Thursday, November 16, 2017

Illinois - Motions for New Trial - Jury's Verdict Was Not Against Manifest Weight of Evidence


Appellate Court of Illinois,

First District,

FIRST DIVISION.

Guiseppina DIFRANCO and Eugenio DiFranco, Plaintiffs–Appellants,

v.

Constance KUSAR, Defendant–Appellee.

No. 1–16–0533

November 6, 2017

Appeal from the Circuit Court of Cook County, No. 13 L 6288, The Honorable Edward S. Harmening, Judge Presiding.

OPINION

PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.

*1 ¶ 1 Guiseppina DiFranco sued Constance Kusar to recover for injuries that plaintiff sustained in a motor vehicle accident.1 At the jury trial, defendant admitted negligence, and thus the only issues at trial were whether defendant's negligence was the proximate cause of plaintiff's injuries and the amount of damages, if any. The jury entered a verdict in favor of plaintiff, and awarded her $1000 for the reasonable expense of necessary medical care, treatment, and services received; $0 for the loss of normal life; and $0 for pain and suffering. The circuit court denied plaintiff's posttrial motion for a new trial. The circuit court also granted in part and denied in part plaintiff's posttrial motion for costs. On appeal, plaintiff contends that: (1) the jury's damages award is against the manifest weight of the evidence; (2) the circuit court erred in denying her motion for a new trial; and (3) the circuit court erred in denying in part her posttrial motion for costs. We find no error and affirm.

¶ 2 BACKGROUND

¶ 3 The following facts were presented at trial.

¶ 4 On June 9, 2011, plaintiff was driving in stop-and-go traffic, and while stopped, her vehicle was struck from behind by a vehicle operated by defendant. The collision caused plaintiff's vehicle to hit the vehicle in front of hers. It also caused her body to move forward and backward, and her knees struck the dashboard. Immediately following the collision, she experienced pain in her neck, back, and arm. She was taken by ambulance to GlenOaks Hospital (GlenOaks). She testified that while she was in the emergency room, her pain was a 9 on a scale of 1 to 10. At GlenOaks, she was examined and instructed to follow up with her family physician, Edwin W. Anderson, M.D. On June 13, 2011, plaintiff followed up with Dr. Anderson.

¶ 5 Dr. Anderson's evidence deposition was admitted into evidence at trial. He testified that plaintiff told him that she had pain in her arm, neck, and back related to the June 9 collision. Dr. Anderson examined plaintiff and found tenderness in her lower back, a normal range of motion of the neck, a normal shoulder exam, a normal elbow exam, and tenderness in the right pelvis area. He stated that plaintiff reported she felt “moderate pain.” He concluded that she sustained a cervical strain, an arm strain, a forearm strain, and a back strain. Dr. Anderson recommended that plaintiff undergo physical therapy and take over-the-counter pain relievers. According to plaintiff, she performed her physical therapy at GlenOaks.

¶ 6 Dr. Anderson examined plaintiff again on July 15, 2011. He stated that she complained of pain radiating down from her neck into her right arm and lower back. Dr. Anderson determined that this new complaint was related to the June 9 collision and that plaintiff sustained an injury to her lower back and neck from the collision. He recommended that she continue with her physical therapy and gave her prednisonefor her inflammation and swelling. He also referred her to Dr. Lawrence Frank, a nonsurgical back doctor, because her condition was “worsening with physical therapy and not improving.”

*2 ¶ 7 According to plaintiff, Dr. Frank recommended that she undergo physical therapy at GlenOaks, which she did for four months. After completing the physical therapy, Dr. Franks told plaintiff to follow up with Dr. Anderson if her pain continued. Plaintiff testified that she was still experiencing pain after January 12, 2012, and that her pain got worse.

¶ 8 Dr. Anderson examined plaintiff again on August 9, 2012, when she came in complaining of right arm and hand numbness. Dr. Anderson concluded that the pain was possibly nerve related, “either carpel tunnel or cervical radiculopathy,” and his “working assumption” was that this was related to the June 9 collision. He recommended that plaintiff get an electromyelogram (EMG), which was performed at Alexian Brothers Medical Center. Based on the results of the EMG, Dr. Anderson concluded that plaintiff had “a pinched nerve in the cervical area as well as a right carpal tunnel syndrome” and that the pinched nerve was due to the June 9 collision.

¶ 9 On August 20, 2012, Dr. Anderson recommended that plaintiff undergo an MRI, the results of which demonstrated “multiple abnormalities in the cervical spine.” Dr. Anderson stated that, based on his education and examinations of plaintiff, the course of treatment he recommended was necessary as a result of the June 9 collision.

¶ 10 Plaintiff testified that Dr. Anderson referred her to Dr. Rosenblatt, whom plaintiff described as a “bone specialist.” Dr. Rosenblatt prescribed physical therapy, which plaintiff underwent at Athletico.

¶ 11 At trial, plaintiff offered into evidence bills she had received for treatment following the June 9, 2011, collision. In total, she was billed $29,331.88, which included amounts billed for the emergency room visit on June 9, 2011, her follow-up visits with doctors Anderson, Frank, and Rosenblatt, her physical therapy, all of her diagnostic testing, and her prescriptions.

¶ 12 Julie Johnson, a customer service supervisor from Adventist Midwest Health, with which GlenOaks is affiliated, testified that GlenOaks's bills reflected reasonable and customary charges for services rendered in the GlenOaks emergency room, as well as for X-rays, labs, and physical therapy. On cross-examination, Johnson stated that she did not know how much other hospitals charged for similar services. She acknowledged that GlenOaks uses current procedural terminology (CPT) codes, which were developed by the American Medical Association and which are used by all medical providers to mean the same thing for a geographical location. Johnson acknowledged that she would not know whether the CPT codes used on a GlenOaks bill accurately reflected the actual clinical services provided. Plaintiff's emergency room bills reflected that she was billed twice for X-rays, and was billed under CPT code 99284, which designates a level 4 severe condition. Johnson also could not say why plaintiff was charged under CPT code 99288 for “direct advanced life support,” and acknowledged that she could not say that such a charge was usual or customary under the circumstances.

