Hassard v. DS Retail, LLC

2023 IL App (4th) 220687 FILED
June 9, 2023
NO. 4-22-0687 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
LORI L. HASSARD, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Macoupin County
DS RETAIL, LLC, d/b/a Dollar General, ) No. 19L13
Defendant-Appellee. )
) Honorable
) April G. Troemper,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice DeArmond and Justice Cavanagh concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Lori L. Hassard, appeals the order of the circuit court of Macoupin County
denying her motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new
trial. In this personal injury action, the jury initially returned a verdict finding plaintiff more than
50% at fault but also awarding her damages. Upon further deliberation, the jury returned a verdict
in plaintiff’s favor, without finding any contributory negligence, but for less than the amount of
her medical bills. Plaintiff contends that the jury’s confusion resulted in inconsistent verdicts. For
the following reasons, we reverse and remand for a new trial.
¶2 I. BACKGROUND
¶3 On April 11, 2019, plaintiff filed a one-count complaint against defendant, DS
Retail, LLC, d/b/a Dollar General, arising from injuries she allegedly sustained from a fall in
defendant’s store in Staunton. Defendant claimed, among other affirmative defenses, that plaintiff
was contributorily negligent. The matter proceeded to a two-day jury trial beginning on May 18,
2022.
¶4 A. The Evidence at Trial
¶5 Plaintiff was 56 years old and employed 15 hours per week as a food server at a
local school. Plaintiff’s job entailed filling milk coolers and lifting heavy pans.
¶6 Plaintiff testified she went to Dollar General on July 8, 2018, to buy dog treats. She
was wearing new flip-flops. Plaintiff testified she entered the aisle containing dog food and “went
down.” She did not know then what caused her to fall. Within the next couple days, when plaintiff
went back to the store, she observed a raised “lip” in the floor where she fell. Plaintiff described
this “lip” as approximately the height of her flip-flops or a “little bit higher.” Plaintiff testified that
her shoe caught on this lip, causing her to fall.
¶7 Plaintiff testified she awoke to “excruciating” pain in her left shoulder the morning
after her fall. On August 14, 2018, plaintiff saw Dr. Paulo Bicalho, an orthopedic surgeon. He
prescribed an injection and physical therapy. Plaintiff testified she improved with physical therapy
to the point she wanted to go back to work. Plaintiff’s last physical therapy visit was on October
9, 2018. However, the next day, on the advice of her attorney, plaintiff saw Dr. Corey G. Solman
Jr., another orthopedic surgeon. Dr. Solman diagnosed a torn rotator cuff and performed surgery
on plaintiff’s left shoulder. Plaintiff testified that the surgery gave her a “good result.” After
surgery, plaintiff still had difficulty lifting heavy objects at work, mowing her four acres of grass
at home, throwing wet laundry into the dryer, and playing sports. Plaintiff’s medical bills totaled
$108,868. On cross-examination, plaintiff testified that after she was feeling better from the
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physical therapy, but before she saw Dr. Solman, she reinjured her shoulder lifting heavy laundry.
Plaintiff denied knowing that Dr. Bicalho’s records reflected a diagnosis of “tendinitis.”
¶8 Nick Hassard, plaintiff’s husband, testified he was one or two steps behind plaintiff
as they shopped at Dollar General on July 8, 2018. When plaintiff rounded the corner into the pet
food aisle, she “went down.” Hassard estimated that the defect in the floor where plaintiff “hit”
was about a half-inch high. Hassard recalled an incident when plaintiff was doing laundry
sometime after her fall when she yelled in pain because her left shoulder hurt.
¶9 Alexandra Herron testified she was a cashier at the Staunton Dollar General store
on July 8, 2018. Herron observed a “few scrapes” on plaintiff’s elbow and knee when plaintiff
reported she had fallen. Herron reported the incident to her manager, Joseph “Joey” Katzmarek.
Herron testified she knew there was a “crack” about a half-inch high in the floor in the aisle where
plaintiff said she fell. Herron had complained to Katzmarek that dirt went into that crack when she
swept the floor. The store did not warn customers about the crack or cover it. Herron testified she
was not aware of anyone else falling in that location.
