{ "id": 3450425, "name": "BERTHA LAWING, Plaintiff-Appellant, v. THE CHICAGO TRANSIT AUTHORITY, Defendant-Appellee", "name_abbreviation": "Lawing v. Chicago Transit Authority", "decision_date": "1986-03-21", "docket_number": "No. 84\u20140901", "first_page": "119", "last_page": "127", "citations": [ { "type": "official", "cite": "142 Ill. App. 3d 119" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856971 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0453-01" ] }, { "cite": "341 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "34 Ill. 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App. 2d", "case_ids": [ 1592990 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0071-01" ] }, { "cite": "335 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2967379 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0151-01" ] }, { "cite": "407 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 610", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3194513 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0610-01" ] }, { "cite": "61 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "390 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2508486 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill/390/0205-01" ] }, { "cite": "377 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3348908 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0418-01" ] }, { "cite": "396 N.E.2d 1333", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 799", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606330 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0799-01" ] }, { "cite": "364 N.E.2d 660", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 829", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637727 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0829-01" ] }, { "cite": "343 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 37", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2632881 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0037-01" ] }, { "cite": "434 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5472125 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0681-01" ] }, { "cite": "100 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "409 Ill. 420", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5309782 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill/409/0420-01" ] }, { "cite": "217 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 2d 390", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588869 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0390-01" ] }, { "cite": "279 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2838427 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0762-01" ] } ], "analysis": { "cardinality": 830, "char_count": 18172, "ocr_confidence": 0.758, "pagerank": { "raw": 1.1373051100781126e-07, "percentile": 0.5776215138411545 }, "sha256": "6e17edc7f0bb08c0977cc82f3f7416f90f7d352db4b605e3bcb2d492f3fde4d1", "simhash": "1:7a8f3cc3f31a86ba", "word_count": 3003 }, "last_updated": "2023-07-14T17:12:38.085084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERTHA LAWING, Plaintiff-Appellant, v. THE CHICAGO TRANSIT AUTHORITY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff brought an action for damages against defendant for injuries sustained in a fall while exiting one of defendant\u2019s buses. Following a jury trial in the circuit court of Cook County, a verdict was rendered in favor of defendant. On appeal, plaintiff contends that the court erroneously (1) allowed the testimony of the police officer who questioned her at the hospital subsequent to the accident; (2) denied her second motion to amend her complaint to conform to proofs at trial; and (3) allowed defense counsel to deliver a highly prejudicial closing argument which contained derogatory remarks against her counsel and referred to matters that had been excluded by the court on a motion in limine.\nWe affirm.\nOn November 8, 1981, plaintiff, a passenger on a CTA bus, was injured when she fell on the sidewalk curb as she alighted from the vehicle on one of its regularly scheduled stops. Plaintiff first filed a one-count complaint against defendant CTA claiming that its driver, Jesus Davila, had allowed the bus, on which she was a passenger, to lurch forward while her right foot was still on the bottom step of the vehicle. According to plaintiff, it was this sudden and unexpected movement that caused her to be thrown to the pavement and to sustain serious injury. A hospitalization case report of the accident was filled out by Chicago police officer Lawrence Bartoli at the time plaintiff received treatment for her injuries.\nAt the deposition of the bus driver, Jesus Davila, defendant\u2019s counsel produced a photograph of the intersection where the accident occurred and plaintiff\u2019s counsel, at that time, made a xerox copy of said photo.\nOn January 27, 1984, two days after trial had commenced and the testimony of plaintiff and several other witnesses had been heard, plaintiff requested and was granted leave of court to amend her complaint to allege negligence on the part of the bus driver in operating the vehicle.