Peoria Ice Cream Company v. Zosky

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210152-UOrder filed July 1, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
PEORIA ICE CREAM COMPANY, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellant, ) Peoria County, Illinois.
)
v. )
)
EDMUND A. ZOSKY and IDEAL TROY ) Appeal No. 3-21-0152
COMPANY, an Illinois corporation, ) Circuit No. 17-L-138
)
Defendants )
)
(Edmund A. Zosky, ) Honorable
) Michael D. Risinger,
Defendant- Appellee). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court.
Presiding Justice O’Brien concurred in the judgment.
Justice Holdridge dissented.
____________________________________________________________________________
ORDER
¶1 Held: (1) Trial court properly denied plaintiff’s motion for judgment n.o.v. where jury
instruction applying discovery rule to plaintiff’s trespass claim accurately stated the
law and did not mislead the jury;
(2) Trial court did not abuse its discretion in admitted expert testimony regarding
diminution in value of plaintiff’s property;
(3) Trial court’s admission of witness’s testimony regarding his wife was harmless
error; and
(4) New trial is not warranted where jury’s verdict was not contrary to the manifest
weight of the evidence.
¶2 Plaintiff, Peoria Ice Cream Company (PIC), filed a tort liability suit against defendant,
Edmond Zosky, alleging trespass and negligence for failing to remove and remediate
environmental contaminates from its property. A jury returned a verdict in Zosky’s favor on both
claims. On appeal, PIC argues that the trial court erred in denying its motion for judgment
notwithstanding the verdict (judgment n.o.v.) or a new trial on claim of trespass based on an
improper jury instruction regarding the statute of limitations. Alternatively, PIC claims that: (1)
the trial court abused its discretion in allowing Zosky’s expert to testify regarding diminution in
property value; (2) the trial court erred in allowing defense counsel to elicit irrelevant and
prejudicial witness testimony; and (3) a new trial is warranted on the issue of damages because the
jury’s verdict was against the manifest weight of the evidence. We affirm.
¶3 I. BACKGROUND
¶4 PIC owns and operates a Dairy Queen restaurant in Peoria on property it purchased in 2014
(PIC property). Zosky owns property to the north of the PIC property, which includes a shopping
center (Zosky property). The prior owner of the shopping center property, Ideal Troy Company
(ITC), operated a dry cleaning business on the property from the 1950’s to the mid-1970’s. It is
undisputed that ITC released hazardous chemicals during its operation that eventually migrated
onto the PIC property.
¶5 In 2015, PIC hired ELM Energy, an environmental consulting firm, to inspect and test the
PIC property as part of a Small Business Association (SBA) loan. ELM’s inspection led to the
discovery of chlorinated solvents and other volatile organic compounds in the subsoil in the
northeast corner of the PIC property. Both parties agree that these environmental contaminants
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originated from ITC’s operation of the dry cleaning business and required remediation under
Illinois Environmental Protection Agency (IEPA) regulations.
¶6 In April 2016, PIC, Zosky, and ITC entered into an agreement to voluntarily address the
contamination. According to its terms, ITC and Zosky agreed to conduct remediation activities for
the purpose of securing “a ‘focused’ No Further Remediation (NFR) letter (or letters) issued by
the IEPA which confirms that *** no further remedial activities are necessary to prevent an
unreasonable risk to human health and/or the environment caused by or arising from the
[contaminants] identified beneath either Property.” ITC and Zosky also agreed that they would
submit the applications for both properties and retain an environmental consultant to complete the
application process at their “sole cost and expense.” The agreement specifically stated that PIC
was not responsible for the expense of obtaining the NFR letters.
¶7 ITC submitted an SRP application to the IEPA on May 19, 2016. Zosky and ITC then hired
an environmental consulting firm, Terracon, to develop a remediation plan for both properties in
accordance with IEPA guidelines.
¶8 On May 19, 2017, PIC filed a complaint against Zosky and ITC, claiming that they failed
to remediate the mitigation of environmental contaminants and seeking monetary damages for
diminution in the value of its property and the cost of remediation. PIC’s amended complaint
contained four counts. Counts I and II alleged trespass and negligence against ITC. ITC filed for
bankruptcy shortly after PIC filed its amended complaint; it successfully moved for dismissal of
the counts against it. Counts III and IV alleged trespass and negligence against Zosky. Count III
alleged that the continuous act of the contaminants migrating onto the PIC’s property and Zosky’s
failure to remove the contaminants from the PIC property resulted in trespass and caused the value
of the property to diminish. Count IV alleged that Zosky had a legal duty to remove the
3
contaminants from the PIC property and that he was negligent for failing to take adequate measures
to remediate the contamination.