¶ 10 Katzmarek testified he was the “lead sales associate” at the Staunton Dollar General
on July 8, 2018. According to Katzmarek, there was about a 1/8-inch “deviation” in the floor of
the pet food aisle at the Staunton Dollar General on July 8, 2018. Katzmarek testified that he
noticed this deviation on his first day of work in 2015. Katzmarek said he did not think of this
deviation as being a “hazard.” According to Katzmarek, there was never any sign or warning to
customers about the deviation in the floor. Katzmarek recalled seeing plaintiff after she fell, and
he remembered she had a scraped knee.
¶ 11 Tiffany Dannaman testified she was the Dollar General manager in Staunton on
July 8, 2018, although she was not present when plaintiff fell. Dannaman described the raised area
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in the floor in the pet food aisle as “minimum.” She testified she was aware of it only because it
was noticeable when they pushed carts over it. Dannaman was aware of another, larger floor defect
that was covered with orange duct tape to prevent people from tripping. According to Dannaman,
she did not cover the defect in the pet aisle floor because she did not consider it a tripping hazard.
Dannaman testified that no one besides plaintiff had fallen in that area.
¶ 12 Dr. Solman, a board-certified orthopedic surgeon, testified via video deposition, as
follows. (The record contains the transcript of Dr. Solman’s deposition but not the video.) A
physician’s assistant to Dr. Solman first saw plaintiff on October 10, 2018. Prior to seeing Dr.
Solman’s assistant, plaintiff received a steroid injection in her left shoulder, was prescribed oral
anti-inflammatory medication, and had 12 physical therapy visits. Dr. Solman reviewed a magnetic
resonance imaging scan (MRI) that disclosed a rotator cuff tear of a tendon in her left shoulder.
Dr. Solman also reviewed an X-ray of plaintiff’s left shoulder, which showed no arthritis of the
shoulder joint or prior fractures. Dr. Solman did not find a degenerative condition. Plaintiff had
“some” arthritis in the acromioclavicular joint, but not “much” arthritis in the glenohumeral joint.
Dr. Solman performed arthroscopic surgery on October 30, 2018, followed by physical therapy.
He saw plaintiff for three postoperative visits, which indicated plaintiff was “doing fine and had a
good result.” Plaintiff had full range of motion and no pain. The doctor released plaintiff to go
back to work without restrictions on January 7, 2019. Dr. Solman testified, to a reasonable degree
of medical certainty, to the following: (1) plaintiff’s condition of ill-being was caused by her fall
at Dollar General, (2) all of plaintiff’s treatment to her shoulder following her fall was reasonable
and necessary, and (3) Dr. Solman’s and the surgery center’s bills were directly related to the
injuries plaintiff sustained in her fall at Dollar General.
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¶ 13 After plaintiff rested, defendant moved for a directed verdict, which the trial court
denied. At the beginning of defendant’s case, defense counsel read into the record the following
from Dr. Bicalho’s records: “MRI shows tendinitis to the rotator cuff specifically as to her spinitis
[sic]. Recommend injection and physical therapy and follow up in three months.” Defendant’s
attorney also read into the record the following from plaintiff’s physical therapy records: “[O]n
October 9th, 2018: ‘Patient states that she has a pain of 2 to 3 [out of 10] at times.’ ”
¶ 14 The report of proceedings reflects that defendant’s expert orthopedic surgeon, Dr.
Richard Clinton Lehman, testified via video deposition, as follows. (The record contains the
transcript of Dr. Lehman’s video deposition but not the video.) Dr. Lehman examined plaintiff on
April 8, 2021. Dr. Lehman also reviewed plaintiff’s medical and physical therapy records. In Dr.
Lehman’s review of plaintiff’s MRI, which was taken 10 days after her fall at Dollar General, he
noted “significant degenerative changes.” Dr. Lehman testified that plaintiff suffered from
tendinosis, mild osteoarthritis, and bursal fraying. He explained that tendinosis is “degeneration in
the rotator cuff.” Dr. Lehman opined that this condition was consistent with plaintiff’s age. Dr.
Lehman also explained that bursa is an “inflammatory response to impingement,” which takes “a
while” to occur. Dr. Lehman testified that he observed no “acute” changes on the MRI, meaning
there was nothing to suggest recent trauma. Dr. Lehman testified that plaintiff did not suffer a
rotator cuff tear. The doctor opined that plaintiff suffered a “contusion” or “soft-tissue strain” in
her fall that did not appear on the MRI and which would have resolved on its own without surgery.