¶ 13 Defendant presented the evidence deposition of Dr. Richard Rabinowitz, an orthopedic surgeon, as her expert witness. Dr. Rabinowitz testified that he had reviewed plaintiff's medical records from both before and after the collision. Plaintiff's records showed documented complaints dating back to 2003 that were similar to the complaints plaintiff had after the collision. In 2003, she was diagnosed with cervical brachial syndrome, brachial neuralgia, myofacial pain, and cervical region pain, which Dr. Rabinowitz described as “pain about the neck and referred pain into the shoulder and arm.” Plaintiff also had pain between her shoulder blades, as well as some finger numbness. In 2005, plaintiff presented to Dr. Anderson with complaints of “numbness and pain and tingling in the right arm into the right hand and wrist,” which resulted in plaintiff being restricted from repetitive motion activities. In February 2009, plaintiff was seen by a Dr. Goldberg. Plaintiff presented with a collection of complaints, including numbness in her right hand and pain in her thumb, index finger, and middle finger and pain in her right shoulder, with no suggestion of trauma. Dr. Goldberg diagnosed plaintiff with carpel tunnel syndrome. In October 2009, Dr. Anderson had a series of phone conversations with plaintiff about an X-ray of her shoulder. He noted that she had neck pain near where her shoulder and neck meet but in a different area than what was reflected on the X-ray. In Dr. Rabinowitz's opinion, plaintiff's complaints from 2003 forward were part of the same continuum of symptoms. In November 2009, plaintiff again complained of pain in her neck and upper arm. Between June and August 2010, she again complained of pain in the neck and radiating into the shoulder, and in August 2010, she still had symptoms in those areas. Dr. Rabinowitz described plaintiff's pain in her neck, shoulder, and arm as “chronic.”

*3 ¶ 14 Furthermore, on June 9, 2011, before the accident giving rise to the claims here, plaintiff called Dr. Anderson's office complaining about her right arm and hand falling asleep and having a burning sensation that would wake her up while sleeping, accompanied by numbness and tingling. Dr. Anderson's office called her back later that day saying that it sounded like a pinched nerve.

¶ 15 Dr. Rabinowitz also reviewed plaintiff's medical records from after the accident. In the emergency room, plaintiff complained of pain in the back of her neck that radiated into her right shoulder. The emergency room records did not reflect any prior history of neck, shoulder, or arm pain. The records stated that plaintiff was alert with no acute distress. An examination suggested a full range of motion in the upper extremities without pain or tenderness. An X-ray showed no acute injury, although it did show some degenerative change. Dr. Rabinowitz acknowledged that plaintiff was diagnosed in the emergency room as having a cervical strain and added that “the most troubling part is that there aren't the typical physical findings that we would see for [a cervical strain], but given her complaints and her continuum of care, I felt it was reasonable to assume based on her subjective complaints that she had a cervical strain.” He explained that “there was no evidence of tenderness or spasm or significant restricted motion. There was no evidence of contusion.” He agreed that “the treatment that she received relating to this cervical strain was appropriate and fair from the time of the automobile collision through her release from Dr. Frank in January of 2012.” Dr. Rabinowitz did not state that the treatment plaintiff received was necessary.

¶ 16 On September 25, 2015, the jury found in favor of plaintiff and against defendant. The jury awarded plaintiff $1000 for “the reasonable expenses of necessary medical care, treatment, and services rendered.” The jury awarded plaintiff $0 for “pain and suffering experienced as a result of the injuries,” and $0 for “loss of a normal life experienced.” Also on September 25, 2015, the circuit court entered a judgment in favor plaintiff on the jury's verdict.

¶ 17 Plaintiff filed a timely motion for a new trial, arguing that the jury's verdict was against the manifest weight of the evidence. Plaintiff also filed a motion for costs. On January 20, 2016, the circuit court denied the motion for a new trial and granted in part and denied in part plaintiff's motion for costs. The circuit court awarded plaintiff $2264 in costs ($567 in filing fees, $60 for service fees, and $1637 for the evidence deposition of Dr. Anderson) but did not award plaintiff an additional $243.67 in requested “witness fees.” Plaintiff filed a timely notice of appeal from the jury's verdict, the denial of her motion for a new trial, and the partial denial of her motion for costs.

¶ 18 ANALYSIS

¶ 19 On appeal, plaintiff argues that the jury's verdict was against the manifest weight of the evidence because the jury ignored “proven elements of damages.” She also argues that the circuit court abused its discretion by denying her motion for a new trial. We address these arguments together. She also argues that the circuit court abused its discretion by denying in part her posttrial motion for costs. We address this argument in turn.

¶ 20 Plaintiff's first argument on appeal is that the circuit court abused its discretion in denying her motion for a new trial because the jury's verdict was against the manifest weight of the evidence. She contends that the jury ignored “proven elements of damages” because Dr. Rabinowitz testified that the medical treatment she received from the date of the accident to her discharge by Dr. Frank, totaling $15,770.88, was “necessary and reasonable.” According to plaintiff, Dr. Rabinowitz testified that the treatment “was necessitated by the collision and was reasonable and customary for the injuries she sustained.” She argues that Dr. Rabinowitz testified that plaintiff sustained an “objective injury” as a result of the collision, specifically tenderness in her back, and that the treatment she received in the emergency room at GlenOaks was reasonable and necessary. She further contends that she received a medical bill from the emergency room totaling $3742.75, and therefore, the jury ignored a proven element of damages when it awarded her only $1000. Additionally, she argues that the jury's award of $0 for pain and suffering was against the manifest weight of the evidence because it was “uncontroverted” that she suffered an injury, and that the medical treatment she received for that injury was “reasonable, customary, and necessary.”

*4 ¶ 21 When ruling on a motion for a new trial, the circuit court weighs the evidence and determines if the jury's verdict is contrary to the manifest weight of the evidenceLawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 38, 368 Ill.Dec. 1, 983 N.E.2d 414. “A verdict is against the manifest weight of the evidence only where the opposite result is clearly evident or where the jury's findings are unreasonable, arbitrary and not based upon any of the evidence.” (Internal quotation marks omitted.) Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 46, 391 Ill.Dec. 361, 30 N.E.3d 631. We will only reverse the circuit court's ruling on a motion for a new trial where the moving party affirmatively shows the circuit court abused its discretion. Velarde v. Illinois Central R.R. Co., 354 Ill.App.3d 523, 537–38, 289 Ill.Dec. 529, 820 N.E.2d 37 (2004). “In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial.” Maple v. Gustafson, 151 Ill.2d 445, 455, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992).

¶ 22 The standard for an award of compensatory damages under Illinois law is whether a reasonable jury could have awarded the damages it did. People ex rel. Department of Transportation v. Smith, 258 Ill.App.3d 710, 715–16, 197 Ill.Dec. 263, 631 N.E.2d 266 (1994). A reviewing court will overturn a jury verdict when damages are manifestly inadequate because the proven elements of damages were ignored, or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Id. Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury and that great weight must be given to the jury's decision. Snelson v. Kamm, 204 Ill.2d 1, 36–37, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003). “The mere fact that the verdict is less than the claimed damages does not necessarily mean the award is inadequate *** since the jury is free to determine the credibility of the witnesses and to assess the weight accorded to their testimony.” Montgomery v. City of Chicago, 134 Ill.App.3d 499, 502, 89 Ill.Dec. 698, 481 N.E.2d 50 (1985).

