                                                                            FOURTH DIVISION
                                                                        FILED: October 26, 2006

1-05-2098




IRENE E. SIMICH,                                     )       Appeal from the
                                                     )       Circuit Court of
               Plaintiff-Appellant,                  )       Cook County.
                                                     )
                                                     )
v.                                                   )       No. 02 L 16432
                                                     )
EDGEWATER BEACH APARTMENTS                           )
CORPORATION, an Illinois Corporation,                )       Honorable
SUDLER AND COMPANY, and KENNETH                      )       Ralph Reyna
ORTIZ,                                               )       Judge Presiding.
          Defendants-Appellees.                      )



       JUSTICE MURPHY delivered the opinion of the court:

       On June 16, 2002, plaintiff, Irene C. Simich, suffered multiple injuries after tripping over

a pneumatic hose and falling near the garage entrance of her residence at the Edgewater Beach

Apartments, 5555 North Sheridan Road, Chicago, Illinois. Plaintiff filed a complaint sounding

in negligence against defendants Edgewater Beach Apartments Corporation (Edgewater), the

property owner, Sudler and Company (Sudler), the property management company, and

defendant Kenneth Ortiz, property manager for Sudler. On January 27, 2005, the jury returned a

verdict in favor of defendants.

       Plaintiff timely filed a posttrial motion and now appeals the verdict with respect to
1-05-2098

defendants Edgewater and Sudler. Plaintiff argues: (1) that the trial court erroneously found

Sudler to be an agent of Edgewater and denied plaintiff’s proposed general negligence instruction

for Sudler; (2) that Illinois Pattern Jury Instruction, Civil, No. 120.08 (2005) is defective and

prejudicial; (3) that the court improperly granted defendants’ motion in limine refusing the

testimony of George Maniates and evidence of subsequent remedial measures; (4) that defense

counsel’s closing argument was not derived from evidence produced at trial and was therefore

improper and prejudicial; and (5) that the jury verdict was contrary to the manifest weight of the

evidence. For the reasons that follow, we reverse the jury verdict and remand this matter for a

new trial.

                                        I. BACKGROUND

       Edgewater Beach Apartments is a 307-unit property owned by Edgewater, a shareholder

cooperative controlled by a 15-member board of directors (board). A shareholder resident is

qualified to serve as a board member after being a shareholder resident for a minimum of two

years. Defendant Sudler has been managing the property since it was hired by the board in 1995.

Sudler’s on-site property manager was Ken Ortiz, assisted by Adora Manalo.

       In 1978, plaintiff and her husband entered into a proprietary lease (lease) whereby they

became shareholder residents of the cooperative. The lease includes 16 separate covenants, one

of which provides “[n]o provisions, milk, ice, marketing, groceries or like merchandise shall be

taken through the front door of the building.” On May 1, 1992, the board issued a memorandum

noting this provision and reminding shareholders to utilize alternative entrances to carry in

packages or groceries.


                                                  2
1-05-2098

        There are three entrances located at the property - the front lobby, a service entrance

located on the north side of the building, and a garage ramp located on the south side of the

building. Residents and visitors may enter the lobby doors with a small parcel, handbag,

briefcase or plastic grocery bag. As noted above, when carrying larger loads, residents and

visitors are to utilize one of the two other entrances.

        When residents carried groceries or packages covered by the covenant, they typically used

the garage entrance as it was easier to gain access and safer than the service entrance. There is a

wide concrete drive which slopes down to the garage with a pneumatic hose on the ground of the

right side of the driveway which activates the garage door for entering automobiles. Pedestrian

shareholders could either jump or step on the pneumatic hose to activate the door, or ring a

doorbell and wait for an employee to open the door.

                                     Accident of June 16, 2002

        On June 16, 2002, plaintiff, 78 years old at the time, walked approximately one mile to

the grocery store and returned home with a purchase of three pounds of meat. Plaintiff, while

carrying her purchase, intended to enter the building through the garage entrance, which she had

testified to using countless times without incident. However, upon walking down the drive,

plaintiff tripped over the pneumatic hose on the ground.

        An ambulance was called and plaintiff was taken to Weiss Hospital, where she was

admitted for treatment of a fractured left wrist, dislocated right shoulder, and fractured left

periorbital. Dr. John O’Keefe, an orthopedic surgeon at Weiss Hospital, testified that he treated

plaintiff. Plaintiff presented with multiple fractures of her left wrist, dislocation of her right


                                                   3
1-05-2098

shoulder, and ecchymotic hematoma around the left periorbital area. Plaintiff’s wrist was

splinted and aligned, surgery was performed on her right shoulder and the doctor attended to her

eye trauma. After two months including six weeks of therapy, Dr. O’Keefe determined that

plaintiff had a probable rotator cuff tear and an orbital fracture and recommended surgery to

repair an injury to her left thumb.