¶9 The IEPA issued an NFR letter for the PIC property on August 7, 2017, and another NFR
letter for the Zosky property on August 25, 2017. The letters indicated that the properties had been
“successfully investigated and/or remediated as required by law so that no further remedial
activities are necessary to prevent an unreasonable risk to human health and/or the environment
cause by or arising from the COC’s identified beneath either property.”
¶ 10 Prior to trial, PIC filed a motion in limine to bar the testimony of certified appraiser Paul
Knight, challenging his testimony as to the impact of the environmental contaminants on the
marketability of its property. PIC argued that Knight’s testimony should be barred because he
never appraised the property or reached any conclusion as to its value and he offered no factual
basis for his conclusion that the PIC property suffered no diminution of value as a result of the
presence of the contaminants. The trial court denied PIC’s motion.
¶ 11 At trial, the following stipulated facts were read to the jury: (1) PIC has been the owner of
the real property located at 4202 North Sheridan Road in Peoria since 2014; (2) Zosky has owned
the shopping center property since 1977; (3) prior to Zosky’s ownership of the Zosky property,
ITC owned and operated a dry cleaning facility on the property; (4) ITC ceased operating a dry
cleaning facility on the premises in the mid-1970’s and sold the property to Zosky in 1977; (5)
when Zosky purchased the property, ITC became a tenant and operated a customer drop-off/pick-
up location on the property for apparel that it cleaned at another location; and (6) ITC has not used
dry cleaning chemicals at the Zosky property location since Zosky purchased the property. The
parties also stipulated that: (1) the environmental contaminants in the subsoil of the PIC property
originated on the Zosky property as a result of ITC’s release of environmental contaminants; (2)
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at some point, the environmental contaminants released by ITC on the Zosky property began
migrating onto the PIC property; and (3) the NFR letters issued by the IEPA were consistent with
the parties’ expectations when they entered into the April 2016 agreement.
¶ 12 Kurtis Freidag, the president of PIC, testified that the company operated a Dairy Queen
restaurant on the PIC property since 1996. Freidag described the location of the property by
referencing plaintiff’s exhibit No. 1, a picture showing Lake Avenue and Sheridan Road. In the
picture, an “Ideal Troy Cleaning” sign and a “Dairy Queen” sign are visible next to each other.
Freidag testified that PIC leased the Sheridan Road Dairy Queen from 1996 to 2014 and purchased
the property in 2014. At the time of purchase, Freidag was the president of the company. He was
aware that ITC operated a drop-off/pick-up location for its dry cleaning business next door. He
had no idea how long ITC had been operating its business at that location. He did not know that
ITC operated a dry cleaning business on the Zosky property for 50 years.
¶ 13 Freidag testified that PIC demolished the old Dairy Queen building in the fall of 2014 and
constructed a new restaurant that opened in the spring of 2015. He learned that the property was
contaminated when PIC applied for an SBA loan after the new construction had been completed.
During the application process, the bank raised questions about the neighboring dry cleaning
business. Testing revealed hazardous chemicals around the area of the garbage dumpster. PIC hired
ELM to obtain an NFR letter from the IEPA and secure SBA financing. Freidag further testified
that it took PIC two years to obtain an NFR letter. He identified plaintiff’s group exhibit No. 3,
which contained the bills and invoices from ELM. The invoices, dated August 2015 through
September 2017, totaled $5,718.75.
¶ 14 On cross-examination, Freidag stated that he started working for PIC in 2009 and became
the president of the company in 2010. He was aware that ITC had a drop-off/pick-up location next
5
to the PIC property but did not know how long it had been there. Freidag identified Michael Kepple
as the chief executive officer of the company, and Kepple’s wife, Linda, as the secretary. He
described Kepple as a sophisticated businessman who has been involved in commercial businesses
for years. The bank that was handling the SBA loan for the PIC property required PIC to contact
ELM before approving the loan. Freidag admitted that he supervised a new construction project
for PIC at Grand Prairie four years earlier but noted that it did not involve an environmental
contamination situation.