¶ 23 We conclude that the circuit court did not abuse its discretion by denying plaintiff's motion for a new trial because the jury's verdict was not against the manifest weight of the evidence, since a reasonable jury could conclude that not all of the treatment plaintiff received was reasonable and necessary, and that she was not entitled to compensation for the full amount of the services for which she was billed. First, plaintiff's argument that the jury ignored “proven damages” is unfounded because the issues of whether the accident was the proximate cause of her injuries and whether the treatment she received was necessary were disputed. She repeatedly asserts that Dr. Rabinowitz testified that her treatment was “necessary,” but her assertion is not supported by the record. Dr. Rabinowitz testified that, based on plaintiff's subjective complaints, he assumed that she suffered a cervical strain, although he qualified that assumption by stating that the physical findings in the emergency room records were not typical of a cervical strain. He further explained that GlenOaks's emergency room records contained no evidence of the typical signs associated with cervical strain, which include tenderness, spasm, significant restricted motion, and contusion. Dr. Rabinowitz acknowledged that the treatment plaintiff received from the time she went to the emergency room on the date of the accident to the time she was discharged by Dr. Frank was appropriate, but he never agreed that it was necessary. The questions of whether defendant's negligence was the proximate cause of plaintiff's injuries and whether the treatment she received for those injuries was reasonable and necessary were disputed at trial. We therefore reject plaintiff's claim that the jury ignored “proven damages.”

*5 ¶ 24 Furthermore, the jury heard testimony from which it could conclude that plaintiff lacked credibility. The jury heard that plaintiff did not provide the GlenOaks emergency room physicians with a history of her neck, back, and shoulder pain, including the numbness she experienced immediately prior to the accident. Plaintiff testified that she experienced “minor aches and pains” before the accident. But the jury also heard that plaintiff repeatedly sought treatment for pain in those areas since 2003. Plaintiff testified that when she was in the emergency room at GlenOaks, her pain was a 9 out of 10, but the GlenOaks emergency room records stated that she was not in any acute distress following the accident. Here, the jury heard all of the evidence and determined that plaintiff was entitled to compensation for some but not all of the treatment she received for the injury she sustained in the accident.

¶ 25 Plaintiff relies on Anderson v. Zamir, 402 Ill.App.3d 362, 341 Ill.Dec. 800, 931 N.E.2d 697 (2010), to support her argument that she is entitled to a new trial. Anderson is distinguishable. There, the plaintiff sued to recover for injuries she sustained to her neck and shoulder in a car accident. The defendants admitted liability for the injury to plaintiff's neck but contested liability as to the plaintiff's shoulder injury. Id. at 364–65, 341 Ill.Dec. 800, 931 N.E.2d 697. At trial, the plaintiff's physicians testified that the plaintiff's shoulder injury was caused by the accident. Id. at 365–67, 341 Ill.Dec. 800, 931 N.E.2d 697. The defendants presented no evidence to contradict the plaintiff's evidence. Id. at 368, 341 Ill.Dec. 800, 931 N.E.2d 697. Despite the uncontested evidence related to causation and uncontested evidence that the plaintiff's nearly $29,000 in medical bills were necessary and reasonable, the jury awarded the plaintiff only $5000 in damages. Id. We reversed and remanded for a new trial on the issues of damages, finding that “the jury's verdict simply bears no reasonable relationship to the injuries established by [the plaintiff] at the trial, and accordingly, the damages award must be reversed.” Id. Here, defendant presented contrary evidence from which the jury could conclude that plaintiff had preexisting pain in her neck, shoulder, and back and that the accident was not the cause of all of plaintiff's injuries. Furthermore, the jury heard testimony that called into doubt whether all of the emergency room charges were necessary or reasonable. We find that Anderson is factually distinguishable and therefore does not control the outcome here.

¶ 26 We also find unpersuasive plaintiff's reliance on Tipsword v. Johnson, 59 Ill.App.3d 834, 17 Ill.Dec. 192, 376 N.E.2d 85 (1978). There, plaintiffs sued to recover for injuries sustained in an automobile accident. The plaintiffs went to the emergency room, where they were diagnosed as having suffered “inertia strain of the neck.” Id. at 835, 17 Ill.Dec. 192, 376 N.E.2d 85. The jury found that the defendants were liable for plaintiff's injuries but awarded the plaintiff $0 in damages. Id. We reversed because there was no dispute that the plaintiffs had suffered injuries and incurred medical expenses as a result, and therefore the jury's award of no damages was erroneous. Id. at 837, 17 Ill.Dec. 192, 376 N.E.2d 85. Tipsword is distinguishable because there, the jury awarded $0 in damages despite there being no dispute that the plaintiffs were injured and incurred some medical expenses that were indisputably related to their injuries. Here, the jury awarded plaintiff $1000 in damages for medical expenses, which suggests that the jury believed that plaintiff incurred some medical expenses for injuries caused by defendant, but that plaintiff was not entitled to the full measure of damages that she sought.

¶ 27 We also reject plaintiff's argument that the jury's verdict was against the manifest weight of the evidence because she was awarded damages that were less than the emergency room bill she received. The jury heard testimony from Julie Johnson that called into doubt whether plaintiff was accurately billed for the emergency room services she received. There was evidence that plaintiff may have been billed twice for X-rays, and that the coding of the medical services did not objectively correspond to plaintiff's condition as reflected in the emergency room records. A reasonable jury could conclude that not all of the emergency room services for which plaintiff was billed were necessary or reasonable.

*6 ¶ 28 Next, plaintiff argues that the jury's award of $0 for pain and suffering is against the manifest weight of the evidence because the jury ignored “proven elements damages” related to pain and suffering. She contends that there was no evidence to contradict Dr. Anderson's testimony that plaintiff suffered pain as a result of the injuries she sustained in the collision, or Dr. Rabinowitz's testimony that she suffered a cervical strain. But as discussed, Dr. Rabinowitz testified that there were no objective signs of cervical strain, and that he assumed, based on plaintiff's subjective complaints, that plaintiff suffered a cervical strain. Our supreme court has explained that “[a]n award for pain and suffering is especially difficult to quantify.” Snover v. McGraw, 172 Ill.2d 438, 448, 217 Ill.Dec. 734, 667 N.E.2d 1310 (1996). We are to consider the distinction between subjective complaints of pain and objective symptoms. Id. at 449, 217 Ill.Dec. 734, 667 N.E.2d 1310. The court explained:

“In cases in which a plaintiff's evidence of injury is primarily subjective in nature and not accompanied by objective symptoms, the jury may choose to disbelieve the plaintiff's testimony as to pain. In such a circumstance, the jury may reasonably find the plaintiff's evidence of pain and suffering to be unconvincing.” Id.