       On December 31, 2002, plaintiff filed a personal injury lawsuit against defendants.

Plaintiff alleged that Edgewater, Sudler and Ortiz were jointly and severally liable for her

injuries. Plaintiff claimed that each defendant breached its individual duty to maintain the

premises in a safe condition. She argued that their negligence in maintaining the property, in

particular the pneumatic hose at the garage entrance, was the proximate cause of her injuries.

                                         Pretrial Motions

       On June 23, 2004, defendants filed a motion for summary judgment. Defendants argued

that the danger posed by the pneumatic hose was open and obvious. Furthermore, based on

plaintiff’s continual use of the entrance, defendants argued that she clearly knew of the existence

of the hose.

       Following a hearing on defendants’ motion, the circuit court entered a written order

denying the motion. The court found that defendants clearly owed plaintiff a duty of care and

that the small diameter hose was not an open and obvious condition. Furthermore, the court

opined that even if the condition were considered open and obvious, the distraction exception

would apply under the facts to overcome the motion for summary judgment. Defendants filed a

motion to reconsider based on a claimed misapplication of Illinois law, which was denied and the


                                                 4
1-05-2098

matter was set for trial.

        Both parties filed several motions in limine to exclude certain testimony and arguments

from trial. Plaintiff argued that the trial court erred in granting defendants’ motions in limine

barring testimony regarding the garage ramp signage and pavement and subsequent remedial

measures to the ramp area. In particular, the trial court barred the testimony of plaintiff’s witness

George Maniates, a board member who was to testify to the conditions of the entrances and

board discussions regarding the same.

                                              Jury Trial

        At trial, plaintiff testified on her own behalf. Plaintiff admitted to seeing the hose before

tripping, but could not provide more detail regarding how she had fallen. She testified that she

did not jump on the pneumatic hose, but it must have tangled into her feet somehow. Plaintiff

admitted that she never requested that the board or Sudler remove or change the hose. Further,

plaintiff testified that she had never considered the hose a danger prior to the date in question.

        Rosemarie Craig, a 20-year shareholder resident at Edgewater Beach Apartments,

testified to how residents would utilize the garage entrance. Craig testified that residents could

activate the garage door by jumping on the pneumatic hose or ring the doorbell and wait for an

employee to open the door. On May 2, 2002, after a walk with her husband, Craig activated the

garage door by jumping on the pneumatic hose, but fell to the ground when her feet got tangled

up in the hose. Craig did not call an ambulance, but went back to her apartment and iced her leg.

She later went to the hospital, where doctors discovered that Craig had fractured her right shin.

Although she later informed several residents how the injury occurred, Craig did not report her


                                                  5
1-05-2098

injury to defendants or the board, nor did she take any legal action.

         Adora Manalo, Sudler’s on-site property manager at Edgewater Beach Apartments from

April 2001 to September 2004, testified to the condition of the property and her duties. Manalo

testified that she attended the monthly meeting of the board of directors. The board, through the

board president, directed her and Sudler with respect to operations and maintenance issues.

Manalo emphasized that her interaction was mostly with the board president and all direction as

to what projects to implement would come directly from the board president to either her or

Ortiz.

         Manalo affirmed that either the service or garage entrances were to be used if residents

were unloading large parcels or more than a bag or two of groceries. Manalo further testified that

she considered the pneumatic hose at the garage entrance and the wooden ramp at the service

entrance to be tripping hazards. However, she did not believe the conditions rose to the level of a

possible safety issue and never reported same to management. Furthermore, Manalo testified

that she never received complaints from any residents about dangerous conditions at either

entrance.

                                            Jury Instructions

         After the close of testimony, the trial court considered the parties’ proposed jury

instructions. Plaintiff submitted two separate sets of proposed instructions, one for each

defendant. For Edgewater, plaintiff submitted instructions with respect to duty and the burden of

proof for claims against an owner or occupier of land, Illinois Pattern Jury Instructions, Civil,

Nos. 120.02 and 120.08 (2005) (hereinafter IPI Civil (2005)). For Sudler, plaintiff submitted the


                                                   6
1-05-2098

pattern instructions on duty, burden of proof and the elements for a general negligence claim, IPI

Civil (2005) Nos. 10.01, 20.01 and 21.02.

        During the jury instruction conference, defendants contended for the first time that Sudler

was an agent of Edgewater; thus, only the owner and occupier instructions were proper to submit

to the jury for both parties. Defense counsel, who represented both Edgewater and Sudler,

argued that Sudler admitted its role as agent for Edgewater. Defense counsel further argued that

the testimony at trial by Manalo indicated that she took direction from the board. Manalo further

testified that the board maintains the building and decides what needs to be fixed on the property

and what changes are to be made.

