Green v. Jackson

                                                                SIXTH DIVISION
                                                                 June 30, 1997











No. 1-94-1226


BRIAN GREEN, by His Mother, HELEN FRITZ,    )
as Plenary Guardian, and ROGER GREEN, as    )        
Special Administrator of the Estate of      )        Appeal from
BRIAN GREEN,                                )     the Circuit Court
                                            )      of Cook County.
          Plaintiffs-Appellants,            )
                                            )
     v.                                     )   
                                            )
EDGAR JACKSON, Individually and as Agent,   )       No. 86-L-8940
Servant and Employee of WELLS FARGO GUARD   )
SERVICES, INC., a Division of B.P.S. GUARD  )      
SERVICES, INC., WELLS FARGO GUARD SERVICES, )  
INC., a Division of B.P.S. GUARD SERVICES,  )         Honorable
INC., and A.C.A. MANAGEMENT SERVICES        )   Michael J. Gallagher,
COMPANY, a Division of AMOCO OIL COMPANY,   )     Judge Presiding.
                                            )
          Defendants-Appellees.             )



     JUSTICE THEIS delivered the opinion of the court:

     Plaintiffs sued A.C.A. Management Services Company, a division of
the Amoco Oil Company (Amoco), Edgar Jackson, and Wells Fargo Guard
Services, Inc., for injuries suffered by Brian Green on the premises
of an Amoco service station.  The court entered a directed verdict as
to certain claims against Amoco.  As to the remaining count, the jury
returned a verdict in favor of Amoco.  The jury found against Jackson
and Wells Fargo, and awarded the plaintiff $3.2 million in damages. 
However, the jury reduced the award by 75% as the result of Brian
Green's comparative negligence.  On appeal, plaintiffs argue:  (1) the
trial court erred in ruling that Brian Green was competent to testify;
(2) the trial court erred in allowing defendant Jackson to explain a
guilty plea entered in a criminal proceeding; (3) the trial court
erred in directing a verdict in favor of Amoco as to certain
negligence claims; (4) the verdict was against the manifest weight of
the evidence; and (5) the trial court erred in instructing the jury. 
We affirm the judgment against Wells Fargo and Edgar Jackson.  As to
Amoco, we affirm the trial court's directed verdict, but reverse as to
the erroneous jury instruction and remand for a new trial.
     In February of 1986, Roger Green and his son Brian Green stopped
at an Amoco gas station located on the corner of Central and Diversey
in Chicago, Illinois.  Brian exited the vehicle to purchase cigarettes
at the Amoco minimart.  In the meantime, Edgar Jackson approached the
Greens' vehicle.  Jackson was a Wells Fargo security guard hired by
Amoco to prevent patrons of the 1-2-3 Disco Lounge from parking in
Amoco's lot.  Jackson and Roger Green began arguing.  Brian returned
to the vehicle, heard Jackson and Roger arguing, and began to struggle
with Jackson.  Roger Green joined the struggle.  A shot was fired from
Jackson's gun, which hit Brian Green between the eyes.  Brian's mother
and father filed suit against Amoco, Edgar Jackson, and Jackson's
employer, the Wells Fargo Guard Services, Inc.
     In count I of their four-count complaint, plaintiffs claimed that
Wells Fargo failed to comply with certain statutes and negligently
permitted Jackson to work as an armed security guard.  In count II,
plaintiffs alleged that Wells Fargo failed to investigate or train
Edgar Jackson for his security guard position.  In count III,
plaintiffs claimed that Edgar Jackson negligently reported to work
without proper uniform and shot Brian Green without legal
justification.  In count IV, plaintiffs alleged that Amoco failed to:
(1) comply with the standard of care for employing security services;
(2) establish reasonable security policies; (3) establish policies for
hiring security services; (4) establish procedures for training
security guards; (5) supervise Edgar Jackson; (6) investigate whether
Jackson was qualified to be a security guard; and (7) prohibit Jackson
from working without a uniform while carrying a concealed weapon.  
     At trial, both parties introduced eyewitness testimony.  Leo
Baranowicz testified that he was patronizing the 1-2-3 Disco Lounge on
the night of the incident.  Earlier in the evening, Baranowicz drove
into the Amoco station to use the phone.  Jackson approached
Baranowicz and told him to remove his car from the Amoco lot. 
Baranowicz testified that Jackson was wearing a green army jacket, and
that he did not notice if Jackson was wearing a badge or other
insignia of authority.  Later, Baranowicz observed Jackson "shooing"
other cars from the lot.  
