Parker v. Illinois Masonic Warren Barr Pavilion
Case Date: 09/29/1998
Court: 1st District Appellate
Docket No: 1-97-2213
SECOND DIVISION SEPTEMBER 29, 1998 1-97-2213
JUSTICE COUSINS delivered the opinion of the court: On January 15, 1997, a jury returned a verdict of $203,116.97 infavor of plaintiff, Meta Krueger(1), and against defendant,Illinois Masonic Warren Barr Pavilion, reducing it by 49% to$103,589.66 for comparative fault in a negligence action. Thecircuit court trebled the judgment under the Nursing Home CareAct (210 ILCS 45/3~602 (West 1996)), and awarded attorney feesand costs. On appeal, defendant contends that: (1) the verdictwas against the manifest weight of the evidence; (2) the trialcourt abused its discretion in permitting the undisclosed anduntimely opinion testimony of Dr. James Sliwa, D.O.; (3) thetrial court erred in not applying the 1995 amendment to section3~602 of the Nursing Home Care Act retroactively; and (4) thetrial court abused its discretion in awarding attorney fees. BACKGROUND In October 1993, Meta Krueger (Krueger), an 83-year-old woman,was admitted into the nursing home facility of Illinois MasonicWarren Barr Pavilion (Barr Pavilion) for physical therapyfollowing a possible compression fracture of a vertebrae. WarrenBarr provided both long- and short-term care, and Krueger wasassigned to the short-term care unit located on the seventhfloor. Incoming patients at Barr Pavilion were given an initial nursingevaluation to determine their current condition and to judgetheir progress. The nurses on the floor assessed each patientdaily to determine his or her ambulation status, and physicaltherapists summarized care and treatment of individual patientsweekly. Upon admission, Krueger needed assistance with walking;therefore, at her evaluation it was deduced that her goal was toreturn to independent ambulation prior to her discharge. Kruegerdid not have a definite discharge date, but her target date fordischarge was February 9, 1994. Krueger participated in physical therapy on six occasions beforeNovember 11, 1993, and was progressing well according to physicaltherapy notes. However, at approximately 3:45 a.m. on November11, 1993, Krueger fell in the bathroom of her room. It wasdetermined that the fall occurred because Krueger did not have onher slippers. Consequently, she lost her balance and fell. A"fall follow-up" form was completed by nurse Karen Kraker, thedirector of nursing and associate administrator for patient careservices, to prevent future falls. The form noted that Kruegerhad a fear of falling and increased confusion and indicated thatKrueger was at risk for additional falls. Since Krueger did notuse her call button to ask the staff for assistance on thisoccasion, nurse Kraker instructed her to use the button forassistance in the future. On November 17, 1993, Krueger's doctor ordered that Krueger beput on stand-by assist with bed mobility, minimum assist fortransfers, and ambulation of 75 feet with a rolling walker andcontact. "Stand-by assist" means someone is standing next to thepatient supervising, while "minimum assist" means the therapistis doing 25% to 50% of the work. On November 24, 1993, thedoctor's order noted that Krueger was still on stand-by assist;however, the physical therapist's weekly note indicated thatKrueger was progressing well despite her fall and recommendeddischarge planning. On November 27, 1993, Krueger fell in the hallway outside herroom. She alleged that a nurse entered the room and informed herthat she was to be transferred to another room.(2) When no onecame to help her, Krueger packed her belongings in plastic bags,hung them over her walker, and moved them into the hallway byherself. After putting the fourth bag of clothing down, she losther balance and fell, injuring her hip. Krueger's nurse, Oluwayinka Adeyooye, assisted after the fall. Krueger was transferred to Northwestern Memorial Hospital, whereDr. Proctor Anderson, an orthopedic surgeon, diagnosed Kruegerwith an intertrochanteric fracture of her right hip. Dr.Anderson performed surgery using a plate and screws to repair thehip fracture. He last saw Krueger on December 2, 1994. On December 6, 1993, Krueger was discharged to the RehabilitationInstitute of Chicago for physical therapy, where she was underthe care of Dr. James Sliwa. After reaching her goals ofindependently ambulating with a walker, Krueger was discharged onDecember 29, 1993. On February 14, 1994, Krueger was advised touse a cane. By May 31, 1994, Dr. Sliwa advised her that shecould put her full weight on her hip. Staff notes written after