        Over plaintiff’s objection, the trial court found that Sudler was an agent of Edgewater and

the jury was not presented with that question. Plaintiff’s proposed separate general negligence

instructions for Sudler were also denied. Therefore, the premises liability instruction for owners

and occupiers of land, IPI Civil (2005) No. 120.08, was given to the jury for both defendants.

                             Closing Arguments and Posttrial Motions

        During closing arguments, defense counsel noted that plaintiff admittedly had made

“countless” trips down the ramp to the garage entrance and had never tripped before the incident

in question. Counsel then noted that “not one single person has tripped on that hose as described

by Ms. Simich.” Finally, based on the number of residents at the apartments, defense counsel

completed some rough calculations to estimate that over a 20-year period, 146,000 trips had been

made by residents down the garage ramp without incident.

        Plaintiff’s counsel objected to these comments, arguing that no evidence had been


                                                 7
1-05-2098

presented at trial that there were no injuries over such a time period. The trial court overruled

plaintiff’s objection. Specifically, the trial court noted that the jury had heard the evidence and

would rely on the evidence for its decisions and that arguments by counsel were not evidence.

Plaintiff timely filed a posttrial motion requesting a new trial, which was denied, and this appeal

arguing the aforementioned issues.

                                          II. ANALYSIS

                                   A. Determination of Agency

       Plaintiff first claims that the trial court erred in it’s determination that Sudler was an

agent of Edgewater. Plaintiff argues that the issue of agency was only raised at the jury

instruction conference, after evidence had been concluded, and resulted in crucial decisions

regarding proposed jury instructions. In particular, the finding that Sudler was an agent of

Edgewater resulted in a jury instruction with respect to Sudler based on the duty and burden of

proof for premises liability, not the simpler common law negligence instruction that plaintiff

proposed.

       As noted by plaintiff, if an agency relationship is indisputable, the issue is not a question

only for the trier of fact. Gasbarra v. St. James Hospital, 85 Ill. App. 3d 32, 43 (1979). Where

the relationship is so clear as to be indisputable, the trial court may determine that an agency

relationship exists as a matter of law. Amigo’s Inn, Inc. v. License Appeal Comm’n, 354 Ill. App.

3d 959, 966 (2004). Therefore, these questions are subject to a de novo standard of review.

       Plaintiff states that the typical argument for the existence of an agency relationship is

asserted by a party wishing to impose liability upon a principal. In this case, however, defense


                                                  8
1-05-2098

counsel asserted, and admitted, an agency relationship, ostensibly to shield Sudler from a general

negligence claim. Plaintiff argues that defendants’ admission does not close the issue. Instead,

plaintiff concludes that the question of agency was not indisputable from the evidence presented

and remained a question of fact for the jury that must be proven by a preponderance of the

evidence. Israel v. National Canada Corp., 276 Ill. App. 3d 454, 459 (1995).

       Defendants counter that, beyond their admission, the record clearly demonstrated that

Sudler is an agent of Edgewater and, therefore, the jury instructions given comport with the law.

Even if an error was made by the trial court, defendants argue that the record demonstrates that

no substantial prejudice resulted and the judgment should not be disturbed. See Belleville

Toyota, Inc. v. Toyota Motor Sales, USA, 199 Ill. 2d 325, 364 (2002).

       Defendants rely primarily on two factors for asserting that the agency relationship

between Sudler and Edgewater was clear. First, they note defense counsel’s admission during

the jury instruction conference that Sudler stood in an agency relationship with Edgewater.

Second, they argue that the testimony of Manalo established an indisputable agency relationship.

Defendants further argue a complete lack of evidence presented by plaintiff that Sudler was an

independent contractor and not an agent.

       Although there is no rigid rule for determining whether an agency or an independent

contractor relationship exists, the four major factors to consider are: (1) the right to control the

manner in which work is performed; (2) the method of payment and whether taxes are deducted;

(3) the level of skill required to perform the work; and (4) furnishing of necessary tools, materials

and equipment. Lang v. Silva, 306 Ill. App. 3d 960, 972 (1999). The right to control the manner


                                                   9
1-05-2098

in which work is performed is considered the “hallmark of agency.” Kaporovskiy v. Grecian

Delight Foods, Inc., 338 Ill. App. 3d 206, 210 (2003). Conversely, an independent contractor

undertakes to produce a certain result, but is not controlled as to how that result is achieved.

Lang, 306 Ill. App. 3d at 972.

       In this case, Manalo testified that she was employed by Sudler to manage the Edgewater

property. Sudler was under contract with Edgewater to perform management duties, including

oversight of the maintenance of common and exterior areas of the building. The contract

between Edgewater and Sudler was not presented at trial.

