{ "id": 2828956, "name": "Pamela Householder, a Minor, by Her Father and Next Friend, Richard Householder, Plaintiff-Appellant, v. The Prudential Insurance Company, Defendant-Appellee", "name_abbreviation": "Householder v. Prudential Insurance", "decision_date": "1970-09-23", "docket_number": "Gen. No. 53,695", "first_page": "184", "last_page": "192", "citations": [ { "type": "official", "cite": "130 Ill. App. 2d 184" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "181 NE2d 826", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill App2d 25", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5264127 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/35/0025-01" ] }, { "cite": "223 NE2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill App2d 363", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2568955 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0363-01" ] }, { "cite": "216 NE2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill App2d 72", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2592048 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0072-01" ] }, { "cite": "162 NE2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329761 ], "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0048-01" ] }, { "cite": "159 NE2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill App2d 143", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5202930 ], "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0143-01" ] } ], "analysis": { "cardinality": 663, "char_count": 14620, "ocr_confidence": 0.577, "pagerank": { "raw": 8.621017481241883e-08, "percentile": 0.4905934670322478 }, "sha256": "7601d77867daebd77e70ec5e7958c0913c061856051fab62e725437a793d58b1", "simhash": "1:73ab9adb9647b1c7", "word_count": 2368 }, "last_updated": "2023-07-14T21:36:32.959960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Pamela Householder, a Minor, by Her Father and Next Friend, Richard Householder, Plaintiff-Appellant, v. The Prudential Insurance Company, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nPlaintiff appeals from a directed verdict entered in favor of defendant, The Prudential Insurance Company, at the close of plaintiff\u2019s evidence.\nPlaintiff\u2019s second amended complaint contained two counts. Count I alleged that defendant, The Prudential Insurance Company, as owner and operator of an escalator on its premises \u201cso carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a \u2018bouncing\u2019 fashion, thereby causing the plaintiff\u2019s body to come into contact with the escalator\u201d and that Prudential \u201cwas guilty of negligence in that it caused and allowed a part of said escalator to be in a sharp and dangerous condition so that when said sharp portion of the escalator came in contact with the leg of the plaintiff, it caused a severe and permanent injury.\u201d Count II alleged that the Westinghouse Electric Corporation was guilty of carelessness and negligence in the design, manufacture, installation and maintenance of the escalator in the same manner as above set forth.\nAt trial there was testimony that on August 2, 1966, the plaintiff, who was two and one-half years old, visited the Prudential Building accompanied by her mother, father, twin brother, grandparents, and two aunts. Upon arrival at the building the family took the elevators to the fortieth floor. From there they took two banks of escalators to the top floor. They did not pay the admission fee to go out on the observation platform since they decided it would not be worthwhile. However, they did remain on the top floor for ten to fifteen minutes looking around and purchasing some souvenirs and postcards.\nAs the family started to leave, plaintiff and her mother proceeded first, followed by the grandparents and aunts and then Mr. Householder and plaintiff\u2019s twin brother. Mrs. Householder helped the plaintiff on the first escalator and together they rode down. At the bottom of the first down-escalator Mrs. Householder picked up the plaintiff by putting her hands on the calves of plaintiff\u2019s legs and lifting her up. Plaintiff and Mrs. Householder then mounted the second down-escalator. Plaintiff held Mrs. Householder\u2019s right hand and placed her other hand on the handrail. Just a moment before they were to step off, Mrs. Householder heard a \u201cslight thump\u201d and plaintiff\u2019s whimper. Mrs. Householder did not know where the sound came from. At about the same time she noticed a \u201clittle extra movement in the escalator, maybe a little jerk or something along with the thump .... It was just ever so slightly.\u201d\nAfter reaching the bottom Mrs. Householder again reached down with her hands on plaintiff\u2019s legs to pick her up. She noticed there was a wetness on plaintiff\u2019s right leg and as she looked down she saw a cut. At no time while on the second down-escalator did plaintiff crouch, fall, sit down, or tug at her mother\u2019s hand. After the \u201cslight thump\u201d plaintiff made no movement which Mrs. Householder observed or felt; she continued to stand erect down the second bank of escalators; and she did not start crying until Mrs. Householder touched her leg. Mrs. Householder did not observe plaintiff\u2019s leg before plaintiff got on the escalator while she was upstairs.\nPlaintiff was taken to the hospital where approximately forty sutures were required to close the wound. The scar on the outside of plaintiff\u2019s right leg measures approximately four and one-half inches in length and one-half inch in width, although the width varies.\nAt the close of plaintiff\u2019s evidence both Prudential and Westinghouse moved for directed verdicts. After argument on the motions the trial court granted directed verdicts for both defendants. Plaintiff appeals only from the directed verdict granted in favor of Prudential.