Mother, Plenary et BRIAN His Helen JACKSON, Agent, Plaintiffs-Appellants, and as Servant v. EDGAR Indiv. Services, Inc., Fargo B.P.S. Employee Guard Division of of Wells Services, Inc., al., Defendants-Appellees. Guard et Division) (6th No. 1 — 94—1226 First District Opinion filed June 1997. *3 (David Novoselsky Novoselsky Associates, Chicago and A.
David A. & of counsel), Bryceland, appellants. Linda A. of for (Donald Douglas Varga, Ross, Chicago day J. of A. Mur and Peterson & Inc., counsel), Services, Edgar Fargo and Jackson. appellees for Wells Guard Wayne Dismukes, Chicago, appellee both F. Plaza and Edward P. for Amoco Oil Co. opinion the
JUSTICE THEIS delivered the court: Management Company, Plaintiffs sued A.C.A. Services a division (Amoco), Jackson, Company Edgar Fargo of the Amoco Oil and Wells Services, Inc., injuries by Guard suffered Brian Green on the premises of an service Amoco station. The entered a directed against verdict as to certain claims remaining Amoco. As to the count, jury the returned verdict in jury favor Amoco. The found against Fargo Jackson and Wells and awarded the mil- $3.2 damages. However, lion in by the reduced the award as the 75% of Brian comparative negligence. result appeal, plaintiffs Green’s On (1) argue: ruling the trial court erred in that Brian Green was (2) competent testify; to the trial court in allowing erred defendant (3) explain plea a criminal guilty proceeding; Jackson entered in directing the trial court erred in in verdict favor of Amoco as to (4) claims; negligence against certain verdict manifest (5) evidence; weight instructing and the trial court erred in jury. against Fargo We affirm judgment Edgar Wells and Jackson. Amoco, verdict, As to we affirm the trial court’s directed reverse but erroneous instruction and remand for a new trial. February Roger In Green and his son Brian Green at an stopped gas Amoco station located on corner of and Central Diversey Chicago, in purchase Illinois. exited the vehicle to cigarettes meantime, at the In Edgar Amoco minimart. Jackson approached the vehicle. Fargo security Greens’ Jackson was Wells guard prevent hired patrons Lounge Amoco to the 1-2-3 Disco parking Roger argu- from lot. began Jackson and Green vehicle, ing. Brian Roger arguing, returned to the heard Jackson began struggle Roger joined struggle. Jackson. with gun, A shot was fired Jackson’s hit Brian from which Green between Amoco, eyes. against Edgar Brian’s mother and father filed suit Jackson, Services, employer, Fargo Jackson’s Wells Guard Inc. plaintiffs I claimed that complaint,
In count of their four-count Fargo comply negligently statutes failed to with certain II, permitted security guard. as an In count Jackson to work armed investigate plaintiffs alleged Fargo failed to or train that Wells III, guard position. plaintiffs count claimed Jackson for his *4 proper Edgar negligently reported to work without Jackson legal justification. count Green without uniform shot Brian (1) IV, comply with the stan- plaintiffs alleged that Amoco failed to: (2) services; reasonable establish employing care for dard of (4) services; (3) hiring security policies establish security policies; (5) Edgar security guards; supervise training procedures for establish (6) qualified to be secu- Jackson; investigate Jackson was whether (7) a uniform working without prohibit Jackson from rity guard; and weapon. carrying a concealed while testimony. Leo Bara- eyewitness trial, parties introduced
At both Lounge Disco the 1-2-3 patronizing that he was nowicz testified evening, Baranowicz drove in the night the incident. Earlier Bara- approached phone. Jackson into the Amoco station to use the him the Amoco lot. Baranow- his car from nowicz and told remove army jacket and that wearing green that Jackson was icz testified insignia of wearing badge or other if was he did not notice Jackson "shooing” cars Later, other authority. Baranowicz observed Jackson from the lot. a.m., noticed the Greens’ vehi- approximately
