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                               Appellate Court                             Date: 2019.03.18
                                                                           10:04:33 -05'00'



                  Garcia v. Goetz, 2018 IL App (1st) 172204



Appellate Court   LAZARO GARCIA, Plaintiff-Appellant, v. LAURA GOETZ and
Caption           DAWN BRISKEY, Defendants-Appellees.



District & No.    First District, First Division
                  Docket No. 1-17-2204



Filed             June 25, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-L-12425; the
Review            Hon. Larry G. Axelrood, Judge, presiding.



Judgment          Affirmed.


Counsel on        Gary M. Feiereisel and Rachel S. Wayne, of Feiereisel & Kasbohm,
Appeal            LLC, of Chicago, for appellant.

                  Esther Joy Schwartz, John W. Gilligan III, and Adam C. Motz, of
                  Schwartz Gilligan, Ltd., of Chicago, for appellees.



Panel             JUSTICE MIKVA delivered the judgment of the court, with opinion.
                  Presiding Justice Pierce and Justice Griffin concurred in the judgment
                  and opinion.
                                               OPINION

¶1       Plaintiff Lazaro Garcia fell down a flight of stairs while on a service call to fix a boiler that
     belonged to defendants Laura Goetz and Dawn Briskey. He filed a one-count complaint
     against them. A jury found in favor of defendants and against Mr. Garcia. On appeal, Mr.
     Garcia argues that the trial court erred by (1) instructing the jury, over his objection, on a
     theory of premises liability rather than ordinary negligence, (2) barring testimony or evidence
     that defendants removed and remodeled the stairs on which Mr. Garcia fell and rejecting Mr.
     Garcia’s tendered instructions on missing evidence about those alterations, and (3) not barring
     all evidence of defendants’ home inspection report from the time they purchased the house,
     almost 10 years before the accident occurred. For the following reasons, we affirm.

¶2                                          I. BACKGROUND
¶3        On December 1, 2014, Mr. Garcia filed his complaint, in which he alleged a single,
     unlabeled claim. Mr. Garcia alleged that defendants owned the single-family residence located
     at 5318 North Melvina Avenue in Chicago, Illinois; that he was at defendants’ residence on
     October 8, 2014, “for the purpose of servicing their heating system”; and that he “was present
     at the invitation of Defendants to perform that task.” Mr. Garcia alleged that, as a result of one
     or more acts or omissions of defendants, he fell while descending the basement stairway and
     was injured. After setting out the background facts, Mr. Garcia alleged:
                  “5. At said time and place, Defendants had a duty to exercise ordinary care and
              caution in the ownership, control and maintenance of their premises [s]o as to not cause
              harm to people invited on their premises, including the plaintiff herein.
                  6. Disregarding that duty at said time and place defendants were guilty of one or
              more of the following negligent acts and/or omissions:
                      a. Failed to properly maintain the stairs leading from the first floor into the
                  basement such that when plaintiff was walking down the stairs to service the
                  defendants’ heating system he was caused to fall and be injured;
                      b. Allowed wood or other items to accumulate at the bottom of the stairs in
                  question causing an unreasonable and unnecessary danger to invited individuals,
                  including the plaintiff herein, who were descending the stairs;
                      c. Failed to maintain the stairs in the premises in question leading from the first
                  floor to the basement in such a way that the stairs were reasonably safe for invited
                  individuals, like the plaintiff herein, to descend when invited to do so;
                      d. Failed to warn plaintiff of the dangerous condition of the stairs in question;
                      e. Was otherwise careless and negligent in their control and maintenance of the
                  stairs in question such that plaintiff was caused to fall and be injured.”
¶4        Defendants filed an answer on January 12, 2015, in which they generally denied having
     committed any negligent acts or omissions that caused Mr. Garcia’s fall and injury.
¶5        The parties filed multiple motions in limine before trial. Mr. Garcia sought to bar any
     statements or questions pertaining to an inspection report dated December 28, 2004, detailing
     the findings of an inspector defendants hired when they bought their house. Defendants sought
     to bar evidence about Mr. Garcia’s inability to access defendants’ home to inspect and
     photograph the stairs and evidence that defendants had removed and replaced the basement

