{ "id": 4271880, "name": "HAROLD MATTHEWS et al., Plaintiffs-Appellants, v. AVALON PETROLEUM COMPANY et al., Defendants-Appellees", "name_abbreviation": "Matthews v. Avalon Petroleum Co.", "decision_date": "2007-06-29", "docket_number": "No. 1-05-2606", "first_page": "1", "last_page": "16", "citations": [ { "type": "official", "cite": "375 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "327 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79386 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0695-01" ] }, { "cite": "169 Ill. 2d 292", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909167 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/169/0292-01" ] }, { "cite": "267 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333097 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0611-01" ] }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "215 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059883 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "105" }, { "page": "105" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0078-01" ] }, { "cite": "185 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121957 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "391" }, { "page": "392" }, { "page": "390" }, { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0380-01" ] }, { "cite": "353 Ill. 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App. 3d", "case_ids": [ 2468093 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "36" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0030-01" ] }, { "cite": "363 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766277 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "355" }, { "page": "355" }, { "page": "355" }, { "page": "355" }, { "page": "355" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0343-01" ] }, { "cite": "273 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258492 ], "year": 1995, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0681-01" ] }, { "cite": "373 Ill. App. 3d 439", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270573 ], "year": 2006, "pin_cites": [ { "page": "454", "parenthetical": "Campbell, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0439-01" ] }, { "cite": "367 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265083 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "645" }, { "page": "649" }, { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0641-01" ] }, { "cite": "201 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477049 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0260-01" ] }, { "cite": "188 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536152 ], "year": 1999, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0102-01" ] }, { "cite": "198 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29951 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0541-01" ] }, { "cite": "278 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156833 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "322", "parenthetical": "de novo review applied where special interrogatory conflicted with general jury verdict" }, { "page": "322" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0318-01" ] }, { "cite": "216 Ill. 2d 622", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828075 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "633" }, { "page": "633" }, { "page": "642", "parenthetical": "\"whether two verdicts are legally inconsistent is a question of law\" which \"is subject to de novo review\"" }, { "page": "644", "parenthetical": "\"verdict or verdicts will not be considered irreconcilably inconsistent if supported by any reasonable hypothesis\"" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0622-01" ] } ], "analysis": { "cardinality": 1153, "char_count": 33710, "ocr_confidence": 0.742, "pagerank": { "raw": 6.866774077678383e-08, "percentile": 0.418118006107692 }, "sha256": "64b5527259049e6bfb48866022850b9e464ab7aeb481f84de5069df9ee1d1e98", "simhash": "1:8b76a92246d4d7fd", "word_count": 5582 }, "last_updated": "2023-07-14T20:53:12.225665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HAROLD MATTHEWS et al., Plaintiffs-Appellants, v. AVALON PETROLEUM COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nThis is a slip and fall case. Plaintiff Harold Matthews, a truck driver, sued defendants to recover for injuries sustained when he tripped and fell over a piece of metal jutting up near a fuel pump. He sued defendant Avalon Petroleum Company (Avalon), the owner of the fuel pump, on a claim of premises liability; he sued defendant Petroleum Technologies Equipment, Inc. (PTE), which Avalon called to repair the pump, for failing to make timely repairs, and he sued defendant Allied Drywall Materials Management Corporation (Allied), whose driver hit the fuel pump and caused the damage. Plaintiff Phyllis Matthews brought claims against all three defendants for loss of consortium and time from work and for her husband\u2019s medical bills. The jury found for defendants, and plaintiffs brought this appeal alleging numerous errors at trial. For the reasons set forth below, we affirm.