Jones v. Live Nation Entm't, Inc.

63 N.E.3d 959

407 Ill.Dec. 527

Sharon E. JONES, Plaintiff–Appellant,

v.LIVE NATION ENTERTAINMENT, INC., and United Center Joint Venture, Defendants (Live Nation Entertainment, Inc., Defendant–Appellee).

No. 1–15–2923.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 26, 2016.

William A. Jaeger, of William A. Jaeger, P.C., and Harry C. Lee, of Law Office of Harry C. Lee, both of Chicago, for appellant.

Martin A. Kanofsky and Thomas D. Donofrio, both of Merlo Kanofsky Gregg & Machalinski Ltd., of Chicago, for appellee.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 This appeal arises out of a negligence action in which plaintiff, a concert attendee, brought suit against defendant Live Nation Entertainment, Inc. (Live Nation), the promoter, for injuries she sustained at one of its concerts. On a prior interlocutory appeal, this court ordered defendant Live Nation to answer plaintiff's written interrogatories concerning the foreseeability that injuries could occur as a result of the actions of its performers. While the interlocutory appeal was pending, the trial court granted summary judgment to defendant Live Nation. Although we subsequently ordered additional discovery, the trial court denied plaintiff's motion for reconsideration and the ordered discovery never occurred.

¶ 2 On this appeal, plaintiff argues (1) that the trial court erred in granting summary judgment to defendant on grounds that it owed no duty to her because defendant Live Nation, as lessee of the United Center for the Kanye West/Jay Z concert, “possessed” the area where plaintiff was injured and (2) that the trial court abused its discretion by denying plaintiff's motion for reconsideration because the trial court erred in finding that defendant did not possess the area and because the trial court did not allow this court's discovery order to come to fruition.

¶ 3 For the following reasons, we find that the trial court abused its discretion by denying plaintiff's motion for reconsideration, and we reverse.

¶ 4 BACKGROUND

¶ 5 Plaintiff Sharon Jones filed her initial negligence complaint on November 20, 2013, alleging that she sustained injuries after falling into a “crowd surge” at the United Center in Chicago toward the end of a “Watch the Throne” concert promoted by defendant Live Nation. The “crowd surge,” which is a mass of people attempting to “rush the stage,” resulted after the performers encouraged the crowd to leave their assigned seats and “come on down” to party. Plaintiff alleges that a man bumped into her, knocking her down a flight of stone steps, causing injuries to her legs, back, neck, and head. Defendant Live Nation promoted the concert, and defendant United Center Joint Venture (United Center JV) owned the venue where the concert occurred.

¶ 6 On February 25, 2014, plaintiff filed an amended complaint that alleged that the performers in the “Watch the Throne” show “encouraged the crowd to leave their assigned seats and move down the aisles toward the stage without any direction, assistance or guidance from the designated ushers” and that “upon the conclusion of the show [plaintiff] proceeded to make her way from her seat * * * intending to exit the United Center” but was caught in the resulting “human tsunami” and was “knocked from her feet to the stairs” causing her injuries. The amended complaint alleges two counts of negligence, one against defendant Live Nation and one against defendant United Center JV. The count against defendant Live Nation alleges that defendant “acted in a reckless and careless manner without regard for the safety of their audience when they knew or should have known that any movement by a majority of their audience at the same time in the same direction would create a hazard” and that plaintiff sustained her injuries as a direct and proximate result of defendant's negligence.

¶ 7 On April 7, 2014, plaintiff served written interrogatories on defendant Live Nation including interrogatory No. 4, which asked:

“Has this Defendant been named as a party to any other lawsuits allegedly arising from events which occurred during other performances by this Defendant within the last five years, and since the date of this occurrence? Please provide the caption, case number, county and state of filing, and the current status of each matter.”

Interrogatory No. 5 asked:

“Has this Defendant received notice of any claims of alleged injury named arising from events which occurred during other performances within the last five years, and since the date of this occurrence? Please provide the name of the person making the claim, his or her attorney's name and address, and the status of said claim.”

¶ 8 On May 9, 2014, defendant Live Nation responded, objecting to interrogatory No. 5 on the ground that it was “vague, overbroad in time and scope, and [sought] information that is neither relevant to the subject matter involved in the pending action nor reasonably calculated to lead to the discovery of admissible evidence.” Defendant Live Nation objected to interrogatory No. 4 on the same ground, additionally stating that “lawsuits against Live Nation are a matter of public record.”