                                                   -2-
     stairway after the accident, on the basis that this evidence was inadmissible as evidence of a
     subsequent remedial measure.
¶6       The trial court denied Mr. Garcia’s motion in part, ruling that defendants would be
     permitted to testify that they went through the “normal processes” when they purchased their
     home, “including a home inspection, and that they were not given any information that they
     were not in compliance.” The court granted defendants’ motions, agreeing that the removal
     and replacement of the stairs was a subsequent remedial action, and barring any evidence that
     Mr. Garcia was unable to inspect the basement stairway before it was removed. The court
     noted both that the parties had stipulated that a photograph of the stairway taken by defendants’
     insurance company a few days after the accident was “a true and accurate depiction of the
     stairs at the time of th[e] event,” and that both sides’ experts were only able to inspect the
     premises after the remedial work was done. The court ruled that, “unless somebody opens the
     door, there will be nothing further other than they [the experts] relied on the photographs and
     the subsequent inspection to come up with their opinions.”
¶7       The jury trial began on March 28, 2017. Mr. Garcia testified that, before October 2014, he
     had worked at defendants’ home on 14 occasions and had used the basement stairway each
     time, sometimes multiple times per visit. A photograph of the stairway, taken from just above
     the last rectangular step, shows the stairway as it existed on the day of the accident and is
     included in the record on appeal. The basement stairway had eight steps with rectangular treads
     and then the four bottom steps had “winder,” or wedge-shaped treads—which made a
     90-degree turn to the right, going down into the basement. The handrail ended after the second
     winder step, so the final two winder steps at the bottom of the stairway did not have a handrail.
     At the bottom of the stairway, on the last stair, was a vertical pipe.
¶8       Mr. Garcia explained that, on October 8, 2014, as he followed Ms. Briskey down the
     basement stairway, he was holding a small wet-vacuum and had a shoulder-strap bag
     containing some of his tools over his shoulder. He was not holding a bucket and stated that he
     never kept his tools in a bucket. Mr. Garcia testified that the lighting on the stairs was “[l]ike
     always, dim.” Mr. Garcia testified that he was holding onto the handrail on his left. When he
     reached the point where the handrail ended, on the winding portion of the stairs, he saw items
     on the floor at the bottom of the stairway: “a table, like a type of dresser,” and “a pile of wood”
     between the table and the stairs. Mr. Garcia moved to the right “to avoid what was there,” then
     his right foot “got caught,” his “right knee landed on the floor, and [his] other knee landed on
     top of the wood,” his “shoulder hit the pipe,” and his arm hit the wall. Mr. Garcia’s back was to
     the handrail at the time he fell. He was in terrible pain after he fell and, after a short delay, was
     taken to the hospital.
¶9       Mr. Garcia’s architectural expert, Matthew Filippini, testified that he reviewed multiple
     depositions and the exhibits accompanying the depositions, completed a site inspection,
     reviewed a series of photographs of the stairs, and reviewed the Chicago Building Code
     (Building Code or Code) to prepare for trial. Mr. Filippini explained that under the Building
     Code, the basement stairway would be considered a “vertical exit” and testified that the Code
     is “very strict about exits.” Mr. Filippini testified that the Building Code requires all existing
     buildings to comply with “minimum requirements of the exit portion of the main Code.” So
     even though defendants owned an older home, the main portion of the Building Code still
     applied.