The doctor testified that plaintiff was doing well and improving with physical therapy. Dr. Lehman
also opined that the fall did not aggravate her shoulder arthritis. On cross-examination, Dr. Lehman
testified that plaintiff’s fall could not be correlated to her symptoms.
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¶ 15 After Dr. Lehman’s testimony, defendant rested, and plaintiff presented no rebuttal.
Defendant renewed its motion for a directed finding, which the trial court denied.
¶ 16 B. The Jury’s Deliberation and Verdicts
¶ 17 The report of proceedings reflects the jury instructions and verdict forms as the trial
court read them to the jury in open court. However, the common law record contains neither the
instructions, verdict forms, jury questions, nor signed verdicts.
¶ 18 According to the report of proceedings, as part of instructing the jury, the trial court
read verdict form A to the jury as follows:
“We the jury find for the plaintiff, Lori L. Hassard and against the defendant
DG Retail, LLC, doing business as Dollar General. We assess the damages
in the sum of [blank] itemized as follows [reasonable expense of necessary
medical care, treatment, and services rendered; pain and suffering
experienced as a result of the injuries and reasonably certain to be
experienced in the future; and loss of a normal life experienced and
reasonably certain to be experienced in the future].”
¶ 19 The trial court read verdict form B as follows:
“We the jury find for Lori L. Hassard and against DG Retail, LLC doing
business as Dollar General, and further find the following. First, without
taking into consideration the question of reduction of damages due to the
negligence of Lori L. Hassard, we find [the] total amount of damages
suffered by Lori L. Hassard as a proximate result of the occurrence in
question is [blank]. Second, assuming that 100% represents the total
combined negligence of all persons whose negligence proximately
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contributed to the plaintiff’s injuries including Lori Hassard and DG Retail,
LLC doing business as Dollar General, we find that the percentage of such
negligence attributable solely to Lori L. Hassard is [blank percentage].
Third, after reducing the total damages sustained by Lori L. Hassard by the
percentage of negligence attributable solely to Lori L. Hassard, we assess
Lori L. Hassard’s recoverable damages in the sum of [blank] itemized as
follows: the reasonable expense of necessary medical care, treatment and
services received, the pain and suffering experienced as a result of the
injuries and reasonably certain to be experienced in the future[,] [and] the
loss of a normal life experienced and reasonably certain to be experienced
in the future. Plaintiff’s total damages [blank].”
¶ 20 The trial court read verdict form C as follows:
“We the jury find for DG Retail, LLC doing business as Dollar General and
against Lori L. Hassard.”
¶ 21 The record does not reflect what time the jury retired to deliberate. However, at 6
p.m., the jury sent out a note. The trial court read the note into the record: “In the video of Dr.
Solman’s testimony, insurance was discussed. How much did the insurance pay.” The court
advised the jury that it was to consider only the evidence presented at trial. Then, at 7:15 p.m., the
bailiff advised the court that the jury had reached a verdict. According to the report of proceedings,
the jury returned verdict form B, which the court read into the record and we summarize. The jury
found in plaintiff’s favor in the amount of $110,000. The jury then found plaintiff 80% negligent
and reduced her award to $22,000. The jury itemized the damages as follows: (1) reasonable
expense of necessary medical care, treatment, and services received: $20,000; (2) pain and
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suffering and future pain and suffering: $2000; and (3) loss of a normal life and future loss of a
normal life: $0. Neither party polled the jury, and the court discharged the jurors. The court told
the jurors they could speak with the attorneys if they chose to, or they could return to their homes.
The court then entered judgment on the verdict in the amount of $22,000.
¶ 22 After the jurors were discharged, the trial court noted to counsel that the verdict
was “inconsistent” because the jury found plaintiff 80% contributorily negligent but awarded her
damages. The court then sua sponte stated its intention to reassemble the jurors and question them
about their verdict: “I think we need to bring them back in and ask them if they find that [plaintiff]
was more than 50% [negligent].” Neither plaintiff’s counsel nor defense counsel objected to the
court inquiring into the jury’s deliberations.