At 1:30 Baranowicz testified that he observed cle enter the Amoco station. Baranowicz Baranowicz, According to Jackson’s altercation with the Greens. revolver, aimed, his and shot Brian Green. pulled Jackson out undermining Baranowicz’s cred- defendants introduced evidence (1) ibility. that Baranowicz: Specifically, the defendants established (2) trial, prior the facts admitted offered three different versions of lot, angry forcing he Baranowicz to leave the was with Jackson for (3) prior had been of two felonies. convicted working James Esbrook was at the Amoco station when Roger Green incident occurred. Esbrook testified that he overheard Jackson, why you doing neighborhood, nigger, tell "What are in this you people don’t leave those alone?” Esbrook stated that while sweater, beating grabbing Greens at his Jackson were Jackson and parties obstructed when never struck back. Esbrook’s view of the was minimart, face was the shot was fired. When Jackson entered the swollen. station when the Dyra
Terrence was a customer at the Amoco you are Dyra Roger say, "What Greens arrived. overheard at, began beat- looking nigger?” Roger exited his vehicle and before fight as Ter- ing Dyra joined that Brian well. Jackson. testified shoot Brian Green. rence did not see Jackson attempted to enter Edgar Jackson testified that as Brian Green minimart, it locked. Jackson informed Brian finger responded and stuck his [himself] that Jackson should "fuck said, Roger the air.” Green then rolled down the car window you looking nigger?” Roger exited the vehicle "What are at Jackson, doing up here in this nigger you like asked "What’s *5 neighborhood anyway?” Roger Jackson told that he was drunk and should leave. Jackson then felt someone hit him from behind and something stick gun that felt like a began in his back. The Greens beating Jackson. Jackson grabbed testified that the Greens at his exposed sweater and Jackson’s revolver. Roger
Jackson testified that he yell, heard nigger’s "The got gun,” a and that the Greens reached for weapon. Jackson’s losing fear of weapon, his gun. Jackson drew his grabbed Brian Green the barrel gun. that, of the Jackson stated during struggle, gun discharged and Brian Green was shot in the head. parties
The presented also evidence Edgar as to Jackson’s train- ing and procedures Amoco’s hiring, training, supervising em- ployees. Bottom, Dr. Norman self-employed professional a consultant, testified that Amoco breached a of care because he uniformed, believed there supervised was no security at the Amoco night station on shooting. Bottom that stated Jackson was wearing badge, uniform or a and he noted that Amoco had no policy place in for supervising newly hired Jackson. expert, McGoey, Chris testified that Amoco com-
municated Fargo to Wells particular what its needs were for the site. McGoey stated that he did not negligent believe Amoco was in hiring Fargo Wells or Jackson. manager Amoco area Ridgeway John stated that he did not make a decision as to whether an armed or un- security guard armed hired, should be but up left that decision to Fargo. Wells Amoco moved for a plaintiffs’ directed verdict as to against claims Amoco. The trial granted the motion as to all of plaintiffs’ allegations against Amoco, except plaintiffs’ claim that Amoco’s failure to hiring exercise reasonable Fargo care to provide security proximate awas injuries. cause of Brian’s deliberations, jury
After returned a verdict in favor Amóco. The Fargo Edgar found both Wells negligent Jackson damages awarded Brian Green in the amount of million. $3.2 determined Brian Green comparatively negligent and reduced the award 75%. appeal. Plaintiffs filed this argue
Plaintiffs first
denying
the trial court erred in
their
prevent
motion in limine
to
testifying.
probate
Jackson from
A
court determined
that Brian
incompetent.
such,
Green was
As
plaintiffs
claim that
the Dead-Man’s Act should have barred
testimony
Jackson’s
as to his altercation with Brian. See 735 ILCS
(West 1992). The
provides:
Dead-Man’s Act
5/8 —201
any
"In
any party
the trial of
action in which
sues or defends as
representative
person
of a
person
legal
deceased
or
under
disability,
party
person directly
no adverse
or
interested in the ac-
any
to
testify
her
behalf
his or
own
shall be allowed to
tian
disability
legal
or
person
under
with the deceased
conversation
presence
the deceased or
any
place in the
to
event which took
(West 1992).
disability
legal
ILCS
person under
***.”735
5/8—201
disability
"who
person
legal
as one
is
The
defines a
under
Act
action
be unable to
adjudged by
pending
the court in the
civil
illness,
deteriora-
testify by
mental retardation or
reason mental
1992).