¶ 29 Here, we find that the jury could reasonably conclude that plaintiff's complaints of pain and suffering were unconvincing and that she was not entitled to any damages for pain and suffering. All of her complaints of pain were subjective. In June 2011, Dr. Anderson concluded that plaintiff sustained a cervical strain, arm strain, forearm strain, and back strain based on his evaluation of her as well as her subjective complaints of moderate pain. Likewise, Dr. Rabinowitz testified that GlenOaks's medical records on the date of the accident reflected no objective findings of cervical strain and stated that plaintiff was in no acute distress. The jury heard conflicting evidence regarding the amount of pain plaintiff was in when she went to the GlenOaks emergency room on June 11, and could reasonably conclude that plaintiff's trial testimony regarding her pain level affected her credibility regarding the amount of pain she experienced. Furthermore, the jury heard testimony that plaintiff had a history of pain in her neck, shoulder, and back, and could reasonably conclude that any pain she experienced following the accident was not caused by the accident itself. We find that the jury did not ignore any proven elements of damages, as defendant presented some evidence challenging the proximate cause of plaintiff's injuries, and the jury was free to make credibility determinations regarding whether plaintiff was entitled to compensatory damages for her subjective complaints of pain.

¶ 30 In sum, we find that there was at least some evidence from which the jury could conclude that not all of the medical treatment that plaintiff received was necessary and related to the accident, and that not all of the bills for the medical treatment she received were for services that that were necessary or reasonable. Furthermore, the jury was free to consider and reject plaintiff's subjective complaints of pain and suffering when determining whether to award compensatory damages for pain and suffering. The jury did not ignore any proven elements of damages, and therefore we conclude that the jury's verdict awarding plaintiff $1000 in damages was not against the manifest weight of the evidence. And, by default, the circuit court did not abuse its discretion by denying plaintiff's motion for a new trial.

¶ 31 Finally, we consider whether the circuit court abused its discretion by denying in part plaintiff's posttrial motion for costs. Plaintiff contends that the circuit court disallowed $243.67 in “witness fees,” which she argues are recoverable under section 5–108 of the Code of Civil Procedure (Code) ( 735 ILCS 5/5–108 (West 2014)). She argues that these costs were for record requests for medical bills and that “because the records were introduced at trial and are witness fees, the trial court abused its discretion when it denied [her] request for [costs] pursuant to [section 5–108 of the Code].” We disagree.

*7 ¶ 32 Section 5–108 of the Code provides:

“If any person sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money, except in the cases hereinafter provided.” Id.

Although this provision entitling a plaintiff to costs is mandatory, the statutory mandate is to be narrowly construed because statutes permitting recovery of costs are in derogation of the common law. Moller v. Lipov, 368 Ill.App.3d 333, 346–47, 305 Ill.Dec. 859, 856 N.E.2d 664 (2006). Our supreme court has previously distinguished between taxable “court costs” and nontaxable “litigation costs.” Vicencio v. Lincoln–Way Builders, Inc., 204 Ill.2d 295, 302, 273 Ill.Dec. 390, 789 N.E.2d 290 (2003). “Court costs” are those “charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees,” whereas “litigation costs” are “the expenses of litigation, prosecution, or other legal transaction, esp[ecially] those allowed in favor of one party against the other.” (Internal quotation marks omitted.) Id. Section 5–108 of the Code “mandates the taxing of costs commonly understood to be ‘court costs,’ such as filing fees, subpoena fees, and statutory witness fees, to the losing party.” Id. Statutory witness fees include the “fees and mileage allowance provided by statute for witnesses attending courts in this State.” (Internal quotation marks omitted.) Id. at 304, 273 Ill.Dec. 390, 789 N.E.2d 290. However, generally, a successful litigant is not entitled to recover the ordinary expenses of litigation. Wiegman v. Hitch–Inn Post of Libertyville, Inc., 308 Ill.App.3d 789, 804, 242 Ill.Dec. 335, 721 N.E.2d 614 (1999).

¶ 33 The “witness fees” here are nontaxable litigation costs. Plaintiff fails to acknowledge the distinction between a taxable court cost and a nontaxable litigation cost. She cites no authority to support her claim that the costs she incurred to secure medical bills that were then introduced as exhibits at trial constitute “court costs.” She makes no argument that the “witness fees” were for statutory witness costs for transportation or attendance at court, as described in Vicencio. Instead, the “witness fees” appear to be nothing more than the costs to secure medical bills, which are costs that more closely resemble nontaxable litigation costs under section 5–108 of the Code. Construing the statute narrowly, as we must, we decline to find that “witness fees” consisting of record requests for medical bills later introduced as exhibits at trial amount to taxable court costs. The circuit court did not abuse its discretion when it declined to award these expenses as costs to plaintiff.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36 Affirmed.

Illinois – Negligence – Constructive Notice Of Dangerous Condition


Appellate Court of Illinois,

First District,

Fifth Division.

 

LINH PHUNG HOANG NGUYEN, Plaintiff–Appellant,

v.

NHUTAM LAM and Hung Lam, Defendants–Appellees.

No. 1–16–1272

Opinion filed November 3, 2017

Appeal from the Circuit Court of Cook County. No. 14 L 9403, Honorable Eileen M. Brewer, Judge, presiding.

OPINION

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

*1 ¶ 1 Plaintiff Linh Phung Hoang Nguyen filed this personal injury action seeking damages for injuries she sustained when she stepped on a catch basin in a backyard and the lid gave way. The Cook County circuit court granted summary judgment in favor of defendants Nhutam and Hung Lam, who owned the property on which the catch basin was located.

¶ 2 On appeal, plaintiff contends that granting summary judgment was improper because she presented enough evidence to create a genuine issue of material fact regarding defendants' constructive knowledge of the dangerous condition where the testimony and photographs of the rusty catch basin lid and deteriorated surrounding concrete showed those conditions had existed for a sufficient length of time. Plaintiff also argues that she was not required to present expert testimony about the duration of the dangerous condition.