     At approximately 1:30 a.m., Baranowicz noticed the Greens'
vehicle enter the Amoco station.  Baranowicz testified that he
observed Jackson's altercation with the Greens.  According to
Baranowicz, Jackson pulled out his revolver, aimed, and shot Brian
Green.  The defendants introduced evidence undermining Baranowicz's
credibility.  Specifically, the defendants established that
Baranowicz:  (1) offered three different versions of the facts prior
to trial, (2) admitted he was angry with Jackson for forcing
Baranowicz to leave the lot, and (3) had been convicted of two prior
felonies.
     James Esbrook was working at the Amoco station when the incident
occurred.  Esbrook testified that he overheard Roger Green tell
Jackson, "What are you doing in this neighborhood, nigger, why don't
you leave those people alone?"  Esbrook stated that while the Greens
were beating Jackson and grabbing at his sweater, Jackson never struck
back.  Esbrook's view of the parties was obstructed when the shot was
fired.  When Jackson entered the minimart, his face was swollen. 
     Terrence Dyra was a customer at the Amoco station when the Greens
arrived.  Dyra overheard Roger Green say, "What are you looking at,
nigger?" before Roger exited his vehicle and began beating Jackson. 
Dyra testified that Brian joined the fight as well.  She did not see
Edgar Jackson shoot Brian Green.
     Edgar Jackson testified that as Brian Green attempted to enter
the minimart, Jackson informed Brian that it was locked.  Brian
responded that Jackson should "fuck [himself] and stuck his finger in
the air."  Roger Green then rolled down the car window and said, "What
are you looking at nigger?"  Roger exited the vehicle and asked
Jackson, "What's a nigger like you doing up here in this neighborhood
anyway?"  Jackson told Roger than he was drunk and should leave. 
Jackson then felt someone hit him from behind and stick something that
felt like a gun in his back.  The Greens began beating Jackson. 
Jackson testified that the Greens grabbed at his sweater and exposed
Jackson's revolver.
     Jackson testified that he heard Roger Green yell, "The nigger's
got a gun," and that the Greens reached for Jackson's weapon.  In fear
of losing his weapon, Jackson drew his gun.  Brian Green grabbed the
barrel of the gun.  Jackson stated that, during the struggle, the gun
discharged and Brian Green was shot in the head.  
     The parties also presented evidence as to Edgar Jackson's
training and Amoco's procedures for hiring, training, and supervising
employees.  Dr. Norman Bottom, a self-employed professional security
consultant, testified that Amoco breached a duty of care because he
believed there was no uniformed, supervised security at the Amoco
station on the night of the shooting.  Bottom stated that Jackson was
not wearing a uniform or a badge, and noted that Amoco had no policy
in place for supervising the newly hired Jackson.
     Amoco's expert, Chris McGoey, testified that Amoco communicated
to Wells Fargo what its particular needs were for the site.  McGoey
stated that he did not believe that Amoco was negligent in hiring
Wells Fargo or Jackson.  Amoco area manager John Ridgeway stated that
he did not make a decision as to whether an armed or unarmed security
guard should be hired, but left that decision up to Wells Fargo. 
Amoco moved for a directed verdict as to plaintiffs' claims against
Amoco.  The trial court granted the motion as to all of plaintiffs'
allegations against Amoco, except plaintiffs' claim that Amoco's
failure to exercise reasonable care in hiring Wells Fargo to provide
security was a proximate cause of Brian's injuries.
     After deliberations, the jury returned a verdict in favor of
Amoco.  The jury found both Wells Fargo and Edgar Jackson negligent
and awarded Brian Green damages in the amount of $3.2 million. 
However, the jury determined Brian Green was comparatively negligent
and reduced the award by 75%.  Plaintiffs filed this appeal.
     Plaintiffs first argue that the trial court erred in denying
their motion in limine to prevent Edgar Jackson from testifying.  A
probate court determined that Brian Green was incompetent.  As such,
plaintiffs claim that the Dead-Man's Act should have barred Jackson's
testimony as to his altercation with Brian.  See 735 ILCS 5/8-201
(West 1992).  The Dead-Man's Act provides:
               "In the trial of any action in which any party
          sues or defends as the representative of a deceased
          person or person under a legal disability, no
          adverse party or person directly interested in the
          action shall be allowed to testify on his or her
          own behalf to any conversation with the deceased or
          person under legal disability or to any event which
          took place in the presence of the deceased or
          person under legal disability ***."  735 ILCS 5/8-
          201 (West 1992).  
The Act defines a person under a legal disability as one "who is
adjudged by the court in the pending civil action to be unable to
testify by reason of mental illness, mental retardation or
deterioration of mentality."  735 ILCS 5/8-201(a) (West 1992). 