                                                   -3-
¶ 10       Mr. Filippini explained that he conducted his measurements using a photograph of the
       stairway. He concluded that none of the four winders complied with the Building Code
       because they were at “too sharp an angle” or “too skinny.” Mr. Filippini testified that this sort
       of measurement mattered because when a stair tread is too narrow, it is more likely that when
       someone puts their foot down on the stair, it will “slide off the nosing ([the front edge of the
       tread]) because [they are] not getting a full plant of [their] foot.”
¶ 11       Mr. Filippini testified that defendants’ basement handrail was also not up to code because
       such a narrow stairway requires a continuous handrail throughout. Defendants’ handrail
       stopped at the second winder and did not continue around the corner, “so somebody traversing
       the winders runs out of handrail. There is nothing for them to use to guide them, to support
       them, or to grab onto if they are starting to fall.”
¶ 12       Dawn Briskey testified, as an adverse witness, that she and Laura Goetz had purchased
       their home 12 years before the trial and that she had no idea whether the basement stairs and
       handrail complied with the Building Code. Ms. Briskey testified that in 2014 she made
       mosaics using reclaimed items and she would sometimes store the collected items in the
       basement. Everything in the basement at that time was owned and placed in the basement by
       either Ms. Briskey or Ms. Goetz. Ms. Briskey stated that she regularly used the basement
       stairway, generally would use the handrail when going down, and would also grab the pole at
       the bottom of the stairway because there was no handrail at that location. Ms. Briskey testified
       that she was never notified or aware that the basement stairway was in a dangerous condition.
       She used that stairway “at least once a day” and had never fallen.
¶ 13       Ms. Briskey testified that, on October 8, 2014, Mr. Garcia was carrying the wet-vacuum in
       his right hand and a five-gallon bucket in his left hand. She did not agree that he had a shoulder
       bag or tool bag over his left shoulder. Because he was behind her as they went down the
       basement stairway, she was already in the basement with her back to the stairs when she heard
       Mr. Garcia yell out or scream. Ms. Briskey turned around and saw Mr. Garcia “falling around
       the curve of the stairs.” She did not believe Mr. Garcia was on the second winder when he fell,
       she believed he was higher than that because she “saw his left foot coming off of a straight stair
       right where the railing ends.” Ms. Briskey did not agree with Mr. Garcia that there was a table
       and a pile of wood at the bottom of the stairs. Ms. Briskey agreed, however, that if those items
       were where Mr. Garcia said they were, they would have created an obstruction at the bottom of
       the stairs. Ms. Briskey did not know what caused Mr. Garcia to fall.
¶ 14       The trial court denied defendants’ motion for a directed finding.
¶ 15       At the jury instruction conference, which was held at the close of Mr. Garcia’s case, the
       parties argued over whether the trial court should instruct the jury as to negligence or premises
       liability. Counsel for Mr. Garcia proffered an instruction modeled after Illinois Pattern Jury
       Instructions, Civil, No. 20.01 (2011) (hereinafter IPI Civil No. 20.01 (2011)), an instruction for
       ordinary negligence, while defense counsel proffered an instruction modeled after IPI Civil
       No. 120.09 (2011), for premises liability.
¶ 16       Counsel for Mr. Garcia argued that he had pled a “straight negligence case, alleged
       allegations of negligence,” and that “the first time anything about this case being a premises
       liability case came up was yesterday when we first started going over instructions.” Mr.
       Garcia’s counsel argued that if the court instructed the jury as to premises liability, Mr. Garcia
       would be prejudiced because he had litigated the case as a negligence case “since the
       beginning.” In response, defense counsel argued that Mr. Garcia had not presented the case as

                                                   -4-
       one strictly based on ordinary negligence and had put on an expert witness whose testimony
       related only to elements of premises liability based on violations of the Building Code.
       Defense counsel also argued that providing an instruction on ordinary negligence rather than
       premises liability would mislead the jury, as such an instruction would not “fully and
       accurately” state the law.
¶ 17        The trial court agreed with defendants that a premises liability instruction was appropriate,
       noting that Mr. Garcia had not “elected between one [theory] or the other” but instead had
       “incorporated both.”
¶ 18        Counsel for Mr. Garcia also offered three “missing evidence” instructions: IPI Civil No.
       5.01 (2011) and two non-IPI instructions. The court sustained defendants’ objection to all three
       instructions.
¶ 19        In defendants’ case, Laura Goetz testified that defendants had not made any changes to the
       basement stairway since they had moved in. Ms. Goetz testified that she was involved in the
       home-buying process, and that she and Ms. Briskey had hired a home inspector to do an
       inspection at that time. She was never informed at any point that the stairway was in an unsafe
       condition. She had never fallen and was not aware of anyone else ever having fallen down the
       basement stairway. Ms. Goetz also testified that she did not believe there were any piles of
       wood in the basement in October 2014. She agreed that she would “[s]ometimes” use the pole
       at the bottom of the stairs when she was going down into the basement.
¶ 20        Defendants’ architectural expert, Greg Wisniewski, testified that, in preparation for trial,
       he reviewed the depositions, photographs, and an inspection report, and completed his own
       inspection of the area where the accident took place. He also reviewed Mr. Filippini’s report.
       Mr. Wisniewski testified that Mr. Filippini was improperly “mixing portions of the [C]ode you
       don’t mix.” Mr. Wisniewski explained that Mr. Filippini had based his opinion on the chapter
       that only applied to new construction. But because defendants’ home was an existing structure,
       “the existing building provisions of the [C]ode and its existing building minimum standards,”
       rather than the new or altered construction section of the Code, should apply. In Mr.
       Wisniewski’s opinion, defendants’ basement stairway was in compliance with the Building
       Code. Mr. Wisniewski also stated that he believed defendants’ stairway was “a safe stair. It
       doesn’t meet all the new [C]ode in all aspects, but it doesn’t have to. It’s an existing building.”
¶ 21        The jury returned a verdict in favor of defendants and against Mr. Garcia, and the trial court
       denied Mr. Garcia’s post-trial motion.