       Manalo was one of two Sudler employees who worked at the apartment building and she

was supervised by a Sudler employee, Ken Ortiz. Ortiz was the liaison between Sudler and the

board, but both Manalo and Ortiz would attend board meetings. Manalo’s testimony on cross-

examination cited by defendants, and upon which they heavily rely for their agency argument,

went as follows:

               “DEFENSE COUNSEL: And can you describe with a little bit more detail

       your duties and responsibilities when you were the property manager at 5555

       North Sheridan?

               MS. MANALO: To manage the staff and maintain the property, operation

       and maintenance of the property, and manage the projects there [sic] were going

       on. There was a series of renovation projects that were going on while I was on

       site.

               DEFENSE COUNSEL: Would you then coordinate with the contractors?


                                             10
1-05-2098

              MS. MANALO: I would.

              DEFENSE COUNSEL: Describe for me the interaction you had with the

       Edgewater Beach Apartment Corporation in your roll as a property manager.

              MS. MANALO: I would meet with the board of directors monthly. My - -

       we would implement at their direction, but the direction would solely come from

       the board president. My interaction would be mostly with the board president.

              DEFENSE COUNSEL: Did you generally take your orders from the board

       president?

              MS. MANALO: Yes.

                                                 ***

              DEFENSE COUNSEL: ... What entity actually maintains the building?

       Who decides what to fix and what not to fix, what changes to be made, and what

       changes not to be made?

              MS. MANALO: The board of directors.

              DEFENSE COUNSEL: Do you take direction from them?

              MS. MANALO. Yes, but through the board president.”

       Upon redirect examination by plaintiff’s counsel, the following testimony of Ms.

Manalo was elicited:

              “PLAINTIFF’S COUNSEL: Now, you were asked questions about the

       board of directors. If Sudler and Company saw a safety hazard, a tripping hazard

       that they thought a resident might get injured on, whether it’s a ramp, they had a


                                            11
1-05-2098

       responsibility to see that that was corrected, correct?

               MS. MANALO: Yes.

               PLAINTIFF’S COUNSEL: And they should report to the board if they

       couldn’t do it themselves. If you didn’t have the funds or the manpower or those

       things, a report should be made to the board, we have this problem, it needs to be

       corrected, and here is what we need to do to correct it. That is partly the

       responsibility of the management company, correct?

               MS. MANALO. Yes.

               PLAINTIFF’S COUNSEL: Okay. And if you do that, and the board then

       says forget it, we don’t want it, you have carried out and fulfilled your

       responsibility as the property manger, correct?

               MS. MANALO. Yes.”

       Accordingly, Manalo’s day-to-day duties were to manage the Edgewater staff who were

hired and paid by Edgewater. In particular, Manalo would instruct the staff to act, including

fixing unsafe conditions on the property. Manalo testified that she felt it was her, and Sudler’s,

obligation to fix unsafe conditions on the property, even if unreported. With respect to the

pneumatic hose, Manalo also testified that she felt it posed a tripping hazard but was not

unreasonably dangerous and that she had never received complaints that it was hazardous.

       As this court noted in Villa v. Arthur Rubloff & Co. of Illinois, 183 Ill. App. 3d 746

(1989), there is little case law on the precise agency question at issue. Most cases considering

property management companies concern the scope of agency, not the fact of agency itself. In


                                                12
1-05-2098

Villa, the plaintiff only argued on appeal that the defendant was a subcontractor and not an agent.

This court denied the untimely argument, agreeing that the property manager was clearly an agent

of the owner. The evidence presented showed that the defendant and the property owner entered

into a management agreement, under which the defendant specifically would manage a shopping

center as the owner’s agent. Villa, 183 Ill. App. 3d at 749.

       Under the agreement in Villa, the defendant was authorized to lease storefronts (with the

owner’s prior written approval); collect rentals; employ, pay and discharge all employees

required to maintain the property; to make ordinary repairs and purchases; and pay utilities from

collected monies. Villa, 183 Ill. App. 3d at 748. Citing to the Restatement (Second) of Agency,

the Villa court noted that it is inferred that a general grant of authority to manage a business

includes duties to make contracts, to employ, supervise and discharge employees, to receive and

make payments for the principal, and to direct ordinary operations. Furthermore, the court noted

that an agent can be in charge of the principal’s entire business or a portion thereof. Villa, 183

Ill. App. 3d at 750, citing Restatement (Second) of Agency §73 (1957).

       As in Villa, here there is evidence of an agency relationship between Sudler and

Edgewater; however, it cannot be said that it is so obvious or overwhelming to be considered a

matter of law. As in Villa, Manalo and Ortiz, on behalf of property manager Sudler, managed the

property. Ortiz or Manalo would meet monthly with the board, generally taking orders from the

board president to complete tasks as required. Manalo was granted authority to complete these

tasks with minimal to no oversight.

