Bethany Krajelis Aug. 1, 2013, 11:59am

Former St. Clair County Circuit Court Judge Lloyd Cueto did not abuse his discretion when he denied a former Olympic runner’s request for a new trial over his slip-and-fall suit, the Fifth District Appellate Court held late last month.

In its unpublished order, the appeals panel affirmed Cueto’s decision to deny Craig Virgin’s request for a new trial based on defense counsel’s comments during closing arguments.

The panel also upheld the now-retired judge's refusal to sanction the defendant, Hank’s Excavating & Landscaping Inc., for only producing fax copies of a time sheet and invoice in pretrial discovery.

Justice Bruce Stewart delivered the court’s order and Justices Melissa Chapman and James Wexstten concurred.

The unpublished order stems from a lawsuit Virgin brought against Hank’s for injuries he sustained during a 2004 slip and fall accident.

He claims Hank’s was responsible for clearing the ice and snow from the parking lot of the building his company, Front Runner, leased space in, but failed to do so. His landlord, Regions Bank, had a contract with Hank’s for ice and snow removal.

Virgin claimed that when he got out of his truck after returning to work from lunch on Feb. 4, 2004, he “took two steps, slipped, and fell on a patch of ice in the parking lot near the rear entrance to his office.”

According to the court’s order, Virgin “felt a pop in his knee and extreme pain” and “crawled and hopped his way inside the office” to call his nearby parents, who then took him to the emergency room.

The doctor, the order states, determined that Virgin suffered injuries to his right leg, including a tear of the quadriceps tendon and an anterior cruciate ligament (ACL) tear, and needed surgery.

After surgery, Virgin had to wear a cast from his hip to his ankle and then underwent physical therapy.

Virgin testified at trial that when he arrived at his office building on the morning of his fall, the parking lot had been plowed, but the lot, as well as the doorways and sidewalks to the building, had not been treated with calcium chloride pellets or any type of deicer material.

One of the Hank’s employees testified that his time sheet indicated he worked at the office building on the morning of Virgin’s fall and spread calcium chloride on the parking lot.

Hank’s also presented an invoice that showed 100 pounds of calcium chloride pellets had been spread on the parking lot that morning.

The jury returned a verdict in favor of Hank’s and against Virgin, who then appealed.

He challenged Cueto’s admission of the time sheet and the invoice, arguing they were not properly disclosed during discovery as Hank’s produced only fax copies of the documents during discovery. The originals were provided prior to trial.

“In the present case, the plaintiff has not established any pretrial discovery violation much less an abuse of the circuit court's discretion,” Stewart wrote in the order.

He added, “The defendant furnished exact copies of the documents requested, except that the produced documents were facsimile copies …The plaintiff could have requested an opportunity to inspect the originals prior to trial, but he never made that request.”

As such, Stewart wrote that the appeals panel determined no discovery violation meriting sanction occurred.

On appeal, Virgin also argued that Cueto erred in denying his post trial motion for a new trial based on defense counsel’s comments during closing arguments.

He claimed Hank’s attorney violated the court’s in limine order preventing the defendant from introducing evidence that the office building’s landlord and property manager were parties to the lawsuit or that Virgin had reached any type of settlement with either.

During closing argument, defense counsel stated “[I]n February they sued us, they sued the bank, they sued the management company,” the order states, showing that Virgin’s attorney objected and Cueto said “Well, let's stick to the evidence in this case.”

“The plaintiff argues that this violation of the in limine order resulted in an unfair trial,” Stewart wrote. “However, a violation of an in limine order does not automatically result in a new trial if the plaintiff did not suffer any prejudice.”

Saying that “a comment in violation of an in limine order must cause substantial prejudice to justify a new trial,” Stewart wrote that “the plaintiff has not established substantial prejudice as a result of the comment” and as such, affirmed Cueto’s denial of a new trial.

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