Hassard v. DS Retail

235 N.E.3d 51

2023 IL App (4th) 220687

Lori L. HASSARD, Plaintiff-Appellant,

v.DS RETAIL, LLC, d/b/a Dollar General, Defendant-Appellee.

NO. 4-22-0687

Appellate Court of Illinois, Fourth District.

Filed June 9, 2023

Appeal from the Circuit Court of Macoupin County, No. 19L13, Honorable April G. Troemper, Judge Presiding.

D. Keith Short, of Keith Short and Associates, P.C., of Alton, for appellant.

James E. Godfrey Jr. and Kerry B. Banahan, of Evans & Dixon LLC, of St. Louis, Missouri, for appellee.

OPINION

JUSTICE ZENOFF delivered the judgment of the court, with 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, doing business as 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 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 one-eighth 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 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.

¶ 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 testi- fied that plaintiff’s fall could not be correlated to her symptoms.

¶ 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...