Ashpole v. Brunswick Bowling & Billiards Corp.

July 20, 1998

No. 2--97--0811
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

MIKEAL ASHPOLE and DAWN ) Appeal from the Circuit Court
ASHPOLE, ) of Lake County.
)
Plaintiffs-Appellants, ) 95--L--1604
)
v. )
)
BRUNSWICK BOWLING AND BILLIARDS )
CORPORATION, Individually and )
d/b/a Brunswick Deer Park Lanes, )
and RICK BARBERA, ) Honorable
) Terrence J. Brady,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

This 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.
Concerning 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.
During 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.
Plaintiffs admit that "Pat" was assisting them with the
scoring computer as they began to bowl. After Mikeal fell, Dawn
testified that she needed to call to "Pat" and other employees in
order to get their attention.
Before 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.
Plaintiffs filed a posttrial motion, seeking the entry of
judgment in their favor or a new trial based on defendants
discovery violation. After hearing argument, the trial court
denied plaintiffs motion. Plaintiffs timely appeal.
On appeal, plaintiffs argue that the trial court erred by
allowing Baughn s testimony into evidence. Plaintiffs contend that
they were surprised and prejudiced by Baughn s testimony and that
the trial court abused its discretion by failing to bar it, strike
it, or declare a mistrial. We agree.
Preliminarily, 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 violation of the rules of
discovery.
Supreme 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 "(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." 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 s discretion, we will not reverse
the trial court s decision absent a clear abuse of discretion.
Blott v. Hanson, 283 Ill. App. 3d 656, 661 (1996).
Plaintiffs were completely surprised by Baughn s testimony.
Plaintiffs submitted interrogatories requesting, among other
things, the identity of possible witnesses on January 19, 1996.
Defendants 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.
Defendants argue that plaintiffs had notice of Baughn s
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 "Pats" as working at the time of the
accident: Patti Baughn, Pat Gorski, and Pat Gunn. Additionally,
defendants never identified any of these "Pats" as possible
witnesses. While it is true that plaintiffs could have deposed all
employees named "Pat," we nevertheless believe that plaintiffs were
entitled to rely on defendants 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.
The next two factors, prejudice and the nature of the
testimony, favor plaintiffs. Baughn was the only defense
eyewitness to Mikeal s accident. Her testimony was relevant,
material, and not cumulative to that of the other defense
witnesses; it embodied defendants theory of the case, that Mikeal
crossed the foul line and slipped. We cannot say that the jury
would have still returned a defense verdict in the absence of
Baughn's testimony.
Defendants 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
theory, such as where Mikeal landed and where oil streaks were
located. Thus, because Baughn s testimony is unique, it is not
cumulative; and because it is the only affirmative,
noncircumstantial defense account of the accident, it is clearly
prejudicial.
Defendants also contend that, because the trial court
determined that plaintiffs cross-examination was effective at
impeaching Baughn s credibility, plaintiffs were not prejudiced.
To what extent, if any, Baughn s credibility was impeached by
plaintiffs 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 s testimony.
We are only able to say that, had Baughn been precluded from
testifying, we do not know what the outcome would have been.
The next factor to consider is plaintiffs diligence in
pursuing Baughn s 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 discovery
requests. We believe that plaintiffs were diligent in seeking out
Baughn s testimony before trial.
Defendants argue that, because plaintiffs admit that "Pat" was
helping them, and "Patti Baughn" was disclosed as an employee
working at the relevant time, plaintiffs were dilatory in
discovering Baughn s testimony. We disagree. Plaintiffs were
entitled to rely on defendants 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 failure to discover Baughn s
testimony before trial was attributable to a lack of diligence. We
find that this factor favors plaintiffs.
The fifth factor to consider is the timeliness of plaintiffs
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 objection was timely
and preserved the error.
The final factor to consider is defendants 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 s affidavit states that he
learned of the substance of Baughn s 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.
We find that all of the factors weigh in favor of precluding
Baughn s testimony. We therefore hold that the trial court abused
its discretion by allowing Baughn to testify. Because we cannot
say that Baughn s testimony had no effect on the outcome of the
trial, this case must be remanded for a new trial. As a sanction
for defendants discovery violations, Baughn will be precluded from
testifying on remand.
For 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.
Reversed and remanded.
GEIGER, P.J., and DOYLE, J., concur.