¶ 22                                      II. JURISDICTION
¶ 23       The trial court denied Mr. Garcia’s posttrial motion on August 2, 2017. Mr. Garcia timely
       filed his notice of appeal on August 29, 2017. This court has jurisdiction over this appeal
       pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. Jan. 1, 2015),
       governing appeals from final judgments entered by the circuit court in civil cases.

¶ 24                                          III. ANALYSIS
¶ 25       Mr. Garcia contends on appeal that the trial court erred by (1) instructing the jury on
       premises liability rather than ordinary negligence, (2) granting defendants’ motion in limine to
       bar evidence that the stairs were removed and that he could not inspect them and also rejecting
       Mr. Garcia’s tendered IPI and alternative non-IPI instructions on missing evidence, and


                                                    -5-
       (3) partially denying his motion in limine barring evidence of the home inspection report. We
       consider each argument in turn.

¶ 26                                A. Premises Liability Jury Instruction
¶ 27        Mr. Garcia first argues that the trial court’s failure to instruct the jury on ordinary
       negligence instead of premises liability was reversible error.
¶ 28        “Generally speaking, litigants have the right to have the jury instructed on each theory
       supported by the evidence.” Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). But a trial court
       does not need to give an instruction “concerning issues not raised by the pleadings.” Blackburn
       v. Johnson, 187 Ill. App. 3d 557, 564 (1989). The determination of which issues are raised by
       the evidence and pleadings and which jury instructions are warranted is within the discretion of
       the trial court. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 549 (2008). “An abuse of
       discretion standard requires this court to determine whether the instructions, taken as a whole,
       are sufficiently clear so as not to mislead the jury and whether they fairly and correctly state the
       law.” Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 45. A reviewing court “will not
       disturb the trial court’s determination unless the trial court has abused its discretion, and a new
       trial will be granted only when the refusal to give a tendered instruction results in serious
       prejudice to a party’s right to a fair trial.” Heastie, 226 Ill. 2d at 543.
¶ 29        At the jury instruction conference in this case, counsel for Mr. Garcia proffered the
       following general negligence instruction, modeled after IPI Civil No. 20.01 (2011):
                   “The plaintiff claims that he was injured and sustained damage, and that the
               defendants were negligent in one or more of the following respects:
                        [D]efendants failed to properly maintain the stairs leading from the first floor
                   into the basement such that when plaintiff was walking down the stairs to service
                   the defendants’ heating system he was caused to fall and be injured;
                        [D]efendants maintained a staircase which failed to have a continuous handrail
                   from the top to the bottom of the staircase causing an unreasonable and unnecessary
                   danger to people, including plaintiff, who were descending the stairs;
                        [D]efendants allowed wood or other items to accumulate at the bottom of the
                   stairs in question causing an unreasonable and unnecessary danger to people,
                   including plaintiff, who were descending the stairs; and/or
                        [D]efendants failed to act as *** reasonably responsible property owners by not
                   maintaining their premises in a safe condition.
                        The plaintiff further claims that one or more of the foregoing was a proximate
                   cause of his injuries.”
¶ 30        The premises liability instruction proposed by defendants and ultimately given to the jury
       was modeled after IPI Civil No. 120.09 (2011) and read as follows:
                   “Plaintiff seeks to recover damages from the defendants. In order to recover
               damages, the plaintiff has the burden of proving:
                   First, there was a condition on the property which presented an unreasonable risk of
               harm to people on the property.
                   Second, the defendants knew or in the exercise of ordinary care should have known
               of both the condition and the risk.


