Torbert v. Moore

2020 IL App (4th) 190543-U

DENISE E. TORBERT, Plaintiff-Appellant, v. SHIRLEY MOORE, TENA M. SCHNEIDER, and BRADY REALTORS, INC., Defendants-Appellees.

NO. 4-19-0543

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

June 5, 2020

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of De Witt County

No. 13L1

Honorable Gary A. Webber, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.

Presiding Justice Steigmann and Justice Holder White concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court did not err by preventing plaintiff's counsel from questioning potential jurors during voir dire regarding the difference between civil and criminal burdens of proof.

(2) Because plaintiff could not identify a questionable juror that heard the case as a result of the trial court's refusal to remove jurors for cause, this court will not review the propriety of the trial court's refusals.

(3) Due to procedural defaults by plaintiff, this court will not consider the trial court's decisions to limit the testimony of plaintiff's witnesses regarding termite damage.

(4) Because of the jury's decision on the issue of liability, the jury did not reach the issue of damages and this court need not consider whether the trial court erred in barring expert testimony on plaintiff's post-concussive syndrome, an issue solely related to damages.

(5) Plaintiff failed to develop argument, supported by relevant authority, to establish the trial court erred by barring plaintiff from calling a rebuttal witness.

(6) The trial court's decision to deem a statement by plaintiff's counsel as a judicial admission, even if erroneous, did not entitle plaintiff to a new trial, as plaintiff suffered no prejudice as a result of the admission.

¶ 2 In February 2013, plaintiff, Denise E. Torbert, filed a complaint against defendants, Shirley Moore, Tena M. Schneider, and Brady Realtors, Inc. (Brady Realtors), after plaintiff fell through the floor of a residence owned by Moore. After a trial, the jury found in favor of the defendants. Plaintiff appeals, arguing (1) she should have been allowed to question potential jurors during voir dire regarding the difference between the criminal and civil burdens of proof, (2) the trial court denied her a fair trial by failing to remove multiple jurors for cause, (3) the court erred by not allowing plaintiff to present testimony by two witnesses regarding the existence of termites and termite damage, (4) the court erroneously barred plaintiff's treating neurologist from testifying plaintiff suffered post-concussive syndrome, (5) the court erroneously denied plaintiff's request for a rebuttal witness, and (6) the court erred by treating a statement made by her counsel in a written response to defendant Moore's motion in limine as a judicial admission. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On August 6, 2011, Moore listed residential property for sale through Brady Realtors. Schneider, a sales associate with Brady Realtors, was the listing broker for the property. The property is located in rural De Witt County. On the two- to three-acre property was a two-story all-brick home built shortly after World War I. Throughout trial proceedings, the house was referred to as the Barnett House. The Barnett House had four entrances. One opened to a small landing, measuring approximately three feet by three feet, attached to two sets ofstairs. One set of stairs led to the main floor. The other set led to the basement. Tile covered the landing's surface.

¶ 5 On August 11, 2011, Moore signed a Residential Real Property Disclosure Report. Moore identified no known material defects or unsafe conditions on the property, including no "material defects in the *** floors." In addition to making X's in the "No" and "N/A" columns, Moore provided additional information. Moore wrote, in part, "Fireplace SAFE + USED!" and "septic system drained in last 2-3 yrs."

¶ 6 Plaintiff, a real-estate broker, represented potential buyers of Moore's property, her son and daughter-in-law, David and Rachel Torbert. On October 1, 2011, plaintiff entered the entrance with the landing at the Barnett House. When she stepped onto the landing, the floor collapsed beneath her. Plaintiff fell into a hole and suffered injuries.

¶ 7 In her complaint, plaintiff asserted claims of negligence against all defendants and a claim of respondeat superior against Brady Realtors. Plaintiff asserted Moore owed her a duty to exercise reasonable care to maintain the property in a reasonably safe condition and to warn her of dangerous latent conditions. Plaintiff asserted Brady Realtors and Schneider (collectively Brady defendants) were negligent for inviting plaintiff to enter the Barnett House although Schneider "knew, or in the exercise of reasonable care, should have known that the landing was in a defective and unsafe condition" and for failing to warn plaintiff the landing was unsafe. In her answer, Moore asserted a complaint of comparative negligence, asserting plaintiff failed to maintain a proper lookout for the conditions of the premises and failed to exercise due care while on the property.