\nShortly thereafter, following the close of her case in chief, plaintiff once again sought leave to amend her complaint by including an additional count alleging that the CTA bus driver had been negligent in failing to warn plaintiff of the dangerous and deteriorating condition of the sidewalk in or about the area she exited the bus. Plaintiff claims it was only after defendant\u2019s counsel opening statement (where reference was made to the fact that the sidewalk in the area of the accident was in disrepair), and Davila\u2019s cross-examination (where it was revealed that he had known about the condition of the sidewalk for approximately V-k to 2 years, but had failed to warn her about the condition before she alighted from the bus) that she first became aware of the condition of the sidewalk, thereby necessitating that she amend her complaint to conform to the newly revealed evidence.\nThe trial court denied plaintiff\u2019s motion to amend her complaint to add another count on the basis that (1) it was untimely, since photos of the scene showing the condition of the pavement had been available to her counsel prior to trial and sufficient time had been thus provided to file a second count, and (2) there was no evidence to support a claim that she fell because of the condition of the sidewalk. Plaintiff nonetheless maintained that the photocopies of the scene that were furnished prior to trial did not show the deteriorated condition of the sidewalk.\nDuring the trial, police officer Bartoli was called to testify as one of defendant\u2019s witnesses. At this time, defense counsel requested that the police hospitalization report, which the officer had filled out while plaintiff was being treated for her injuries, be marked as one of defendant\u2019s exhibits. Defense counsel then told the officer to feel free to refer to the report if he needed to refresh his recollection. At no time, however, was the witness asked whether, in fact, he needed the report to aid his memory with regards to the events in question. Defense counsel proceeded to question Officer Bartoli as to admissions made by plaintiff during their conversation at the hospital on the day she was injured. Plaintiff\u2019s counsel made no attempt to object to Officer Bartoli\u2019s testimony and subsequently cross-examined him extensively.\nDuring defense counsel\u2019s closing argument, mention was made of the fact that plaintiff had brought a prior lawsuit against the CTA in 1977 for personal injuries. This matter had been previously excluded by the court on a motion in limine. Plaintiff\u2019s counsel\u2019s objections, however, were overruled by the trial court.\nFollowing the trial and upon deliberation, the jury returned a verdict in defendant\u2019s favor. Plaintiff then moved for judgment notwithstanding the verdict, or a new trial. According to plaintiff, three factors weighed in favor of a new trial: (1) the use made of the police report by defense counsel and the lack of any showing of necessity for its use; (2) the court\u2019s denial of leave to amend the complaint to add another count when the new evidence adduced at trial was relied upon by defense counsel in his opening statement and closing argument; and (3) the prejudicial and improper statements made by defense counsel against plaintiff\u2019s counsel at closing argument.\nThe trial court denied plaintiff\u2019s motion noting, among other things, that the xerox copies of the scene of the accident made available to plaintiff\u2019s counsel prior to trial showed the same deteriorated condition of the curbing and sidewalk as defense counsel\u2019s original photos, and that these copies gave sufficient notice of the condition of the pavement to have alerted plaintiff to act sooner. Plaintiff appeals from the jury verdict, requesting that it be reversed or, alternatively, that a new trial be granted.\nOpinion\nPlaintiff first contends that the use of the hospitalization report and Officer Bartoli\u2019s testimony improperly prejudiced her cause. The prejudicial error with respect to the use of the report and the testimony elicited therefrom is, according to plaintiff, two-fold: (1) defendant allowed an inadmissible police report to be exhibited and read from a fully uniformed police officer witness on direct examination as if the report were admissible evidence; and (2) defendant failed to lay the required evidentiary foundation for any permitted use of the document to either refresh the witnesses\u2019 memory, or to serve as any record of past recollection. Further impropriety is claimed on the basis that defense counsel and the witness allegedly \u201cwaved\u201d the police report before the jury, a conduct so prejudical as to prevent plaintiff from receiving a fair trial.\nDefendant not only maintains that plaintiff\u2019s allegations are wholly unsupported by the record, but that, even if there was error, plaintiff is now precluded from raising it on appeal because she failed to make a timely objection.\nIt is well settled that an objection to the introduction of evidence must be made at the time of its admission or it will be considered waived. (Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 279 N.E.2d 186; Schaffer v. Dorsey (1966), 70 Ill. App. 2d 390, 217 N.E.2d 19.) The law does not allow parties to lawsuits to sit by and permit allegedly improper evidence to be introduced without objection and then claim error on appeal. (In re Fisher\u2019s Estate (1951), 409 Ill. 420, 100 N.E.2d 564; Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793.) Further, since a foundation defect may be corrected by the adverse party during the course of trial if it is pointed out, the timeliness requirement is especially relevant to objections made on the basis of lack of proper foundation. (Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 343 N.E.2d 207.) Thus, a party who fails to make an objection based on foundation may not subsequently, after an adverse verdict, attempt to use the alleged lack of foundation as a basis for reversal on appeal. Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660.\nAlthough it appears from the record that defendant failed to lay the proper foundation prior to using the police report, plaintiff\u2019s counsel admittedly did not object either to Officer Bartoli\u2019s testimony or to the improper use of the hospitalization case report. In fact, the record shows that the witness was subsequently cross-examined extensively. It is inconsequential to our determination that plaintiff objected to the use of the report in her motion for a new trial after a verdict was entered in defendant\u2019s favor. A party cannot attempt to preserve error by first raising his objections in a post-trial motion and then on appeal. (Brumley v. Federal Barge Lines, Inc. (1979), 78 Ill. App. 3d 799, 396 N.E.2d 1333.) We further find no merit in plaintiff\u2019s attempts to exculpate herself from making a timely objection based in improper foundation on the fact that she wished to avoid further prejudice or, as raised by counsel for the first time in oral arguments, that there was confusion as to which attorney was going to make objections.\nPlaintiff lastly urges us to look upon her case as falling within the exception to the general rule governing waiver since the conduct engaged in by defense counsel and witness was allegedly so prejudicial as to prevent her from receiving a fair trial. However, there is nothing in the record to support plaintiff\u2019s allegations that defense counsel and Officer Bartoli \u201cwaved\u201d the subject report before the jury. Since no evidence exists that such conduct took place during trial, we must reject plaintiff\u2019s contention that error should be entertained upon review, notwithstanding her failure to make an objection.\nHaving determined that any alleged error was waived by the failure to make a timely objection, we next turn to the issue of whether the trial court erred by refusing to allow plaintiff to amend her complaint to conform to proof.\nThe decision to grant or deny leave to amend is vested in the sound discretion of the trial court. (Perry v. Cronin (1978), 61 Ill. App. 3d 418, 377 N.E.2d 1321; Corwin v. Rheims (1945), 390 Ill. 205, 61 N.E.2d 40.) This discretion is broad and will not be upset absent a clear and manifest showing of abuse. Lake County Forest Preserve District v. Frecska (1980), 85 Ill. App. 3d 610, 407 N.E.2d 137; Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 335 N.E.2d 10.\nThere are several established guidelines which a trial court may consider in determining when denial of a motion to amend is appropriate. These considerations include: (1) whether there were previous opportunities to amend; (2) whether the record shows no valid reason for the failure to make a timely amendment; and (3) whether the amendment is prejudicial or would alter the nature of proof required to defend the action. Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71, 248 N.E.2d 534.\nIn the instant case, plaintiff was given previous opportunity to amend when, on the fourth day of trial, she requested and was granted leave to amend her complaint to narrow the issue to whether the driver negligently caused the bus to move or jerk. Moreover, plaintiff had no apparent valid reason for not moving to amend her complaint on the alleged \u201cfailure to warn\u201d issue prior to trial. Plaintiff\u2019s counsel was shown the original photographs of the scene of the accident at the deposition of Mr. Davila. He was, at that time, allowed to make a photocopy of said photograph. The deposition of Mr. Davila took place a year prior to trial, affording plaintiff ample opportunity to study the photograph and put him on notice of the allegedly defective condition of the pavement.\nWe find no merit in plaintiff\u2019s argument that her counsel never had the original photograph in his possession long enough to discriminate such details. Further, there is nothing in the record to support plaintiff\u2019s contention that the xerox copy made by counsel was indistinct and failed to reveal the true condition of the curb and sidewalk where the accident occurred. We agree with defendant that even if there had been insufficient time to study the original photo and the copy derived therefrom inaccurately represented the deteriorated condition of the pavement, plaintiff still had the opportunity to question Mr. Davila about these pictures, his knowledge of the condition of the sidewalk and any other matters relative to this case at his deposition.\nFinally, there seems to be no evidence in the record to support the additional theory that plaintiff sought to advance in her complaint through her amendment. Neither plaintiff nor Mr. Davila testified that plaintiff fell on a portion of the sidewalk which was in disrepair. While Mr. Davila in referring to his report did describe the general condition of certain parts of the pavement where plaintiff alighted from the bus as \u201ccrumbling\u201d and \u201cdeteriorating,\u201d he did not state that plaintiff fell because of the disrepair in the sidewalk.