                                                    -6-
                    Third, the defendants could reasonably expect that a reasonable person in plaintiff’s
               position, knowing of the condition, would proceed to encounter it because the
               advantage of doing so outweighs the apparent risk.
                    Fourth, the defendants were negligent in one or more of the following ways:
                        a) defendants failed to properly maintain the stairs leading from the first floor
                    into the basement by having winders that were unreasonably dangerous;
                        b) defendants maintained a staircase which failed to have a continuous handrail
                    from the top to the bottom of the staircase; or
                        c) defendants allowed wood or other items to accumulate at the bottom of the
                    stairs in question.
                    Fifth, the plaintiff was injured.
                    Sixth, the defendants’ negligence was a proximate cause of the plaintiff’s injury.
                    If you find from your consideration of all of the evidence that any of these
               propositions has not been proved, then your verdict shall be for the defendants. On the
               other hand, if you find from your consideration of all the evidence that each of these
               propositions has been proved, then you must consider the defendants’ claim that the
               plaintiff was contributorily negligent.”
¶ 31        As the competing instructions reflect, ordinary negligence requires proof of only three
       elements—the existence of a duty, a breach of that duty, and an injury proximately caused by
       the breach. Guvenoz v. Target Corp., 2015 IL App (1st) 133940, ¶ 89. Premises liability
       requires proof of those three things plus three additional elements—that there was a condition
       on the property that presented an unreasonable risk of harm, that the defendant knew or
       reasonably should have known of the condition and the risk, and that the defendant could
       reasonably have expected people on the property would not realize, would not discover, or
       would fail to protect themselves from the danger. Hope v. Hope, 398 Ill. App. 3d 216, 219
       (2010). If it is a landowner’s conduct or activity—as opposed to a dangerous condition on the
       property—that creates the injury-causing hazard, the claim is one of negligence, rather than
       premises liability. See Smart, 2013 IL App (1st) 120901, ¶¶ 54-57 (finding that a negligence
       instruction was proper where it was the defendant city’s conduct that created the hazardous
       condition).
¶ 32        Mr. Garcia argues that his single-count complaint, which was never amended, sounded in
       negligence because he alleged “that he was caused to fall, in part, because he stepped on the
       narrower portion of the stairs to avoid the wood or other items/debris which defendants placed
       at the bottom of the interior stairs” and that, therefore, the court should have granted his request
       to instruct the jury on only ordinary negligence. Defendants argue that Mr. Garcia’s allegations
       instead fell within the realm of premises liability because they focused on “the safety of the
       staircase, the hand railing, building code violations, and the size of the stairs—all conditions of
       the property, and not actions” (emphases in original) by defendants.
¶ 33        We find that the trial court did not commit reversible error by only instructing the jury on
       premises liability in this case. Mr. Garcia insists his complaint “sound[ed] in negligence.” But
       the most that can be said of the allegations in his unlabeled, single-count complaint is that they
       potentially sound in both negligence and premises liability. While some of his allegations
       could support a claim of ordinary negligence—particularly his allegation that defendants
       accumulated debris at the bottom of the stairs—most of the allegations support the elements of