¶ 23 With the jury reassembled, yet unsworn, the trial court addressed the foreperson: “I
do need to ask for clarification, so Madame Forewoman, *** [d]id the jury find [plaintiff] 80%
contributor[ily] negligent or 20%?” The foreperson confirmed that the jury found plaintiff 80%
contributorily negligent. The court then stated: “You found [plaintiff] 80% [negligent], so based
on that, then the verdict should have been Verdict Form C and no damages would be awarded if
[plaintiff] was more than 50% negligent. So I just wanted to clarify that.” When the court informed
the jury that 80% contributory negligence would result in a verdict in defendant’s favor, the
foreperson stated: “We most unfortunately did not understand the form. *** I think we need to go
back and discuss it.” The court responded, “That’s okay.” Then, the court inquired, presumably of
counsel, “So everyone is fine with that?” Plaintiff’s counsel stated: “Yes—I don’t know—the juror
started to ask a question. I don’t know how the court wants to handle it.” The court addressed the
jury: “Well, I would suggest you all go back in there and write your question on a piece of paper
and we can talk about it and see if I can answer that, okay.”
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¶ 24 At 7:34 p.m., the jury sent out a note. The trial court read this note into the record:
“Please clarify Form B.” With the agreement of counsel for both parties, the court furnished the
jury with one of the instructions it had previously given. The report of proceedings does not show
which instruction the court furnished, and that instruction is not contained in the common law
record. Presumably, the court furnished an issues instruction dealing with contributory negligence,
because the court stated: “[T]his [instruction] talks about the less than or more than 50 percent.”
¶ 25 At 7:43 p.m., the jury sent out another note. The trial court read the note into the
record: “Since we signed Form B with slight confusion, are we able to sign Form A, or should we
modify Form B?” With counsels’ agreement, the court informed the jury: “Please use whichever
form truly represents your unanimous decision.” At 7:52 p.m., the jury returned verdict form A.
The court read the verdict into the record as follows:
“We the jury find for Plaintiff Lori L. Hassard and against the Defendant
DG Retail, LLC doing business as Dollar General. We assess damages in
the sum of $22,000 itemized as follows: the reasonable expense of
necessary medical care, treatment, and services received $20,000. The pain
and suffering experienced as a result of the injuries and reasonably certain
to be experienced in the future, $2000. The loss of the normal life
experienced and reasonably certain to be experienced in the future, zero.
Total damages to the plaintiff, $22,000. And it is signed by all 12 jurors.”
Neither party polled the jury, and the court thanked the jurors for “going back and doing that.” The
court did not orally enter judgment on verdict form A. The docket entry indicates that plaintiff’s
attorney was to prepare a judgment order with the jury’s findings within seven days. However, the
common law record shows that no written judgment order was entered.
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¶ 26 C. The Trial Court’s Ruling on Plaintiff’s Posttrial Motion
¶ 27 Within 30 days, plaintiff filed a motion for JNOV or for a new trial, arguing that
the jury (1) considered matters outside the record when it asked whether insurance paid plaintiff’s
medical bills and (2) returned inconsistent verdicts. In denying the posttrial motion, the trial court
ruled that the insurance issue was “put to rest” when both sides agreed to answer the jury’s question
by saying that the jury was to consider only the evidence it had received. Regarding the issue of
inconsistent verdicts, the court ruled that the evidence supported the jury’s final verdict. The court
noted that plaintiff testified her shoulder pain was improving when she reinjured the shoulder
doing laundry. The court concluded the jury could reasonably have found that the medical bills
following the reinjury were not related to plaintiff’s fall.
¶ 28 This timely appeal followed.
¶ 29 II. ANALYSIS
¶ 30 Plaintiff contends she is entitled to either a JNOV or a new trial based upon the
following: (1) the jury’s damages award assumed plaintiff’s medical bills were paid by insurance,
(2) the jury rendered inconsistent verdicts, (3) the final verdict was the product of the jurors’
“unintended misconduct” and represents a compromise verdict, and (4) the trial court should have
used an additur to compensate plaintiff fully for her medical bills.