       However, unlike in Villa, there is no contract of record stating that this was an agency


                                                 13
1-05-2098

relationship with a grant of general control. There is no evidence of payment or receipt of any

monies by Sudler. Further, testimony revealed that all employees were hired and terminated by

Edgewater. It is clear by the testimony at trial that Sudler and Manalo had control over

implementing at least some maintenance projects, but not a general grant of authority. If projects

were labor or cost intensive, Edgewater controlled decisions, though the extent of that control

remained largely in question.

       Furthermore, inquiries of both parties by this court underscore the lack of clarity on this

issue. Questioned on whether Sudler had the wherewithal, for example whether they had the

tools, manpower or funding, to complete a project such as removing the pneumatic hose, the

parties did not know. Likewise, it was unknown whether such a project would require board

oversight, or if Sudler had the authority to undertake such efforts.

       While it cannot be said that plaintiff conclusively proved that Sudler was an independent

contractor, considering the evidence of record, it cannot be said that the four factors for agency

outlined in Lang were overwhelmingly evident to allow a determination either way as a matter of

law. As more fully explained in discussion of the jury instruction issue below, the trial court’s

finding during the instruction conference that an agency relationship existed between Edgewater

and Sudler constituted reversible error. On remand, more evidence must be presented developing

the relationship between Sudler and Edgewater in order for the trial court to find an agency

relationship as a matter of law. The four factors in Lang must be addressed, or overwhelming

evidence of less than all four is required. Alternatively, as in Villa, a contract or management

agreement clearly outlining an agency relationship could be introduced to allow a determination


                                                 14
1-05-2098

as a matter of law. Otherwise, the law is clear that an agency relationship is a question of fact for

the jury.

                       B. Jury Instructions With Respect to Defendant Sudler

        Plaintiff contends that the trial court committed reversible error by instructing the jury on

the wrong standard of care and that the cause must be remanded for a new trial. Esser v.

McIntyre, 169 Ill. 2d 292, 302 (1996). Specifically, plaintiff argues that her request for IPI Civil

(2005) No. 21.02 should have been given with respect to Sudler because it was not an owner or

occupier of the property subject to the lesser premises liability standard under IPI Civil (2005)

No. 120.08.

        The determination of what standard of care a party owes another is a question of law.

Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445 (1996). A particular jury instruction

given by the trial court is proper if it is sufficiently clear, fairly and correctly states the law, and is

supported by some evidence in the record. Rios v. City of Chicago, 331 Ill. App. 3d. 763, 776

(2002). In determining whether jury instructions were inadequate, this court will remand for a

new trial on that basis only if the trial court clearly abused its discretion. Villa v. Crown Cork &

Seal Co., 202 Ill. App. 3d 1082, 1087 (1990). Likewise, the trial court’s determination as to what

issues are raised by the evidence will be disturbed only if the court abused its discretion. Bryant

v. LaGrange Memorial Hospital, 345 Ill. App. 3d 565, 573 (2003). Not only are the pattern jury

instructions preferred, if applicable, the IPI instruction must be given. Hobart v. Shin, 185 Ill. 2d

283, 294 (1998).

            1. Whether the trial court instructed the jury on the proper standard of care


                                                    15
1-05-2098

        First, plaintiff argues that Sudler was an independent contractor and subject to the general

negligence standard outlined under IPI Civil (2005) No. 21.02. Even if the trial court properly

determined agency in this case, plaintiff asserts that the premises liability jury instructions were

improperly applied to Sudler. Plaintiff argues that there is no support in Illinois law for the

position that the owner or occupier burden of proof for negligence may be applied under an

agency theory. Rather, plaintiff contends that the law is clear that, for liability under a premises

liability theory, a party must be an owner or occupier of the property in question. Kotecki v.

Walsh Construction Co., 333 Ill. App. 3d 583, 589 (2002). To be considered an owner or

occupier, and for a duty to arise under the Act, it is clear that “the defendant must possess and

control the real property on which the injury occurred.” Kotecki, 333 Ill. App. 3d at 589, citing

Godee v. Illinois Youth Soccer Ass’n, 327 Ill. App. 3d 695, 699 (2002).

        Plaintiff asserts that it is clear that Sudler is not an owner of the property so as to fall

under the owner and occupier requirement for premises liability. Plaintiff contends that, as under

Esser, Sudler did not occupy the land with the intent to control the land to be considered an

occupier. Esser, 169 Ill. 2d at 302. Therefore, on its own, Sudler did not fall under the premises

liability standard and was subject to liability under general negligence standards.

        Plaintiff further argues that no court has ever held that the burden of proof in claims

against an agent of an owner or occupier is determined by the premises liability standard.