the second fall indicated that onNovember 28, 1993, Krueger could not independently ambulate onthe day she fell. However, on December 1, 1993, a "hold" notewritten by Krueger's therapist noted that Krueger was able to"independently perform bed mobility and ambulate" on the day ofthe fall. On January 24, 1994, Catherine Zapparo (Zapparo), thesupervisor of physical therapy at Warren Barr, wrote a dischargesummary for Krueger indicating that all of Krueger's goals hadbeen met prior to her transfer. Zapparo had never seen Kruegerprior to the fall and relied on weekly therapy notes to write hersummary. On January 15, 1997, following a jury trial on the negligenceaction, the jury returned a verdict of $203,116.97 in favor ofKrueger and against Barr Pavilion, reducing it by 49% to$103,589.66 for comparative fault. The circuit court trebled thejudgment under the Nursing Home Care Act (210 ILCS 45/3~602 (West1996)), and awarded attorney fees of $48,825 and costs of$443.40. Defendant appeals. For the following reasons, we affirm in part, reverse in part,and remand for a new trial. ANALYSIS I Barr Pavilion first contends that it is entitled to a new trialbecause the jury's verdict was against the manifest weight of theevidence in that Krueger failed to establish that Warren Barrviolated the Nursing Home Care Act (Act) (210 ILCS 45/1~101 etseq. (West 1996)). It is well established that a jury verdictwill not be overturned unless it is against the manifest weightof the evidence. Pharr v. Chicago Transit Authority, 220 Ill.App. 3d 509, 521, 581 N.E.2d 162, 169 (1991). A verdict isconsidered to be against the manifest weight of the evidence onlywhen the opposite conclusion is clearly apparent or when thefinding of the jury appears arbitrary or unsubstantiated by theevidence. Pharr, 220 Ill. App. 3d at 521, 581 N.E.2d at 169;Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 298, 668N.E.2d 46, 50 (1996). A reviewing court should not disturb thejury's verdict unless, considering all of the evidence in thelight most favorable to the party who prevailed at trial, thejury's conclusion is palpably erroneous and wholly unwarranted. United States Department of Housing & Urbana Development v.Anderson, 178 Ill. App. 3d 1752, 1754, 533 N.E.2d 919, 920-21(1988). Krueger filed this case as an ordinary negligence action underthe Act. The elements of a cause of action for negligence are"the existence of a duty owed by defendant to the plaintiff, abreach of that duty, and an injury proximately caused by thatbreach." Ward v. Kmart Corporation, 136 Ill. 2d 132, 140, 554N.E.2d 223, 226 (1990). It has long been held that negligencemay be proved by either direct or circumstantial evidence, andthe burden of proof is on the plaintiff. Devine v. Delano, 272Ill. 166, 179-80, 111 N.E. 742, 748 (1916). Circumstantialevidence is the proof of certain facts and circumstances fromwhich the jury may infer other connected facts that usually andreasonably follow according to the common experience of mankind. Devine, 272 Ill. at 180; Pace v. McClow, 119 Ill. App. 3d 419,424, 458 N.E.2d 4, 8 (1983). The Illinois Supreme Court has identified certain factors thatare relevant to the existence of a duty. Ward, 136 Ill. 2d at140, 554 N.E.2d at 226. The reasonable foreseeability of injuryis one important factor; however, foreseeability alone providesan inadequate foundation upon which to base the existence of alegal duty. Kirk v. Michael Reese Hospital & Medical Center, 117Ill. 2d 507, 525, 513 N.E.2d 387, 396 (1987). Otherconsiderations include the likelihood of the injury, themagnitude of burden of guarding against it, and the consequencesof placing that burden upon the defendant. Kirk, 117 Ill. 2d at526, 513 N.E.2d at 396. The inquiry is whether the defendantcould have reasonably foreseen injury to the plaintiff. Ward,136 Ill. 2d at 147-48, 554 N.E.2d at 230. In the case sub judice, Krueger entered Barr Pavilion for short-term rehabilitative care. Specifically, she was to undergophysical therapy so that she could independently ambulate priorto her discharge. It is undisputed that the nurses on duty wereresponsible for the overall care of each patient. Because theelderly are more prone to falling, Krueger was at risk for fallsprior to her first fall. Since the nurses had a duty to providefor Krueger's overall care in protecting her from that risk, ifthey failed in their duty, Barr Pavilion would be negligent. Our review of the record establishes that, based on the evidenceadduced, a reasonable jury could draw inferences of negligenceregarding Krueger's nurse, Oluwayinka Adeyooye. For