                                                    -7-
       a claim for premises liability. His claims, for example, that defendants failed to maintain the
       stairs in a safe manner, that they failed to warn Mr. Garcia of the dangerous condition of the
       stairs, and that the stairs violated the building code all go to premises liability, rather than
       negligence. And at trial, counsel for Mr. Garcia presented evidence from an architectural
       expert about the condition of the stairs, opining that the basement stairway violated certain
       provisions of the Building Code. In fact, a large portion of the trial consisted of each side’s
       expert testifying about the condition of the stairway.
¶ 34       Arguably, the best practice in this case would have been for the trial court to instruct the
       jury on both ordinary negligence and premises liability. Cf. Baker v. Costco Wholesale Corp.,
       2016 IL App (1st) 152736-U, ¶¶ 41-45 (an unpublished Rule 23 order in which this court
       affirmed a verdict where the jury was instructed on both ordinary negligence and premises
       liability). But neither party requested that the court present both instructions, and the majority
       of the trial evidence supported a theory of premises liability.
¶ 35       Indeed, plaintiff does not argue, even on appeal, that the trial court should have given both
       instructions, so such an argument is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)
       (“[p]oints not argued are forfeited”). But even if the trial court should have given both
       instructions, Mr. Garcia would not be entitled to a new trial because he cannot show prejudice.
¶ 36       The part of the case that was arguably a negligence case was that defendants had placed a
       pile of wood and debris at the base of the basement stairway. Defendants denied that such a
       pile was present. The argument that Mr. Garcia makes as to prejudice goes to notice. He argues
       that the jury should not have been instructed that he had to present evidence that defendants
       were on notice of the pile of debris. However, even if the jury incorrectly believed that Mr.
       Garcia was required to show that defendants had such notice, that cannot possibly explain the
       verdict in defendants’ favor. At trial, Ms. Briskey testified that if there was a pile of wood and
       debris at the bottom of the stairway, then either she or Ms. Goetz would have placed it there.
       Defendants’ notice of any debris or wood that was piled at the bottom of the stairs was simply
       not at issue.
¶ 37       This lack of prejudice is precisely what distinguishes this case from Reed v. Wal-Mart
       Stores, Inc., 298 Ill. App. 3d 712 (1998), relied upon by Mr. Garcia. In that case the plaintiffs
       demonstrated that they were prejudiced by an instruction on premises liability, which required
       them to prove that Wal-Mart had notice of a board placed in the plaintiff’s pathway, where it
       was possible that the jury could have concluded that a Wal-Mart employee inadvertently
       dropped the board without having actual notice or that the board was not there long enough to
       charge Wal-Mart with constructive notice. Id. at 718. Here, in contrast, Ms. Briskey
       acknowledged that any debris at the base of the stairway would have been placed there either
       by her or by Ms. Goetz. The trial court did not commit reversible error by giving the jury
       instruction solely related to premises liability.

¶ 38               B. Evidence of Defendants’ Removal and Replacement of the Stairway
¶ 39       Mr. Garcia next argues that the trial court erred in granting defendants’ motion in limine to
       bar evidence of their removal and replacement of the basement stairway at issue in this case.
       Mr. Garcia also argues that the trial court erred by not giving the jury one of the instructions on
       missing evidence that he requested.
¶ 40       It is undisputed that neither Mr. Garcia nor his expert witness was able to inspect the
       basement stairway as it existed on October 8, 2014. However, defendants’ insurance company

                                                    -8-
       took photographs of the stairway immediately after the accident. Beginning in January 2015,
       defendants removed and replaced the stairway as part of a remodeling project. The record
       includes copies of several letters between the parties’ attorneys about Mr. Garcia inspecting
       the stairway. On November 14, 2014, counsel for Mr. Garcia faxed a letter to defendants’
       insurance company, indicating that he intended to file a lawsuit in “the very near future” and
       requesting to “make arrangements to access your insureds’ premises for the purpose of
       inspecting and photographing the stairs on which this incident occurred.”
¶ 41        In a second letter, sent to defense counsel on January 12, 2015, counsel for Mr. Garcia
       stated that “at least until the inspection occurs, I would request that no changes, alterations, or
       modifications to the condition of the stairs where this incident occurred or the surrounding
       areas be made.” Defense counsel responded on January 16, 2015, and said that he was going to
       contact defendants to arrange an inspection. On January 19, 2015, defense counsel sent another
       letter to counsel for Mr. Garcia, explaining that Ms. Goetz had informed him on January 16
       that “the area at issue ha[d] been deconstructed and construction work performed upon it.”
¶ 42        In her deposition, Ms. Briskey testified that in the summer of 2014, defendants had seepage
       in their basement, so they “had [water] companies out and they advised [defendants to] remove
       all of the drywall [and] completely empty the basement, so [they] could see where the seepage
       was coming from.” Ms. Briskey testified that the work was scheduled to begin in November
       2014 but was postponed due to her medical issues and did not actually begin until January
       2015. She explained that, along with the walls, the basement stairs had to be completely
       removed and redone. Ms. Briskey contacted her attorney’s office in December 2014 “to
       indicate [defendants] were going to begin work and wanted to make sure it was fine to proceed
       with the work that had already been planned.” According to Ms. Briskey, whoever answered
       the phone said she would be back in touch but “[n]obody got back in touch” with defendants.
       Mr. Garcia argues that the trial court should have allowed evidence regarding this to let the jury
       decide if defendants had destroyed evidence and also to explain why his expert was forced to
       testify from photographs instead of from an in-person inspection of the stairway.
¶ 43        Mr. Garcia contends that we should review this claim of error de novo, and not for an abuse
       of discretion, because the court relied on an erroneous conclusion of law when it ruled that
       testimony as to defendants’ removal and replacement of the basement stairway was properly
       barred as improper evidence of a subsequent remedial measure. See Beehn v. Eppard, 321 Ill.
       App. 3d 677, 680-81 (2001) (noting that, generally, a trial court’s ruling on a motion in limine
       will not be disturbed on review absent an abuse of discretion, but that when a court’s exercise
       of discretion relies on an erroneous conclusion of law, review is de novo). Mr. Garcia points
       out that Ms. Briskey testified in her deposition that defendants removed and replaced the stairs
       as part of a larger remodeling project in the basement due to water damage, for cosmetic
       reasons only. According to Mr. Garcia, because defendants deny that the stairs were dangerous
       or that the changes were made to remedy a dangerous condition, the remodel cannot be
       considered a subsequent remedial measure.
¶ 44        But Black’s Law Dictionary (10th ed. 2014) defines a “subsequent remedial measure”
       simply as “[a]n action taken after an event, which, if taken before the event, would have
       reduced the likelihood of the event’s occurrence.” This definition does not suggest that a
       subsequent remedial measure exists only when it is taken solely to remedy some unsafe
       condition. Defendants’ removal and replacement of the stairs here clearly fit within this
       definition, and Mr. Garcia offers no different one. As defendants point out, the law does not