¶ 15 Kepple is the founder of PIC. He confirmed that the company began leasing the PIC
property in 1996 and that he learned about the contamination after purchasing it in 2014. On cross-
examination, Kepple testified he moved to Peoria in 1967, while attending Bradley University.
From 1967 to 1996, he and his wife lived in Peoria. They moved to Dunlap in 1996. At that time,
PIC owned the Dairy Queen on Farmington Road and leased Dairy Queen properties on Sheridan
Road and Gale. PIC has been operating the Dairy Queen on the PIC property for 25 years. In 1996,
he had some involvement in the operations of the Sheridan Road Dairy Queen. Kepple testified
that he was unaware that ITC operated a dry cleaning business on the neighboring property.
¶ 16 In 2014, Kepple spoke with his attorney about the possibility of purchasing the PIC
property. Zosky had already entered into a purchase agreement with the previous owners. Kepple
paid the previous owners $25,000 and Zosky $25,000 to execute a release to sell the property to
PIC. PIC paid $225,000 to purchase the property. Kepple immediately demolished the building on
the site and constructed a new Dairy Queen restaurant for $1.2 million.
¶ 17 Kepple testified that Zosky and ITC agreed to hire an engineering firm and have that firm
obtain NFR letters for both the PIC property and the Zosky property. The engineering firm
6
successfully obtained the letters, and PIC secured the SBA loan. ELM reviewed all of the work
submitted by Terracon and never indicated that the remediation was unsatisfactory.
¶ 18 Kepple’s wife, Linda, is a PIC officer and co-owner of the PIC property. She has no
knowledge of the financial aspect of the business. She grew up in Peoria and has lived in Peoria
since 1953. Kepple acknowledged that Linda owns the Keller Williams building in Peoria, along
with several other properties, and that her father is Jack Pearl. He stated that he did not know if
she was aware that ITC operated a dry cleaning business at the Sheridan Road location. Kepple
then testified, over counsel’s objection, that Linda had no experience with environmental
remediation. Specifically, counsel asked if she had any experience with Phase 1 environmental
remediation in purchasing commercial property. Kepple responded, “Not to my knowledge. She’s
not a commercial real estate agent, and, not to my knowledge.”
¶ 19 Zosky testified that he purchased the neighboring property in 1977. At that time, no one
was operating a dry cleaning business on the property. He did not know that ITC operated a dry
cleaning facility on the property prior to 1977. Shortly after he purchased the Zosky property, he
entered into a lease agreement with ITC to operate a drop-off and pick-up service at that location.
He discovered that there were hazardous chemicals on his property that migrated to the PIC
property in 2015 after ELM tested the site.
¶ 20 Craig Gocker, an environmental consultant with Ramboll USA, testified that the PIC
property is contaminated with tetrachloroethylene, which is commonly referred to as “PERC.”
PERC was used for years in the dry cleaning business to remove dirt and oil from clothing. It
degrades slowly over a “very long period of time” into a highly toxic chemical called vinyl
chloride. Vinyl chloride was found on the PIC property in very low limits. Although active
remediation could have been performed, no active methods were used to remove the chemicals on
7
either the PIC property or the Zosky property. On cross-examination, Gocker admitted that the
IEPA was satisfied with the work performed on both properties and that the remediation barrier
on the PIC property was approved by the IEPA. He admitted that it was rare for the IEPA to reopen
an NFR letter.
¶ 21 Commercial appraiser Brad Glassey submitted an appraisal report and testified on PIC’s
behalf as to the impact the contamination had on the value of its property. Glassey’s report applied
the Detrimental Conditions Model (DCM) and appraised the value of the PIC property slightly
below market value. He stated that an NFR letter has conditions and therefore presents additional
risks to the property owner. He explained that a “stigma” from an environmental contamination is
the negative effect on the value of the property even after property has been remediated. Glassey
testified that since the IEPA can reopen remediation matters, property with an NFR letter suffers
from a stigma that impacts the property’s marketability. In this case, he believed that a stigma
would apply because the contaminated area was in the corner of the concrete parking lot under a
dumpster, which is an area that deteriorates more quickly due to the weight of the garbage trucks.
The stigma deduction he assessed to the PIC property was a “measurable but small impact.” Using
the DCM, Glassey concluded that the contamination on the PIC property reduced the value of the
property by approximately 5%, or between $50,000 and $75,000. On cross-examination, he
acknowledged that he had not applied the DCM to any other commercial property he appraised.