\nOpinion\nPlaintiff contends that she presented sufficient evidence of defendant\u2019s negligence to submit the case to the jury. She bases her contention on the testimony of Mrs. Householder, which she claims shows that her injury must have occurred on the escalator. Defendant argues that there was no showing of negligence on its part which caused \u201cplaintiff\u2019s body to come into contact with the escalator.\u201d\nIn her second amended complaint plaintiff specifically alleged that a sharp portion of defendant\u2019s escalator came in contact with her leg causing a severe and permanent injury. However, at trial plaintiff presented no evidence which would identify \u201csaid sharp portion of the escalator,\u201d and she failed to proffer any evidence that a sharp portion of defendant\u2019s escalator actually came in contact with her leg causing the injury. Therefore, we must conclude that based on plaintiff\u2019s failure to introduce any evidence of \u201csaid sharp portion\u201d there was nothing to submit to the jury on this allegation of defendant\u2019s negligence.\nPlaintiff\u2019s second amended complaint also charged that the defendant \u201cso carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a \u2018bouncing\u2019 fashion, thereby causing the plaintiff\u2019s body to come into contact with the escalator.\u201d Plaintiff had the burden of proving these allegations. In Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159, 159 NE2d 520, the court states:\nIt was the plaintiffs\u2019 overall burden to establish the general or specific negligence of the defendant by a preponderance of the evidence. It was not enough for the plaintiffs to prove they were injured or that they were injured because of the negligence of someone. It was incumbent upon them to prove that the negligence of the defendant caused their injuries.\nMrs. Householder testified that just a moment before plaintiff and she were to step off of the second down-escalator she heard a \u201cslight thump\u201d and plaintiff\u2019s whimper. At about the same time she also noticed \u201ca little extra movement in the escalator, maybe a little jerk or something along with the thump. ... It was ever so slightly.\u201d\nWe believe that this testimony fails to prove the allegations set forth in plaintiff\u2019s second amended complaint. Mrs. Householder did not testify that the escalator shook or moved in a \u201cbouncing fashion\u201d nor did she know where the \u201cslight thump\u201d noise came from. Also, the-\u201clittle extra movement . . . maybe a little jerk\u201d was ever so slight. There was no explanation in evidence, medical or otherwise, as to how so slight a movement could possibly have caused an injury of the kind sustained by plaintiff.\nFurthermore, there was no evidence to support plaintiff\u2019s claim that the alleged movement caused plaintiff\u2019s body to come into contact with the escalator. As the plaintiff and Mrs. Householder started down the second escalator plaintiff had her right hand on the railing of the escalator, with her left hand holding her mother\u2019s right hand. As they continued down the escalator at no time did the plaintiff crouch, fall, sit down, tug, or let go of her mother\u2019s hand. Plaintiff was right beside her mother until Mrs. Householder reached down to take her off. Plaintiff stood erect down the second bank of escalators and made no movement that Mrs. Householder observed or felt. In fact, plaintiff did not start to cry until Mrs. Householder touched her leg.\nWe would also point out that Mr. Householder testified that his in-laws were behind his wife, but he could not observe them since he was still on the first down-escalator. He heard his wife scream as he was alighting therefrom and rode down the second escalator. The escalator was still functioning and he rode down as he would normally. He did not observe anything defective or wrong with the escalators. From his discussions with his in-laws and everyone else who had been there at the time of the alleged occurrence, no one, except his wife, indicated that they had observed or noticed anything unusual about the escalator or its operation.\nIn Tiffin v. Great A. & P. Tea Co., 18 Ill2d 48, 60, 162 NE2d 406, the court, in discussing the question of liability, states:\nLiability may not be based on imagination, speculation, or mere conjecture, and the question of its existence should be submitted for jury determination only where there is some direct evidence supporting each material allegation of the complaint or some circumstantial evidence from which inferences of such facts clearly preponderate.\nSee also Shramek v. General Motors Corp., Chevrolet Motor Division, 69 Ill App2d 72, 216 NE2d 244.\nIn the instant case, in view of the testimony and the photographic exhibits of the escalator, which by themselves show no defect, we must agree with the trial judge\u2019s statement that, \u201cThere is no showing by the testimony presented in plaintiff\u2019s case that in fact the escalator caused the injury in question to the plaintiff here.\u201d Therefore, we find that the trial court properly directed a verdict in favor of the defendant.\nPlaintiff also argues that there was sufficient evidence to submit the case to the jury based on the doctrine of res ipsa loquitur. One of the requirements which the plaintiff must prove before the res ipsa doctrine may be applied is that the instrumentality in question caused the injury. Shramek v. General Motors Corp., supra. However, as heretofore determined, there was no showing by the plaintiff that the escalator in fact caused her injury. Therefore, this is not a case which permits the application of the res ipsa doctrine.