     A witness is presumed competent to testify and the challenging
party bears the burden of overcoming that presumption.  Clark v. Otis
Elevator Co., 274 Ill. App. 3d 253, 653 N.E.2d 771 (1995).  The mere
fact that a witness has been deemed disabled in regard to his person
or finances does not render that witness incompetent to testify, but
merely goes to the weight the trier of fact might afford such
testimony.  Clark, 274 Ill. App. 3d 253, 653 N.E.2d 771.  The
determination of whether a witness is competent to testify is within
the sound discretion of the trial court.  People v. Williams, 147 Ill. 2d 173, 588 N.E.2d 983 (1991), cert. denied, 506 U.S. 876, 121 L. Ed. 2d 156, 113 S. Ct. 218 (1992).  The trial court may make such a
determination by means of preliminary inquiry, or by observing the
witness.  Williams, 147 Ill. 2d 173, 588 N.E.2d 983, cert. denied, 506 U.S. 876, 121 L. Ed. 2d 156, 113 S. Ct. 218 (1992).  In discussing the
scope of the inquiry, we note that:
          "Although there is no rigid formula to apply to
          determine whether a witness is competent [citation
          omitted], courts have held that the trial judge
          should consider four factors: the ability of the
          witness to receive correct impressions from his
          senses, to recollect those impressions, to
          understand questions, and to appreciate the moral
          duty to tell the truth."  Clark v. Otis Elevator
          Co., 274 Ill. App. 3d 253, 256-57, 653 N.E.2d 771,
          774 (1995).  
     In the instant case, the parties presented conflicting expert
testimony as to whether Brian Green could observe, recollect,
understand questions, and appreciate the moral duty to tell the truth. 
Plaintiff's expert witness, Dr. Bruce Ketel, testified that after the
accident Brian was disabled and suffered from seizures.  In Dr.
Ketel's opinion, Brian could not understand questions or articulate
answers.  Dr. Garron, a clinical psychologist, testified that he did
not believe that Brian's ability to comprehend questions and answer
them honestly was at a level which would allow him to testify at
trial.  
     Defendants Jackson and Wells Fargo presented the testimony of Dr.
Randy Georgemiller, an expert in neuropsychology.  Dr. Georgemiller
tested and examined Brian, and found that Brian could comprehend and
answer questions.  Based upon Brian's test performance and interview,
Dr. Georgemiller stated that he believed Brian was exaggerating his
injuries.  
     In addition to the expert testimony, the trial court reviewed
over 650 pages of Brian Green's deposition testimony.  Based upon this
preliminary inquiry, the trial court concluded that Brian Green was
competent to testify.  However, the trial court invited the plaintiffs
to present Brian Green for an evidentiary hearing if they sought to
further challenge Brian's competency.  The plaintiffs failed to
present Brian Green for an evidentiary hearing or offer of proof.  
     Under the facts of this case, we reject plaintiffs' contention
that Brian's prior adjudication as a disabled person required further
inquiry into his competency.  See Clark v. Otis Elevator Co., 274 Ill.
App. 3d 253, 653 N.E.2d 771 (1995).  A review of the record reveals
that the trial court did not abuse its discretion in ruling that Brian
Green was competent to testify.  Accordingly, we find that the Dead-
Man's Act did not bar Edgar Jackson's testimony.   
     Next, plaintiffs argue that the trial court should not have
permitted Jackson from explaining or contradicting his plea of guilty
to the criminal charges.  Plaintiffs claim that Jackson should have
been judicially estopped from offering a theory of self-defense
because it tended to explain and contradict his guilty plea.   
     We acknowledge that the doctrine of judicial estoppel bars
witnesses from explaining or controverting judicial admissions.  De
Witt County Public Building Comm'n v. County of De Witt, 128 Ill. App.
3d 11, 469 N.E.2d 689 (1984).  Contrary to plaintiffs' assertion,
however, judicial admissions do not include admissions made during the
course of other court proceedings.  Firstmark Standard Life Insurance
Co. v. Superior Bank FSB, 271 Ill. App. 3d 435, 649 N.E.2d 465 (1995). 
Rather, such statements constitute evidentiary admissions.  Firstmark
Standard, 271 Ill. App. 3d 435, 649 N.E.2d 465; Anfinsen Plastic
Molding Co v. Konen, 68 Ill. App. 3d 355, 386 N.E.2d 108 (1979). 