He used the model because he was unable to find a comparable property with an NFR letter to
conduct a comparison-based appraisal.
¶ 22 In response, Zosky tendered a report written by Knight, evaluating Glassey’s appraisal and
assessing the impact of NFR letters on the value of commercial property in the Peoria area. Knight
disagreed with Glassey’s claim that the NFR letter in this case had a negative impact on the value
8
of the PIC property. Knight asserted that, based on his experience as an appraiser of commercial
property, there was “no independent support that the stigma effect exists in the Greater Peoria
commercial market.” He concluded that there is “evidence that properties recently completing the
remediation process have marketability, with no apparent diminution in value.” He also reported
no knowledge of any negative repercussions regarding the sale price of commercial property with
an underlying NFR letter. Knight stated that he did not find any independent support for Glassey’s
claim that a stigma effect applied to commercial property in the Peoria area.
¶ 23 Knight also testified as an opinion witness at trial. He stated that in preparation for this case
he reviewed 71 properties in Peoria County for which NFR letters had been issued between 1999
and 2019 and found no evidence of a stigma effect on commercial property. He did not agree with
the methodology Glassey used to estimate the value of the stigma in this case. Knight testified that
his research failed to support the existence of a negative stigma based on an NFR letter. He
appraises commercial properties with an NFR letter three to six times a year, inside and outside
the Peoria area, and has not witnessed any evidence of a stigma effect. On cross-examination,
Knight admitted that he did not conduct appraisals of any of the 71 properties he reviewed. His
opinion of no stigma effect was based on his knowledge of the commercial real estate market in
the Peoria area.
¶ 24 Prior to deliberations, several instructions were submitted to the jury. Plaintiff’s instruction
No. 6 included statute of limitations language. Over PIC’s objection, the trial court gave the
following modified version of that instruction:
“In this case defendant has asserted, and has the burden of proving, that the
Plaintiff is barred from bringing his claim for trespass because he failed to file the
lawsuit within the statute of limitations.
9
Regarding the statute of limitations, the defendant contends that the plaintiff’s
lawsuit was not filed within the time set by law. To succeed on this defense, the
defendant must prove that [ITC] stopped dumping contaminants on the defendant’s
property by at least May 18, 2012. However, if the plaintiff proves that it did not
know and did not have reason to know of [ITC’s] dumping on the contaminants on
the defendant’s Property on or before May 18, 2012, then the plaintiff’s claim for
trespass is deemed to be timely filed.”
¶ 25 The jury returned a verdict in favor of Zosky on both counts. It also answered five special
interrogatories as follows:
“1. Was it impossible to remove the environmental contaminants from the plaintiff’s
property? NO
2. Did the defendant’s failure to remove the environmental contaminants from the
plaintiff’s property cause the plaintiff to sustain damages? NO
3. Did the plaintiff know on or before May 19, 2012[,] that the plaintiff’s property
was contaminated with environmental contaminants? NO
4. Should the plaintiff have reasonably known on or before May 19, 2012[,] that the
plaintiff’s property was contaminated with environmental contaminants? YES
5. Did the plaintiff prove that the value of its property has been diminished as a result
of the defendant’s failure to remove environmental contaminants from the plaintiff’s
property? NO”
¶ 26 PIC filed a posttrial motion for judgment n.o.v. on the issue of liability for count III, arguing
that the trespass claim was not subject to the statute of limitations and the modified jury instruction
was inappropriate. In the alternative, PIC asked for a new trial on both counts, claiming that the
10
jury’s verdict was contrary to the manifest weight of the evidence. The trial court denied the
motion.
¶ 27 II. ANALYSIS
¶ 28 A. Judgment N.O.V.
¶ 29 PIC claims that the trial court erred in denying its motion for judgment n.o.v. as to count
III because the jury instruction regarding the statute of limitations was a “clear misstatement of
the law.” PIC argues that because count III alleges trespass based on Zosky’s failure to remove the
environmental contaminants from its property, reference to ITC’s dumping in the instruction
resulted in serious prejudice and entitles it to judgment n.o.v. or, alternatively, a new trial as to
liability on count III.
¶ 30 Judgment n.o.v. is only warranted in those limited cases when “ ‘all of the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no
contrary verdict based on that evidence could ever stand.’ ” York v. Rush-Presbyterian-St. Luke's
Medical Center, 222 Ill. 2d 147, 178 (2006) (quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.