\nBACKGROUND\nOn July 24, 2001, plaintiff Harold Matthews, a 60-year-old truck driver, tripped and fell over a piece of metal jutting up from a fuel pump island on property owned by defendant Avalon and located on South Crawford Avenue in Markham, Illinois. Plaintiff sustained a fractured hip, resulting in surgery with the placement of screws and metal plates to set the fracture. Plaintiff claims that he is disabled for work return.\nDefendant Avalon, which owned the subject pump, is a corporation that sells fuel to truck drivers. Defendant Allied is a corporation that purchases fuel for its trucks at Avalon and whose driver, Charles Smith, struck the fuel pump with his truck on July 3, 2001, causing the metal jutting found in the fuel pump island. The collision caused a piece of metal rim or rail along the bottom of the fuel island to point up several inches. Defendant PTE is a corporation that installs and repairs fuel pumps that was called by Avalon on July 9 to assess and repair the damage. PTE came on July 9 to assess the damage and made some intermediate repairs, such as removing a light pole and straightening a vent pipe. The metal rim was not repaired until July 31, 2001, a week after plaintiff fell, because a needed part was not in stock and PTE had to order it.\nPlaintiff drove a tractor-trailer truck for Vans, Inc. (Vans), a wholesale florist supply company, which required its drivers to purchase fuel at Avalon. At the end of his workday, plaintiff was required to go to Avalon to fill up the fuel tanks on the truck prior to returning to the Vans\u2019 warehouse. When plaintiff returned to work in early July after a vacation and prior to his injury, he noticed that the fuel pump had been damaged and was aware of the metal jutting up from the fuel pump. Between the time when he first noticed the metal and the time of his injury, he filled up the truck 10 to 12 times at the damaged fuel pump without incident.\nPlaintiff testified at trial that at the time that he fell, he did not know what caused him to fall. However, \u201cwhen [he] looked at the photographs\u201d of the damaged fuel pump, he then \u201crealized\u201d that he had \u201cstepped on the piece of metal that was sticking up.\u201d After he fell and was still in the hospital, his daughters visited Avalon, took photographs and showed him the photographs of the damaged pump. Plaintiff testified that it was his review of the photographs that made him realize what had happened.\nAt trial, plaintiff testified that his work boot became caught on the metal rim. Then on cross-examination he was impeached from his deposition testimony, where he denied that his work boot had caught on the metal rim and claimed that his foot had slipped out from under him. He then testified: \u201cI know what I did. I stepped on the piece of metal.\u201d\nThe jury was given a special interrogatory which said: \u201cDo you the jury find that Avalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews\u2019 position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk?\u201d The jury answered yes to the special interrogatory, but returned a general verdict for defendants. The trial court then heard arguments on plaintiffs\u2019 posttrial motion, which was denied, and this appeal followed.\nPlaintiffs raise six claims of error by the trial court on appeal: (1) that the jury\u2019s general verdict for the defendants was inconsistent with its response to the special interrogatory, and as a result plaintiff should have been granted a new trial; (2) that \u201cthe trial court applied the wrong standard for determining defendant Avalon\u2019s liability\u201d; (3) that the trial court refused to allow deposition impeachment testimony of Avalon\u2019s operations manager, Charles Stubblefield; (4) that the trial court allowed Stubblefield to give undisclosed expert opinion testimony; (5) that the trial court refused to admit evidence of defendants Avalon and PTE\u2019s failure to barricade or place warning signs; and (6) that the trial court allowed a jury instruction on issues which stated that \u201cdefendants claim\u201d that plaintiff \u201cfailed to avoid an obvious danger that he was aware existed while entering upon the fuel island.\u201d\nANALYSIS\nPlaintiffs raise several different claims on appeal, which require different standards of review. \u201c[A] standard of review applies to an individual issue, not to an entire appeal. Each question raised in an appeal is subject to its own standard of review.