¶ 3 For the reasons that follow, we reverse the judgment of the circuit court.

¶ 4 I. BACKGROUND

¶ 5 According to the parties' affidavits and deposition testimony, in 1989, defendants purchased a two-story residential building at 1414 W. Winnemac Avenue in Chicago (the property) and lived there until 2010. Defendants maintained the backyard of the property and allowed their tenants to use the backyard, which contained a catch basin with a metal lid. Defendant Mr. Lam noticed the catch basin in 1989 when he and his wife purchased the property. The previous owner told Mr. Lam to look into the catch basin to make sure it did not get clogged with sewage, but Mr. Lam never followed this instruction or advice because sewage never came up the drain inside the home.

¶ 6 In 1992, defendants hired professional cleaners to clean the well of the catch basin, and no one told Mr. Lam that the catch basin needed additional work. Defendants never performed any maintenance or repairs to the catch basin or lid since they purchased the property in 1989, and the catch basin has not been cleaned, inspected, or modified since 1992. Mr. Lam regularly inspected, cleaned, and swept the backyard, repaired anything that was broken, cut the grass, and shoveled the snow. He walked over the catch basin, had seen others walk across it, and never noticed any problem with the catch basin. Before plaintiff's injury, no one told him that the lid was loose, out of place, or did not fit properly. Just a few weeks before plaintiff's injury, Mr. Lam cleaned the backyard area and did not inspect the catch basin or notice any problem with it.

¶ 7 Plaintiff was injured in August 2014, at about 6 p.m., while she was walking on the sidewalk in defendants' backyard. Specifically, plaintiff and her boyfriend had parked his car in the garage located at the rear of the property and were carrying groceries as they walked through the backyard toward his parents' apartment. When plaintiff's left foot stepped onto the lid of the catch basin, it flipped to a vertical position and caused her to fall into the well and straddle the edge of the vertical metal lid. She sustained an injury to her groin area.

*2 ¶ 8 With the help of her boyfriend, plaintiff went inside the apartment of his parents, and his mother telephoned Mr. Lam. The mother was outside when Mr. Lam arrived at the scene and saw that the lid was in the vertical position. He pushed it down into place with his foot and stood on the lid with both feet. The mother said that the lid was broken, but Mr. Lam said that it was not. Mr. Lam did not see any blood at the scene and did not believe that plaintiff ever fell into the catch basin well.

¶ 9 Plaintiff went to the hospital and was diagnosed with a vulvar hematoma, which required surgery. Photographs of the catch basin were taken immediately after the occurrence. A photograph of the lid in place on the catch basin shows that the top of the lid is rusted and the circumference of the lid is worn and deteriorated. Moreover, the circle concrete surface surrounding the catch basin is deteriorated and has two large cracks and a thinner crack. Those cracks span the distance between the outside rim of the concrete circle and its inside rim, which surrounds the lid of the catch basin. Photographs of the lid tipped in a vertical position in the catch basin show substantial corrosion of the concrete lip upon which the metal lid must rest to remain stable and in place. In these photographs, the rusted, uneven edge of the lid is more obvious. A photograph of the lid removed from the catch basin shows substantial corrosion and deterioration of the lid, the concrete surrounding the catch basin, and the concrete lip of the catch basin.

¶ 10 After plaintiff was injured, Mr. Lam initially placed a board and a couple of chairs over the catch basin. About two months later, workers lifted the lid, spread cement around the lip of the catch basin, and replaced the lid.

¶ 11 In her negligence complaint, plaintiff alleged that defendants failed to exercise reasonable care in the ownership, maintenance, and inspection of their property. Specifically, plaintiff argued that defendants failed to maintain the catch basin and lid in a reasonably safe and proper condition, failed to conduct reasonable inspections of the basin and lid, and failed to repair or replace the basin and lid in a timely manner. Defendants denied any liability, and the parties engaged in discovery.

¶ 12 Defendants moved for summary judgment, asserting that none of the evidence gave rise to an inference that they had actual or constructive notice of the dangerous condition.

¶ 13 In response, plaintiff argued that summary judgment was precluded because Mr. Lam admitted that he never inspected the catch basin or lid after 1992 and a videotape and photographs clearly showed the rusted condition of the catch basin lid and the deteriorated concrete around the catch basin. Plaintiff argued that reasonable jurors could infer that the extensive corrosion of metal and concrete indicated that the dangerous condition existed for a sufficient duration to have given constructive notice of the danger to defendants, who had regularly inspected and maintained the backyard during the 22 years that elapsed since the catch basin was last cleaned and up to the date of plaintiff's injury.

¶ 14 Defendants moved to strike plaintiff's videotape because it was not accompanied by an affidavit to authenticate it and establish a foundation for its admission into evidence.

¶ 15 The circuit court granted defendants' motion to strike the videotape based on plaintiff's failure to provide a proper foundation for the video. The circuit court also granted defendants' motion for summary judgment, rejecting plaintiff's assertions that the corroded concrete was visible and a layperson would be able to know that such corrosion would have taken place over a considerable amount of time. Citing Zameer v. City of Chicago, 2013 IL App (1st) 120198, 373 Ill.Dec. 888, 994 N.E.2d 657, the circuit court stated that plaintiff did not present expert testimony concerning the duration of the defect and photographs of general defects were not sufficient to impute notice to the defendants without evidence of the specific defect.

*3 ¶ 16 Plaintiff moved the circuit court to reconsider the order granting defendants summary judgment. The circuit court denied the motion, stating that plaintiff failed to meet her burden to provide facts showing that defendants had constructive notice of the condition. The circuit court stated that the mere fact of the rusty cover did not provide defendants with timely notice of the specific defect that caused plaintiff's injury and plaintiff did not present any expert evidence about the duration of the defect. Plaintiff timely appealed.

¶ 17 II. ANALYSIS

¶ 18 Plaintiff contends that material issues of fact exist on the question of whether defendants had constructive notice of the condition of the catch basin. She notes that photographic evidence showed such severe deterioration of the concrete and catch basin lid, which would have happened gradually over a significant period of time. Moreover, Mr. Lam testified that he regularly inspected and maintained the backyard, was aware of the catch basin, and had walked and stood on it. Accordingly, plaintiff contends that whether defendants reasonably should have discovered the dangerous condition is a question for the jury. We agree.