(West
mentality.”
tion of
735 ILCS 5/8—201
testify
challeng
presumed competent to
and the
A witness is
overcoming
presumption. Clark v.
ing party
bears
burden
Co.,
App.
Otis
3d
mere has been disabled in fact that witness deemed incompetent person finances does not render that witness testify, merely goes weight might trier of afford but to the fact testimony. Clark, App. such The de 274 Ill. 3d N.E.2d 771. testify is within the competent termination of whether a witness is *6 Williams, 173, sound 147 Ill. 2d People discretion the trial court. v. denied, 876, 156, (1991), 588 Ed. 2d N.E.2d 983 cert. 506 U.S. 121 L. (1992). may 113 S. 218 The trial court make such a determination Ct. by observing preliminary inquiry means of the witness. Wil liams, 173, denied, 876, 983, Ill. 2d 147 588 N.E.2d cert. 506 U.S. 121 (1992). 156, discussing scope L. Ed. 2d 113 S. 218 In of the in Ct. quiry, we note:
"Although rigid apply there to is no formula to determine whether [citation], competent a witness is courts have that the trial held ability judge should consider four factors: the of the witness to senses, impressions correct receive from his to recollect those appreciate impressions, questions, to and to the moral understand Co., App. to tell the truth.” Clark v. Elevator 274 Ill. 3d Otis (1995). 253, 256-57, 771, 653 774 N.E.2d case, conflicting expert parties presented In the instant observe, recollect, testimony as to Brian could whether Green questions, appreciate tell the truth. understand the moral to Ketel, witness, expert Plaintiff’s Dr. Bruce testified that after ac cident In Dr. Ketel’s Brian was disabled and suffered from seizures. opinion, Brian could understand or articulate answers. questions not Garrón, Dr. a clinical not believe psychologist, testified he did ability comprehend questions that Brian’s them to and answer honestly testify was at a him to at trial. level would allow testimony Fargo presented
Defendants Jackson Georgemiller, George- Dr. Randy expert neuropsychology. an Dr. miller tested and examined Brian and found that Brian could comprehend perfor- questions. upon Based Brian’s test answer
1008 interview, Georgemiller manee he Dr. stated that believed Brian exaggerating injuries. was expert testimony, addition to the the trial court reviewed over pages
650 Brian deposition testimony. upon Green’s Based this preliminary inquiry, the trial court concluded that Brian competent testify. plaintiffs the trial court invited the to present evidentiary hearing they sought Brian Green for an if to fur- challenge competency. plaintiffs ther Brian’s present failed to evidentiary hearing an proof. Green for or offer of case, reject plaintiffs’ Under the facts of this we contention that prior adjudication person required Brian’s as a in disabled further quiry Co., competency. into his See v. Clark Otis Elevator 274 Ill. (1995). App. 253, 3d 653 771 N.E.2d A review of the record reveals ruling that the trial court did not abuse its discretion in that Brian competent testify. Accordingly, Green was we find that the Dead- Man’s Act testimony. did bar Jackson’s
Next, plaintiffs argue
trial
court should not have
permitted
explain
plea
guilty
Jackson to
or contradict his
to the
charges.
criminal
Plaintiffs claim that Jackson
been
should have
judicially estopped
offering
theory
from
of self-defense because it
explain
plea.
tended to
guilty
and contradict his
acknowledge
judicial estoppel
We
that the
doctrine
bars wit
nesses
explaining
controverting judicial
from
admissions. De Witt
Witt,
County Public Building
County
Comm’n v.
128
3d
App.
Ill.
of De
(1984).
11,
plaintiffs’ assertion, however,
689
Contrary
N.E.2d
judicial
during
admissions do not include admissions made
the course
other
proceedings.
Firstmark Standard
Co. v.
Insurance
Life
(1995).
FSB,
Superior
435,
Ill. App.