\nIn order to permit an amendment allegedly to conform to proof, the proof already produced must support the amendment. (Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71, 248 N.E.2d 534; see also Friestedt v. Chicago Transit Authority (1970), 129 Ill. App. 2d 153, 262 N.E.2d 771.) In denying plaintiff leave to amend her complaint, the trial court concluded that there was insufficient evidence submitted on the issue in question to allow plaintiff to amend her pleadings to conform to proof. The conclusion of the trial court that there is no evidence to support a claim that plaintiff fell because of the condition of the sidewalk is not contrary to the manifest weight of the evidence. Accordingly, the court\u2019s ruling was not error.\nThe final issue raised by this appeal is whether defense counsel\u2019s closing argument was so improper and prejudicial as to have cost plaintiff a fair trial. It is first argued that unwarranted characterizations of counsel for plaintiff served to arouse the passion and prejudice of the jury, thereby resulting in a verdict for defendant. This was allegedly accomplished by personally attacking counsel and unfairly charging that he \u201cstructured\u201d the testimony of the case as well as distorted and maximized plaintiff\u2019s damages.\nIn determining whether or not a party has been denied a fair trial based on arguments to the jury, the permissible character and scope of such argument is largely left to the trial court. Every reasonable presumption must be indulged that the trial court has performed its duty and properly exercised the discretion vested in it. (Enloe v. Kirkwood (1970), 120 Ill. App. 2d 117, 256 N.E.2d 459.) The trial judge\u2019s determination will not be disturbed unless there has been a clear abuse of discretion. (Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 341 N.E.2d 59.) The reasoning behind vesting the trial court with such broad discretion stems from the notion that the court is in a much better position to judge the prejudicial effect, if any, of counsel\u2019s conduct. Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610.\nIn the instant case, the trial judge was very familiar with the conduct of counsel for both plaintiff and defendant at all times during trial, including closing argument. He not only had the opportunity to hear firsthand all of the testimony and arguments, but also observed the parties and their counsel at length and gauged their credibility and effect on the jury. In addition, the trial judge was put on notice and was able to consider plaintiff\u2019s charges regarding the alleged improper conduct of defense counsel in a post-trial motion. In the end, it was concluded that plaintiff had received a fair trial in this case. We see no reason to overturn his decision. There are no statements or remarks in the subject closing argument that, when read in context, appear to fall outside the confines of the perimeters allowed by law. Since the record supports the judge\u2019s decision, we reject plaintiff\u2019s contention that the statements made by defense counsel during closing argument were so inflammatory as to warrant reversal of the jury\u2019s verdict.\nMore important to the issue of impropriety is plaintiff\u2019s charge that defense counsel in his closing argument misstated evidence and argued matters which had been previously excluded by the court on a motion in limine. Specifically, it is contended that it was improper for defense counsel to argue to the jury that plaintiff had filed a prior personal injury lawsuit. It is further maintained that because there was no evidence of this before the jury, defense counsel\u2019s remarks amounted to a misstatement of the evidence.\nWe need not dwell on the issue of misstatement since the record clearly shows that, in response to a question by her own counsel, plaintiff specifically stated that she filed a previous suit against the CTA. Plaintiff\u2019s argument that there was no evidence of the prior suit before the jury is, therefore, without merit.\nWith regards to the statement by defense counsel in his closing argument that plaintiff \u201chad a prior lawsuit for personal injuries back on the stand back in 1977,\u201d we do not find this remark to constitute prejudicial error since it was not used to speculate about plaintiff\u2019s prior injuries and to relate those to any current suffering or condition she might have. Moreover, even if reference to the prior lawsuit were to be construed as error, it can be deemed nothing but harmless error, because the ruling of the judge on the motion in limine sought to exclude the matter solely from plaintiff\u2019s cross-examination rather than from counsel\u2019s closing argument. We therefore reject plaintiff\u2019s allegations that reversal of the jury's verdict is warranted on this basis.\nThe judgment of the trial court is affirmed.\nAffirmed.\nSULLIVAN, P.J., and MURRAY, J., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Mitchell Ware and Frank M. Grenard, both of Jones, Ware & Grenard, of Chicago, for appellant.", "Jean M. Golden and Joseph A. Giannelli, both of Chicago, for appellee." ], "corrections": "", "head_matter": "BERTHA LAWING, Plaintiff-Appellant, v. THE CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 84\u20140901\nOpinion filed March 21, 1986.\nMitchell Ware and Frank M. Grenard, both of Jones, Ware & Grenard, of Chicago, for appellant.\nJean M. Golden and Joseph A. Giannelli, both of Chicago, for appellee." }, "file_name": "0119-01", "first_page_order": 141, "last_page_order": 149 }