\u201d Redmond v. Socha, 216 Ill. 2d 622, 633 (2005). This opinion will discuss the respective standard of review prior to the discussion of each claim.\nFirst, plaintiffs claim that they must be granted a new trial because the jury\u2019s general verdict for defendants was inconsistent with its response to the special interrogatory. None of the parties discussed the standard of review in their appellate briefs. Redmond was the first Illinois decision, either from the supreme court or the appellate court, that expressly stated that the determination of legal inconsistency is a question of law and thus subject to de novo review. Redmond, 216 Ill. 2d at 633. Thus, this court will apply de novo review to plaintiffs\u2019 claim of inconsistency. Redmond, 216 Ill. 2d at 642 (\u201cwhether two verdicts are legally inconsistent is a question of law\u201d which \u201cis subject to de novo review\u201d); DiMarco v. City of Chicago, 278 Ill. App. 3d 318, 322 (1996) (de novo review applied where special interrogatory conflicted with general jury verdict).\nThe Illinois Supreme Court has held that when \u201ca special interrogatory does not cover all the issues submitted to the jury,\u201d a court will not grant a new trial so long as any \u201c \u2018reasonable hypothesis\u2019 exists\u201d to construe the general jury verdict consistent with the jury\u2019s response to the special interrogatory. Simmons v. Garces, 198 Ill. 2d 541, 556 (2002); Redmond, 216 Ill. 2d at 644 (\u201cverdict or verdicts will not be considered irreconcilably inconsistent if supported by any reasonable hypothesis\u201d); DiMarco, 278 Ill. App. 3d at 322. In construing the verdict, a court must \u201cexercise all reasonable presumptions in favor of the verdict.\u201d Redmond, 216 Ill. 2d at 643; Simmons, 198 Ill. 2d at 556.\nWith this procedural framework in mind, \u201cour review of the circuit\u2019s decision is governed by the elements of the cause of action alleged by plaintiffs in their complaint[].\u201d McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133 (1999). In their third amended complaint, plaintiffs alleged: (1) claims for premises liability against all three defendants; (2) a claim against only Allied for negligently damaging the gas pump island; (3) a claim against PTE for failure to repair; and (4) claims against all three defendants by Phyllis Matthews for loss of consortium, loss of time from work, and liability for her husband\u2019s medical expenses. At trial, the jury was asked to consider the claim of premises liability against only Avalon.\nThe special interrogatory asked the jury to answer either yes or no to the following question:\n\u201cDo you the jury find that Avalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews\u2019 position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk?\u201d\nThe interrogatory at issue asked only about defendant Avalon, and the only cause of action against Avalon (other than the wife\u2019s derivative claims) was premises liability.\n\u201c[I]n construing the meaning of a special interrogatory, courts must examine it in light of the jury instructions to determine how the jury understood the interrogatory.\u201d DiMarco, 278 Ill. App. 3d at 322. The trial court gave Illinois Pattern Jury Instructions, Civil, No. 120.09 (2005) about Avalon\u2019s premises liability, and neither party disputes the propriety of giving this instruction. The trial court told the jurors that in order for plaintiffs to recover against Avalon, they had to find that plaintiff had proven all of the following six elements:\nthere was a condition on the fuel island which presented an unreasonable risk of harm;\nAvalon knew or in the exercise of ordinary care should have known of both the condition and the risk;\nAvalon could reasonably expect that a reasonable person in the plaintiff\u2019s position knowing of the condition would proceed to encounter it because the advantage of doing so outweighs the apparent risk;\nAvalon was negligent;\nplaintiff was injured; and\nAvalon\u2019s \u2018negligence was a proximate cause of the plaintiffs injury\u2019 \u201d\nThe trial court then instructed the jury concerning contributory negligence. The court told the jurors that if they found that \u201cPlaintiffs contributory negligence was more than 50% of the total proximate cause of the injury *** then [their] verdict should be for Defendant Avalon.\u201d\nIn denying the plaintiffs\u2019 posttrial motion, the trial court found there was a reasonable hypothesis for construing the jury\u2019s verdict as consistent with its interrogatory response. The \u201cjury could have concluded that the plaintiff was more than 50 percent contributorily negligent.