Evidentiary admissions may be controverted or explained.  Williams
Nationalease, Ltd. v. Motter, 271 Ill. App. 3d 594, 648 N.E.2d 614
(1995).  Because Edgar Jackson's guilty plea was an admission in
another court proceeding, that plea constituted an evidentiary
admission.  People v. Sheehan, 261 Ill. App. 3d 325, 331, 633 N.E.2d 151, 155 (1994), citing Wright v. Stokes, 167 Ill. App. 3d 887, 891-
92, 522 N.E.2d 308, 311 (1988).  As such, we find that the trial court
did not err in permitting Jackson's testimony.  
     Next, plaintiffs contend that because Jackson's guilty plea could
not be controverted or explained, the trial court erred in instructing
the jury as to Brian Green's comparative negligence.  On the issue of
comparative negligence, the trial court instructed the jury that:
               "It was the duty of the plaintiff before and
          at the time of the occurrence, to use ordinary care
          for his own safety.  A plaintiff is contributorly
          [sic] negligent if, one, he fails to use ordinary
          care for his own safety and, two, his failure to
          use such ordinary care is the proximate cause of
          the alleged injury.  
               The plaintiff's contributory negligence, if
          any, does not bar his recovery.  However, the total
          amount of damages to which he would otherwise be
          entitled is reduced in proportion to the amount of
          his negligence.  This is known as comparative
          negligence."
     Having already determined that Edgar Jackson's testimony was
appropriate, we find that there is sufficient evidence in the record
of Brian Green's negligent conduct.  The defendants were entitled to
have the jury instructed as to its theory of the case.  Colls v. City
of Chicago, 212 Ill. App. 3d 904, 571 N.E.2d 951 (1991).  Based upon
the evidence properly presented to the jury, we find that the trial
court did not err in tendering the comparative negligence instruction.
     Plaintiffs then challenge the trial court's order granting
Amoco's motion for a directed verdict as to certain claims against
Amoco.  Specifically, the trial court held that there was insufficient
evidence to establish that:  (1) Amoco had an obligation to establish
reasonable security policies; (2) Amoco had an obligation to supervise
Jackson; (3) Amoco had an obligation to prohibit Jackson from
reporting for duty out of uniform and carrying a concealed weapon; and
(4) Amoco breached an industry standard for retaining armed as opposed
to unarmed security services.  The trial court allowed plaintiff to
proceed against Amoco on the sole issue of whether Amoco was negligent
in retaining Wells Fargo.  On appeal, plaintiffs claim that they
presented sufficient evidence to survive Amoco's motion for a directed
finding.   
     A negligence action requires a plaintiff to submit facts
establishing the existence of a duty owed by the defendant.  Ward v.
Kmart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990).  Whether Amoco
owed the Greens a duty is a question of law for the trial court to
determine, subject to de novo review.  Rodriguez v. Norfolk & Western
Ry. Co., 228 Ill. App. 3d 1024, 593 N.E.2d 597 (1992).  A directed
finding is appropriate when the evidence, viewed in a light most
favorable to the plaintiffs, so overwhelmingly favors the defendant
that no contrary verdict could ever stand.  Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967).  "The
direction of a verdict does not require a complete absence of evidence
of the side against which the verdict is directed, for the right to
resolution of issues by the jury exists only if there are factual
disputes of some substance."  Poelker v. Warrensburg-Latham Community
Unit School District No. 11, 251 Ill. App. 3d 270, 276, 621 N.E.2d 940, 946 (1993).  
     In the instant case, the plaintiffs primarily rely on the
testimony of their expert witness, Dr. Norman Bottom, to establish
that Amoco had a duty to develop a security policy and to investigate
and supervise Wells Fargo's employees.  Dr. Bottom testified that, in
his opinion, Amoco had such a duty.  Dr. Bottom stated that he relied
upon a number of treatises in reaching his conclusions.  Dr. Bottom
admitted, however, that none of these treatises outlined a standard of
care for companies such as Amoco.  Further, a review of Dr. Bottom's
testimony fails to reveal any evidence as to a standard within the
minimart industry for retaining, training, or supervising contract
security services.  We agree with the trial court's assessment of Dr.
Bottom's testimony as conclusory.  Accordingly, we affirm the trial
court's ruling that plaintiff presented insufficient evidence to
survive Amoco's motion for a directed finding.   
     Next, plaintiffs argue the jury's finding that Brian Green was
75% at fault for his injury was against the manifest weight of the
evidence.  The Illinois Supreme Court has stated that a verdict is not
against the manifest weight of the evidence unless "an opposite
conclusion is apparent, or when the findings appear to be
unreasonable, arbitrary, or not based on evidence."  Leonardi v.
Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 461
(1995).  The defendants presented evidence that Brian and Roger Green
were intoxicated and disorderly.  The Greens shouted racial slurs at
Edgar Jackson and attacked him.  In addition, Edgar Jackson testified
that Brian Green attempted to confiscate Jackson's revolver and
grabbed the barrel of the gun.  In light of this evidence, we cannot
conclude that the jury's verdict was against the manifest weight of
the evidence. 
