{ "id": 910231, "name": "MIKEAL ASHPOLE et al., Plaintiffs-Appellants, v. BRUNSWICK BOWLING AND BILLIARDS CORPORATION, Indiv. and d/b/a Brunswick Deer Park Lanes, et al., Defendants-Appellees", "name_abbreviation": "Ashpole v. Brunswick Bowling & Billiards Corp.", "decision_date": "1998-07-20", "docket_number": "No. 2\u201497\u20140811", "first_page": "725", "last_page": "730", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 725" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108040 ], "year": 1993, "pin_cites": [ { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0940-01" ] }, { "cite": "283 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182771 ], "year": 1996, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0656-01" ] }, { "cite": "235 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783239 ], "year": 1992, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0406-01" ] } ], "analysis": { "cardinality": 522, "char_count": 10403, "ocr_confidence": 0.755, "pagerank": { "raw": 1.393450072180417e-07, "percentile": 0.643254683960339 }, "sha256": "490aabe4e9f3234130ec4b43cf80b690b3c94e46aa596fb61d86cb76b2c6c122", "simhash": "1:adab12d8708f506a", "word_count": 1639 }, "last_updated": "2023-07-14T14:41:46.412422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIKEAL ASHPOLE et al., Plaintiffs-Appellants, v. BRUNSWICK BOWLING AND BILLIARDS CORPORATION, Indiv. and d/b/a Brunswick Deer Park Lanes, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nThis case arose when plaintiff Mikeal Ashpole slipped and fell at a bowling alley owned and operated by defendants, Brunswick Bowling & Billiards Corporation and Rick Barbera. Mikeal and his wife, Dawn Ashpole (collectively, plaintiffs), brought an action for personal injuries and loss of consortium. Following a jury verdict in favor of defendants, plaintiffs appeal the order of the circuit court of Lake County denying their posttrial motion. Plaintiffs contend that, as a sanction for discovery violations, the testimony of Patricia Baughn should have been precluded or stricken. We reverse and remand for a new trial.\nConcerning the facts in controversy, plaintiffs maintain that Mikeal fell and fractured his ankle when he slipped on some lane oil that contaminated the approach, the area from which the bowler throws his ball. Defendants- maintain that Mikeal crossed over the foul line, got lane oil on his shoes, then slipped and fell. At trial, Patricia Baughn was the only defense witness who testified that she observed the accident.\nDuring the course of discovery, plaintiffs filed interrogatories requesting, among other things, the identities of the witnesses to the accident, the identities of the employees working at the time of the accident, and the identities of all persons who might possibly testify on behalf of defendants. Defendants disclosed Baughn as an employee on duty at the time of the accident, but she was never identified either as a witness or as a potential witness.\nPlaintiffs admit that \u201cPat\u201d was assisting them with the scoring computer as they began to bowl. After Mikeal fell, Dawn testified that she needed to call to \u201cPat\u201d and other employees in order to get their attention.\nBefore trial, plaintiffs filed a motion in limine to bar the testimony of any witnesses not already disclosed by defendants. At the end of the second day of trial, defendants disclosed that they wished to call Baughn to testify. Plaintiffs objected off the record at that point because the court reporter had left for the day. The next morning, plaintiffs objected on the record to allowing Baughn to testify. Following her testimony, plaintiffs moved to strike her testimony, but the trial court denied their motion.\nPlaintiffs filed a posttrial motion, seeking the entry of judgment in their favor or a new trial based on defendants\u2019 discovery violation. After hearing argument, the trial court denied plaintiffs\u2019 motion. Plaintiffs timely appeal.\nOn appeal, plaintiffs argue that the trial court erred by allowing Baughn\u2019s testimony into evidence. Plaintiffs contend that they were surprised and prejudiced by Baughn\u2019s testimony and that the trial court abused its discretion by failing to bar it, strike it, or declare a mistrial. We agree.\nPreliminarily, we note that defendants do not argue that they did not violate Supreme Court Rule 213 (166 Ill. 2d R. 213). Accordingly, we are left with the question of what, if any, sanction is appropriate for defendants\u2019 violation of the rules of discovery.\nSupreme Court Rule 219 (166 Ill. 2d R. 219) empowers the court to impose a number of sanctions, including barring a witness from testifying, for discovery violations. In determining whether the exclusion of a witness is a proper sanction for nondisclosure, the court must consider \u201c(1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness.\u201d Curran Contracting Co. v. Woodland Hills Development Co., 235 Ill. App. 3d 406, 411 (1992). As the imposition of sanctions for the failure to comply with discovery rules lies within the trial court\u2019s discretion, we will not reverse the trial court\u2019s decision absent a clear abuse of discretion. Blott v. Hanson, 283 Ill. App. 3d 656, 661 (1996).\nPlaintiffs were completely surprised by Baughn\u2019s testimony. ' Plaintiffs submitted interrogatories requesting, among other things, the identity of possible witnesses on January 19, 1996. Defendants\u2019 answer, submitted on March 18, 1996, did not list Baughn as a possible witness. Defendants provided supplemental answers to the interrogatories on December 12, 1996, and March 31, 1997, neither of which included Baughn as a possible witness. Defendants also failed to include Baughn as a possible witness on the pretrial statement. We conclude that this factor was strongly in favor of plaintiffs.