¶ 19 This court reviews a circuit court's order granting summary judgment de novoSeitz–Partridge v. Loyola University of Chicago, 409 Ill.App.3d 76, 82, 350 Ill.Dec. 150, 948 N.E.2d 219 (2011). Summary judgment is appropriate only when the “pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 2014). Because summary judgment is a drastic means of disposing of litigation, it should be denied and the issue decided by the trier of fact “where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact.” Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113–14, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). “The documents are construed strictly against the movant and in the light most favorable to the nonmovant.” Zameer, 2013 IL App (1st) 120198, ¶ 13, 373 Ill.Dec. 888, 994 N.E.2d 657. The purpose of summary judgment is to determine whether a genuine issue of material fact exists, not to try a question of fact; accordingly, the circuit court may not weigh the evidence or make credibility determinations. Thompson v. Gordon, 241 Ill.2d 428, 438, 349 Ill.Dec. 936, 948 N.E.2d 39 (2011); AYH Holdings, Inc. v. Avreco, Inc., 357 Ill.App.3d 17, 31, 292 Ill.Dec. 675, 826 N.E.2d 1111 (2005).

¶ 20 Property owners have a duty to exercise ordinary care in maintaining their property in a reasonably safe condition. Chapman v. Foggy, 59 Ill.App.3d 552, 555, 16 Ill.Dec. 758, 375 N.E.2d 865 (1978). Owners have a duty to exercise reasonable care to discover defects or dangerous conditions existing on their property and either correct them or give sufficient warning to enable those lawfully on the land to avoid the danger. Id. It is not necessary for the plaintiff to show that the owners had actual knowledge of the dangerous condition. Id. If, in the exercise of ordinary care, the owners should have discovered the condition, i.e., if they had constructive notice of it, they may be held liable. Id. at 555–56, 16 Ill.Dec. 758, 375 N.E.2d 865. Constructive notice can be shown only where the dangerous condition is shown to exist for a sufficient length of time to impute knowledge of its existence to the defendants. Ishoo v. General Growth Properties, Inc., 2012 IL App (1st) 110919, ¶ 28, 359 Ill.Dec. 472, 966 N.E.2d 1160; see also Pittman v. City of Chicago, 38 Ill.App.3d 1036, 1039, 350 N.E.2d 114 (1976) (the evidence was sufficient to support a finding of constructive notice where a photograph showed the defective condition of the sidewalk and the plaintiff testified that the defective condition existed for the entire time—about six years—that she traveled the block while employed at a factory). Illinois courts have ruled that it is in the province of the trier of fact to determine whether the plaintiff has established that the defect existed long enough to impute knowledge of its existence to the defendant. Chapman, 59 Ill.App.3d at 556, 16 Ill.Dec. 758, 375 N.E.2d 865; Guenther v. Hawthorn Mellody, Inc., 27 Ill.App.3d 214, 218, 326 N.E.2d 533 (1975).

*4 ¶ 21 In Baker v. Granite City, 311 Ill.App. 586, 593, 37 N.E.2d 372 (1941), the plaintiff was injured while walking on a catch basin cover that tilted and slid aside, and the trial testimony indicated that at the time of the plaintiff's injury the catch basin flange was corroded and rusted and the bottom of the cover had “a good deal of rust on it” and its lower edge was worn off “as thin as a piece of cardboard.” Although no witness had testified about how long the deteriorated condition had existed prior to the plaintiff's injury, the court stated that “[i]t is a matter of common knowledge that iron will often rust and corrode when exposed to water and weather and that such rust and corrosion do not generally occur to any considerable extent or degree in a short period of time.” Id.

¶ 22 The Baker court held that the trial court erred in granting the defendant's motion for a directed verdict because the jury could reasonably infer that the condition of the catch basin at the time of the plaintiff's injury had occurred gradually over a considerable period of time and that the presence of such rust and corrosion and the worn condition of the cover might have been discovered and remedied by the defendant on reasonable inspection. Id. The court concluded that it was a question of fact for the jury to determine whether the “defective conditions were of such a character and had existed for such a length of time that the defendant might have discovered and remedied them, and to determine whether or not the defendant was negligent in this respect.” Id. at 594, 37 N.E.2d 372.

¶ 23 Here, there was evidence from which a jury could conclude that the deteriorated condition of the catch basin existed for a sufficient time that defendants should have been aware of it. Specifically, Mr. Lam testified that he lived at the property from 1989 until 2010, regularly inspected and maintained the backyard, and had walked and stood on the catch basin. He was aware of the catch basin since he and his wife purchased the property in 1989, but he never inspected or maintained the catch basin or lid aside from having the well cleaned in 1992. Although the previous property owner told Mr. Lam to look into the catch basin to make sure it did not get clogged with sewage, Mr. Lam said that he never followed that instruction or advice. Furthermore, the photographs show that some deterioration of the catch basin (the cracked concrete surface and rusted lid) was visible even when the lid was in place over the well of the catch basin. Also, the photographs of the cracked and corroded concrete upon which the rusty catch basin lid rested indicate that the catch basin's defective condition existed for a considerable amount of time because concrete and metal deteriorate gradually. See id. at 593, 37 N.E.2d 372.

¶ 24 Construing the documents, testimony, and photographs strictly against defendants and in the light most favorable to plaintiff, we find that a genuine issue of fact exists concerning whether defendants had constructive notice of the dangerous condition. A reasonable trier of fact could infer from the cracked concrete surface, corroded concrete lip, and rusty lid that the defective condition of the catch basin existed for a sufficient duration to have given constructive notice to defendants, who should have discovered the defect by the exercise of reasonable care.

¶ 25 Defendants argue the circuit court properly awarded them summary judgment and rely on Zameer, 2013 IL App (1st) 120198, 373 Ill.Dec. 888, 994 N.E.2d 657, to support their assertion that plaintiff failed to present sufficient evidence to create a genuine issue of material fact about their constructive notice. In Zameer, the plaintiff alleged that she sustained injuries requiring surgery when she tripped and fell due to an approximately two-inch height disparity between two sidewalk slabs. Id. ¶ 4. The defendant municipality asserted it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3–102(a) (West 2010)) because it did not have notice of the raised sidewalk that caused her fall in adequate time to have taken measures to repair the sidewalk. Zameer, 2013 IL App (1st) 120198, ¶¶ 5, 14–15, 373 Ill.Dec. 888, 994 N.E.2d 657. “Section 3–102(a) [of the Tort Immunity Act] requires proof that the defendant had timely notice of the specific defect that caused the plaintiff's injuries, not merely the condition of the area.” Id. ¶ 16. The municipality moved for summary judgment, and the plaintiff argued, inter alia, that photographs of the defective sidewalk were sufficient evidence to show constructive notice. Id. ¶¶ 9, 22.