2d 494, 510 (1967)). The standard is a high one, and judgment n.o.v. is inappropriate if reasonable
minds might differ as to inferences or conclusions to be drawn from the facts presented at trial.
Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995). Our standard of review is
de novo. York, 222 Ill. 2d at 178.
¶ 31 In contrast, on a motion for a new trial, the trial court will weigh the evidence and order a
new trial if the verdict is contrary to the manifest weight of the evidence. Maple v. Gustafson, 151
Ill. 2d 445, 454 (1992). A verdict is against the manifest weight of the evidence only where the
opposite result is clearly evident or where the jury’s findings are “unreasonable, arbitrary and not
based upon any of the evidence.” Id. This court will not reverse the trial court's ruling on a motion
11
for a new trial unless it is affirmatively shown that the trial court abused its discretion. Id. at 455.
When reviewing a trial court’s decision on a motion for a new trial, the reviewing court should
remember the trial court had the opportunity to personally observe witness testimony. Id. at 456.
¶ 32 The decision to grant or deny a jury instruction is generally within the discretion of the trial
court. Hobart v. Shin, 185 Ill. 2d 283, 294 (1998). “The standard for determining an abuse of
discretion is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead
and whether they fairly and correctly state the law.” Dillon v. Evanston Hospital, 199 Ill. 2d 483,
505 (2002). However, when the question is how accurately the applicable law was conveyed, the
issue is a matter of law, and our review is de novo. Studt v. Sherman Health Systems, 2011 IL
108182, ¶ 13. “A reviewing court ordinarily will not reverse a trial court for giving faulty
instructions unless they clearly misled the jury and resulted in prejudice to the appellant.” Schultz
v. Northeast Illinois Regional Commuter R.R. Corp, 201 Ill. 2d 260, 274 (2002).
¶ 33 To prevail on a trespass claim, a plaintiff must plead and prove negligent or intentional
conduct by the defendant, which has resulted in an intrusion on the plaintiff’s property. Porter v.
Urbana-Champaign Sanitary District, 237 Ill. App. 3d 296, 303 (1992) (citing Dial v. City of
O’Fallon, 81 Ill. 2d 548, 556-57 (1980)). Section 161(2) of the Restatement (Second) of Torts
provides:
“A trespass may be committed by the continued presence on the land of a
structure, chattel, or other thing which the actor’s predecessor in legal interest
therein has tortuously placed there, if the actor, having acquired his legal interest in
the thing with knowledge of such tortious conduct or having thereafter learned of
it, fails to remove the thing.” Restatement (Second) of Torts § 161(2) (1965).
12
If a trespass is continuing, any person in possession of land at any time during its continuance may
maintain a cause of action. Rosenthal v. City of Crystal Lake, 171 Ill. App. 3d 428, 435-36 (1988).
¶ 34 A continuing tort “is occasioned by continuing unlawful acts and conduct, not by continual
ill effects from an initial violation.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278-79 (2003); Hyon
Waste Management Services, Inc. v. City of Chicago, 214 Ill. App. 3d 757, 763 (1991). “[M]erely
owning a piece of contaminated land is not alone enough, since such ‘conduct’ does not cause the
nuisance or trespass—the alleged injuries would occur whether or not [d]efendants owned the
[s]ite.” Village of DePue v. Viacom International, Inc., 713 F. Supp. 2d 774, 778 (C.D. Ill. 2010).
Moreover, simply pointing to the migration of hazardous substances is not enough. Village of
DePue v. Viacom International, Inc., 632 F. Supp. 2d 854, 865 (C.D. Ill. 2009) (migration of
hazardous substances did not amount to negligent or intentional conduct by the defendant;
allegation was insufficient to state a claim for trespass because it did not allege tortious conduct
by the defendant); see also Powell v. City of Danville, 253 Ill. App. 3d 667, 669 (1993) (final
tortious act for purpose of trespass claim was when last toxic dump took place; while the effects
may be continuing due to leaching, the tortious act ceased years earlier).
¶ 35 Here, PIC argues that the continuing tort doctrine applies based on Zosky’s failure to
remove the environmental contamination from the PIC property. We disagree. In cases where the
tortious activity ceased at a certain date, courts do not apply the continuing tort doctrine because
to do so would “confuse the concept of continuing tort with that of continuing injury.” Powell, 253
Ill. App. 3d at 667. Contrary to PIC’s argument, Zosky’s failure to remove the contamination is
not the continuing tort in this case; the tortious activity is the release of hazardous chemicals by
ITC.
