author: JUSTICE CAMPBELL

text:
    DELBERT YATES, JR., a Minor, by Delbert Yates, Sr., his Father and Next Friend, Plaintiff-Appellee, v. CHICAGO NATIONAL LEAGUE BALL CLUB, INC., Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1209
    Opinion filed April 6,1992.
    Rehearing denied June 23,1992.—
    Modified opinion filed June 29,1992.

      Tressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina and William J. Cremer, of counsel), for appellant.
    Thomas R. Cirignani & Associates, of Chicago (Thomas R. Cirignani, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Minor-plaintiff Delbert Yates, Jr., by Delbert Yates, Sr., his father and next friend (Mr. Yates), brought suit in the circuit court of Cook County against defendant Chicago National League Ball Club, Inc. (the Chicago Cubs or Cubs), for injuries resulting from being struck by a foul ball while attending a baseball game. Plaintiff alleged that defendant negligently: (1) failed to provide adequate screening in the area behind home plate; and (2) failed to warn him so as to enable him to avoid the harm. Following a jury trial, judgment was entered on a verdict rendered in favor of plaintiff; defendant now appeals.

The record on appeal contains the following facts. Mr. Yates testified that on August 20, 1983, he attended a baseball game between the Atlanta Braves and Chicago Cubs. Mr. Yates’ wife, four of their daughters and plaintiff, Delbert Yates, Jr., also attended the game. Mr. Yates had previously purchased eight tickets for the game through Carson, Pine Scott in Merrillville, Indiana. Mr. Yates testified that he had requested tickets behind home plate.

The Yates family arrived at the ballpark between 12:30 and 1 p.m. and had difficulty finding a place to park their car. By the time they were admitted to the park, the game had already started; an usher showed the family to their seats. Mr. Yates testified that he took the first seat, whereas plaintiff took the seventh seat, leaving the eighth seat empty. Mr. Yates felt that his seat was protected by a screen in place behind home plate.

During the game, Leon Durham came up to bat and hit a foul ball which struck plaintiff. Mr. Yates testified that he saw the ball hit his son, after which he saw a knot under plaintiff’s eye and saw blood pouring down plaintiff’s face. According to Mr. Yates, two people came and took plaintiff to a first aid station. Plaintiff was then taken to the hospital. Plaintiff’s injury required surgery and a hospital stay of at least five days.

Mr. Yates testified that in the 90 days following the surgery, plaintiff continued to have excruciating headaches. In addition, whereas plaintiff had played basketball and organized baseball prior to being injured, he could no longer really hit or catch the ball. Plaintiff had become withdrawn and stayed in his room most of the time.

On cross-examination, Mr. Yates testified that he had been to Wrigley Field two or three times before the date of the accident. Mr. Yates was aware that balls would leave the field and go into the stands. Mr. Yates had previously sat in a seat not protected by a screen. Although the diagram he was shown at the time of purchasing tickets did not indicate the position of the screen, Mr. Yates assumed that the seats he was shown behind home plate would be behind the screen. Defense counsel sought to impeach Mr. Yates with prior deposition testimony in which Mr. Yates stated he asked for tickets “behind the home plate around the screen.” Defense counsel also sought to impeach Mr. Yates with prior deposition testimony in which Mr. Yates stated he did not actually see the ball strike his son. Mr. Yates admitted that he had not sat in plaintiff’s seat. On redirect, Mr. Yates testified that he was never told by the Chicago Cubs that his seats were not protected by the screen.

Mrs. Theda Yates, plaintiff’s mother, testified that she did not see the baseball strike her son, but that, immediately thereafter, her son appeared as described above. Mrs. Yates’ testimony concerning plaintiff’s hospitalization and the change in plaintiff’s activities was also similar to that described by Mr. Yates. Mrs. Yates also stated that plaintiff suffered from occasional double vision following the injury.

