In a recent case from the Illinois Appellate Court for the Second District, the plaintiff suffered a devastating hand injury while riding a waterslide located at an amusement park operated by the defendant. The plaintiff alleged that the defendant was negligent in its operation of the waterslide and that it failed to provide sufficient warnings to guests about the potential hazards. She also argued that the defendant did not perform adequate maintenance of the waterslide to ensure that it was in good working order. The plaintiff also asserted a claim for res ipsa loquitur, alleging that the circumstances surrounding the incident and the way it occurred would not normally occur without negligence. In response, the defendant alleged, among other things, that the plaintiff was contributorily negligent.
During the discovery phase of the litigation, the plaintiff requested the identities of certain personnel who were operating the waterslide at the time of the incident. In its initial response, the defendant indicated that the personnel could not be identified. Additional information obtained during discovery indicated that an incident report regarding the accident may have been generated, but the defendant indicated that it could not identify any such report.
The plaintiff filed a motion requesting sanctions against the defendant for failing to produce the report and failing to identify the witnesses, seeking a number of items of relief. The defendant contested the motion, stating that the court should order a mistrial, require the defendant to compensate the plaintiff for attorney fees, or set a new trial date.
The trial court concluded that the defendant engaged in this misleading conduct and provided the jury with a modified standard jury instruction regarding the missing evidence and unidentified witnesses. The instruction stated that if a party failed to provide evidence or to produce a witness, the jury could infer that the evidence or witness testimony would be adverse to the defendant. The jury needed to find four elements in order to make this inference:
- The evidence or witness was under the control of the party and could have been produced through the exercise of reasonable diligence;
- The evidence was not equally available to the other party;
- Under the same circumstances, a reasonably prudent person would have offered the evidence or witness if he or she believed it would be favorable to his or her case; and
- The non-producing party failed to offer any reasonable excuse.
The plaintiff obtained a jury verdict totaling over $1.5 million for her injury. The defendant appealed. On review, the appellate court affirmed the lower court’s decision to administer the jury instruction based on evidence in the record and the likelihood that the defendant would have still failed to produce the evidence and witnesses if the court ordered a new trial.
If you or someone you love has suffered a devastating injury, you may be entitled to compensation. At Therman Law Offices, we pride ourselves on serving victims throughout Illinois and seeking the justice they deserve after a careless and unnecessary accident. We will stand by you throughout the process and ensure that your rights are protected at all times. To schedule your free consultation with a premises liability lawyer, call us now at 773-545-8849 or contact us online.