Plaintiff continues that agents are liable for their own torts, while the principal is liable for its

agent’s torts if done within the scope of their agency relationship. Brubakken v. Morrison, 240

Ill. App. 3d 680, 686 (1992); IPI Civil (2005) No. 50.01. Therefore, she concludes that Sudler


                                                   16
1-05-2098

had a common law duty of reasonable care in maintaining the property separate and apart from

any duty Edgewater owed plaintiff as owner of the property. Plaintiff claims that she was

prejudiced by the use of the more exacting standard of care under premises liability law.

       Defendants argue that the cases cited by plaintiff are distinguishable and have no

application to the facts of this case. Defendants claim that Esser did not involve issues of

agency, but only involved the determination of whether a vacationer was an occupier of a

common area of a rented home. They argue that Kotecki involved issues of construction related

injuries, and again, no agency issues. Defendants argue that Israel involved motions to dismiss

claims for fraud and intentional interference with contractual relations and not premises liability.

       Defendants also claim that the Premises Liability Act (Act), (740 ILCS 130/1 et seq.

(West 2004)), and relevant jury instructions apply equally to an agent of an owner or occupier as

well as to the direct owner. Defendants do not cite to any authority for this argument in their

brief. However, as support during oral argument, defendants referenced the committee

comments to IPI Civil (2005) No. 120.08. IPI Civil (2005) No. 120.08, at issue and fully

addressed in the next section, is the jury instruction that was recently created to combine the

issues and burden of proof instructions for premises liability cases. Defendants requested and the

court gave IPI Civil (2005) No. 120.08, for both Edgewater and Sudler. Defendants highlight

that the comments state that, for cases where there is a dispute as to ownership of the property,

“[f]irst, the defendant, [owned] [controlled] [managed] the property,” should be added to the

instruction. Defendants offer that the use of “manages” in the notes to IPI Civil (2005) No.

120.08 further supports their argument that agents such as property manager Sudler fall under


                                                 17
1-05-2098

this instruction.

        However, from the record, there is no dispute as to ownership of the property and it is

clear that Sudler is neither an owner nor occupier of the Edgewater Beach Apartments. Sudler

maintains one to two employees on the property and coordinates the maintenance staff on the

property. There was no evidence that Sudler maintained possession and control over the

property. As the court improperly determined that Sudler was an agent, that theory fails to

support defendants’ contention that the Act applies to agents as well as principals. The

comments to IPI Civil (2005) No. 120.08 also fail to support defendants’ position because that

language is only to be used in the event of a dispute over the ownership of the property, which is

not the case here.

        We agree with plaintiff that even if agency had been properly established, that does not

lead to the use of premises liability instructions for the agent. There is no doubt that Edgewater

owned, possessed and controlled the property as outlined under Esser, Kotecki and Godee, to fall

under the Act. Plaintiff alleged that Sudler was hired to undertake certain tasks for Edgewater

and, as such, its duty to the residents at Edgewater arose from that agreement. Therefore, even

assuming an agency relationship, Sudler would be liable for its own negligent acts. Accordingly,

reversal and remandment is necessitated by the improper instructions rendered by the trial court.

                     2. Illinois Pattern Jury Instruction Civil (2005) No. 120.08

        Plaintiff next contends that, even if IPI Civil (2005) No. 120.08 was properly given, the

instruction itself is defective and/or misleading. Plaintiff argues that this instruction improperly:

(1) requires the jury to determine a defendant’s duty; (2) misstates Illinois law by limiting


                                                 18
1-05-2098

landowner liability to a landowner’s reasonable expectation that people on the property would

not discover the danger; and (3) does not provide for the distraction or deliberate encounter

exceptions to open and obvious conditions.

       The question of a defendant’s duty of care is a matter of law to be determined by the trial

court and is reviewed de novo. Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). In

determining whether a duty is owed in a premises liability case, the court considers: (1) the

likelihood of injury; (2) the reasonable foreseeability of such an injury; (3) the burden of

guarding against such an injury; and (4) the consequences of placing that burden on a defendant.

Ward, 136 Ill. 2d at 140. Plaintiff notes that section 343 of the Restatement (Second) of Torts

sets out the factors used by courts when analyzing the foreseeability prong of the duty analysis

under a premises liability theory. Ward, 136 Ill. 2d at 145-46. That section provides in full:

               “A possessor of land is subject to liability for physical harm caused to his

       invitees by a condition on the land if, but only if, he

                       (a) knows or by the exercise of reasonable care would discover the

       condition, and should realize that it involves an unreasonable risk of harm to such

       invitees, and

                       (b) should expect that they will not discover or realize the danger,

       or will fail to protect themselves against it, and

                       (c) fails to exercise reasonable care to protect them against the

       danger.” Restatement (Second) of Torts §343 (1965).