\nDefendants argue that plaintiffs had notice of Baughn\u2019s identity because she was listed as an employee who was present at the bowling alley at the time of the accident and was helping plaintiffs with the scoring computer. We note, however, that defendants listed three \u201cPats\u201d as working at the time of the accident: Patti Baughn, Pat Gorski, and Pat Gunn. Additionally, defendants never identified any of these \u201cPats\u201d as possible witnesses. While it is true that plaintiffs could have deposed all employees named \u201cPat,\u201d we nevertheless believe that plaintiffs were entitled to rely on defendants\u2019 answers to their interrogatories. Discovery is not a game; rather, our discovery rules require full and complete disclosure in order to promote the speedy and efficient resolution of cases. Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 947 (1993). This includes the naming of potential witnesses.\nThe next two factors, prejudice and the nature of the testimony, favor plaintiffs. Baughn was the only defense eyewitness to Mikeal\u2019s accident. Her testimony was relevant, material, and not cumulative to that of the other defense witnesses; it embodied defendants\u2019 theory of the case, that Mikeal crossed the foul line and slipped. We cannot say that the jury still would have returned a defense verdict in the absence of Baughn\u2019s testimony.\nDefendants argue that the testimony is cumulative and not prejudicial. We disagree. We emphasize the fact that this was purportedly eyewitness testimony. Baughn stated that she saw Mikeal cross over the foul line into the oiled part of the lane. Then she saw him slip and fall. The other defense witnesses provided only circumstantial evidence to support the defendants\u2019 theory, such as where Mikeal landed and where oil streaks were located. Thus, because Baughn\u2019s testimony is unique, it is not cumulative; and because it is the only affirmative, noncircumstantial defense account of the accident, it is clearly prejudicial.\nDefendants also contend that, because the trial court determined that plaintiffs\u2019 cross-examination was effective at impeaching Baughn\u2019s credibility, plaintiffs were not prejudiced. To what extent, if any, Baughn\u2019s credibility was impeached by plaintiffs\u2019 cross-examination was for the jury to decide. We will not indulge in speculating, based on the cold, lifeless record before us, about what weight the jury accorded Baughn\u2019s testimony. We are only able to say that, had Baughn been precluded from testifying, we do not know what the outcome would have been.\nThe next factor to consider is plaintiffs\u2019 diligence in pursuing Baughn\u2019s identity. Plaintiffs asked for the identities of all occurrence witnesses and deposed all the individuals defendants identified. Defendants never identified Baughn as a potential witness in their answers or supplements to plaintiffs\u2019 discovery requests. We believe that plaintiffs were diligent in seeking out Baughn\u2019s testimony before trial.\nDefendants argue that, because plaintiffs admit that \u201cPat\u201d was helping them, and \u201cPatti Baughn\u201d was disclosed as an employee working at the relevant time, plaintiffs were dilatory in discovering Baughn\u2019s testimony. We disagree. Plaintiffs were entitled to rely on defendants\u2019 disclosure of potential witnesses. Not until the end of the second day of trial, after the court reporter had left for the evening, did defendants announce their intention to call Baughn as a witness. Based on these facts, we cannot conclude that plaintiffs\u2019 failure to discover Baughn\u2019s testimony before trial was attributable to a lack of diligence. We find that this factor favors plaintiffs.\nThe fifth factor to consider is the timeliness of plaintiffs\u2019 objection. Here, plaintiffs objected as soon as defendants announced their intention to call Baughn as a witness. Plaintiffs also moved to strike the testimony and raised the issue in their posttrial motion. We find that plaintiffs\u2019 objection was timely and preserved the error.\nThe final factor to consider is defendants\u2019 good faith in calling Baughn as a witness. The record indicates that Baughn was not disclosed as a witness until after trial had commenced. It further indicates that three days before trial defense counsel had contacted Baughn about testifying. Defense counsel indicated, after the second day of trial, that Baughn would be called to testify the next day. Defense counsel\u2019s affidavit states that he learned of the substance of Baughn\u2019s testimony at noon on the third day of trial. According to defense counsel, then, he determined to call Baughn to testify before he knew what she would say. The record clearly demonstrates that defendants acted in bad faith. This factor also weighs heavily in favor of plaintiffs.\nWe find that all of the factors weigh in favor of precluding Baughn\u2019s testimony. We therefore hold that the trial court abused its discretion by allowing Baughn to testify. Because we cannot say that Baughn\u2019s testimony had no effect on the outcome of the trial, this case must be remanded for a new trial. As a sanction for defendants\u2019 discovery violations, Baughn will be precluded from testifying on remand.\nFor the foregoing reasons, the judgment of the circuit court of Lake County is reversed and the cause remanded for further proceedings consistent with this order.\nReversed and remanded.\nGEIGER, EJ., and DOYLE, J., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Michael H. Postilion and Catherine Postilion, both of Michael H. Postilion, Ltd., of Chicago, for appellants.", "Nancy G. Lischer, Gary W. Klages, and Timothy G. Shelton, all of Hinshaw & Culbertson, of Chicago, for appellees." ], "corrections": "", "head_matter": "MIKEAL ASHPOLE et al., Plaintiffs-Appellants, v. BRUNSWICK BOWLING AND BILLIARDS CORPORATION, Indiv. and d/b/a Brunswick Deer Park Lanes, et al., Defendants-Appellees.\nSecond District\nNo. 2\u201497\u20140811\nOpinion filed July 20, 1998.\n\u2014 Rehearing denied August 17, 1998.\nMichael H. Postilion and Catherine Postilion, both of Michael H. Postilion, Ltd., of Chicago, for appellants.\nNancy G. Lischer, Gary W. Klages, and Timothy G. Shelton, all of Hinshaw & Culbertson, of Chicago, for appellees." }, "file_name": "0725-01", "first_page_order": 743, "last_page_order": 748 }