13
¶ 36 Prior to trial, the parties stipulated that the environmental contaminants found on the PIC
property originated from the Zosky property as a result of ITC’s release of hazardous chemicals.
The uncontested evidence at trial demonstrated that ITC stopped using and releasing hazardous
chemicals on the Zosky property prior to 1977. Thus, the final tortious act for purposes of PIC’s
trespass claim occurred in the 1970’s. PIC did not file its claim until May 19, 2017. The statute of
limitations therefore bars PIC claim unless it can establish that the discovery rule applies.
¶ 37 The discovery rule delays commencement of the statute of limitations and starts it at the
point when the plaintiff becomes possessed of sufficient information concerning the injury and its
cause so that a reasonable person would be put on notice to determine whether actionable conduct
was involved. Knox College v. Celotex Corp., 88 Ill. 2d 407, 415-16 (1981). Under the discovery
rule, the statute starts to run when a plaintiff knows or reasonably should know of an injury and
knows or reasonably should know that it was wrongfully caused. Id. at 415. When a plaintiff uses
the discovery rule to postpone the start of the statute of limitations, the burden is on the plaintiff
to prove the date of discovery. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85
(1995).
¶ 38 In this case, it was PIC’s burden to establish that it neither knew nor should have known
that the dry cleaning facility released hazardous chemicals that migrated onto its property on or
before May 18, 2012, to avoid application of the statute of limitations. The language utilized in
the jury instruction did not deviate from that legal standard. The trial court’s modified instruction
clearly stated the legal principle that PIC was required to show that it did not know or should not
have known the ITC released environmental contaminants that migrated onto its property more
than five years from the filing date of the complaint. It accurately stated the law and did not mislead
the jury.
14
¶ 39 Moreover, the jury’s ultimate ruling in favor of Zosky on count III was based on the totality
of the evidence presented at trial. Freidag and Kepple both testified that PIC had been operating a
Dairy Queen on property adjacent to a dry cleaning business for more than 20 years, and pictures
showed the Dairy Queen sign and the Ideal Troy sign next to each other, clearly visible from
Sheridan Road. Freidag stated that he had been the president of the company, overseeing daily
operations, since 2010. Kepple testified that he moved to Peoria in 1967 and had lived in the Peoria
area since that time. Further, he stated that he formed PIC in 1994 and began leasing the PIC
property and other Dairy Queen properties in 1996. Kepple also stated that he owned several
commercial properties and operated two other businesses in Peoria. Freidag even described Kepple
to the jury as a sophisticated businessman. Testimony further established that PERC was widely
used in the dry cleaning industry and was an extremely hazardous environmental contaminant.
From this evidence, the jury could have reasonably inferred that, based on Kepple commercial real
estate knowledge and the proximity of the PIC property to the dry cleaning facility, PIC knew or
should have known that the property was contaminated with hazardous chemicals
¶ 40 Viewing the facts in the light most favorable to Zosky, we cannot conclude that the
evidence so overwhelmingly favors PIC that no contrary verdict based on that evidence could ever
stand. See York, 222 Ill. 2d at 178. There was sufficient evidence to support the jury’s finding and
the trial court did not err in denying PIC’s motion for judgment n.o.v. We also agree with the trial
court’s determination that the jury’s finding that PIC should have known that its property was
contaminated prior to May 19, 2012, was not against the manifest weight of the evidence. The trial
court did not abuse its discretion in denying PIC’s motion for a new trial as to the issue of liability
on count III.
¶ 41 B. Trial Court’s Evidentiary Rulings
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1. Knight’s Opinion Testimony
¶ 42 PIC claims that the trial court abused its discretion in admitting Knight’s opinion testimony
because his assessment of the PIC property was not based on a reasonable degree of certainty
within the field of his expertise.
¶ 43 A witness will be allowed to testify as an expert if his or her experience and qualifications
afford him or her knowledge that is not common to a layperson. Torres v. Midwest Development
Co., 383 Ill. App. 3d 20, 26 (2008). In other words, expert opinion testimony is admissible if the
expert is qualified by knowledge, skill, experience, training, or education in a field and the
testimony would assist the jury in understanding the evidence. Petraski v. Thedos, 382 Ill. App.
