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Vojas v. K Mart Corp., No. 5-99-0170

5th District, 24 March 2000

JUSTICE CHAPMAN delivered the opinion of the court:

Plaintiff Mary V. Vojas filed a complaint against K mart Corporation (K mart), alleging that she slipped and fell in the Kmart retail premises in Collinsville, Illinois, on May 5, 1996. The jury returned an itemized $40,000 verdict and awardedplaintiff $10,000 for disability, $10,000 for pain and suffering, $14,000 for emotional distress, $6,000 in medical expenses,and nothing for lost earnings. K mart argues that it was entitled to judgment n.o.v. because plaintiff failed to presentcompetent evidence that K mart knew or had reason to know of the foreign substance before plaintiff slipped and fell. Kmart claims that two hearsay statements were inappropriately admitted to show K mart had notice of the substance on thefloor. K mart also contends that plaintiff is not entitled to an award of $14,000 for emotional distress.

BACKGROUND

Evidence at trial revealed the following. On May 5, 1996, at approximately 9 to 9:15 p.m., plaintiff and her daughter-in-lawwent to the K mart in Collinsville to buy work slacks. Plaintiff testified that while walking along the main aisle, her left footslid off to the side, her right leg went under her left leg, her right foot went under her left foot, her body became twisted,and she fell on her left side. She testified that she had instant pain in her right leg and thigh all the way down to her foot.She stated that while she was on the floor, her daughter-in-law told her of a black substance on the floor and on her shoe.She testified that the substance looked like black Vaseline.

She then testified that her daughter-in-law helped her up after a few minutes, and she walked, with the aid of a shoppingcart, to the front desk. Plaintiff then stated that she asked one of the two women at the desk for an incident report. One ofthe women asked, "What happened?" Plaintiff stated that she told the woman that she had fallen on an unknown substancein the main aisle between the men's and maternity departments. Then one of the women, according to plaintiff's testimony,replied, "I thought they cleaned that up," or something to that effect. Plaintiff testified that the other woman then shruggedher shoulders and said, "Apparently not."

Plaintiff saw Dr. Michael Rallo the next day for the pain in her right leg. Plaintiff offered the following testimony about hermedical conditions. The pain was in the outer aspect of her right thigh radiating down to the knee and along the outside ofher calf. The pain did not improve over the next year. The pain was worse when she tried to walk or stand for any period oftime, and it kept her awake at night. The pain has made her irritable and affected her mentally at work. She can no longertake long walks, work in her garden, or lift heavy packages. She needs her husband to assist her in doing household choressuch as the laundry. Plaintiff can no longer fish with her husband. Her irritability has affected her relationships with herhusband and family.

K mart presented witnesses who testified that K mart provides training and handbooks which teach employees theimportance of safety in the stores. The Collinsville store had received awards in the past for cleanliness, and it conductsongoing training in cleaning up spills. Cathy Cox, the loss-control manager at the time of plaintiff's fall, completed acustomer-accident worksheet over the telephone with plaintiff the day after the fall. She testified that plaintiff never told herthat she fell on a greasy substance or that she was injured. Cox testified that nothing in the investigation showed that any Kmart employee knew of any substance on the floor before the fall. Plaintiff testified that she recalls telling Cox that sheslipped on a greasy substance, which her daughter-in-law wiped up with a tissue after the fall, and that she was seekingmedical attention because she was in pain.

The jury returned an itemized verdict of $40,000, and the trial court entered judgment on the verdict. K mart filed a posttrialmotion requesting a judgment n.o.v. or a new trial on all issues or a remittitur of $14,000 for the emotional-distress award.After a hearing, the trial court denied all posttrial relief.

DISCUSSION

Turning first to K mart's contentions that it was entitled to a judgment n.o.v. because the only evidence of the notice of thedangerous condition consisted of improperly admitted hearsay statements, we conclude that K mart's contention isunpersuasive for two reasons. Plaintiff and her daughter-in-law testified that when they went to the front desk after the falland told the two women at the desk what happened, one of the women stated, "I thought they cleaned that up," and the otherwoman responded, "Apparently not."

Plaintiff contends that these statements are not hearsay, as they were not offered for their truth. Plaintiff contends that sheoffered these statements not for their truth, to show that the spill had not been cleaned up, but rather to show that theemployees knew that a spill existed. We conclude that even if the statements were offered for their truth and are thereforehearsay, they fall into the exception to the hearsay rule that makes admissions by a party admissible. Any statement madeby a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by aparty opponent. See County of St. Clair v. Wilson, 284 Ill. App. 3d 79, 88 (1996).

In the case of Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d 887, 893 (1995), the court analyzed theapplication of the party-admission exception to the hearsay rule. Relying on prior Illinois case law and the Handbook ofIllinois Evidence (M. Graham, Cleary & Graham's Handbook of Illinois Evidence,