Bank
3d
Next, plaintiffs guilty plea contend that because Jackson’s could not or explained, be controverted the trial court erred in instructing jury Brian comparative negligence. the as to Green’s On comparative negligence, the issue the trial the court instructed jury:
1009
at
of the oc-
duty
plaintiff
the time
"It was the
before
currence,
plaintiff
ordinary
safety. A
is
to use
care for his own
if,
ordinary
one,
contributorly
negligent
he fails to use
care
care
[sic]
two,
ordinary
and,
use
safety
his failure to
such
for his own
injury.
alleged
the
proximate
cause of
is
any,
contributory
if
not bar his
plaintiff’s
negligence,
does
recovery.
damages
to which he
the total amount
proportion
is
in
to the amount
be entitled reduced
would otherwise
negligence.
comparative negligence.”
of his
This is known as
testimony was
already
Jackson’s
Having
determined
record
appropriate,
find that there is sufficient evidence in the
we
entitled to
negligent
conduct. The defendants were
Green’s
City
v.
theory
have
instructed as to their
case. Colls
(1991).
904,
App.
upon the
Chicago, 212 Ill.
3d
A
action
to
by
establishing the
the defendant. Ward v.
existence of
owed
(1990).
132,
K mart
136 Ill.
In primarily rely the instant the the on witness, testimony expert Bottom, of their Dr. Norman to establish develop security investigate that Amoco had policy and to supervise Fargo’s employees. that, Dr. Bottom testified opinion, duty. had Amoco such a Dr. Bottom stated that relied he upon a reaching number treatises in his conclusions. Dr. Bottom admitted, however, that none of these treatises outlined a standard of care for companies Further, such as Amoco. a review of Dr. Bot any testimony tom’s fails to reveal to a evidence as standard within industry retaining, the training, supervising minimart for or contract agree services. We with the trial court’s assessment Dr. testimony conclusory. Bottom’s Accordingly, we trial affirm the ruling plaintiff court’s presented that insufficient evidence to survive finding. motion for directed
Next, plaintiffs argue jury’s finding that Brian was Green injury against 75% at fault weight for his the manifest of the ev Supreme idence. The Illinois Court has that a stated verdict is not against weight the manifest of the evidence unless "an opposite conclusion is apparent, findings appear or when the to be unreason able, or arbitrary, not Loyola based evidence.” Leonardi v. 106, University, Ill. 2d 658 461 N.E.2d The presented Roger defendants that Brian evidence Green were disorderly. intoxicated and Greens shouted racial slurs at addition, Edgar Jackson and attacked him. In Jackson testified that attempted Brian Green grabbed confiscate Jackson’s revolver and gun. evidence, the barrel light this we cannot conclude jury’s that against weight verdict was the manifest of the evi dence.
Finally, claim plaintiffs the trial court erred in instruct ing as to Amoco’s toward Brian Green. The trial court following informed the claimed Amoco affirmative defense: plaintiff’s
"That conduct exceeded the manner of which use might reasonably any expect in connection with A.C.A./Amoco express implied plaintiff premises. or invitation to enter its intoxication, plaintiff premises When entered the in a state altercation, trespasser when started an he became a then premises.” on the jury:
The trial court then instructed the you injury "If find that Green had at the time of the purpose exceeded lawful he which entered onto premises A.C.A./Amoco, then Brian was not an invitee using premises purpose and was for a for which he was reasonably might have A.C.A. permitted or for which invited be in your should then verdict premises, expected him to use against plaintiff.” of A.C.A. favor of Il- statement is an inaccurate argue this instruction Plaintiffs agree and reverse. linois law. We trespasser as "one who Supreme Court has defined
The Illinois permission nor neither another with premises of upon enters own, at his conve of his purpose and intrudes for some invitation nience, *9 R.R., Central Rhodes v. Illinois merely as an idler.” Gulf (1996). a landowner 1260, 213, 228, 1268 While 665 N.E.2d 172 Ill. 2d trespasser care, owes a ordinary a landowner of owes invitees Rhodes, Ill. acts. 172 and only duty refrain from willful wanton this but claim 213, dispute do not 1260. Defendants 2d 665 N.E.2d did, invitee, as the Greens an premises enters the that one who their support In of trespassers. may lose their status and become v. Oregon decision in Hansen cite to the 1954 argument, defendants (1954), who use 157, holding persons Cohen, P.2d 391 203 Or. 276 the role of by the assume premises purpose not intended invitee following us to the support, Amoco directs trespassers. In further 842, 845, Co., App. 131 Ill. 2d Avery in v. Moews Seed Corn statement *** (1971): 561, invitee] an [toward "the 268 N.E.2d 564-65 might reason the owner only to that manner of use which extends implied express invitation.” ably expect in connection with rely in note, however, upon language defendants We act of dicta, actually plaintiff’s found the as the court Avery is mere not invited premises to which he was traveling to an area of the 842, 268 N.E.2d Avery, App. 131 Ill. 2d trespasser. him a rendered extent, rest of Illinois case Avery is consistent with the 561. To this and becomes a loses his status law on the issue of how an invitee Industries, Inc., 281 Ill. generally Koppers Cockrell v. trespasser. See (1996). Illinois, exceeds 1099, an invitee 676 App. 3d 667 N.E.2d an traveled to only when the invitee has scope of the invitation & See, v. e.g., Rodriguez he was not invited. area which Norfolk (1992).There is Co., 1024, 597 3d 593 N.E.2d Ry. App. 228 Ill. Western that an position authority supports no in Illinois which entering premises by scope the invitation invitee exceeds the of the instruction starting an altercation. Because intoxicated and unprecedented an extension represents tendered the trial court law, abused its discretion. find that the trial court Illinois we tendering instructions every error in recognize that not