3d 22, 28 (2008).
¶ 44 An expert’s opinion, however, is only as valid as the reasons for the opinion, and a party
must lay a foundation sufficient to establish the reliability of the basis for the expert’s opinion.
Yanello v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 44. An expert’s testimony must be to
a reasonable degree of certainty within the field of his or her expertise to be admissible. Torres,
292 Ill. App. 3d at 28.
¶ 45 The decision whether to admit testimony is within the sound discretion of the trial court
and will not be reversed absent an abuse of discretion. Daniels v. ArvinMeritor, Inc., 2019 IL App
(1st) 190170, ¶ 36. A court abuses its discretion if the trial court’s ruling is arbitrary, fanciful, or
unreasonable, or when no reasonable person would agree with its position. Matthews v. Avalon
Petroleum Co., 375 Ill. App. 3d 1, 9 (2007). In determining whether there has been an abuse of
discretion, the appellate court does not substitute its own judgment for that of the trial court, or
even determine whether the trial court exercised its discretion wisely. Maggi v. RAS Development,
Inc., 2011 IL App (1st) 091955, ¶ 61.
16
¶ 46 Here, the trial court did not abuse its discretion in allowing Knight to testify regarding the
methods used by Glassey to determine a diminution in value of the PIC property. In Glassey’s
appraisal report and during his testimony, Glassey opined that there were no relevant recorded
NFR letters that would allow him to apply the sales comparison approach to determine the PIC
property’s fair market value. Knight, however, testified that he was able to find 71 properties with
NFR letters in the Peoria area, and he used those properties to evaluate the potential impact of
NFR letters on the market value of the corresponding properties. Using that data, he testified that
properties that were involved in the IEPA remediation process still had marketability with no
apparent diminution in value. Based on Knight’s expertise as an appraiser in the commercial real
estate market, his opinion that properties with NFR letters are marketable was reliable and the
rationale for his opinion was supported by facts. Moreover, his assessment of comparable sales of
multiple NFR letter properties provided a factual basis for his testimony and assisted the jury in
understanding the evidence.
¶ 47 In its motion in limine and at trial, PIC did not assert that Knight was not qualified to testify
regard the appraised value of the PIC property. Instead, PIC attacked his report and his testimony
on the ground that Knight failed to appraise the PIC property. However, Knight’s opinion
testimony was not offered at trial to provide an appraised value of the PIC property, it was offered
in opposition to Glassey’s opinion that the NFR letter issued for the PIC property had a “stigma”
effect that diminished the market value of the property. It was offered to attack Glassey’s
application of the DCM to his market value calculation, to challenge Glassey’s assertion that there
were no comparable contaminated properties in the area, and to rebut Glassey’s opinion that a
negative stigma effect should be applied. Thus, although Knight did not conduct an appraisal of
the PIC property, his experience, knowledge, and skill as an expert in commercial real estate
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qualified him to testify regarding Glassey’s market evaluation of the PIC property. We find no
abuse of discretion in the court’s decision to allow his testimony at trial.
¶ 48 2. Kepple’s Testimony Regarding his Wife
¶ 49 PIC also argues that the trial court erred in overruling its objection to Kepple’s testimony,
elicited on cross-examination, regarding his wife’s real estate experience.
¶ 50 Although litigants are assured a fair trial, they are not guaranteed a perfect one. Department
of Transportation v. Dalzell, 2018 IL App (2d) 160911, ¶ 127. Consequently, an evidentiary error
does not necessarily require reversal, as the error may be harmless. Nolan v. Weil-McLain, 233 Ill.
2d 416, 429 (2009). Harmless error occurs when, despite the presence of an error, “the reviewing
court can see from the entire record that no harm has been done.” Jackson v. Pellerano, 210 Ill.
App. 3d 464, 471 (1991). On the other hand, reversible error occurs when an error “appears to
have affected the outcome of the trial.” McHale v. Kiswani Trucking, Inc., 2015 IL App (1st)
132625, ¶ 28.
¶ 51 At trial, Kepple testified that he was the owner and former president of PIC and that his
wife, Linda Kepple, was a co-owner and officer of the company. He also testified that Linda was
born and raised in Peoria. PIC suggests on appeal that Kepple’s testimony inappropriately revealed
that Linda was a real estate agent. On cross-examination, defense counsel asked Kepple if his wife
had any experience with environmental remediation. Kepple responded, “Not to my knowledge.