\u201d\nWhile this court reviews the trial court\u2019s decision de novo, we agree with the trial court. Plaintiffs claim on appeal that element number 3, the subject of the interrogatory, was the only element in dispute and that they had proved the other five out of six elements listed in the jury instruction. Even if plaintiffs are correct in assuming that the jurors found that plaintiffs had carried their burden with respect to the other five elements, the jury could still have found for the defendants by finding the plaintiffs were more than 50% contributorily negligent. Plaintiffs do not claim that there was insufficient evidence in the record to find Harold Matthews negligent.\nSecond, plaintiffs claim that \u201cthe trial court applied the wrong standard for determining defendant Avalon\u2019s liability.\u201d In support of this claim, plaintiffs point to comments by the trial court allegedly made in front of the jury and allegedly misstating the law. In essence, plaintiffs appear to claim that the trial judge misinstructed the jury concerning the law during the evidentiary phase of trial and prior to the jury instructions.\n\u201cA reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.\u201d Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002); Lange v. Freund, 367 Ill. App. 3d 641, 645 (2006). Plaintiffs alleged that the court made three misstatements of law to the jury. First, the court stated to plaintiffs\u2019 counsel: \u201cWhatever Avalon knew at the time is not relevant to your case.\u201d Second, the court stated with respect to Avalon\u2019s knowledge: \u201cThat\u2019s not a relevant issue for your presentation of your case as far as I\u2019m concerned.\u201d Contrary to plaintiffs\u2019 claim, both of these comments appear to have been made during a colloquy among counsel and the court, after counsel had approached the bench.\nThe third alleged misstatement was:\n\u201cI just wanted to let you know that in considering what is or is not in controversy, I think that you have already heard that the damage to the gas pump island at Avalon, the damage occurred on July 3, 2001. We know that Mr. Matthews claims injury on July 24 of 2001. We also know that Avalon expected that its customers would be walking on or around that gas pump island during this period of time.\nBut you should also know that there are other issues that you\u2019re going to need to decide about the ability of those customers to utilize the gas pump and that card machine without encountering that damaged section of that island.\u201d\nPlaintiffs\u2019 attorney failed to preserve this issue for review by failing to object to the statement at the time it was made. Although the plain error doctrine permits an appellate court to review claims of error not properly preserved at trial, the use of this doctrine in civil cases is \u201c \u2018exceedingly rare.\u2019 \u201d Jones v. Rallos, 373 Ill. App. 3d 439, 454 (2006) (Campbell, J., dissenting), quoting Dowell v. Bitner, 273 Ill. App. 3d 681, 693 (1995). \u201c[T]his doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.\u201d Lange, 367 Ill. App. 3d at 649.\nThe third alleged misstatement could not have resulted in any prejudice to plaintiffs. The instruction concerned the reasonableness of plaintiff Harold Matthews\u2019 continuing to encounter a known danger, which was an issue that the jury resolved in plaintiffs\u2019 favor by answering yes to the special interrogatory. The jury specifically found that \u201cAvalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews\u2019 position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk.\u201d Thus, the alleged statement caused no prejudice, and certainly did not rise to the level required under the plain error rule.\nPlaintiffs\u2019 third claim on appeal is that the trial court refused to allow the impeachment of Avalon\u2019s operations manager, Charles Stubblefield, or in the alternative refused to allow his discovery deposition to be read to the jury. \u201c \u2018The admission of evidence in a trial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.\u2019 \u201d Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005), quoting Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 36 (2003). \u201cAn abuse of discretion exists where no reasonable person would agree with the position of the trial court.\u201d Brax, 363 Ill. App. 3d at 355.\nPlaintiffs claim on appeal that they should have been allowed to impeach Stubblefield after he testified at trial as follows:\n\u201cQ. Now, there were conditions, damage, caused from this collision which caused portions of the pump to be protruding into areas where people walked, correct?