We
141 Ill.
Freight,
Fast
Corp. v. Aurora
a new trial. Amstar
necessitates
(1986).
reviewing
Generally, a
N.E.2d 1067
App. 3d
490
clearly
faulty instruction
for a new trial unless
will not remand
jury
prejudiced
appellant.
misled the
and
City
LaPook v.
Chicago,
App.
211 Ill.
3d
Affirmed in part reversed remanded in for a new trial.
CAHILL, J., concurs. O’BRIEN, dissenting:
JUSTICE disagree I majority dispositive with the the last issue: that the court’s instruction as to the status as an invitee or trespasser required was error and reversal and remandment. states, majority Illinois, "In an scope invitee exceeds the only the invitation when the to an invitee has traveled area to which added.) he was (Emphasis not invited.” App. Ill. 3d at 1011. Admittedly, emphasized Illinois geography cases have premises addressing scope when *10 the of the invitation. Il (3d 1990) Instructions, Jury Civil, linois Pattern No. 120.07.02 ed. clearly contemplates exceeding scope an of invitee the the invitation premises by the manner use of the plaintiff. the IPI No. Civil 3d 120.07.02 states: (owner) "[_owed] (occupant) [An owes] defendant’s name [_] person property [an invitee] [a on his at name plaintiff’s duty ordinary or permission]
invitation with his the to use [operations] care premises to see that on the [activities] [were] [_’s] ordinary with [are] conducted care for [the name plaintiff’s person’s] safety. duty [only This invitee’s] [that extends to that portion premises person expressly the which the has onto either (invited) (or) (given impliedly permission) or been to use or to that (owner) (or) portion (occupant) might reasonably expect him (invitation) (permission)] [only use in connection with the [and] (owner) (occupant) might manner use which reason- (invitation) ably express implied expect connection with the (or) (permission)]. if_ invitee] [or] [was not an [was name plaintiff’s expressly or not he was premises to which portion (or) (owner) (which (or) (or) (invited) (permitted) impliedly use in connection reasonably expect him to not (occupant) would (or) using the (invitation) [was (permission))] [or]
with he was which for purpose other than premises for (owner) (or) (for (occupant) (or) (invited) which (permitted) premises], to use the reasonably expected him have might from wilful to refrain the defendant . then it was safety of the endanger which would wanton conduct (_) knew, (defendant) [However, if plaintiff. name defendant’s anticipated care, ordinary should have exercise of in the (defendant) danger, then place in a ordinary (_) care exercise had a name defendant’s Civil, Instructions, Jury Pattern safety plaintiff.]” Illinois (3d 1995). ed. No. 120.07.02 instruction, pattern trial court did not use
Although here the Accordingly, IPI instruction. given paraphrased the instruction "unprecedented an represent an instruction does the use of such by the Illinois contemplated is law” but one that extension of Illinois Jury Pattern Instructions.
Accordingly, respectfully I dissent. ILLINOIS, Petitioner-Appellee, v. OF OF THE STATE THE PEOPLE ROSS,Defendant-Appellant. RONNIE Division) (6th No. 1 — 96—1534 District First Rehearing July May 1997. Opinion denied filed 1997 .