Garcia v. Goetz , 2018 IL App (1st) 172204 ( 2019 )

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