\nA. No.\u201d\nPlaintiffs sought to impeach Stubblefield with that portion of his deposition testimony where he had testified:\n\u201cQ. Other than the concrete abatement being pushed forward in a northerly direction, was there anything about the condition that was sticking out or protruding into areas where individuals would \"walk?\nA. Yes.\u201d\nThe quoted deposition question was a compound question. As a result, it is unclear to which part of the question Stubblefield was answering yes. Stubblefield\u2019s answer could have been a yes either to the assertion that there was a condition \u201cthat was sticking out,\u201d or to the assertion that a condition was \u201cprotruding into areas where individuals would walk.\u201d The former assertion would not conflict with his trial testimony; the latter assertion would.\nIn questions following almost immediately at his deposition, Stubblefield clarified that he meant the former assertion:\n\u201cQ. Was that sticking out in an east-west direction or an up-and-down direction?\nA. Upward.\nQ. So it wasn\u2019t sticking out into the path of someone walking beside the concrete abutment?\nA. No.\u201d\nThus, Stubblefield clarified that he meant that the condition was \u201csticking out\u201d in \u201can up-and-down direction\u201d but not into areas where someone would walk.\nPlaintiffs argue on appeal that the last question and its answer represent a double negative, so that Stubblefied was in effect saying yes to the question that the condition was sticking into someone\u2019s path. However, plaintiffs\u2019 interpretation ignores Stubblefield\u2019s prior answer where he made it clear that he was saying that the condition jutted \u201cupward,\u201d but not out into someone\u2019s path.\nAt trial, the court read this portion of Stubblefield\u2019s deposition testimony and stated: \u201cI\u2019m missing the impeachment part here.\u201d Plaintiffs\u2019 counsel then argued to the trial court, as it argued in its brief to this court: \u201cBut he said [in his deposition] it\u2019s where people have to walk. That\u2019s the part I want to read. He said [at trial] it wasn\u2019t where they had to walk.\u201d The trial court responded: \u201cI don\u2019t read it that way.\u201d A \u201creasonable person\u201d could certainly agree with the position of the trial court. Brax, 363 Ill. App. 3d at 355. This court can find no abuse of discretion. Brax, 363 Ill. App. 3d at 355.\nPlaintiffs\u2019 fourth claim on appeal is that the trial court committed error by allowing Stubblefield to give undisclosed opinion testimony at trial in violation of Illinois Supreme Court Rule 213. \u201c \u2018The admission of evidence pursuant to Rule 213 is within the sound discretion of the trial court, and the court\u2019s ruling will not be disturbed absent an abuse of that discretion.\u2019 \u201d White v. Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309, 323 (2007), quoting Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004). As noted before, a trial court abuses its discretion only if \u201cno reasonable person would agree with the position of the trial court.\u201d Brax, 363 Ill. App. 3d at 355.\nIn its amended Rule 213(f) disclosure, defendant Avalon identified Stubblefield as both a lay witness and a controlled expert witness. A \u201clay witness\u201d is defined as \u201ca person giving only fact or lay opinion testimony\u201d (210 Ill. 2d R. 213(f)(1)). For a lay witness, a party has to disclose only \u201cthe subjects on which the witness will testify\u201d (210 Ill. 2d R. 213(f)(1)).\nA \u201ccontrolled expert witness\u201d is defined as \u201ca person giving expert testimony who is the party, the party\u2019s current employee, or the party\u2019s retained expert\u201d (210 Ill. 2d R. 213(f)(3)). Since Stubblefield was an employee of defendant Avalon, if he gave opinion testimony, he qualified as a controlled expert.\nWith respect to a controlled expert witness, Rule 213 requires a party to disclose:\nthe subject matter on which the witness will testify;\nthe conclusions and opinions of the witness and the bases therefor;\nthe qualifications of the witness; and\nany reports prepared by the witness about the case.\u201d 210 Ill. 2d R. 213(f)(3).\nThe rule provides that \u201c[i]nformation expressed in a [discovery] deposition need not be later specifically identified in a Rule 213(f) answer\u201d (210 Ill. 2d R. 213(g)). If the opposing party objects at trial, \u201cthe burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition\u201d (210 Ill. 2d R. 213(g)). The proponent also has \u201ca duty to seasonably supplement or amend\u201d any prior Rule 213 answer \u201cwhenever new or additional information subsequently becomes known to that party\u201d (210 Ill. 2d R. 213(i)).