       As noted above, IPI Civil (2005) No. 120.08 is the jury instruction that was recently


                                                 19
1-05-2098

created for premises liability cases. This instruction combines the instructions for premises

liability issues and burden of proof into one instruction. IPI Civil (2005) No. 120.08 states in

full:

               “[In Count ___], [plaintiff’s name] seeks to recover damages from the

        defendant [defendant's name]. In order to recover damages, the plaintiff has the

        burden of proving:

               First, there was a condition on the [property] [land] [building] [other]

        which presented an unreasonable risk of harm to [people] [children] on the

        property.

               Second, the defendant knew or in the exercise of ordinary care should have

        known of both the condition and the risk.

               Third, the defendant could reasonably expect that [people] [children] on

        the property [would not discover or realize the danger] [or] [would fail to protect

        themselves against such danger].

               Fourth, the defendant was negligent in one or more of the following ways:

               a) _________________________________________________________,

               b)_________________________________________________________,

               c)_________________________________________________________,

               Fifth, the plaintiff was injured.

               Sixth, the defendant's negligence was a proximate cause of the plaintiff's


                                                   20
1-05-2098

       injury.” IPI Civil (2005) No. 120.08.

        Plaintiff claims that, by its own terms, IPI Civil (2005) No. 120.08 insulates a landowner

from liability for all hazards except those dangerous conditions that the landowner could

reasonably expect that people on the property would not discover or realize. Therefore, she

argues that the instruction must be closely scrutinized to assure that it properly states the law.

       Plaintiff points out that four of the six elements required under IPI Civil (2005) No.

120.08 are virtually identical to the foreseeability factors under section 343 of the Restatement.

Plaintiff notes, however, that only one prong of the Ward duty analysis is considered under IPI

Civil (2005) No. 120.08. As such, plaintiff argues that a jury may undertake an incomplete

analysis of the duty owed by defendants and that they must analyze all four factors highlighted in

Ward. Therefore, plaintiff argues that it is logically inconsistent to have the jury undertake an

incomplete duty analysis at trial when that precise issue is determined as a matter of law by the

court before the matter gets to trial. In this case, the question of defendants’ duty was determined

by the circuit court in earlier proceedings on defendants’ motion for summary judgment and,

plaintiff argues, that issue should not have been revisited by the jury.

       Defendants counter that plaintiff has confused questions of duty and liability. Defendants

argue, without citation to authority, that Illinois courts follow a two-prong inquiry for premises

liability cases by examining first the question of a defendant’s duty and then the liability of the

defendant. Defendants note that landowner or occupier liability was defined by the supreme

court in Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976), in the same manner as defined

in section 343 of the Restatement, and now IPI Civil (2005) No. 120.08, quoted above, and this


                                                  21
1-05-2098

definition remains unchanged.

       Our supreme court recently noted that the question of duty in this area is “very involved,

complex and indeed nebulous.” Marshall v. Burger King Corp., No. 100372, slip op. at 10 (June

22, 2006), quoting Micher v. Brown, 54 Ill. 2d 539, 545 (1993). The consideration of duty

involves a complex question of fact, law, and public policy that the trial court must determine as

a matter of law. This question is made more complex upon review by courts’ use of the

Restatement sections on the broader subject of liability to determine duty. Marshall, slip op. at

12. Indeed, for example, the Ward and Bucheleres courts specifically note that this section of the

Restatement is informative to the question of duty. However, they both also note that the

analyses undertaken for duty and liability are separate and distinct. Bucheleres, 171 Ill. 2d at

447.

       The Ward court further bears this out by outlining a three-step process in common law

negligence actions. First, the court must determine that the defendant owed a legal duty to the

plaintiff. In making this determination, the court must examine the four factors found in Ward:

(1) likelihood of injury; (2) reasonable foreseeability of injury; (3) burden of guarding against

injury; and (4) consequences of burden. Second, if the court has determined that defendant owed

plaintiff a duty, the trier of fact then considers the three factors under section 343 of the

Restatement ((1) whether the defendant knew or by exercise of reasonable care would discover,

and should realize, the condition presents an unreasonable danger to invitees; (2) whether the

defendant should expect invitees will fail to discover or realize the danger or fail to protect

themselves against it; and (3) whether the defendant failed to exercise reasonable care to protect


                                                  22
1-05-2098

invitees against danger) to determine a defendant’s negligence or lack thereof. Finally, the trier

of fact also may consider the plaintiff’s fault, if any, in determining whether the defendant was

negligent. Ward, 136 Ill. 2d at 145-46.

       As noted in Bucheleres, foreseeability of injury has never been dispositive of the issue of

duty in negligence cases. Bucheleres, 171 Ill. 2d at 457. Further, the existence of a duty turns in

large part on considerations of public policy. In fact, the supreme court has phrased the

Ward factors that comprise the duty inquiry as “policy considerations.” Marshall, slip op. at 11-

12. Therefore, the court’s determination that a defendant owes a plaintiff a duty is not a

dispositive ruling on the facts so as to relieve the plaintiff of her burden of proving the factors

enumerated in IPI Civil (2005) No. 120.08.

