IL appeals panel: Cook judge wrong to let woman who lost at trial get new chance to sue Tinley roller rink

By Scott Holland | Sep 4, 2017

A state appeals court said a lower court judge was wrong to allow a woman to win a new trial in a lawsuit targeting a Tinley Park roller rink.

In an unpublished order issued Aug. 30, the Illinois First District Appellate Court ruled on an appeal from a judgment by Cook County Circuit Judge Thomas Flanagan. Justice James G. Fitzgerald Smith wrote the order; Justices Terrence J. Lavin and Cynthia Y. Cobbs concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the rule.

Marie Largen broke her wrist in a Jan. 21, 2012, fall at Tinley Park Roller Rink Inc. and filed a lawsuit Oct. 1, 2012, alleging negligence and premises liability. She amended the complaint Dec. 27, 2012, to also allege violations of the Illinois Roller Skating Rink Safety Act.

The rink responded Feb. 13, 2013, denying liability, said it properly trained employees and also pleaded two affirmative defenses, alleging Largen should bear some of the liability in the incident.  The rink got the court to dismiss Largen’s count regarding the skating law, since it doesn't allow for lawsuits brought by individuals, but failed in its motion to dismiss the remaining counts based on the law’s assumption of risk provision.

After the evidence portion of the jury trial closed, Largen voluntarily dismissed the premises liability count. The parties haggled over specific jury instruction requests regarding the skating law before the jury ruled in favor of the rink. On Dec. 26, 2015, Largen requested a new trial, saying the court erred in allowing jury instruction language that included an assumption of risk provision. Flanagan denied that motion in a brief field Feb. 25, 2016, but in an expanded order on March 8, 2016, granted the new trial.

On April 7, 2016, the rink filed a motion to clarify the inconsistent orders, and on April 20 Flanagan reaffirmed he was allowing a new trial, again stating the jury could have been misled. The rink appealed.

While the appellate panel first agreed Flanagan did nothing wrong by issuing a March order contradicting his February brief, it ultimately determined Largen is not entitled to a new trial.

The form Flanagan used to instruct the jury, per the appellate decision, was supported by the trial evidence and did not clearly mislead the jury or result in a serious prejudice to Largen. Both parties, Smith wrote, used the skating law throughout the trial and entered it as an exhibit. After both sides offered different parts of the law for jury instructions, Flanagan ruled the entire law should be used.

“Nothing in the instruction given was either insufficiently clear or misstated the law,” Smith added. “The instruction informed the jury of the existence of the Roller Skating Act and the duties of both the roller rink and the plaintiff under that Act. The instruction further informed the jury under what circumstances, if any, the plaintiff could assume the risk of injury while skating in the roller rink, and under what circumstances she could not, and what the consequences of her assumption of risk would entail.”

Largen insisted the jury was allowed to consider whether the assumption of risk completely barred her from recovering damages from her fall, but the appellate panel said the skating law clearly says such damages can be awarded if the rink operator violated duties or responsibilities the law sets forth.

Flanagan’s decision to grant a new trial therefore constituted an abuse of his judicial discretion. Given that there is sufficient evidence to support the jury verdict, the justices said the original verdict must stand.

Largen was represented by attorney Thomas M. Paris, of Chicago.

The roller rink was represented by the firm of Daniel P. Costello & Associates, of Chicago.

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Illinois First District Appellate Court Thomas M. Paris Attorney & Counselor At Law, P.C.

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