*5 ¶ 26 The Zameer court held that summary judgment for the municipality was proper because the plaintiff failed to present sufficient evidence to create a genuine issue under the Tort Immunity Act as to whether the municipality had constructive notice of the defect, i.e., that the condition existed for such a length of time or was so conspicuous that authorities exercising reasonable care and diligence might have known of it. Id. ¶¶ 19, 20, 22. Specifically, both the plaintiff and her companion at the time of the injury testified that they did not know how long the defect existed, and a civil engineer employed by the municipality's department of transportation “testified that there is no way of telling how long the defect existed” and “it could have developed in as little as three weeks.” Id. ¶¶ 20 –22.

¶ 27 Defendants' reliance upon Zameer is misplaced because it is distinguishable from the present case. In Zameer, the photograph of the sidewalk slabs did nothing to indicate that the alleged defect—the two-inch height difference between the slabs—had existed for a sufficient length of time to constitute constructive notice, particularly in light of the civil engineer's testimony that the condition could have developed in as little as three weeks. Here, in contrast, the photographs of the corroded and rusted condition of the catch basin indicate, as discussed above, that such deterioration of concrete and metal occurs gradually over time. Moreover, Mr. Lam testified that the catch basin was not inspected for 22 years.

¶ 28 Finally, we reject defendants' assertion that plaintiff was required to present expert testimony about the duration of the defect. It is well settled that a trial court exercises its discretion to allow a person “to testify as an expert if his experience and qualifications afford him knowledge that is not common to laypersons, and where his testimony will aid the trier of fact in reaching its conclusions.” Thompson v. Gordon, 221 Ill.2d 414, 428, 303 Ill.Dec. 806, 851 N.E.2d 1231 (2006). Moreover, “[p]laintiffs are not required to prove their case at the summary judgment stage.” Thompson, 241 Ill.2d at 438, 349 Ill.Dec. 936, 948 N.E.2d 39. Here, a trier of fact viewing the photographs reasonably may discern the age and duration of the dangerous condition of the catch basin as having been in existence for a very long time, and such opinion is not within the sole province of an expert witness. See Pittman, 38 Ill.App.3d at 1039, 350 N.E.2d 114 (rejecting the municipality's assertion that only a cement mason, contractor, or engineer was qualified to express an opinion as to how long the dangerous sidewalk condition, as depicted in a photograph, had existed).

¶ 29 III. CONCLUSION

¶ 30 The circuit court erred in granting defendants summary judgment because plaintiff presented sufficient evidence to show a genuine issue of material fact about whether defendants had constructive notice of the dangerous condition of the catch basin. A jury could infer from the testimony and photographic evidence that the deteriorated condition of the catch basin and surrounding concrete occurred over an extended period of time so that defendants would have discovered the dangerous condition in the exercise of reasonable care. Accordingly, we reverse the judgment of the circuit court and remand this cause.

¶ 31 Reversed and remanded.




 

Torts -- Workers' compensation immunity -- Plaintiff who elected exemption from workers' compensation coverage as a corporate officer of sub-subcontractor could not properly maintain a tort action against contractor and subcontractor for injuries sustained in the course and scope of employment -- Trial court properly entered summary judgment for defendants in plaintiff's tort action


42 Fla. L. Weekly D2441aTop of Form

Torts -- Workers' compensation immunity -- Plaintiff who elected exemption from workers' compensation coverage as a corporate officer of sub-subcontractor could not properly maintain a tort action against contractor and subcontractor for injuries sustained in the course and scope of employment -- Trial court properly entered summary judgment for defendants in plaintiff's tort action

CHARLES GLADDEN, Appellant, v. FISHER THOMAS, INC., THE GREEN-SIMMONS COMPANY, INC., AND SHAWN MICHAEL AVERETT, Appellees. THE GREEN-SIMMONS COMPANY, INC., Cross-Appellant, v. WILSON FLOOR COVERING OF PENSACOLA, INC., Cross-Appellee. 1st District. Case No. 1D16-1752. Opinion filed November 15, 2017. An appeal from the Circuit Court for Escambia County. Frank L. Bell, Judge. Counsel: Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Bobby J. Bradford of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola, for Appellant. W. David Jester of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellee/Cross-Appellant The Green-Simmons Company, Inc. Gregory M. Shoemaker of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellees Fisher Thomas, Inc., and Shawn Michael Averett. Peter S. Roumbos of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Cross-Appellee.

(PER CURIAM.) This is an appeal from a final summary judgment entered against Appellant, Charles Gladden, and in favor of Appellees, Fisher Thomas, Inc. (“Fisher Thomas”), The Green-Simmons Company, Inc. (“Green-Simmons”), and Shawn Michael Averett (“Averett”). The issue before us is whether Gladden can maintain an action against Appellees in tort for injuries he sustained in the course and scope of employment, after electing exemption from workers' compensation coverage as a corporate officer. For the reasons that follow, we conclude that he cannot and affirm the lower court's decision, although for reasons different than those articulated by the court.1

I.

The action underlying this appeal involves a claim by Gladden arising from a workplace injury occurring on June 2, 2009, while Gladden performed flooring installation work at the Opal Beach Ranger Station. Gladden alleged that he was severely injured when Averett, an employee of Fisher-Thomas, lifted materials to him with a forklift. The load was improperly secured, causing Gladden to fall from the second floor of the job site, which had no railing or other fall prevention in place.

At the time of the incident, Green-Simmons was the general contractor retained by the National Park Service for the project. Green-Simmons entered into separate subcontracts with Fisher Thomas and Wilson Floor Covering, Inc. (Wilson Floor) to perform work on the contract. Unbeknownst to Green-Simmons, Wilson Floor entered into a sub-subcontract with Gladden's company, Chuck Gladden's Carpet & Vinyl Installation, L.L.C. (“Gladden Carpet”), to perform the work Wilson Floor was to perform under its subcontract with Green-Simmons.

The contract with the National Park Service required Green-Simmons and its subcontractors to maintain workers' compensation insurance, which Green-Simmons, Fisher Thomas, and Wilson Floor did at all relevant times. As an officer of Gladden Carpet,2 Gladden elected to be exempt from workers' compensation coverage pursuant to section 440.02(15)(b)1., Florida Statutes (2008). While Gladden provided a copy of his certificate of exemption to Wilson Floor, neither Gladden nor Wilson Floor notified Green-Simmons of the exemption.