¶ 31 A JNOV should be granted where the “evidence and inferences therefrom, viewed
in the light most favorable to the nonmoving party, so overwhelmingly favor[ ] the movant that no
contrary verdict based on that evidence could ever stand.” (Internal quotation marks omitted.) Hall
v. Cipolla, 2018 IL App (4th) 170664, ¶ 100. In ruling on a motion for a JNOV, the trial court does
not weigh the evidence or determine the credibility of the witnesses. Hamilton v. Hastings, 2014
IL App (4th) 131021, ¶ 22. Rather, the court considers only the evidence and any inferences
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therefrom in the light most favorable to the opponent of the motion. Hamilton, 2014 IL App (4th)
131021, ¶ 22. We review de novo the trial court’s ruling on a motion for a JNOV. Hall, 2018 IL
App (4th) 170664, ¶ 100.
¶ 32 By contrast, when a party seeks a new trial, the court weighs the evidence and can
set aside the verdict and order a new trial where the verdict is “contrary to the manifest weight of
the evidence.” (Internal quotation marks omitted.) Hamilton, 2014 IL App (4th) 131021, ¶ 26. A
verdict is against the manifest weight of the evidence where the opposite conclusion is “clearly
evident” or the jury’s findings are “unreasonable, arbitrary and not based upon any of the
evidence.” (Internal quotation marks omitted.) Hamilton, 2014 IL App (4th) 131021, ¶ 26. We will
not reverse the trial court’s ruling on a motion for a new trial unless the court abused its discretion.
Hamilton, 2014 IL App (4th) 131021, ¶ 26. In deciding whether the court abused its discretion, we
consider whether the jury’s verdict was supported by the evidence and whether the losing party
was denied a fair trial. Hamilton, 2014 IL App (4th) 131021, ¶ 26. Although plaintiff seems to
argue both that she is entitled to a JNOV or a new trial, the only relief she requests in her prayer
for relief is a new trial.
¶ 33 As a preliminary matter, we are compelled to comment on the state of the record.
The appellant carries the burden to present a sufficiently complete record so we can determine
whether a claimed error occurred. Webster v. Hartman, 309 Ill. App. 3d 459, 460 (1999). Here,
the appeal rests on the issue of the jury’s verdicts and the instructions associated with those
verdicts. Both parties argue the applicability of specific pattern jury instructions. Yet, plaintiff
failed to include in the record the actual instructions tendered and given, verdict forms, verdicts,
and notes the jury sent while deliberating. Where a record is insufficient, the appellant risks
dismissal of the appeal. See Flemming v. Burks, 63 Ill. App. 2d 300, 303 (1965). We choose not
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to take such drastic measures in this case because defendant does not dispute what occurred
concerning the reassembling of the jury after it was discharged and the return of two verdicts.
However, we will resolve any doubts arising from an incomplete record against the appellant.
Webster, 309 Ill. App. 3d at 460.
¶ 34 Because we order a new trial based on the jury’s return of verdict form B, which
was inherently self-contradictory, as posited by plaintiff, we do not address plaintiff’s other
arguments. However, we are constrained to note that plaintiff does not support her insurance
argument with any citations of authorities, except for one case on the standard of review, in
violation of Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020). Similarly, plaintiff fails to
make a cohesive argument with citations to authorities supporting her contention that the jury
engaged in misconduct resulting in a compromise verdict with regard to verdict form A. Reviewing
courts are not depositories where litigants may dump the burdens of research and argument. Alms
v. Peoria County Election Comm’n, 2022 IL App (4th) 220976, ¶ 28. We are entitled to have the
issues clearly defined and a cohesive argument presented. Alms, 2022 IL App (4th) 220976, ¶ 28.
Additionally, plaintiff failed to include the pages of the record relied upon in the argument section
of her brief in violation of Rule 341(h)(7). (Defendant’s brief suffers from the same defect as well.)
Our supreme court’s rules are not aspirational but have the force of law. People v. Young, 387 Ill.
App. 3d 1126, 1127 (2009).
¶ 35 We turn now to the issue of inconsistent verdicts. In the same action, where verdicts
are returned that are legally inconsistent with each other, the verdicts should be set aside, and a
new trial should be granted. Redmond v. Socha, 216 Ill. 2d 622, 641 (2005). If the same jury, on
the same facts and circumstances, reaches two different factual conclusions, such verdicts will not
support a valid judgment unless they are reconcilable under an applicable rule of law. Redmond,
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216 Ill. 2d at 642. There are two types of legally inconsistent verdicts. Redmond, 216 Ill. 2d at 643.