\nPlaintiff next contends that the trial court erred in refusing to accept an offer of proof concerning a subsequent inspection of defendant\u2019s escalator by her father, Richard Householder. The offer of proof was \u201cthat he [Richard Householder] went back to the escalator at a subsequent date and at that time examined this escalator most closely and examined the leading edges of these stairs and found that they were sharp and that they were all about in the same condition.\u201d\nThe questioning of Mr. Householder on cross-examination by defendants\u2019 counsel concerned his inspection of the escalator on the day of the accident shortly after he returned from taking plaintiff to the hospital. Plaintiff\u2019s offer of proof, however, concerned Mr. Householder\u2019s inspection of the escalator at a \u201csubsequent date.\u201d It did not give a specific date nor did it show that the condition of the stairs at the time of the alleged occurrence had remained unchanged in the interim. We find no error in the court\u2019s refusal to admit the offer of proof. LaSalle Nat. Bank v. Feldman, 78 Ill App2d 363, 373, 223 NE2d 180, and Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826.\nThe judgment is affirmed.\nAffirmed.\nENGLISH, J., concurs.\nIt seems that the examination referred to in the offer of proof occurred on June 9, 1967, when pictures of the escalators were taken. This was ten months after the accident.", "type": "majority", "author": "MR. JUSTICE DRUCKER" }, { "text": "STAMOS, P. J.,\ndissents:\nThe majority opinion concludes that plaintiff failed to prove causation thereby precluding the application of the doctrine of res ipsa loquitur. I cannot agree that plaintiff has failed to prove the matter of causation.\nMrs. Householder related in her testimony that she assisted plaintiff in embarking upon and disembarking from both escalators in the same manner, by placing one hand under plaintiff\u2019s calves. Neither in assisting plaintiff in embarkation of either escalator nor in disembarkation of the first escalator did Mrs. Householder notice any injury to plaintiff\u2019s leg. However, after disembarking the second escalator, Mrs. Householder immediately perceived plaintiff\u2019s injury. Therefore, the evidence substantiates plaintiff\u2019s claim of being injured during the second escalator ride.\nThe remaining issue then is whether the escalator itself or some other extrinsic force acted upon plaintiff to produce the injury. Mrs. Householder\u2019s only observation as to plaintiff\u2019s reactions during the second escalator ride was that plaintiff whimpered. However, Mrs. Householder did note that plaintiff\u2019s whimper, the erratic escalator movement and the thumping noise occurred simultaneously. It was shortly after these simultaneous happenings that Mrs. Householder discovered the injury upon again touching plaintiff\u2019s calf at the bottom of the escalator.\nIn view of these facts, I feel that the plaintiff has shown a causal relationship between the escalator\u2019s movements and her inj ury.\nThe majority places emphasis upon the fact that Mrs. Householder testified that the \u201cjerk\u201d of the escalator was \u201cever so slight.\u201d However, the operators of escalators must anticipate that their devices will be utilized by the infirmed, aged, handicapped and the very young, as well as the able bodied. The intensity of the \u201cjerk\u201d or abrupt movement of an escalator may be of little or no consequence or alarm to most riders, but in the case at bar a two and one-half year old child is the plaintiff.\nThe severity of the injury she sustained, requiring forty sutures, and the photograph of her injured leg reflect to a great measure what her mother described as a \u201clittle extra movement\u201d and \u201cjerk\u201d that was \u201cever so slight.\u201d\nThe majority also emphasizes the fact that Mrs. Householder did not testify that the escalator moved in a \u201cbouncy fashion\u201d as alleged in the complaint. However, I fail to appreciate the merit in distinguishing a \u201cbounce\u201d from a \u201cjerk\u201d in resolution of the issues presented on appeal.\nWe also note that the majority states that the photographic exhibits of the escalator show no defect. However, the majority held, and I believe properly so, that the plaintiff\u2019s offer of proof as to Mr. Householder\u2019s inspection of the escalator at a subsequent date was properly refused. The photographic exhibits of the escalator were allegedly taken on the same date as Mr. Householder\u2019s subsequent insp\u00e9ction. Therefore, since the offer of proof was inadmissible for remoteness so is the use of the photographs to depict a defect or lack thereof. The photographic exhibits as admitted could be used for purposes of identification only.\nTherefore, I feel that plaintiff presented sufficient evidence to apply the doctrine of res ipsa loquitur and believe that the trial court erred in directing a verdict for defendant. The judgment should be reversed and remanded for new trial.", "type": "dissent", "author": "STAMOS, P. J.," } ], "attorneys": [ "Irving Tischer, of Chicago, for appellant.", "Wildman, Harrold, Allen & Dixon, of Chicago (Harold W. Huff and Howard T. Brinton, of counsel), for appellee." ], "corrections": "", "head_matter": "Pamela Householder, a Minor, by Her Father and Next Friend, Richard Householder, Plaintiff-Appellant, v. The Prudential Insurance Company, Defendant-Appellee.\nGen. No. 53,695.\nFirst District, Fourth Division.\nSeptember 23, 1970.\nSTAMOS, P. J., dissenting.\nIrving Tischer, of Chicago, for appellant.\nWildman, Harrold, Allen & Dixon, of Chicago (Harold W. Huff and Howard T. Brinton, of counsel), for appellee." }, "file_name": "0184-01", "first_page_order": 190, "last_page_order": 198 }