¶ 8 The jury trial was held in May 2019. We note we need not summarize thetestimony of each witness to resolve this appeal.

¶ 9 Plaintiff's first witness was Daniel Moore, who owned a septic-tank pumping business. Daniel testified he met plaintiff at the Barnett House on a Saturday to locate a septic tank. Daniel arrived first. Before plaintiff arrived, he attempted to locate the tank by walking around the lawn. When plaintiff arrived, the two went to the house. Daniel wanted to go to the basement to find the main pipe leading to the septic tank. After plaintiff opened the door, she stepped onto the landing and the floor collapsed. Daniel did not see plaintiff hit the ground—"[i]t all happened so fast." Daniel called 911. Before authorities arrived, Daniel found a stepstool-like ladder in a shed. He used the ladder to help plaintiff out of the hole. Daniel did not have to pull plaintiff out. He helped her get on her feet by stabilizing her. Plaintiff's eye or head was cut. Daniel drove plaintiff to the emergency room.

¶ 10 On cross-examination, Daniel testified plaintiff did not tell him to be careful when stepping into the house or onto the landing. When Daniel looked into the hole, he could see plaintiff standing. Plaintiff's head was at the top of the opening.

¶ 11 Phil Smith testified he had known plaintiff for a long time. Smith worked part-time helping build houses. Smith also had experience with remodeling jobs involving structural repairs. He had been to the Barnett House before the floor collapsed. Plaintiff's son and daughter-in-law asked him to look at the house to see if there was something that needed repaired or fixed. During his inspection of the house, Smith went to the basement. He examined the pine stairs that connected the basement to the landing. The stairs appeared to be deteriorating. Explaining how the stairs connected to the landing, Smith testified the stringer went from the basement floor to the edge of the rim joists on the platform of the stairs of the landing. Thestringers, like the stairs, were made of pine. The stringers were also in disrepair. It seemed there was a lot of water damage to the stairs. It was his common practice to carry a screwdriver to test floor joists to see if termite or water damage exists. Smith poked a screwdriver through the joists. Plaintiff's counsel asked if Smith at any point informed plaintiff he thought the stairs were at imminent risk of collapse, Smith responded, "I didn't think it was ready to collapse, but they needed repaired."

¶ 12 On cross-examination, Smith testified he told plaintiff about his observations. He did not communicate his findings to Moore. Plaintiff did not go into the basement with Smith.

¶ 13 David Torbert, plaintiff's son, testified plaintiff was his realtor. David and his wife, Rachel Torbert, were interested in the property. They liked that it was secluded and a brick home. There was lots of room to have a family. David was concerned about the home. The windows did not seem flush. The fireplace "looked used." A cistern was in the basement, which was a bit concerning, as it was very old. He was also concerned about not being able to find the septic system.

¶ 14 According to David, he had been to the house two times before the collapse. When he entered the home, he noticed a small crack almost as soon as he walked in. Plaintiff noticed the same.

¶ 15 On cross-examination, David testified he knew the house was over 90 years old. He wanted to buy the house but did not do so because of the price. When David noticed the crack in the floor, he "heard the noise first." He heard a popping sound when it was stepped on. David stepped on another area of the landing and did not hear a sound. David and his wife went to the basement. Plaintiff mentioned she would say something to the seller's realtor about the crack.

During the second visit, Rachel's grandparents visited the home as well. They entered the house the same way. Plaintiff was concerned because of the age of the grandparents "and there was some softness when you stepped on it." Plaintiff said, "Please be careful because there's a crack here." Everyone crossed the landing. No one seemed to take special precautions. David did not encounter any other problems when going to the basement.

¶ 16 When David mentioned the "softness," he testified the floor "wasn't firm." According to David, "[t]here was just kind of a slight give around that crack, so where it dipped just slightly as you put pressure on it." Plaintiff cautioned the grandparents "because there was a crack and there was some softness."

¶ 17 On redirect examination, plaintiff's counsel asked David if he could see underneath the tile. He testified, "No, you could not."

¶ 18...