Martoccio v. Western Restaurants, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0282
Case Date: 01/30/1997
No. 5-96-0282
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
JAMIE LYNNE MARTOCCIO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Marion County.
)
v. ) No. 94-L-104
)
WESTERN RESTAURANTS, INC., d/b/a )
WENDY'S OLD FASHION HAMBURGERS, ) Honorable
) Patrick J. Hitpas,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
On September 29, 1994, plaintiff Jamie Lynne Martoccio filed
a complaint against defendant for damages she sustained as a result
of a fall in a Wendy's restaurant. Plaintiff argued that
defendant, through its agents and employees, breached its duty of
ordinary care to plaintiff by failing to inspect the floor of the
restaurant, in permitting a wet substance to exist on the floor of
the restaurant, and by failing to warn the plaintiff of the
presence of the substance. Plaintiff did not sue defendant's
employees. Defendant denied the allegations and alleged as an
affirmative defense plaintiff's failure to keep a lookout.
At trial, the court refused plaintiff's instruction No. 14,
which was Illinois Pattern Jury Instructions, Civil, No. 50.02 (3d
ed. 1989) (hereinafter IPI Civil 3d), and plaintiff's instruction
No. 23, which was IPI Civil 3d No. 50.11. Plaintiff's instruction
No. 14 stated:
"Denise Higgins and Amy Hill were the agents of the defendant,
Western Restaurants, Inc., at and before the time of this
occurrence. Therefore, any act or omission of the agents at
that time was in law the act or omission of the defendant,
Western Restaurants, Inc."
Plaintiff's instruction No. 23 stated:
"The Defendant, Western Restaurants, Inc., is a corporation
and can act only through its employees. Any act or omission
of an employee within the scope of his employment is the
action or omission of the Defendant corporation."
The jury returned a verdict in favor of defendant, and
judgment was entered. The court denied plaintiff's posttrial
motion, which raised the court's refusal of plaintiff's instruction
Nos. 14 and 23, and plaintiff appeals on this narrow issue.
Before addressing the legal issue of whether the court erred
in refusing to instruct the jury on agency, a brief review of the
testimony is necessary.
Plaintiff testified that on the evening of August 26, 1994,
while she was a patron at the Wendy's restaurant, she slipped on a
wet substance on the restaurant floor and injured her left knee.
Plaintiff testified she was wearing black flats and did not see the
substance on the floor because she was carrying a soda from the
counter to the table where her family was seated. Plaintiff
testified that the first Wendy's employee to approach her after her
fall was Amy Hill and that Hill told plaintiff that she was going
to clean up the spill but she did not get to it. About 30 minutes
after her fall, plaintiff had her knee x-rayed at St. Mary's
Hospital in Centralia. Plaintiff was placed on crutches and
ultimately had two knee surgeries and underwent exercise programs
designed to strengthen her knee. Plaintiff testified that at the
time of the trial she continued to have significant debilitating
problems from her knee injury, including the inability to
straighten her leg, to walk up and down stairs, or to walk without
pain for any significant distance.
Plaintiff's mother, Alice Balsano, who witnessed the accident,
corroborated plaintiff's testimony. Balsano further testified that
she observed what plaintiff had slipped on, and she described it as
red, like french dressing, catsup, or chili sauce, and about eight
inches across. Balsano testified that she observed marks where
plaintiff had skidded in the substance. Balsano also testified
that after plaintiff's fall Hill mopped up the area.
Denise Higgins and Amy Hill, both Wendy's employees, testified
on behalf of defendant. Higgins testified that she was employed by
defendant and was working when plaintiff fell. Higgins testified
that at the time of the fall she was assigned to stock and upkeep
the salad bar. Hill was also working in front of the counter
cleaning trays. Higgins testified that employees were instructed
to monitor the floor for spills. She further testified that she
had been out of the room on two prior occasions prior to
plaintiff's fall getting fresh food to refill the salad bar.
Higgins testified that prior to the accident she did not notice any
spill on the red brick floor. After the fall, Higgins cleaned up
the area because plaintiff had spilled the drink she was carrying.
