Meeks v. Great America, LLC ( 2017 )

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Appellate Court Date: 2017.07.24
12:25:20 -05'00'
Meeks v. Great America, LLC, 2017 IL App (2d) 160655Appellate Court SHATOYA MEEKS, Plaintiff-Appellee, v. GREAT AMERICA,
Caption LLC, d/b/a Six Flags Great America and Six Flags Hurricane Harbor,
Defendant-Appellant.
District & No. Second District
Docket No. 2-16-0655
Filed May 31, 2017
Decision Under Appeal from the Circuit Court of Lake County, No. 15-L-24; the Hon.
Review Diane E. Winter, Judge, presiding.
Judgment Affirmed.
Counsel on Michael M. Fenwick and Lyndon C. Molzahn, of Molzahn, Rocco,
Appeal Reed & Rouse, LLC, of Chicago, for appellant.
David R. Centracchio and Joseph G. Ryan, of Gordon & Centracchio,
LLC, of Chicago, for appellee.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Jorgensen and Spence concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Lake County, plaintiff, Shatoya Meeks,
obtained a judgment against defendant, Great America, LLC, doing business as Six Flags
Great America and Six Flags Hurricane Harbor, awarding her $1,514,670.57 for a disabling
hand injury that she sustained on a waterslide at a water park operated by defendant. As a
sanction for defendant’s failure to disclose the identity of certain occurrence witnesses and to
produce written incident reports that witnesses were believed to have completed, the trial
court gave a modified pattern jury instruction on missing witnesses and evidence. Defendant
argues that the trial court committed reversible error by doing so. We affirm.
¶2 The incident giving rise to this action occurred in July 2011. Plaintiff filed a timely
complaint, which she voluntarily dismissed pursuant to section 2-1009 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1009 (West 2010)). She timely refiled the complaint in
September 2014. In count I of her complaint, plaintiff alleged that, while riding a waterslide,
she sustained lacerations and torn ligaments to her wrist and hands. She alleged that
defendant carelessly and negligently operated the waterslide, failed to provide adequate
warning to guests of the hazards associated with riding the waterslide, failed to inspect the
waterslide to ensure that it was safe for its intended use, and “[w]as otherwise careless and
negligent in the operation, maintenance and control of [the waterslide].” Count II advanced a
negligence claim under a theory of res ipsa loquitur, alleging that “the manner and
circumstance surrounding the occurrence and injury *** is of the kind which does not
ordinarily occur without someone’s negligence.” Defendant filed its answer and raised the
affirmative defense of contributory negligence, alleging that plaintiff failed to keep a proper
lookout.
¶3 During pretrial discovery, plaintiff requested the names of the dispatcher and the “run out
attendant” who were running the waterslide when the accident occurred. She also requested
the name of an employee who “cycled” through the waterslide after the incident in order to
identify any hazardous conditions. Defendant initially indicated that those three individuals
could not be identified. Plaintiff took the discovery deposition of Nicholas Hollendonner,
who was an employee of defendant when the incident occurred. Hollendonner supervised the
waterslide and other rides. He was on a break when the incident occurred, but he attended to
plaintiff immediately afterward. Another employee had been supervising the waterslide
during Hollendonner’s break. At Hollendonner’s discovery deposition, he testified that he
believed that he had completed an incident report. Although the report was within the ambit
of plaintiff’s discovery requests, defendant was initially unable to locate the report.
Defendant also did not disclose the identity of the employee who supervised the waterslide
while Hollendonner was on his break.
¶4 With trial scheduled for the week of April 18, 2016, plaintiff took Hollendonner’s
evidence deposition on April 14, 2016. After Hollendonner’s evidence deposition, defendant
disclosed—for the first time—the identities of the waterslide’s dispatcher, its “run out
attendant,” and the individual who “cycled” through the ride after the incident. Later that
day, defendant’s counsel tendered two documents prepared by Hollendonner on the date of
the incident. One document was entitled “Witness Statement.” The other was entitled
“Lifeguard Rescue Report.” A note from counsel stated that the witness statement had just
been located. The witness statement named the employee who supervised the waterslide
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during Hollendonner’s break. The witness statement also indicated that a medical technician
employed by defendant attended to plaintiff after the incident.