\nPlaintiffs claim that the trial court should have excluded, pursuant to Rule 213, a drawing introduced during Stubblefield\u2019s testimony. At trial, Avalon\u2019s attorney showed Stubblefield exhibit No. 30, which counsel described as \u201ca sketch\u201d not drawn \u201cto scale\u201d of the fuel pump island. Counsel did not identify who had made the sketch. Avalon\u2019s attorney and Stubblefield then drew on the sketch based on Stubble-field\u2019s answers about the measurements of the pump. Stubblefield testified that he measured the pump the night before his testimony and that the measurements had not changed since plaintiffs accident in 2001.\nPlaintiffs\u2019 attorney objected at trial pursuant to Rule 213 to this portion of Stubblefield\u2019s testimony Defendant\u2019s attorney responded that defendant\u2019s answers constituted purely factual information and that Stubblefield had been questioned about the pump island at his deposition. The trial court permitted the testimony, stating: \u201cThat\u2019s what it sounds like to me, factual information. It\u2019s not [sic] nothing concerning an opinion. There\u2019s nothing concerning anything anybody could not have gone out there to measure.\u201d\nPlaintiffs claim that Stubblefield\u2019s testimony violated Rule 213 because his last-minute measurements of the pump formed the basis for his opinion testimony and, thus, had to be disclosed prior to trial. Rule 213(f)(3)(ii) requires the pretrial disclosure of a controlled expert\u2019s \u201copinions,\u201d as well as his \u201cbases\u201d for those opinions.\nPlaintiffs claim that Stubblefield\u2019s measurements formed the basis for his following opinion testimony:\n\u201cQ. If there is no truck on this side, on the west side, are there any obstructions or, you know, any problems that would prevent somebody from walking this 9 feet 7 inches around the west side of the pump if they wanted to get down here to the southeast area?\nA. No.\nQ. Jeff, to your knowledge between July 3rd and July 24, do you know of any reason why a driver who wanted to get gas at this facility would be required or compelled, or any other words you want to pick, to step over this area that you have circled with reference to Exhibit 30 and step onto the island at that point?\nA. No.\u201d\nPlaintiffs moved for a mistrial on the ground that the previously undisclosed measurements formed the basis for the above opinion testimony.\nPlaintiffs\u2019 argument ignores the fact that Rule 213 now distinguishes between lay and expert opinions. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 453 (2004). The former Rule 213 did not distinguish between lay and expert opinions, and required the same detailed disclosure for all opinion witnesses. Kim, 353 Ill. App. 3d at 453. However, under the amended Rule 213, \u201cdetailed disclosure for lay witnesses is no longer required.\u201d Kim, 353 Ill. App. 3d at 454. Thus, only an expert opinion requires disclosure of the basis of his opinion (210 Ill. 2d R. 213(f)(3)). For a lay opinion, the party has to disclose only the subject matter.\nStubblefield was not testifying as an expert when he stated that there were no physical obstructions present on the site to prevent a person from walking around this particular pump. As the trial court noted, he was merely repeating what the jurors could discern themselves from looking at the photographs introduced in evidence. Since this was not an expert opinion, defendant was not under any duty to disclose its basis, and the trial court did not abuse its discretion by overruling plaintiffs\u2019 Rule 213 objection.\nEven if the fuel pump measurements did constitute the basis of an expert opinion, the trial court still did not abuse its discretion in permitting the testimony. The Illinois Supreme Court has held that in order to determine whether the exclusion of testimony is a proper sanction for a Rule 213 nondisclosure, a court must consider the following six factors:\n\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 Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (2004).\nApplying the six Sullivan factors to the case at bar, we find that the trial court did not abuse its discretion in permitting testimony about the fuel pump measurements. First, while plaintiffs were surprised by the measurements, they could not have been surprised by the opinion itself, because it was the same opinion that Stubblefield provided at his deposition. At trial, he testified that a driver could have walked around the damaged area with the metal protruding without having to step over it. At his deposition, he testified to the same opinion:\n\u201cQ. Is it fair to say in looking at the way that this truck is pulled up to the gas pump island, that an individual could walk by the condition without having to step over it?