Gladden sued Green-Simmons, Averett, and Fisher Thomas under a theory of negligence. Green-Simmons, in turn, filed a third-party complaint against Wilson Floor. Appellees argued in their motions for summary judgment that they were immune from suit because Gladden was a “statutory employee” of Green-Simmons under the Workers' Compensation Law3 and potentially in line for workers' compensation benefits. In response, Gladden argued that a corporate officer who properly elects to be exempt from the Workers' Compensation Law is excluded from the definition of an “employee,” thereby precluding a finding of immunity.

The trial court entered summary judgment in favor of Appellees, concluding that Gladden was an “employee” under the Workers' Compensation Law at the time of the accident notwithstanding his exemption. The court ruled that Appellees were therefore entitled to workers' compensation immunity as a matter of law. The court additionally ruled that Wilson Floor was immune from any claims arising from the allegations levied by Gladden against Green-Simmons on the basis of workers' compensation exclusivity. This appeal and cross-appeal followed.4

II.

The purpose of the workers' compensation system is to provide an expeditious remedy for employees, regardless of fault, and liability for employers that is limited and determinate. McLean v. Mundy, 81 So. 2d 501, 503 (Fla. 1955) (citations omitted). Under the Workers' Compensation Law, an employer that maintains workers' compensation insurance coverage for the benefit of its employees is immune from tort liability for a workplace injury. § 440.11(1), Fla. Stat. (2008) (except as otherwise provided, “[t]he liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability . . . to the employee”); VMS, Inc. v. Alfonso, 147 So. 3d 1071, 1074 (Fla. 3d DCA 2014). A general contractor who has “the liability to secure coverage” for employees of its subcontractor and either secures coverage for the subcontractor's employees or ensures that the subcontractor secures coverage for its employees enjoys the same immunity. VMS, Inc., 147 So. 3d at 1074-75; § 440.10(1)(e), Fla. Stat. (2008).

The issue, as framed by Gladden, is whether Gladden was an “employee” under the Workers' Compensation Law at the time of the accident. If, as the trial court found, Gladden was an “employee” under section 440.02(15)(c)2., Florida Statutes (2008), Gladden concedes that the exclusive remedy for his injuries falls under the protections provided by the workers' compensation system, as horizontal and vertical immunity would insulate Appellees from tort liability. If he was not an “employee,” however, he contends that workers' compensation immunity does not apply.

The Workers' Compensation Law contains definitions of commonly used terms that apply “unless the context clearly requires otherwise.” § 440.02, Fla. Stat. (2008). For workers in the construction industry, an “employee” includes “[a]ll persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter.” § 440.02(15)(c)2., Fla. Stat. (emphasis added). The definition section further provides that an “employee” does not include

[a]n officer of a corporation that is engaged in the construction industry who elects to be exempt from the provisions of this chapter, as otherwise permitted by his chapter. Such officer is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 is effective.

§ 440.02(15)(d)8., Fla. Stat.

Here, it is undisputed that Gladden had filed the required election for exemption and that the exemption was current on the date of the accident. Thus, under the plain language of the foregoing definitions, Gladden did not satisfy the definition of “employee” at the time of the accident. If that were the end of the analysis, we could readily conclude that Appellees were not entitled to immunity.

But the analysis cannot end there because the Florida Supreme Court instructed in Weber v. Dobbins, 616 So. 2d 956 (Fla. 1993), that context matters. The question before this Court is not whether Gladden, as an “employee,” is eligible to make a claim for workers' compensation benefits as a result of his on-the-job accident. The question is whether Appellees qualify for tort immunity under section 440.11.

In Weber, the Florida Supreme Court expressly declined to apply the section 440.02 definition of “employee,” which refers to “those persons who are entitled to file claims under the Workers' Compensation Law,” to “the context of granting statutory immunities provided by the Workers' Compensation Laws.” 616 So. 2d at 959. In that case, a worker was injured while he was working under the direction of Howard Weber, a corporate officer of Preferred Enterprise Signs. Id. at 957. The injured worker made a claim for and received worker's compensation benefits from Preferred Enterprise Signs, but also filed a negligence action against Weber as a result of his injuries. Id. Weber defended against the action based on the immunity provisions in section 440.11, Florida Statutes (1983). Id. at 958. The issue boiled down to whether Weber, who had elected to be exempt from workers' compensation coverage as a corporate officer, could benefit from workers' compensation immunity. Id. The answer was yes. In contrasting the context in which the term “employee” is used in the definition section of the Workers' Compensation Law and the context it is used in the section granting employers and employees immunity from liability claims, the court concluded that “[a] particular person's immunity from suit is not related to that person's entitlement to make a workers' compensation claim.” Id. at 959. It explained that applying the relevant statutory sections literally, without considering context, “would lead to an unreasonable or ridiculous conclusion.” Id.

Gladden contends that by electing the corporate officer exemption, he is in effect removing himself from the entire workers' compensation scheme and opening the door to actions in tort against individuals and entities who would otherwise be entitled to workers' compensation immunity. But that is asking too much of the benefit derived from the corporate exemption in light of Weber and is inconsistent with other provisions of the Workers' Compensation Law. Section 440.05(14), Florida States (2008), which governs the procedures for election of the corporate officer exemption, makes clear that the quid pro quo for reduced workers' compensation premiums associated with the exemption is that the officer electing exemption “may not recover benefits or compensation under [the Workers' Compensation Law].” See also § 440.077, Fla. Stat. (2008). The only provision in the Workers' Compensation Law that specifically addresses the impact of the corporate exemption on workers' compensation immunity is section 440.075, which permits an exempt corporate officer to proceed against “the corporate employer” at common law in an action to recover damages for injury or death. § 440.075, Fla. Stat. (2008) (emphasis added). Since the corporate employer reaps the benefit of reduced workers' compensation premiums for the exempt officer, it makes sense that there is a risk associated with the benefit.

III.

Gladden's exemption from workers' compensation coverage does not equate to his ability to circumvent the immunity protections of section 440.11, except as provided by section 440.075. We therefore AFFIRM the trial court's final summary judgments. (RAY, OSTERHAUS, and BILBREY, JJ., CONCUR.)

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1The “tipsy coachman” doctrine allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” if there is “any basis which would support the judgment in the record.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (citation omitted).

2Section 440.02(9), Florida Statutes (2008), provides that “[a]s to persons engaged in the construction industry, the term ‘officer of a corporation' includes a member owning at least 10 percent of a limited liability company created and approved under chapter 608.”

3Chapter 440, Florida Statutes (2008), is known as the “Workers' Compensation Law.”

4Because Green-Simmons' Cross-Appeal is a contingent appeal, both Green-Simmons and Wilson Floor agree that the outcome of Gladden's appeal will apply equally to both Green-Simmons and Wilson Floor.

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