¶5 On April 18, 2016, plaintiff filed a motion for sanctions against defendant for (1) its
failure to produce Hollendonner’s witness statement and lifeguard report and (2) its failure to
disclose the identities of the various witnesses discussed above. Plaintiff also argued that,
pursuant to defendant’s standard operating procedures, each of those witnesses would have
filled out an incident report. Plaintiff argued that the discovery violations warranted entry of
a default judgment against defendant. Alternatively, plaintiff proposed that defendant’s
affirmative defense be stricken and that the jury be given Illinois Pattern Jury Instruction,
Civil, No. 5.01 (2011) (hereinafter, IPI Civil (2011) No. 5.01), which instructs jurors that
they may draw inferences against parties who fail to offer evidence or to produce witnesses
within their control and not equally available to their opponents. Defendant filed a written
response in which it argued that its conduct did not warrant any sanction. Defendant
alternatively argued that, if a sanction were warranted, the court should (1) declare a
mistrial,1 (2) order defendant to pay “court costs and Plaintiff’s trial costs to date,” (3) order
defendant to arrange and pay for depositions of the previously undisclosed witnesses, and (4)
set a new trial date within 60 days.
¶6 At the hearing on plaintiff’s motion, plaintiff’s counsel opposed delaying trial in order to
conduct additional discovery. Counsel noted that plaintiff developed posttraumatic stress
disorder as a result of the incident and that preparing for trial had caused her to relive the
trauma. Counsel argued that putting plaintiff through the process of preparing for trial again
would essentially exacerbate the emotional harm caused by the incident. Counsel
alternatively argued that, if the trial court deemed entry of a default judgment to be too harsh
a sanction, defendant’s affirmative defense of contributory negligence should be stricken.
Counsel argued that, in that event, IPI Civil (2011) No. 5.01 should be given, but the
instruction would need to be modified. As written, IPI Civil (2011) No. 5.01 states:
“If a party to this case has failed [to offer evidence] [to produce a witness] within
his power to produce, you may infer that the [evidence] [testimony of the witness]
would be adverse to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have
been produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would
have [offered the evidence] [produced the witness] if he believed [it to be] [the
testimony would be] favorable to him.
4. No reasonable excuse for the failure has been shown.”
Counsel noted that proof of the four elements set forth in the instruction would require the
jury to be informed that defendant had committed discovery violations. Implicitly taking the
position that it would be improper to submit such evidence to the jury, counsel argued that
“the only way that this could really be handled would be a modified 501 [sic], that as part of
the sanction the Court would find that evidence was under the control and should have been
1
The record reflects that the jury had already been selected when plaintiff’s motion and defendant’s
response were filed.
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produced by the exercise of reasonable diligence instead of leaving it to the jury to decide, and
that the evidence was not equally available to us as an adverse party.” (Emphasis added.)
¶7 Concluding that defendant’s failure to disclose the witnesses and documents at issue was
not willful, the trial court declined to enter a default judgment or to strike defendant’s
affirmative defense. However, the court also rejected defendant’s proposal to declare a
mistrial. The court expressed doubt that the previously undisclosed witnesses could be
located and deposed within the time frame defendant proposed.2 The court indicated that it
would give a modified instruction on the inference to be drawn from the missing witnesses
and documents.
¶8 Evidence at trial established that the waterslide was constructed of fiberglass. Riders
traveled down the slide headfirst on mats, starting in a tube that led to an open-air portion. At
the top, a dispatcher instructed riders how to use the slide. A “run out attendant” stationed at
the bottom of the slide monitored riders as they descended. Each day, before the slide
opened, someone from defendant’s aquatics department would conduct an inspection that
consisted of “cycling” the ride, i.e., descending on a mat in the same manner that a rider
would. Once a week, someone from defendant’s fiberglass shop inspected the slide, looking
for nicks or deterioration creating sharp or jagged areas of fiberglass. The manual supplied
by the slide’s manufacturer called for a daily inspection before turning the water on.
¶9 Hollendonner testified at his evidence deposition that, when he was notified of plaintiff’s
injury, he ran to the scene. Plaintiff was in the waterslide’s “run out area.” The water was red
with blood. Plaintiff was taken away in an ambulance. At that point, an employee “cycled”
the waterslide.