She’s not a commercial realtor.” Kepple briefly discussed his wife’s limited participation in the
company and cross-examination ended. No other line of questioning mentioned her occupation,
and she did not testify. Accordingly, the trial court did not err in admitting Kepple’s brief testimony
regarding her experience.
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¶ 52 Even if an error occurred, we conclude it was harmless. The jury found that PIC should
have known that its property was contaminated on or before May 19, 2012. As we have
determined, that finding was sufficiently supported by Freidag’s and Kepple’s testimony.
Moreover, there is no evidence in the record that Kepple’s testimony regarding his wife’s lack of
commercial real estate experience affected the jury’s determination that PIC had reason to know
about the contamination before May 2012.
¶ 53 C. New Trial on the Issue of Damages
¶ 54 Last, PIC argues that the cause should be remanded for a new trial on the issue of damages.
It claims that the jury’s findings that Zosky’s negligence did not diminish the value of the property
and did not cause PIC to sustain damages were against the manifest weight of the evidence.
¶ 55 The assessment of damages is a question of fact for the jury to determine. Snelson v. Kamm,
204 Ill. 2d 1, 36 (2003). Thus, a damage award is particularly within the jury’s discretion, and
courts are reluctant to interfere with the jury’s decision. Id. at 36-37. On review, a jury’s award of
damages will not be disturbed “unless a proven element of damages was ignored, the verdict
resulted from passion or prejudice, or the award bears no reasonable relationship to the loss
suffered.” Gill v. Foster, 157 Ill. 2d 304, 315 (1993).
¶ 56 Here, the evidence presented by PIC as to damages was not uncontroverted. Expert opinion
testimony was provided on both sides. Glassey’s testimony that a 5% stigma reduction was
appropriate did not mean that the jury was required to ignore Knight’s testimony, which
established that the NFR letter did not have a negative impact on the market value of the PIC
property. Additionally, while there is no dispute that PIC incurred costs associated with hiring
ELM to work on obtaining the NFR letter, the stipulated facts established that the parties entered
into an agreement pursuant to which the NFR letters were to be obtained. The agreement, which
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was also provided to the jury, stated that Zosky and ITC were solely responsible for the expenses
associated with obtaining NFR letters for both properties. The terms of the agreement established
that it was Terracon’s responsibility to obtain the NFR letters. Moreover, testimony from Freidag
and Kepple demonstrated that PIC hired ELM to oversee the remediation process with the IEPA
and to ensure that Terracon performed its duties satisfactorily. Kepple testified ELM reviewed all
the work submitted by Terracon and never indicated that it was unsatisfactory. No one testified
that the ELM expenses were required to obtain the NFR letter for the PIC property. Thus, the jury
could have reasonably inferred that the expenses for work ELM performed after the environmental
contamination was discovered were duplicative and unnecessary. Accordingly, the jury’s findings
were supported by the evidence, and a new trial on the issue of damages is not warranted.
¶ 57 III. CONCLUSION
¶ 58 The judgment of the circuit court of Peoria County is affirmed.
¶ 59 Affirmed.
¶ 60 JUSTICE HOLDRIDGE, dissenting:
¶ 61 I respectfully dissent from the majority’s offering. Instead, I would find that the jury’s
determination that the plaintiff should have known about the presence of the contaminants on or
before May 19, 2012, was against the manifest weight of the evidence. It was undisputed that no
dry-cleaning activities occurred on the defendants’ property after 1977. The plaintiff did not begin
operating a Dairy Queen restaurant on the neighboring property until 1996. The plaintiff had no
reason to know what chemicals the dry cleaners had used almost 30 years previously, nor did they
have any reasons to believe that the defendants had improperly disposed of or mishandled the
chemicals in such a way that would cause contamination on the plaintiff’s property. Moreover, I
cannot find that the plaintiff had any duty to test for any contamination on the property. Between
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1996 and 2014, the plaintiff solely leased the property. Even if such testing would be standard
procedure before buying the property, the plaintiff did not purchase the property until 2014. Thus,
any due diligence required before purchasing the property would not have revealed the presence
of any contamination until well after the May 19, 2012, statute of limitations date. As I would find
that such a determination was against the manifest weight of the evidence, I would reverse and
remand for a new trial, as the plaintiff requests.
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