Higgins denied seeing any red substance on the red brick floor.
The purpose of jury instructions is to convey to the jurors
the correct principles of law applicable to the evidence presented.
Gaskin v. Goldwasser, 166 Ill. App. 3d 996, 1009, 520 N.E.2d 1085,
1092 (1988). Each party is entitled to have a jury adequately
instructed as to his or her theory of the case if it is supported
by some evidence in the record. Lewis v. Cotton Belt Route-St.
Louis Southwestern Ry. Co., 217 Ill. App. 3d 94, 113, 576 N.E.2d
918, 933 (1991). The decision whether to instruct on an issue is
within the sound discretion of the trial court, and the decision
will be reversed only upon a showing of abuse of discretion. Green
v. Union Pacific R.R. Co., 269 Ill. App. 3d 1075, 1086, 647 N.E.2d
1092, 1099 (1995).
Plaintiff argues that without being instructed on agency, the
jury may have concluded that a Wendy's employee was negligent in
not cleaning up a known spill on the floor but still conclude that
defendant was not negligent. Defendant argues that plaintiff's
theory was based on premises liability rather than agency, and
therefore, an agency instruction would have been error.
Assuming, without agreeing with defendant, that premises
liability cases never involve agency relationships, we must reject
defendant's contention that plaintiff's complaint does not allege
an agency relationship. The complaint states:
"6. That defendant through its agents and employees
breached its duty to plaintiff in one or more of the following
ways:
a. Negligently failed to warn plaintiff of the dangerous
condition on the restaurant floor when the defendant knew
or in the exercise of reasonable care should have known
that said floor would become slippery when wet and when
defendant knew or should have known that said floor would
become wet in the ordinary course of defendant's
business.
b. Negligently permitted the dangerous condition of the wet
substance to exist on the floor of the restaurant when in
the exercise of reasonable care, defendant should have
discovered its presence and removed the same.
c. Negligently failed to inspect the floor of the restaurant
for the existence of wet substances when she knew or
should have known that the floor of the restaurant would
become wet and slippery in the ordinary course of its
use." (Emphasis added.)
Lawyers understand that employers are liable for their
employee's actions, but without instructions juries are neither
expected nor presumed to have that knowledge. The purpose of
instructions is to provide juries with the law applicable to the
case so that they do have that knowledge. Without being instructed
on agency, the jury in this case lacked a full and fair statement
of the law to guide their deliberations and could have easily been
misled. In a civil case, whenever there is an Illinois Pattern
Jury Instruction which correctly states the law, the instruction
should be used. Doyle v. White Metal Rolling & Stamping Corp., 249
Ill. App. 3d 370, 378, 618 N.E.2d 909, 916 (1993), appeal denied,
152 Ill. 2d 557, 622 N.E.2d 1203 (1993); 134 Ill. 2d R. 239. We
hold that the court abused its discretion in failing to give
plaintiff's instruction Nos. 14 and 23 or another agency
instruction. We reverse the court's judgment and remand for a new
trial.
Reversed and remanded.
KUEHN, P.J., and GOLDENHERSH, J., concur. NO. 5-96-0282
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
JAMIE LYNNE MARTOCCIO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Marion County.
)
v. ) No. 94-L-104
)
WESTERN RESTAURANTS, INC., d/b/a )
WENDY'S OLD FASHION HAMBURGERS, ) Honorable
) Patrick J. Hitpas,
Defendant-Appellee. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: January 30, 1997
___________________________________________________________________________
Justices: Honorable Charles W. Chapman, J.
Honorable Clyde L. Kuehn, P.J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorneys Daniel R. Price, Jennifer W. Price, Wham & Wham, 212 East
for Broadway, Centralia, IL 62801
Appellant
___________________________________________________________________________
Attorneys Jeffrey P. Hine, Osburn, Hine, Kuntze & Yates, LLC, 1359 N.
for Mt. Auburn Road, Cape Girardeau, MO 63701
Appellee
___________________________________________________________________________
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