¶ 10 Plaintiff testified that, while traveling through the waterslide’s tunnel, she felt a blunt
force in her hands and her right ankle. When the ride was over, she saw that her hands were
bleeding. She was taken to a local hospital, where surgery was performed on her left hand.
Despite the surgery, plaintiff was no longer able to move three fingers of her left hand. Prior
to the injury, she had worked as an administrative assistant. She was no longer able to
perform her job duties, which consisted largely of data entry. Plaintiff testified that she had
difficulty with activities like brushing her teeth and cooking for her children. She suffered
from throbbing pain and had nightmares about the incident.
¶ 11 The trial court gave the jury a written instruction based on IPI Civil (2011) No. 5.01,
stating that defendant failed to offer the testimony of the supervisor, the dispatcher, and the
“run out attendant” who were on duty when plaintiff was injured; the medical technician who
attended to plaintiff; and the employee who “cycled” the ride after the incident. The
instruction further stated that defendant failed to offer (1) witness statements from the
supervisor, the dispatcher, the “run out attendant,” and the employee who “cycled” the ride;
and (2) Hollendonner’s witness statement and lifeguard rescue report. The instruction
advised the jurors that they could infer that the missing documents and testimony would be
adverse to defendant.
¶ 12 Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) provides, in pertinent part:
2
Defendant did not provide any information suggesting that the witnesses still worked for
defendant, or about their current location or availability for deposition. Nor did defendant offer to
locate and produce the witnesses for deposition.
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“If a party *** unreasonably fails to comply with any provision of part E of article II
of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure)
or fails to comply with any order entered under these rules, the court, on motion, may
enter, in addition to remedies elsewhere specifically provided, such orders as are just,
including, among others, the following:
(i) That further proceedings be stayed until the order or rule is complied with;
(ii) That the offending party be debarred from filing any other pleading
relating to any issue to which the refusal or failure relates;
(iii) That the offending party be debarred from maintaining any particular
claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) That a witness be barred from testifying concerning that issue;
(v) That, as to claims or defenses asserted in any pleading to which that issue
is material, a judgment by default be entered against the offending party or that
the offending party’s action be dismissed with or without prejudice;
(vi) That any portion of the offending party’s pleadings relating to that issue
be stricken and, if thereby made appropriate, judgment be entered as to that issue;
or
(vii) That in cases where a money judgment is entered against a party subject
to sanctions under this subparagraph, order the offending party to pay interest at
the rate provided by law for judgments for any period of pretrial delay attributable
to the offending party’s conduct.
In lieu of or in addition to the foregoing, the court, upon motion or upon its own
initiative, may impose upon the offending party or his or her attorney, or both, an
appropriate sanction, which may include an order to pay to the other party or parties
the amount of reasonable expenses incurred as a result of the misconduct, including a
reasonable attorney fee, and when the misconduct is wilful, a monetary penalty.”
Sanctions should be designed to effect discovery, rather than to punish. Martinez v. Pfizer
Laboratories Division, 216 Ill. App. 3d 360, 373 (1991). Accordingly, “a ‘just order’ under
Rule 219(c) is one which, to the degree possible, ensures both the accomplishment of
discovery and a trial on the merits.” Id. “The imposition of sanctions is within the discretion
of the trial court and will not be disturbed absent a clear abuse of discretion.” In re Marriage
of Liszka, 2016 IL App (3d) 150238, ¶ 31.
¶ 13 There appears to be no dispute that the identities of the employees mentioned in the
court’s instruction, and whatever witness statements or reports they prepared, were within the
ambit of plaintiff’s discovery requests. Defendant nonetheless argues that its failure to
comply with discovery did not warrant the instruction. Citing Buehler v. Whalen, 70 Ill. 2d 51(1977), as an illustration of conduct that would justify giving IPI Civil (2011) No. 5.01 as a
sanction for discovery violations, defendant argues that its own conduct did not rise to that
level. Defendant contends that the course of action that it proposed—rescheduling trial and
assessing costs to defendant—was preferable. In Buehler, the discovery violation was willful.