On cross-examination, Mrs. Yates testified that Mr. Yates requested seats behind home plate and behind the screen. Defense counsel read Mrs. Yates’ prior deposition testimony into the record, in which she indicated that Mr. Yates had asked for seats behind the screen “where we always sat but they were always [sic] sold.” Mrs. Yates testified that she was aware that foul balls went into the stands at baseball games, which was why they bought the seats at issue. Mrs. Yates stated that she had not gone to plaintiff’s seat to see whether the seat was protected.

Mrs. Yates was then shown defendant’s exhibits 3, 4, 5, 6, 7, and 8, a series of photographs taken at Wrigley Field from a number of perspectives. Mrs. Yates agreed that whether the seats Mr. Yates bought appeared to be protected by the screen depended on the angle from which they were photographed. These exhibits were published to the jury.

On redirect, Mrs. Yates testified that the Cubs never told her that the seats her family were going to sit in were protected by the screen from some angles and not from others. Mrs. Yates also stated that she would not have sat in her seat if she had known it was not protected from foul balls.

Plaintiff testified that he was born on December 27, 1972. In 1983, plaintiff was in fourth grade at the Hazelnut Elementary School. Plaintiff attended the August 20, 1983, baseball game between the Atlanta Braves and Chicago Cubs, along with his parents and sisters. Immediately after plaintiff bet his sister Susan as to whether Leon Durham would get a hit, he was struck by a baseball. Plaintiff saw only a white blur before he was struck. Plaintiff then testified that he was taken to a first aid station, then to a hospital and later had surgery.

Plaintiff also testified that in the 90 days following the surgery, he had painful headaches almost every day and that he continued to have similar headaches once or twice a month thereafter. Plaintiff further testified as to his involvement with sports, particularly baseball. In the two or three years before the accident, plaintiff had played organized baseball as an outfielder, second baseperson and catcher. Plaintiff had one of the top five averages on his team. After the accident, plaintiff would see two baseballs when attempting to field a fly ball. Plaintiff did not play any other sports after the accident. Plaintiff also has trouble driving cars and climbing ladders.

On cross-examination, plaintiff stated that he had been to Wrigley Field approximately five times before the accident. He had also been to Comiskey Park on at least one occasion. Plaintiff admitted that he was aware that foul balls would leave the field. Plaintiff also admitted that from his experience as a baseball player, he knew that the ball could travel in many different directions after being hit. Plaintiff could not remember whether the ballpark was crowded on August 20, 1983.

Plaintiff next read edited deposition testimony given by Allen R Caskey into the record. Defendant’s motion to strike the entire transcript was heard and denied outside the presence of the jury.

Caskey testified that he had obtained a bachelor’s degree in 1964, a master’s degree in 1965 and a doctorate in 1974; these degrees were in the field of recreation and parks administration and were received from the University of Illinois. He was president of A.R.C. Associates, Inc., a firm providing planning, design, construction, supervision and inspection, as well as operation, maintenance and safety consulting services, to park and recreation agencies. The facilities involved include swimming pools, tennis courts, basketball courts, playgrounds and softball and baseball facilities. Caskey had previously been involved with the planning, design and development of approximately 300 softball and baseball fields, ranging in size from a small backstop to a facility seating a few thousand spectators. Caskey had also previously consulted for the Chicago White Sox in a similar lawsuit.

Caskey testified that he had been retained by plaintiff to review documents regarding this lawsuit. After reviewing these documents, Caskey arrived at a number of opinions, based upon a reasonable degree of certainty within the area of design, construction and operation of a baseball stadium. Caskey opined that the seats in the “area behind home plate” should be protected at Wrigley Field. Caskey defined the “area behind home plate” as the area between the first and third base lines as if those base lines were extended into the stands. Caskey opined that this area was the most dangerous area of the ballpark because it has the highest probability of line drive foul balls which would have a short reaction time on the part of spectators.