The first type consists of those involving a single claim in which the single verdict is internally
inconsistent or inherently self-contradictory. Redmond, 216 Ill. 2d at 643. The second type consists
of those in which multiple claims are made by one or more parties and a verdict as to one claim is
inconsistent with a verdict as to another claim. Redmond, 216 Ill. 2d at 643. In both types of cases,
the court will exercise “all reasonable presumptions” in favor of the verdict or verdicts. Redmond,
216 Ill. 2d at 643. The court will not find the verdicts to be legally inconsistent unless they are
“absolutely” irreconcilable. Redmond, 216 Ill. 2d at 643. Verdicts are not “irreconcilably
inconsistent” if they are supported by “any reasonable hypothesis.” Redmond, 216 Ill. 2d at 644.
We review de novo a trial court’s order granting or denying a new trial based on a claim of legally
inconsistent verdicts. Redmond, 216 Ill. 2d at 642. However, whether a new trial is justified on the
grounds that the verdict was against the manifest weight of the evidence is reviewed for an abuse
of discretion. Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp., 2012 IL App (1st)
102953, ¶ 48.
¶ 36 As noted, the jury’s first verdict (verdict form B) found plaintiff 80% at fault but
nevertheless awarded her damages, and the jury’s second verdict (verdict form A) found in
plaintiff’s favor and against defendant without finding any contributory negligence on plaintiff’s
part. Plaintiff argues the verdicts were inconsistent with each other and verdict form B was
internally inconsistent. Plaintiff cites authority for the first argument, but she makes a conclusory
argument unsupported by any authority for her contention that verdict form B was internally
inconsistent. Plaintiff’s entire argument in that vein is as follows:
“Initially, [the jury] found the plaintiff 80% at fault yet awarded her money;
an outcome the verdict form plainly disallows. This decision is illogical and
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inconsistent with the jury instruction which clearly stated that plaintiff would
receive nothing if her fault was greater than 50 %.”
¶ 37 “Mere contentions, without argument or citation to authority, do not merit
consideration on appeal.” (Internal quotation marks omitted.) Enbridge Pipeline (Illinois), LLC v.
Hoke, 2019 IL App (4th) 150544-B, ¶ 43. “A reviewing court is entitled to have the issues clearly
defined with pertinent authority cited ***.” (Internal quotation marks omitted.) Elder v. Bryant,
324 Ill. App. 3d 526, 533 (2001). Allegations raised without citation to supporting authority are
deficient and warrant forfeiture. Elder, 324 Ill. App. 3d at 533. Accordingly, we deem plaintiff’s
argument forfeited insofar as she contends that verdict form B was internally inconsistent.
Nevertheless, forfeiture of an issue is a limitation on the parties but not on the reviewing court.
Curtis v. Lofy, 394 Ill. App. 3d 170, 188 (2009). We can overlook forfeiture to obtain a just result
or to maintain a uniform and sound body of precedent. Jill Knowles Enterprises, Inc. v. Dunkin,
2017 IL App (2d) 160811, ¶ 22. We choose to overlook forfeiture because, based on sound
precedent, we conclude the jury’s second verdict was invalid. Therefore, if the jury’s first verdict
(verdict form B) was legally inconsistent, affirming that judgment would produce an unjust result.
¶ 38 Defendant attempts to reconcile the two verdicts factually by arguing that verdict
form B—in which the jury assessed plaintiff’s contributory negligence at 80%—correctly found
in defendant’s favor as to liability, and verdict form A—where the jury awarded plaintiff $22,000
without assessing any contributory negligence on her part—correctly awarded damages. Only by
bifurcating the analysis can defendant argue that both verdicts were supported by the evidence.
¶ 39 However, the jury reached two different factual conclusions, that is, that plaintiff
was both guilty and not guilty of contributory negligence. Wottowa Insurance Agency, Inc. v. Bock,
104 Ill. 2d 311 (1984), is instructive. In Wottowa, the jury found, as to count I of the plaintiff’s
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complaint, that the guaranty signed by the defendants as corporate officers was a corporate
obligation. Wottowa, 104 Ill. 2d at 316. The jury also found, as to count II of the complaint, that
the defendants were personally liable for fraud. Wottowa, 104 Ill. 2d at 316. The court held that
the jury’s finding under count I that the guaranty was not a personal obligation was “irreconcilably
inconsistent” with its finding as to count II that the defendants were personally liable. Wottowa,
104 Ill. 2d at 316. Pertinent to our case, Illinois follows a partial comparative negligence scheme
barring a claimant from recovery if his or her fault is more than 50%. Acuity Insurance Co.. v.