\nA. Yes.\n* * *\nQ. You don\u2019t know whether he could have avoided this damage or not in using the pump; correct?\nA. I feel he could have avoided the damage.\u201d\nRegarding the second and third factors, the nature of the testimony and its prejudicial effect, the testimony did not prejudice plaintiffs\u2019 case because, as the trial court noted, the jurors could form their own opinion by looking at the photographs of the pump island introduced in evidence. As for the fourth factor, the diligence of the adverse party, the record showed that plaintiffs\u2019 daughters visited the accident site shortly after the injury to take photographs, but apparently chose not to take measurements. The fifth factor is the only factor in plaintiffs\u2019 favor as they did object at trial on Rule 213 grounds. Sixth, plaintiffs have made no claim of bad faith. In sum, five of the six Sullivan factors favor admission. Thus, this court cannot find an abuse of discretion.\nPlaintiffs\u2019 fifth claim is that the trial court erred by refusing to admit evidence of defendants Avalon and PTE\u2019s failure to both barricade the broken portion of the fuel island and post warning signs. As noted before, \u201c \u00a3[t]he admission of evidence in a trial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.\u2019 \u201d Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005), quoting Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 36 (2003).\nContrary to plaintiffs\u2019 claim, the trial court did permit some evidence concerning Avalon\u2019s failure to barricade. At trial, plaintiffs\u2019 attorney asked Stubblefield, Avalon\u2019s operations manager, the following questions about Avalon\u2019s failure to barricade:\n\u201cQ. In all normal business hours, except for July 4th, on July 3rd through July 31, every single day, for full-time, that pump remained open? It was never closed, correct?\nA. Correct.\nQ. Nor was it barricaded, correct?\nA. Correct.\nQ. You know what an orange safety cone is?\nA. Yes.\u201d\nAfter the last response, defendants\u2019 attorneys objected, but the court did not strike Stubblefield\u2019s prior answers. The court merely instructed counsel to move on to a different topic. The trial court did bar plaintiffs\u2019 counsel from asking Stubblefield whether there was \u201ca sign put up on this pump saying under construction or *** not to use it.\u201d Thus, with respect to defendant Avalon, plaintiffs\u2019 claim is limited to the exclusion of questions concerning warning signs, not barricades.\nAgainst defendant Avalon, plaintiffs were proceeding on a theory of premises liability. The principles of premises liability were clearly set out by the Illinois Supreme Court in LaFever v. Kemlite Co., 185 Ill. 2d 380 (1998). A possessor of premises has a duty to guard against harm to an invitee. LaFever, 185 Ill. 2d at 391. There is an exception to this duty for \u201copen and obvious hazards.\u201d LaFever, 185 Ill. 2d at 392; Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 105 (2005). The open and obvious rule states that a possessor of land is not liable to invitees for harm caused by any \u201ccondition on the land whose danger is known or obvious to them.\u201d LaFever, 185 Ill. 2d at 390, quoting Restatement (Second) of Torts \u00a7343A(1), at 218 (1965); Blue, 215 Ill. 2d at 105.\nThe open and obvious rule has two exceptions: (1) the distraction exception; and (2) the deliberate encounter exception. LaFever, 185 Ill. 2d at 391; Blue, 215 Ill. 2d at 106. The distraction exception states that \u201cthe possessor of the premises should anticipate harm to an invitee when the possessor \u2018has reason to expect that the invitees\u2019 attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.\u2019 \u201d LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts \u00a7343A, Comment f, at 220 (1965). In the instant case, all parties agree that the distraction exception does not apply.\nThe deliberate encounter exception states that a possessor of premises is liable for an open and obvious hazard \u201cwhen the possessor \u2018has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. \u2019 \u201d LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts \u00a7343A, Comment f, at 220 (1965). The deliberate encounter exception was the exception at issue in the case at bar.\nAs noted, plaintiffs did ask questions about Avalon\u2019s duty to barricade, but was barred from asking questions about its duty to warn, such as posting a sign. Plaintiffs wanted to ask questions about a sign because in a deliberate encounter case, plaintiffs must still prove that \u201cthe owner\u2019s efforts to protect invitees from harm were inadequate.