                                                    -9-
       require them to acknowledge that they removed the stairs specifically to address safety issues
       in order to benefit from the general ban on evidence of post-remedial measures as proof of
       negligence.
¶ 45       Reasons for this general ban include that (1) “a strong public policy favors encouraging
       improvements to enhance public safety,” (2) “subsequent remedial measures are not
       considered sufficiently probative of prior negligence, because later carefulness may be an
       attempt to exercise the highest standard care,” and (3) “a jury may view such conduct as an
       admission of negligence.” Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995). The trial
       court did not err, as a matter of law, in concluding that defendants’ removal and replacement of
       the stairs was a subsequent remedial measure. We review the trial court’s ruling, therefore,
       under an abuse of discretion standard, which requires that we affirm unless the court’s
       determination “is arbitrary, fanciful or unreasonable, or if no reasonable person would take the
       view adopted by the trial court.” People v. Howard, 303 Ill. App. 3d 726, 730 (1999).
¶ 46        We note that, although inadmissible to prove negligence, evidence of subsequent remedial
       measures may be admissible for another proper purpose. Herzog, 167 Ill. 2d at 300. For
       example, our supreme court in Herzog stated that such evidence could be used to prove
       ownership or control of property if disputed by the defendant, to prove the feasibility of
       precautionary measures if disputed by the defendant, or as impeachment. Id. at 300-01.
¶ 47       Here, Mr. Garcia’s focus is not on the fact that defendants removed and replaced the stairs,
       but on the timing of that remodeling project, which occurred before Mr. Garcia’s expert was
       able to examine the stairway. Mr. Garcia insists that “it should have been left to the jury to
       decide the reasonableness of defendants’ stated reason for removing the stairs” before his
       expert had an opportunity to view them.
¶ 48       It is well settled that the destruction of evidence, commonly referred to as “spoliation,”
       may support an inference that the evidence would have been unfavorable to the party
       responsible for its destruction. Midwest Trust Services, Inc. v. Catholic Health Partners
       Services, 392 Ill. App. 3d 204, 209 (2009). Mr. Garcia requested IPI Civil No. 5.01 (2011),
       which instructs the jury that it may draw such an adverse inference. Neither of the parties offer
       any Illinois case law addressing the tension that can arise between the spoliation doctrine and
       the general prohibition against evidence of subsequent remedial measures. However, a leading
       evidence treatise recognizes that:
                “Excluding evidence of the subsequent repair might therefore prevent the spoliation
                inference—that one who destroys or spoliates evidence has committed a previous
                wrong—from functioning in the trial. This, in turn, operates against three key reasons
                for preventing spoliation: enhancing truth determination, assuring fairness, and
                promoting the integrity of the judicial system. In cases of intentional misconduct,
                therefore, the policy favoring the taking of remedial measures might conflict with the
                goals of the spoliation inference.” 1 David P. Leonard et al., The New Wigmore: A
                Treatise on Evidence: Selected Rules of Limited Admissibility § 2.7, at 233 (rev. ed.
                2002).
       The authors of the treatise go on to note that, when determining which policy should prevail, a
       court must consider the probative value of the spoliation inference and whether or not evidence
       was destroyed as a result of intentional wrongdoing or mere negligence. Id.
¶ 49       Here, the trial court considered the evidence before it, including both Ms. Briskey’s
       explanation that the reason defendants proceeded with the construction when they did was