instance, inthis case, the doctor's order of November 24, 1993 indicated thatKrueger was on stand-by assist. Nurse Adeyooye testified,however, that she did not know what "stand-by assist" meant. Shestated simply that if a patient needed assistance, she wouldassist her. Nurse Adeyooye believed that Krueger was able toindependently ambulate at the time of the second fall; however,her view conflicted with other evidence on the issue. To establish proximate cause, a plaintiff must demonstrate withreasonable certainty that defendant's negligent acts or omissionscaused the injury for which she seeks recovery; otherwise,plaintiff has not sustained her burden of setting out a primafacie case of negligence. Morton v. F.B.D. Enterprises, 141 Ill.App. 3d 553, 558, 490 N.E.2d 995, 999 (1986). In this case, noone was providing care to Krueger at the time of her fall. TheAct defines "neglect" as "a failure in a facility to provideadequate medical or personal care or maintenance, which failureresults in physical or mental injury to a resident or in thedeterioration of a resident's physical or mental condition." 210ILCS 45/1~117 (West 1996). Although it is undisputed thatKrueger did not use her call button prior to either fall, whetherthis lack of assistance by Barr Pavilion constituted neglect thatwas a proximate cause of Krueger's resulting injury was a juryquestion, and the jury resolved it against Barr Pavilion. SeeMcShane v. Chicago Investment Corp., 235 Ill. App. 3d 860, 875,601 N.E.2d 1238, 1249 (1992). A court cannot reweigh the evidence and set aside a verdictmerely because the jury could have drawn different inferences orconclusions, or because the court feels other results are morereasonable. Maple v. Gustafson, 151 Ill. 2d 445, 452, 603 N.E.2d508, 512 (1992). It is within the jury's province to resolveconflicts in the evidence, and as long as the jury's resolutionis supported by credible evidence, a reviewing court should notsubstitute its judgment for that of the jury. Seward v. Griffin,116 Ill. App. 3d 749, 760, 452 N.E.2d 558, 567 (1983); Maple, 151Ill. 2d at 452, 603 N.E.2d at 511-12 (1992). Likewise, theappellate court should not usurp the function of the jury andsubstitute its judgment on questions of fact fairly submitted,tried, and determined from the evidence which did not greatlypreponderate either way. Maple, 151 Ill. 2d at 452-53, 603N.E.2d at 512. In this case, the jury agreed with Barr Pavilion regardingKrueger's contributory negligence and, after considering thecomparative negligence of the parties, reduced her awardaccordingly. After considering all of the evidence in the lightmost favorable to Krueger, we cannot find that the verdict wasagainst the manifest weight of the evidence. II Barr Pavilion next contends that the trial court abused itsdiscretion in permitting the undisclosed and untimely opiniontestimony of Dr. James Sliwa, D.O. Specifically, it argues thatthe opinion was prejudicial and prevented effective cross-examination. Supreme Court Rule 213(g) requires disclosure of "all" opiniontestimony prior to trial. 134 Ill. 2d R. 213(g); Iser v. CopleyMemorial Hospital, 288 Ill. App. 3d 408, 410, 680 N.E.2d 747, 749(1997). Courts have consistently held that an expert's directtestimony is limited to comments within the scope of andconsistent with the facts and opinions disclosed in discovery. Iser, 288 Ill. App. 3d at 412, 680 N.E.2d at 750. The trialcourt's decision is broad and should not be disturbed absent aclear abuse of discretion. Jarke v. Jackson Products, Inc., 282Ill. App. 3d 292, 296, 668 N.E.2d 46, 48 (1996). In the case sub judice, counsel for Krueger asked Dr. Sliwa thefollowing: "Q. Doctor, in your opinion, would it be a deviation fromthe standard of rehabilitation care to allow someone toambulate if they were not independently able to ambulate?" After objection, a sidebar was held wherein the followingexchange occurred between counsel for Barr Pavilion and counselfor Krueger: "MS. BRIDGMAN: This is a negligence case. There has been noissue as to it relates to deviation from the standard of careby anyone. For this physician now to bring this to the realmof a medical malpractice case, and give an opinion that shewasn't properly rehabilitated infers, of course, she was notproperly rehabilitated at the Warren Barr Pavilion, would beimproper. None of these opinions have been identified and hewas not identified as giving any opinions in relation to herrehabilitation on that specific issue. He can talk about herrehabilitation, what went on there, and that she suffered afracture, but to ask him that question