¶ 9 On June 27, 2014, plaintiff filed a motion to compel responses to written discovery, asking the trial court to compel defendant Live Nation to respond to interrogatory Nos. 2, 4, 5, 6, 7, 8, 11, 12, and 13.

¶ 10 On July 8, 2014, plaintiff's motion was granted in part by Judge James Snyder.¹ The record contains neither a transcript nor a bystander's report of the July 8 hearing. The written order, dated July 8, 2014, compelled defendant Live Nation to answer interrogatory Nos. 2, 4, 5, 11, and 13. However, interrogatory Nos. 4 and 5 were both modified to limit their scope. Interrogatory No. 4 was modified to state:

“Live Nation shall identify all performance based lawsuits filed against Live Nation in the United States in the 5 years prior to the occurrence and since.”

This modification limited the scope of interrogatory No. 4 to only the United States. Interrogatory No. 5 was modified to state:

“Live Nation shall identify all claims for injuries made against it based in its performances in the United States in the 2 years prior to the event and since.”

This modification limited the interrogatory to the United States and also reduced the applicable time span from five years “prior to the event and since” to only two years “prior to the event and since.”

¶ 11 Following these modifications, defendant Live Nation filed a motion on July 23, 2014, asking the trial court to reconsider its July 8 order. Attached to the motion was the affidavit of Jan Berger, defendant's vice president of risk management, in which he averred that “there are approximately 500 claims pending against defendant in jurisdictions around the United States,” that “[i]n 2013 alone, Live Nation opened 227 claims/lawsuits,” that “claims are not categorized by specific claim type” and that complying with the order would cause defendant Live Nation to “suffer a massive burden involving time, effort, and expense, as well as a disruption of business operations.” The motion additionally argued that “sweeping discovery requests are considered an abuse of discretion.”

¶ 12 On August 4, 2014, defendant's motion for reconsideration was heard before Judge Jerry Esrig, a different judge than the judge who had entered the July 8 discovery order. The appellate record contains the transcript of that hearing, which shows that defendant argued (1) that plaintiff failed to establish that the answer to the interrogatories would be relevant to the case and (2) that compliance would create an undue burden as shown by Berger's affidavit. Since the trial judge was not at the prior hearing, he inquired if, during the July 8 hearing, defendant Live Nation had been aware of the number of claims that would be involved in answering the interrogatory. Defendant Live Nation responded that, during the July 8 hearing, it did not have that information, and instead it had objected on “relevance and other grounds.” The trial court then inquired if, during the July 8 hearing, defendant Live Nation agreed to the content of the order. Defendant responded that it had only “agreed to the language in the order after the judge ruled.” However, plaintiff responded that the language of the July 8 order was a result of the two parties, at the judge's direction, going into the hall to “work this out.” The trial court then denied defendant's motion for reconsideration, and defendant's attorney asked the trial court to hold her in friendly contempt. After a discussion among both attorneys and the judge as to how to structure an order of friendly contempt, the trial court ordered that “ [t]he law firm Merlo Kanofsky Gregg & Machalinski, Ltd. [ (Merlo),] is hereby held in contempt for failure to comply with the July 8, 2014 order and fined $1.00 per day until compliance.”

¶ 13 On August 6, 2014, Merlo filed a notice of appeal, which stated in full:

“Defendant/Appellant, LIVE NATION ENTERTAINMENT, INC., hereby appeals to the Appellate Court of Illinois, First District, pursuant to Illinois Supreme Court Rule 304(b)(5), the order entered August 4, 2014 holding Merlo Kanofsky Gregg & Machalinsky Ltd. in contempt and fining it $1 per day, and the order entered July 8, 2014, compelling Live Nation Entertainment, Inc. to answer plaintiff's interrogatory nos. 4 and 5. Copies of the August 4, 2014 order and the July 8, 2014 order are attached hereto.

Defendant–Appellant prays that the orders appealed from be reversed or such other relief as Defendant–Appellant is entitled to by law.”

¶ 14 On the subsequent interlocutory appeal, defendant Live Nation argued (1) that the circuit court erred in compelling it, in the July 8 order, to answer plaintiff's interrogatory Nos. 4 and 5, (2) that the circuit court erred in the August 4 order by denying its motion to reconsider, and (3) that the circuit court erred in the...