       It follows that plaintiff’s argument that IPI Civil (2005) No. 120.08 is an inaccurate

statement of Illinois law fails. Plaintiff claims that the instruction improperly limits landowners’

liability to situations where the landowner could “reasonably expect that people on the property

would not discover or realize” the dangerous condition. Plaintiff argues that open and obvious

conditions are not an absolute bar to liability, but that the instruction allows such a bar if the jury

finds that the defendant “could reasonably expect” that the plaintiff knew of the condition.

However, as can be gleaned from the citations above, IPI Civil (2005) No. 120.08 is an accurate

recitation of Illinois law as found in Genaust, Ward, Bucheleres, and Marshall.

       Finally, along the same lines, plaintiff argues that IPI Civil (2005) No. 120.08 does not

allow for the distraction or deliberate encounter exceptions. Ward, 136 Ill. 2d at 145;

Restatement (Second) of Torts, §343A, Comment F (1965). First, by the very language


                                                  23
1-05-2098

specifically cited by plaintiff, the instruction takes into account the distraction exception. A

distracted person “would not discover or realize the danger” and as a result fail to protect him or

herself. Furthermore, throughout the opinion in Ward, the supreme court limited the distraction

exception to reasonably foreseeable activities and injuries as the instruction does. As for the

deliberate encounter exception, that issue is covered under IPI Civil (2005) No. 120.09;

therefore, its absence does not render IPI Civil (2005) No. 120.08 invalid.

                     C. Barring Evidence of Subsequent Remedial Measures

       While we have reversed the jury’s verdict, we choose to address plaintiff’s argument that

the trial court erred in granting defendants’ motion in limine to bar any testimony referring to

documents and discussions regarding subsequent remedial measures as this issue is likely to arise

during retrial. Plaintiff notes that the generally accepted rule is that post-occurrence remedial

measures are inadmissible to prove negligence. Schaffner v. Chicago & North Western

Transportation Co., 129 Ill. 2d 1, 14 (1989). However, she argues that the evidence at issue was

not evidence of a subsequent remedial measure. Even if it were, plaintiff argues that the actions

were not taken by defendants or their agents, but by an informal floor committee of Edgewater’s

resident shareholders.

       A challenge made to the trial court's ruling on the admissibility of evidence is reviewed

under an abuse of discretion standard. Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d

706, 711 (2005). The trial court is vested with the discretion to determine the relevance and

admissibility of this evidence regardless of whether it is expert or lay testimony. Mulloy, 358 Ill.

App. 3d at 711-12. A trial court abuses its discretion only when no reasonable person would

                                                 24
1-05-2098

agree with the trial court. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

       Plaintiff argues that the trial court improperly barred the testimony of resident shareholder

and floor committee chairperson George Maniates and any communications regarding his floor

committee. The trial court barred testimony and meeting minutes as evidence of subsequent

remedial measures by defendants. Plaintiff claims that the floor committee was an informal

group that discussed issues, including the unsafe condition of the alternate entrances, at the

apartment building. Therefore, plaintiff concludes that this was not the action of defendants, nor

any evidence of subsequent measures but rather constituted evidence of knowledge of the hazard.

       Defendants argue that the committee was an agent of Edgewater. Defendants point to the

testimony of Manalo that the board president appointed committees to look at issues. Therefore,

defendants claim that it is clear that the committee is an agent of Edgewater and if the evidence

was admitted, it would have been an admission of negligence by Edgewater. Furthermore,

defendants argue that if this testimony and correspondence were admitted, it would be

duplicative of evidence established by other witnesses at trial.

       The evidence at trial supports defendants’ claim that the committee chaired by Maniates

was an arm of the board for Edgewater and acted subsequent to plaintiff’s accident on remedial

measures at the property. While informal, the evidence established that Maniates was appointed

by the board to discuss issues at the apartment complex, including the safety of the entrances, and

report to the board. Subsequent remedial measures were taken with respect to the building

entrance. It was within the trial court’s discretion to bar this testimony regarding Edgewater’s

analysis of and action addressing the hazards posed by the hose. Furthermore, plaintiff’s

                                                 25
1-05-2098

argument that this evidence was necessary to show the hazard posed by the hose is hollow as that

was clearly established by the testimony of Manalo, Simich and Craig and would be duplicative

for that purpose. As we have reversed the jury verdict in this case, we need not discuss plaintiff’s

two final arguments.

                                       III. CONCLUSION

       Accordingly, for the aforementioned reasons, the decision of the trial court is reversed.

       This cause is remanded for a new trial consistent with the holdings herein.

       Reversed and remanded.

       QUINN, P.J., and CAMPBELL, J., concur.




                                                26