is completelyinappropriate at this point. MS. ENRIGHT: In response, I am asking him a generalquestion, I am not asking him with respect to Meta Krueger'scare and treatment. He is a rehabilitation doctor. That isall he does. Certainly he can testify whether or not someonewould be negligent in allowing someone to ambulate if theycouldn't do so independently. I am not turning this into amedical malpractice case. MS. BRIDGMAN: That is what she just said that she is goingto infer, they were negligent and not properly supervisingthe patient. This is improper. It was beyond what wasdiscussed. I just object that we would get this testimonyin. It's a negligence case. THE COURT: Overruled." Dr. Sliwa thereafter responded: "A. It would be my independent medical opinion if someone isnot safe to ambulate independently, she should not be allowedto do so." Prior to trial, Barr Pavilion requested the substance of anyopinion testimony in its interrogatories to Krueger. However,Krueger never filed a formal response. Rather, her response camein the form of a letter from her attorney to the attorney forBarr Pavilion which stated, "Dr. Sliwa was Ms. Krueger'srehabilitation doctor who will testify as to her continued courseof treatment at the Rehabilitation Institute of Chicago. Hisopinions are consistent with his records." Additionally, BarrPavilion filed a motion in limine to exclude any opiniontestimony not included in interrogatories, which was granted bythe trial court and not objected to by Krueger. However, thetrial court never referred to the motion in limine when it ruledregarding the admission of Dr. Sliwa's testimony. Furthermore, we note that the original complaint had beendismissed because it contained the following allegations againstdefendant: "(b) Failed to adequately train and supervise the employees;and (c) Failed to advise the plaintiff that she should notambulate." The trial court granted the motion to dismiss the originalcomplaint pursuant to section 2~622 of the Illinois Code of CivilProcedure regarding the substance of pleadings in healing artmalpractice actions. See 735 ILCS 5/2~622 (West 1996). Inresponse, Krueger amended her complaint by deleting theallegations referring to healing art malpractice. In our view, the trial court erred in allowing the disclosure ofDr. Sliwa's testimony as it was in violation of both SupremeCourt Rule 213(g) and the in limine order. However, unless theappellant can establish prejudice arising from the error, thejudgment need not be disturbed on appeal. J.L. Simmons Co. exrel. Hartford Insurance Group v. Firestone Tire & Rubber Co., 108Ill. 2d 106, 115, 483 N.E.2d 273, 277 (1985). On appeal, Krueger states, "[o]n its face, [the testimony]suggests a technical violation of Supreme Court Rule 213(g)." She asserts that the trial court did not err in allowing theanswer, "despite the fact that his statement was not set out in aRule 213 answer," and contends that Sliwa's answer stated theobvious and could not have affected the outcome of the casebecause the statement was an obvious inference drawn from NurseAdeyooye's testimony. We disagree. During deposition of nurse Adeyooye by the attorney for Krueger,the following question and answer ensued: "Q. Would you agree with me that a reasonably prudent personwould not allow a patient to independently ambulate if therewere notes in the record that indicate that she was not readyto ambulate? * * * A. No, the nurse won't ambulate *** the patient." Warren Barr objected during nurse Adeyooye's deposition to theform of the question that was posed to nurse Adeyooye. At trial,the court allowed the question and answer to be read to the jury. In our view, the question posed to Dr. Sliwa is not the samequestion. Dr. Sliwa's question concerned a "deviation from thestandard of rehabilitation care," and he responded based on his"independent medical opinion." Nurse Adeyooye's question relatedto whether a reasonably prudent person would allow someone toambulate if there were notes that indicated that she was unableto do so. Krueger further argues that the trial court correctly allowed thetestimony of Dr. Sliwa because the same conclusion had beenreached by nurse Adeyooye. In support of this contention,Krueger relies upon and cites Gale v. Hoekstra, 59 Ill. App. 3d400, 375 N.E.2d 456 (1978). In Gale, the circuit court held thatwhere evidence is properly before the court in one form, anyerror occurring when it was introduced in another context isdeemed harmless. Gale, 59 Ill. App. 3d at 411, 375 N.E.2d at465. In our view, Krueger's reliance on Gale is misplaced. First, wenote