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       because several water companies had recommended they tear down all of the basement walls
       in order to identify a seepage source and her testimony that defendants were not informed that
       they could not start the already-planned construction project. The trial court apparently
       accepted this as a reasonable explanation and decided that the policy against admitting
       evidence of subsequent remedial measures should prevail. We cannot say that this was an
       abuse of discretion or that the trial court improperly weighed the competing interests before it.
¶ 50       Mr. Garcia also proffered two alternative instructions that simply advised the jury that the
       stairs no longer existed and they should not hold this fact against either party. He argues that he
       was harmed by the trial court’s refusal to offer these instructions because his expert was forced
       to testify to his opinions based on photographs of the stairway, rather than based on an
       inspection of the actual stairway, and he was prohibited from asking his expert to explain why
       this was so.
¶ 51       The court’s refusal to give the jury these other instructions was also not an abuse of its
       discretion. Defense counsel did not open the door to evidence regarding the removal and
       replacement of the stairs by suggesting during cross-examination that Mr. Garcia’s expert’s
       opinions were somehow deficient because they were based only on photographs. Both experts
       testified from photographs without explanation and the court decided this was appropriate. We
       cannot say that conclusion was “arbitrary, fanciful or unreasonable” under the circumstances.
       Howard, 303 Ill. App. 3d at 730.
¶ 52       In addition, Mr. Garcia has not shown that he suffered “serious prejudice” from the court’s
       refusal to give any of these instructions, which he must show to be entitled to a new trial. See
       Heastie, 226 Ill. 2d at 543. Each party’s expert examined the same photographs to determine
       whether the stairway complied with the Building Code. And, notably, the difference in each
       expert’s opinion was not based on any disagreement regarding the stairway’s condition but,
       rather, on the experts’ differing interpretations of the Building Code—namely, whether certain
       sections of the Code applied to an existing structure like defendants’ home. Mr. Garcia has not
       pointed to any way that his expert was harmed by having to base his opinions on the
       photographs. The trial court did not err in granting defendants’ motion in limine or by
       declining to give a jury instruction on missing evidence.

¶ 53                              C. Evidence of the Inspection Report
¶ 54       Lastly, Mr. Garcia contends that the trial court erred by not barring evidence referencing
       defendants’ home inspection report from 2004, obtained when they were in the process of
       purchasing their home.
¶ 55       The trial court granted Mr. Garcia’s motion in limine to bar this evidence in part, barring
       defendants from introducing the inspection report into evidence or testifying that the home
       inspection report did not indicate the house had any Building Code violations. But the trial
       court allowed defendants to testify that, in the process of buying their home, they had a home
       inspection and were not made aware of any defects in the home.
¶ 56       Mr. Garcia argues that he was prejudiced because both “the age and the nature of” the
       inspection report evidence would have been confusing and misleading to the jury and that this
       prejudice was compounded because, “[a]lthough defendants were allowed to testify that they
       were not made aware of any defects in the house when they bought it, plaintiff was not allowed
       to cross-examine defendants on the contents of the inspection report.” The first part of this
       argument is unpersuasive because defendants made clear to the jury that they purchased their

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       home 12 years before the trial. The second argument seems to be an attempt to have it both
       ways. Mr. Garcia could not use the inspection report to cross examine precisely because the
       court granted, in significant part, his motion in limine. The trial court’s ruling regarding
       evidence of the home inspection report was not an abuse of discretion.

¶ 57                                     IV. CONCLUSION
¶ 58      For the foregoing reason, we affirm the judgment of the trial court.

¶ 59      Affirmed.




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