Here the trial court found that defendant did not willfully withhold evidence and the
identities of the witnesses. We find no support in Buehler, however, for the proposition that
IPI Civil (2011) No. 5.01 may never be given as a sanction for anything less than willful
discovery violations. Nor are we persuaded that the remedy proposed by defendant was
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necessarily more appropriate than the instruction. Plaintiff advanced cogent reasons why
delaying trial would cause hardship, even if defendant paid plaintiff’s costs. Furthermore, the
trial court was skeptical that defendant would be able to produce the previously undisclosed
witnesses within the time frame defendant proposed. Thus, the trial court confronted the
possibility that the additional delay would be for naught. We cannot say that it was an abuse
of discretion to instruct the jury that it may draw an inference adverse to defendant.
Moreover, such an instruction was particularly appropriate in light of the interplay between
plaintiff’s theory of res ipsa loquitur and defendant’s affirmative defense of contributory
negligence. Absent the challenged instruction, the jurors might have rejected plaintiff’s
res ipsa loquitur claim on the basis of speculation that the accident could have been due to
plaintiff’s own negligence.
¶ 14 Defendant also contends that the trial court erred by modifying IPI Civil (2011) No. 5.01
and by giving the instruction without making a foundational finding that “in all likelihood a
party would have produced the witness/document under the existing facts and circumstances
except for the fact that the testimony/contents would be unfavorable” (IPI Civil (2011) No.
5.01, Notes on Use, at 45). Without conceding that any instruction should have been given on
the inference to be drawn from the absence of witnesses and documents, defendant argues
that, if such an instruction was appropriate, it should have conformed to the pattern
instruction, which lists four elements that must be satisfied before an adverse inference may
be drawn. We conclude that this argument is not properly before us. At the hearing on
plaintiff’s motion for sanctions, defendant did not object to the trial court’s decision to
modify IPI Civil (2011) No. 5.01. Defendant now argues that it preserved its objection by
taking the position in the trial court that “only a mistrial was the adequate remedy.”
However, “[i]n order to preserve an objection to an instruction, the objection must be set
forth with specificity so that the trial court knows the specific nature of the objection before
ruling.” Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, ¶ 155. Defendant’s
categorical objection at trial to any sanction other than a mistrial did not preserve the
alternative arguments defendant advances in this appeal. “A party cannot sit idly by while the
trial court undertakes a course of action and then allege error in that regard.” Tokar v.
Crestwood Imports, Inc., 177 Ill. App. 3d 422, 434 (1988). After the trial court rejected
defendant’s proposal to declare a mistrial and chose instead to use a jury instruction to
remedy defendant’s discovery violations, it was incumbent upon defendant to bring to the
trial court’s attention any reasons then known to defendant as to why the court’s course of
action was improper. Having failed to do so, defendant cannot now insist that the trial court’s
ruling warrants reversal.3 Id. at 434-35
¶ 15 Defendant points out that, in order to obtain a just result or to maintain a sound and
uniform body of precedent, we may choose to consider an issue that was not properly
preserved for review. See, e.g., Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002).
Defendant argues that for us to decline to consider whether it was proper to omit the
foundational elements from the jury instruction would amount to “upending *** sound
precedent that submits the weight and credibility of evidence to the jury.” Defendant fails to
explain how our decision, which does not reach the merits, has any impact on existing
3
This is true even though defendant later raised the issue in its posttrial motion. Tokar, 177 Ill. App.
3d at 434-35.
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precedent. Furthermore, we are not persuaded that considerations of justice are compelling
enough to force plaintiff to endure another trial in order to relieve defendant of the
consequences of its own lack of diligence. Defendant complains that “the modified
instruction improperly shifted the burden of proof without leaving a rebuttable presumption
for the defense.” Thus, according to defendant, “plaintiff no longer had the burden to prove
defendant’s negligence because the jury was instructed that the missing evidence was
adverse—period.” However, although the instruction relieved plaintiff of the burden of proof
on the foundational elements for the adverse inference, defendant was free to offer evidence
rebutting the inference by showing that it used due care in the maintenance, inspection, and
operation of the waterslide.
¶ 16 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 17 Affirmed.
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