that Dr. Sliwa's testimony was elicited and objected tobefore nurse Adeyooye's deposition was read to the jury. Second,the facts in Gale are inapposite. In Gale, a pedestrian broughtaction for injuries sustained upon being struck by a motorist'scar while he was walking along the wrong side of the road. Gale,59 Ill. App. 3d at 402, 375 N.E.2d at 458. The absence of tiremarks was an important factor in the case, and the court heldthat even if the police officer's statement that he would haveexpected to find tire marks on the shoulder was inadmissible asinvading the province of the jury, its admission would not beprejudicial under the facts of the case because the officer'sopinion was covered by proper evidence sufficient to determinethe issue. Gale, 59 Ill. App. 3d at 411, 375 N.E.2d at 465. Thetestimony was also of common knowledge. Gale, 59 Ill. App. 3d at411, 375 N.E.2d at 465. Gale is further distinguishable from the case at bar because theproper evidence in the Gale case was factual evidence, notopinion evidence. In the case at bar, Dr. Sliwa's testimony wasrestricted to information concerning his treatment of Kruegerwhile at the Rehabilitation Institute and after according to theaforementioned letter from Krueger's attorney to the attorney forBarr Pavilion. No proper evidence was admitted prior to Dr.Sliwa's testimony that would have negated its prejudicial effect. Although nurse Adeyooye's statement occurred during a videotapedevidentiary deposition, as previously noted, it was notintroduced to the jury until after Dr. Sliwa's testimony. Moreover, we note that in closing argument Krueger highlightedDr. Sliwa's testimony regarding a standard of care that had beenpart of the original complaint and dismissed. The jury found Krueger 49% contributorily negligent. Absent theundisclosed opinion testimony, the changed percentage may haveeliminated a finding in Krueger's favor. Absent the error, wecannot say that the jury would have found that Barr Pavilion was51% negligent. For the foregoing reasons, we hold that Dr. Sliwa's medicalopinion testimony was erroneous. A new trial is warranted. SeePeople v. Szabo, 55 Ill. App. 3d 866, 871-72, 371 N.E.2d 117, 120(1977). III During trial, Krueger filed a motion for treble damages. In BarrPavilion's response, it contended that the Act no longerpermitted a treble damages remedy and that "treble damages [were]the equivalent to punitive damages, which were not permitted inthis type of case." Moreover, Barr Pavilion asserted thatKrueger was not entitled to treble damages because she failed toplead the same in her complaint. Following the verdict, Barr Pavilion filed a posttrial motionwherein it contended that the trial court erred in awardingtreble damages necessitating a new trial. Specifically, itasserted that: (1) the amendment of the Act repealing the trebledamages provision should have been applied retroactively becausethe amendment related solely to a remedy and did not eliminate avested right; (2) there was no savings clause; (3) the Act'slegislative history supported the conclusion that the eliminationof the treble damages provision related only to a remedy; (4)treble damages were equivalent to punitive damages; and (5)Krueger failed to seek treble damages prior to trial. On appeal, Barr Pavilion contends that: (1) treble damages, aspunitive in nature, are prohibited by section 2~1115 (735 ILCS5/2~1115 (West 1996)) in healing arts malpractice actions; and(2) the trial court erred in not applying the 1995 amendment tosection 3~602 of the Act retroactively. Relative to Barr Pavilion's contention that the trial court erredin not applying the 1995 amendment to section 3~602 of the Actretroactively, Krueger opines that the Act itself created a causeof action which automatically entitled her to treble damages,although she never specifically requested them in her complaint. However, it has long been held that the commencement of a suitdoes not, of itself, vest a right in the penalty sued for. Whitev. Sunrise Healthcare Corp., 295 Ill. App. 3d 296, 300, 692N.E.2d 1363, 1367 (1998), quoting Coles v. County of Madison, 1Ill. 154, 157 (1826). A lawsuit is the means of enforcing apreviously vested interest. Coles, 1 Ill. at 157. Thus, "if nojudgment ha[s] been rendered," any property right "in the penaltyis imperfect and contingent, liable to be destroyed by a repealof the statute upon which suit is brought." Coles, 1 Ill. at158; White, 295 Ill. App. 3d at 300, 692 N.E.2d at 1367. Accordingly, in our view, Krueger's contention is not wellfounded. We further note that on July 21, 1995, during the