Department of Transportation, 64 Ill. Ct. Cl. 277, 280 (2012). Thus, finding plaintiff 80%
contributorily negligent was irreconcilably inconsistent with awarding her damages.
¶ 40 When the trial court spotted the inconsistency in verdict form B, the court’s solution
was sua sponte to alert counsel to that fact and to reassemble the jury after it had been discharged
and direct it to redeliberate. The outcome of this appeal depends on the propriety of reassembling
the discharged jury, although neither party addresses this issue.
¶ 41 A trial court can properly direct a jury to reconsider inconsistent verdicts prior to
recording the verdict and discharging the jury. Roth v. Meeker, 72 Ill. App. 3d 66, 72 (1979). In
Roth, after the jury deliberated for approximately four hours, it asked the court for instructions
concerning punitive damages. Roth, 72 Ill. App. 3d at 70. The court gave the jury a written
instruction, and the jury continued to deliberate. Roth, 72 Ill. App. 3d at 70. After deliberating for
approximately seven hours, the jury returned a verdict finding the defendant guilty of willful and
wanton misconduct on three counts of the plaintiffs’ complaint. Roth, 72 Ill. App. 3d at 71. Before
the jury could be polled, however, the court advised the jury that those three counts of the
complaint would not support a punitive-damage award. Roth, 72 Ill. App. 3d at 71. The court
directed the jury to “ ‘reconsider’ ” and “ ‘adjust’ ” its verdict if it awarded punitive damages on
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those counts. Roth, 72 Ill. App. 3d at 71-72. After deliberating again for a short time, the jury
returned a second verdict in the plaintiffs’ favor but awarded no punitive damages. Roth, 72 Ill.
App. 3d at 72. On appeal, the court rejected the defendant’s argument that the jury’s first verdict
became final upon his request to poll the jury. Roth, 72 Ill. App. 3d at 73. The court noted that a
“jury’s finding does not become a verdict until it is accepted by the court and entered of record.”
Roth, 72 Ill. App. 3d at 73. “[U]ntil the jury is discharged[,] the finding is within their control and
may be changed by them.” Roth, 72 Ill. App. 3d at 73. In Buccholz v. Hartzell, 130 Ill. App. 2d
927, 931 (1971), the court held that it is proper for the trial court to direct the jury, before the
verdict is recorded, to redeliberate their verdict.
¶ 42 However, after the trial court receives the verdict and the jury is allowed to separate,
the jury’s control over the verdict ends. Warfield v. Patterson, 135 Ill. App. 307, 310 (1907).
Although Warfield is not precedential authority (Bryson v. News America Publications, Inc., 174
Ill. 2d 77, 95 (1996) (stating appellate court decisions issued prior to 1935 are not binding
authority); North Shore Community Bank & Trust Co.. v. Kollar, 304 Ill. App. 3d 838, 844 (1999)
(stating although appellate court decisions issued before 1935 are not binding authority, we view
them as persuasive authority)), in the absence of any contrary authority, it indicates that Illinois
early on prohibited reassembling the jury for further deliberation after it was discharged. “The
general rule is, that, if the jury has been allowed to finally separate, the jurors cannot be re-
assembled, and their verdict [cannot be] corrected by them.” Ayer v. City of Chicago, 149 Ill. 262,
269 (1894).
¶ 43 People v. Davis, 105 Ill. App. 3d 549 (1982), is instructive. In Davis, a
death-penalty case, the jury found the defendant guilty of murder. Davis, 105 Ill. App. 3d at 554.
The next morning, when the jury, which was not sequestered, returned for the sentencing phase,
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the defendant moved for a mistrial based on the jury’s request of the bailiff the previous evening
for a partial transcript. Davis, 105 Ill. App. 3d at 554-55. The bailiff never communicated the jury’s
request to the trial court but essentially told the jury the transcript was not available. Davis, 105
Ill. App. 3d at 555. The judge set aside the verdict, gave the jury the transcript it requested, and
allowed the jury to redeliberate the question of guilt. Davis, 105 Ill. App. 3d at 555. This court
noted that although the jury was capable of being reassembled shortly after it rendered its guilty
verdict, that was immaterial. We held:
“The governing legal proposition is that once a verdict has been rendered,
accepted by the court, and judgment entered thereon, and the jury has separated,
the court has lost control of the verdict, and the only remedies are either a mistrial
or some variety of post-trial relief, such as judgment n.o.v. or new trial.” Davis, 105
Ill. App. 3d at 556.