     Finally, plaintiffs claim that the trial court erred in
instructing the jury as to Amoco's duty toward Brian Green.  
The trial court informed the jury that Amoco claimed the following
affirmative defense:
               "That plaintiff's conduct exceeded the manner
          of use which A.C.A./Amoco might reasonably expect
          in connection with any express or implied
          invitation to plaintiff to enter its premises. 
          When plaintiff entered the premises in a state of
          intoxication, and when plaintiff started an
          altercation, he then became a trespasser on the
          premises."
The trial court then instructed the jury that:
               "If you find that Brian Green at the time of
          the injury had exceeded the lawful purpose for
          which he entered onto the premises of A.C.A./Amoco,
          then Brian Green was not an invitee and was not
          using the premises for a purpose for which he was
          invited or permitted or for which A.C.A. might
          reasonably have expected him to use the premises,
          then your verdict should be in favor of A.C.A. and
          against the plaintiff."
Plaintiffs argue that this instruction is an inaccurate statement of
Illinois law.  We agree and reverse.
     The Illinois Supreme Court has defined a trespasser as "one who
enters upon the premises of another with neither permission nor
invitation and intrudes for some purpose of his own, or at his
convenience, or merely as an idler."  Rhodes v. Illinois Central Gulf
R.R., 172 Ill. 2d 213, 228, 665 N.E.2d 1260, 1268 (1996).  While a
landowner owes invitees a duty of ordinary care, a landowner owes a
trespasser only a duty to refrain from willful and wanton acts. 
Rhodes, 172 Ill. 2d 213, 665 N.E.2d 1260.  Defendants do not dispute
this, but claim that one who enters the premises as an invitee, as the
Greens did, may lose their status and become trespassers.  In support
of their argument, defendants cite to the 1954 Oregon decision in
Hansen v. Cohen, 203 Or. 157, 276 P.2d 391 (1954), holding that
persons who use premises for a purpose not intended by the invitee
assume the role of trespassers.  In further support, Amoco directs us
to the following statement in Avery v. Moews Seed Corn Co., 131 Ill.
App. 2d 842, 845, 268 N.E.2d 561, 564-65 (1971):  "the duty [toward an
invitee] *** extends only to that manner of use which the owner might
reasonably expect in connection with the express or implied
invitation".  
     We note, however, that the language defendants rely upon in Avery
is mere dicta, as the court actually found the plaintiff's act of
traveling to an area of the premises to which he was not invited
rendered him a trespasser.  Avery, 131 Ill. App. 2d 842, 268 N.E.2d 561.  To this extent, Avery is consistent with the rest of Illinois
case law on the issue of how an invitee loses his status and becomes a
trespasser.  See generally Cockrell v. Koppers Industries, Inc., 281
Ill. App. 3d 1099, 667 N.E.2d 676 (1996).  In Illinois, an invitee
exceeds the scope of the invitation only when the invitee has traveled
to an area to which he was not invited.  See, e.g., Rodriguez v.
Norfolk & Western Ry. Co., 228 Ill. App. 3d 1024, 593 N.E.2d 597
(1992).  There is no authority in Illinois which supports Amoco's
position that an invitee exceeds the scope of the invitation by
entering the premises intoxicated and starting an altercation. 
Because the instruction tendered by the trial court represents an
unprecedented extension of Illinois law, we find that the trial court
abused its discretion.
     We recognize that not every error in tendering instructions
necessitates a new trial.  Amstar Corp. v. Aurora Fast Freight, 141
Ill. App. 3d 705, 490 N.E.2d 1067 (1986).  Generally, a reviewing
court will not remand for a new trial unless the faulty instruction
clearly misled the jury and prejudiced the appellant.  LaPook v. City
of Chicago, 211 Ill. App. 3d 856, 570 N.E.2d 708 (1991).  In the
instant case, the challenged instruction enabled the jury to find in
favor of Amoco even if the jury determined that Amoco failed to
exercise ordinary care in hiring Wells Fargo.  This erroneous
instruction clearly resulted in prejudice to the plaintiffs. 
Accordingly, we reverse the trial court's ruling and remand for a new
trial on the sole issue of whether Amoco failed to exercise ordinary
care in hiring Wells Fargo.  We affirm as to the trial court's entry
of the directed findings, and as to Wells Fargo and Edgar Jackson.
     Affirmed in part and reversed in part; remanded in part for a new
trial. 
     CAHILL, J., concurs.
     O'BRIEN, J., dissents.