\u201d LaFever, 185 Ill. 2d at 396.\nIn the case at bar, it is difficult to see how a sign would have adequately protected plaintiff from harm. A defendant generally has \u201cno duty to warn\u201d if a reasonable person in the plaintiffs position \u201cwould appreciate the danger.\u201d Sollami v. Eaton, 201 Ill. 2d 1, 14 (2002). There is no dispute that plaintiff was well aware of the danger, and continued to encounter it. That was why he proceeded under a deliberate encounter theory. Thus, the trial court did not abuse its discretion by excluding questions concerning Avalon\u2019s duty to warn.\nWith respect to PTE, plaintiffs were barred at trial from asking questions about both signs and barricades. In its amended complaint, plaintiffs sued PTE because it \u201cshould have already repaired\u201d the pump before plaintiff fell. Accordingly, in the jury instructions, the trial court told the jury that plaintiffs\u2019 claim against PTE was for PTE\u2019s failure \u201cto remove the jutting up piece of the metal frame.\u201d The lack of a warning or barricade had nothing to do with plaintiffs\u2019 claim against PTE that it should have already made the repairs, and plaintiffs cite no case connecting the two issues. Plaintiffs cite Esser v. McIntyre, 267 Ill. App. 3d 611 (1994), affd, 169 Ill. 2d 292 (1996), which held that defendant, since he did not own the premises, owed plaintiff an ordinary duty of care for popcorn kernels which he spilled and which plaintiff slipped on, and Godee v. Illinois Youth Soccer Ass\u2019n, 327 Ill. App. 3d 695 (2002), which held that defendant soccer association and coaches owed no duty of care to a mother who slipped and fell in a drainage ditch near her son\u2019s soccer game. Neither of these cases has anything to do with a failure to make timely repairs.\nPlaintiffs\u2019 sixth and final claim is that the trial court erred in its jury instructions when it stated that \u201cdefendants claim\u201d that plaintiff \u201cfailed to avoid an obvious danger that he was aware existed while entering upon the fuel island.\u201d As noted before, \u201c[a] reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.\u201d Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002); Lange v. Freund, 367 Ill. App. 3d 641, 645 (2006).\nFirst, this court notes that plaintiffs\u2019 attorney appears to have prepared the instruction about which plaintiffs now complain. At the jury instruction conference among counsel and the court, defense counsel referred to the instruction as \u201cplaintiffs instruction,\u201d and plaintiffs\u2019 counsel replied:\n\u201cIf I could make my record on that point. I put that in there based on our discussion last night. Obviously, I wouldn\u2019t have just voluntarily prepared one with contrib. However, based on our discussions yesterday I put it in there so we\u2019d have the instruction today.\u201d\nThus, the record is unclear as to whether plaintiffs have preserved this claim for our review.\nHowever, even if the error was preserved, the claim fails. Plaintiffs claim the court\u2019s statement was in error because it ignored the law of deliberate encounter. However, the statement could not have resulted in prejudice to the plaintiffs, because the jurors specifically found for him on the issue of deliberate encounter. By answering yes to the special interrogatory, the jury specifically found that \u201cAvalon Petroleum could reasonably expect that a reasonable person in Mr. Matthews\u2019 position knowing of the condition of the damaged portion of the island would proceed to encounter that damaged portion of the island because the advantage of doing so outweighed the apparent risk.\u201d Thus, contrary to plaintiffs\u2019 claim, the alleged statement did not mislead the jury.\nCONCLUSION\nFor the foregoing reasons, the decision of the trial court is affirmed.\nAffirmed.\nMcBRIDE, EJ., and CAHILL, J., concur.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Anesi, Ozmon, Rodin, Noval & Kohen, Ltd., of Chicago (Marc A. Taxman, of counsel), for appellants.", "Langhenry, Gillen & Lundquist, of Joliet (Anastasia L. Hess and Troy A. Lundquist, of counsel), for appellees." ], "corrections": "", "head_matter": "HAROLD MATTHEWS et al., Plaintiffs-Appellants, v. AVALON PETROLEUM COMPANY et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1-05-2606\nOpinion filed June 29, 2007.\nAnesi, Ozmon, Rodin, Noval & Kohen, Ltd., of Chicago (Marc A. Taxman, of counsel), for appellants.\nLanghenry, Gillen & Lundquist, of Joliet (Anastasia L. Hess and Troy A. Lundquist, of counsel), for appellees." }, "file_name": "0001-01", "first_page_order": 17, "last_page_order": 32 }