Accordingly, we held that “sending the jury to its room” to deliberate a second time was error.
(Internal quotation marks omitted.) Davis, 105 Ill. App. 3d at 557. We stated unequivocally that
“[o]nce judgment has been entered and the jury has separated, the trial court is foreclosed from
any action regarding the verdict, except mistrial or post-trial relief.” Davis, 105 Ill. App. 3d at 557.
¶ 44 Based on the above, we determine that the second verdict (verdict form A) was
invalid. We look to the court’s reasoning in Warfield for guidance. In Warfield, the jury returned
a verdict in the plaintiff’s favor, assessed damages, and said the damages were due on a date
certain. Warfield, 135 Ill. App. at 308. The jury was then discharged. Warfield, 135 Ill. App. at
308. The next day, counsel for both parties raised a question as to the meaning of the verdict.
Warfield, 135 Ill. App. at 308. The court recalled the jury and instructed it to redeliberate whether
it intended to find the damages as specified in its first verdict. Warfield, 135 Ill. App. at 308. The
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jury then returned a new verdict assessing different damages. Warfield, 135 Ill. App. at 308. The
appellate court held that the second verdict “had no validity” because after the jury separated
following its first verdict, its control over the first verdict ended. Warfield, 135 Ill. App. at 311.
The court stated that the jury had “no authority afterward to return a new or amended verdict.”
Warfield, 135 Ill. App. at 310. In our case, the trial court discharged the jury, allowing it to
separate, and then entered judgment on its verdict (verdict form B). Consequently, we hold that
the trial court erred in reassembling the jury for further deliberation. It follows that the jury was
without authority to return the second verdict (verdict form A).
¶ 45 Although neither party raises the correlative issue of the trial court’s colloquy with
the jury foreperson concerning the jury’s deliberations, wherein the court asked the jury foreperson
for “clarification” of the verdict, we are bound to remind trial courts that “[i]t is a basic principle
of our justice system that jury deliberations shall remain private and secret.” (Emphasis added.)
People v. Johnson, 2015 IL App (3d) 130610, ¶ 17. “The primary purpose of this honored rule is
to protect the jurors from improper influence.” Johnson, 2015 IL App (3d) 130610, ¶ 17. Here—
shockingly with both parties’ acquiescence—the trial court not only inquired into the jury’s
deliberations but then “clarified” that those deliberations led it to return the wrong verdict.
¶ 46 The issue becomes the proper remedy. Again, we look to Warfield for guidance. In
Warfield, the court remanded for a new trial because the judgment on the second verdict was
erroneous. Warfield, 135 Ill. App. at 310. Here, because the trial court did not enter judgment on
the second verdict (verdict form A), a new trial is warranted only if the judgment entered on verdict
form B cannot be upheld. Plaintiff filed a timely posttrial motion in which she argued, inter alia,
that verdict form B was legally inconsistent. We agree. It was inherently self-contradictory for the
jury to award plaintiff money damages while finding plaintiff 80% at fault. Where a verdict is
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legally inconsistent, it must be set aside and a new trial must be granted. Redmond, 216 Ill. 2d at
642. Accordingly, we reverse the trial court’s judgment and remand for a new trial.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we reverse the trial court’s judgment and remand for a new
trial.
¶ 49 Reversed and remanded.
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Hassard v. DS Retail, LLC, 2023 IL App (4th) 220687Decision Under Review: Appeal from the Circuit Court of Macoupin County, No. 19-L-13;
the Hon. April G. Troemper, Judge, presiding.
Attorneys D. Keith Short, of Keith Short and Associates, P.C., of Alton, for
for appellant.
Appellant:
Attorneys James E. Godfrey Jr. and Kerry B. Banahan, of Evans & Dixon
for LLC, of St. Louis, Missouri, for appellee.
Appellee:
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