pendency ofthis action, the legislature amended section 3~602 of the Act,eliminating the availability of treble damages and instead onlyawarding actual damages and attorney fees. See 210 ILCS 45/3~602(West 1996). While the instant case was pending, our supremecourt decided the case of First of America Trust Co. v. Armstead,171 Ill. 2d 282, 664 N.E.2d 36 (1996). In Armstead, theplaintiff was in the process of appealing the denial of itsapplication to register its underground gasoline storage tankspursuant to the applicable statute when the statute was amended,precluding their registration. Armstead, 171 Ill. 2d at 285-86,664 N.E.2d at 38-39. The court in Armstead stated that the application of newlegislation to pending suits or preexisting causes of action isgoverned by "the law that applies by its terms at the time ofappeal, unless doing so would affect a vested right." Armstead,171 Ill. 2d at 289, 664 N.E.2d at 39. Armstead held that"[w]here no vested rights are involved, either because they arenot yet perfected or because the amendment is procedural innature, the amendment can be applied to the existing controversywithout any retroactive impact." Armstead, 171 Ill. 2d at 290,664 N.E.2d at 40. Armstead further stated that although "vestedrights" has no precise definition, a right has not vested untilit is so perfected, complete, and unconditional that it may beequated with a property interest. Armstead, 171 Ill. 2d at 290-91, 664 N.E.2d at 40. We have reviewed published Illinois Appellate Court decisions onthis issue and find that the decisions from the appellatedistricts are in conflict. The Second, Fourth, and ThirdIllinois Appellate Court Districts, respectively, have held thatthe 1995 amendment to section 3~602 is to be appliedretroactively, in White v. Sunrise Healthcare Corp., 295 Ill.App. 3d 296, 692 N.E.2d 1363 (1998), Dardeen v. Heartland Manor,Inc., 297 Ill. App. 3d 684, 696 N.E.2d 1279 (1998), and Ditsworthv. Kankakee Terrace Partnership, No. 3~97~1014 (August 21, 1998). However, in Weimann v. Meadow Manor, Inc., 285 Ill. App. 3d 455,664 N.E.2d 36 (1996), and Hernandez v. Woodbridge Nursing Home,287 Ill. App. 3d 641, 678 N.E.2d 788 (1997), the Fifth and FirstIllinois Appellate Court Districts, respectively, have held thatthe amendment to section 3~602 is to be applied prospectively. White held that the section abolishing triple damages forviolations of the Act applied to pending suits regardless of whenthe cause of action accrued. White, 295 Ill. App. 3d at 301-02,692 N.E.2d at 1368. Dardeen held that the amendment, whichaffected the remedy, did not effect a change in the law absent asavings clause as to existing legislation, which this section didnot have. Dardeen, 297 Ill. App. 3d at 687, 696 N.E.2d at 1282. Ditsworth held that the amendment had no retroactive impact on avested right; therefore, it applied to causes of action accruingboth before and after July 21, 1995. Ditsworth, slip op. at 2. Furthermore, the Second, Fourth, and Third Illinois AppellateCourt Districts, respectively, declined to follow the contraryanalyses of the First and Fifth Districts. Both Weimann andHernandez found that plaintiffs whose causes of action aroseprior to the amendment may plead treble damages because theapplication of the amendment to section 3~602 would interferewith a vested right. Weimann, 285 Ill. App. 3d at 458, 674N.E.2d at 145-46; Hernandez, 287 Ill. App. 3d at 645, 678 N.E.2dat 791. The holdings of White, Dardeen and Ditsworth accord withArmstead; however, Weimann and Hernandez do not accord withArmstead. Since Armstead is controlling, we hold that the 1995amendment to section 3~602 of the Act is related solely to aremedy and does not effect a vested right. Accordingly, thetrial court erred in not applying the 1995 amendment to section3~602 of the Act retroactively. In light of our holding, it is unnecessary to address BarrPavilion's contention that treble damages, as a matter of law,are prohibited by section 2~1115 (735 ILCS 5/2~1115 (West 1996)). We also deem it unnecessary to address Barr Pavilion's contentionthat the court abused its discretion in awarding attorney fees. For the foregoing reasons, we affirm in part, reverse in part,and remand for a new trial. Affirmed in part and reversed in part; cause remanded. Reversed and remanded. McNULTY and RAKOWSKI, JJ., concur. Footnotes 1. Krueger died during the pendency of the appeal, and her administrator is substituted asplaintiff. 2. Prior to that date, Krueger had been having documented problems with her roommate. |
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