June 5, 2001

Plaintiffs, Janet Worsley (Janet) and Frank Worsley (Frank),brought this action for personal injuries sustained by Janet in afall in defendant's restaurant, Farmington Pizza Company, allegingthat defendant failed to place warning devices on or near a step inthe restaurant. After a trial, the jury rendered a verdict infavor of plaintiffs. Defendant appeals. We affirm.

In January, 1996, plaintiffs were walking from the bar area tothe dining area of defendant's restaurant when Janet failed to seea seven-inch step down, walked off the step and fell, injuring herright shoulder. The step was covered with blue carpet identical tothat in the bar area and dining area. The stair lacked a hand railor warnings that would have brought attention to the step.

Prior to trial, defendant filed a motion for summary judgment. Defendant argued that it was not under a duty to warn plaintiff ofthe step because it was an open and obvious condition. The trialcourt denied defendant's motion.

Defendant then filed a motion in limine to prevent plaintifffrom introducing evidence that it had once placed reflective tapeon the step and a warning sign nearby, but later removed thembecause the tape came loose and the sign kept falling down. Defendant argued that the removal of the safety features wasirrelevant and prejudicial. The trial court denied the motion, andplaintiffs introduced the evidence at trial.

The jury returned a verdict in favor of plaintiffs but reducedthe award by 35% because of Janet's comparative negligence. Thejury awarded Janet net damages of $21,914.75 as well as $2,145 toFrank for loss of consortium. Defendant filed a motion forjudgment notwithstanding the verdict, and in the alternative a newtrial. The trial court denied defendant's motion.

DISCUSSION

I.

Defendant argues that the trial court abused its discretion bydenying its motion in limine to exclude testimony that defendanthad removed a lighting strip and warning sign prior to Janet'sfall. Defendant complains that it was prejudiced by the admissionof the testimony since previous safety measures were not relevantto determine the condition of the step at the time of the fall.

Relevant evidence is evidence which has a tendency to make theexistence of any material fact more or less probable than it wouldbe without the evidence. Wojcik v. City of Chicago, 299 Ill. App.3d 964, 971, 702 N.E.2d 303, 309 (1998); See also, Fed. R. Evid.401. The relevance and admissibility of evidence at trial iswithin the discretion of the trial court. Wojcik, 299 Ill. App. 3dat 971, 702 N.E.2d at 309. We will not overturn the decision ofthe trial court absent an abuse of that discretion resulting insubstantial prejudice. Wojcik, 299 Ill. App. 3d at 971, 702 N.E.2dat 309.

Evidence of a defendant's post-accident remedial measures isnot admissible as proof of negligence (Schaffner v. Chicago & NorthWestern Transportation Co., 129 Ill. 2d 1, 14, 541 N.E.2d 643, 647(1989)), because 1) public policy encourages the adoption of safetyimprovements for unsafe conditions, 2) subsequent improvements maybe an attempt to exercise the highest standard of care and are notconsidered probative of prior negligence, and 3) a jury may viewremedial measures as an admission of negligence. Herzog v.Lexington Township, 167 Ill. 2d 288, 300, 657 N.E.2d 926, 932(1995).

In urging us to extend the same policy concerns to pre-injurysafety measures, defendant cites post-manufacture, pre-injuryremedial measures in product liability cases. See Carrizales v.Rheem Manufacturing Co., 226 Ill. App. 3d 20, 589 N.E.2d 569(1991); Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451,650 N.E.2d 1108 (1995). The instant case, however, is a premisesliability action, and different policy concerns are implicated,i.e., the condition of the premises at the time of the accident anddefendant's knowledge of the dangerous condition.

To be liable for a dangerous condition, a defendant must haveknowledge that the condition existed.

"A possessor of land is subject to liability for physicalharm caused to his invitees by a condition on the landif, but only if, he (a) knows or by the exercise ofreasonable care would discover the condition, and shouldrealize that it involves an unreasonable risk of harm tosuch invitees, and (b) should expect that they will notdiscover or realize the danger, or will fail to protectthemselves against it, and (c) fails to exercisereasonable care to protect them against the danger." Restatement (Second) of Torts