Wilful violation NOT required for "missing witness" instruction per Illinois Appellate Court. - Mark P. Loftus

The Second District Appellate Court handed down an important decision recently dealing with the failure to produce evidence. In Meeks v. Great America LLC , the plaintiff, Shatoya Meeks, was enjoying a day at Hurricane Harbor Water Park. While riding a water slide, Ms. Meeks suffered very serious injuries to her hands and wrists. She filed a lawsuit alleging that the defendant negligently operated the water slide and failed to properly inspect it. During pretrial discovery, plaintiff’s counsel requested the names of the dispatcher and other personnel who were running the water slide at the time of the occurrence. Great America indicated initially that they could not be identified. [Yes, difficult to imagine, but Great America actually indicated that it could not identify the people who supervised rides that hundreds of children ride nearly every single day the park is open]. Ultimately an employee who supervised the water slide on the day of the occurrence was located. He testified that while he was on break at the time of the occurrence, he did attend to the plaintiff after her injury. Additionally, he testified he completed an Incident Report. Great America couldn’t locate the report.

Shortly before trial, Great America identified two employees who were working on the water slide of the day of the occurrence. And, it somehow located the Incident Report, as well as a Witness Statement. Plaintiff filed a motion for sanctions against Great America for its failure to timely identify the other witnesses and documents. And, as a remedy, plaintiff argued that Illinois Pattern Jury Instruction 5.01 be given at trial. That particular instruction tells jurors that they may draw negative inferences against parties who fail to produce evidence in their control. In effect, the instruction tells jurors that a defendant didn’t produce witnesses or documents because said witnesses or documents would not be helpful. The impact of the instruction can be devastating.

Great America argued that as it had not intentionally withheld the identity of the witnesses and documents, the 5.01 instruction was not warranted. The trial court agreed their behavior had not been intentional. Nonetheless, the trial court utilized a modified form of 5.01 and told the jury that Great America had failed to offer the testimony of the supervisor as well as other personnel and that Great America failed to offer certain statements. Finally, the trial court advised the jury that it could assume that the missing witnesses and documents would not be helpful to Great America.

The jury found for plaintiff and awarded a substantial sum. Great America appealed, in part, arguing that the 5.01 instruction should not have been given as their conduct had not been intentional. The Appellate Court didn’t see things that way, holding there was no requirement that 5.01 can only be given when the evidence shows the conduct was intentional or wilful.

Verdict was affirmed. Congrats to Joe Ryan who represented Ms. Meeks.