Caskey testified that it would be feasible to protect spectators from foul balls by erecting a screen to prevent foul balls from entering the stands. Caskey also opined that plaintiff’s seat on August 20, 1983, was in the area behind home plate, but was also in an unprotected area of the ballpark. Caskey opined that screening could be extended down the first and third base lines, but a minimal amount of screening would be that which would cover the area behind home plate. Caskey concluded that plaintiff’s injuries were caused by the lack of protective screening and that defendant had not exercised reasonable care in providing safe seating in the area behind home plate.

On cross-examination, Caskey admitted that his undergraduate degree was in physical education and recreation; he could not recall anything in his undergraduate studies which related to major league backstops. Caskey stated that there would be different considerations in designing a major league baseball stadium than were present in designing baseball fields for high school or little league use, including the size of the facility, the size of the players and the speed of the ball. Caskey further stated that he had never designed or built a major league stadium. Caskey testified that he was neither a licensed architect nor an engineer; he stated that he did not have licenses in the professions requisite to designing a major league ballpark. Caskey admitted that he had never designed, built or published articles concerning major league backstops.

Caskey also admitted that he had not gone to Wrigley Field to make observations or take measurements regarding the seats and screen in this case. Caskey had not made time or distance calculations in this case, nor could he cite a specific study on the subject. Caskey’s knowledge of the location of plaintiff’s seat was based on photographs and a schematic diagram provided to him. Caskey did not know whether the diagram was to scale.

Caskey stated that in forming his opinions, he had relied upon various publications on the personal injury issue and his years of reading documentation on safety, design and operation of baseball stadiums and fields. He also stated that he could not recall any of those publications specifically addressing major league backstops. Caskey indicated that he was unaware of any major league studies regarding which areas of a ballpark carry the greatest risk of spectator injury from foul balls, nor had he conducted such a study himself.

Caskey was unaware of any major league standard concerning backstop size or defining the area behind home plate. Caskey agreed that it was not necessary to screen the entire ballpark, that the screen would end at some point and that seats beyond that point would be unprotected. Caskey had not conducted a study to determine whether the risk of a foul ball reaching plaintiff’s seating area was greater than that of a foul ball reaching the area just beyond the area he defined as behind home plate. Nor had Caskey conducted a survey of the size of major league backstops. Caskey estimated that between 60% and 80% of his work in lawsuits was on behalf of plaintiffs.

Plaintiff called Paul Rathje as an adverse witness. Rathje testified that he was the Cubs’ assistant director of stadium operations, a position he had held since 1983. His department was responsible for stadium and field maintenance, as well as game-day personnel, such as ushers, security and first-aid personnel. Rathje testified that the screen in place in August 1983 had been installed in 1982. Rathje stated that the purpose of the screen was to protect “those sitting directly behind home plate.” Rathje admitted that in a prior deposition, he had stated that the purpose was to protect “those sitting in the home plate area.” Rathje defined the “home plate area” as the area between the extended first and third base lines. He considered the “area behind home plate” to be the most dangerous area of the ballpark, involving the majority of high-velocity foul balls. Rathje distinguished the “area behind home plate” from the “home plate area.” He noted that foul balls could be hit directly into any unscreened area of the ballpark.

Rathje also testified that he was unaware of any materials indicating which seats were to be protected and of any safety analysis undertaken prior to erecting the screen in 1982. Rathje stated that there were no warning signs in the home plate area and that children were not barred from the home plate area.

Rathje further testified that he had previously gone to the ballpark with a seating chart in an attempt to determine which seats were protected by the screen. Rathje opined that plaintiff’s seat was not in the protected area and was not protected by the screen. According to Rathje’s calculations, the protected area encompassed 1,327 seats, which constituted approximately 4% of the total seats in the ballpark.

In later questioning, Rathje denied that 62 persons had been hit by foul balls between the first and third base lines and behind home plate in 1982. Rathje admitted that he had previously signed a sworn interrogatory which read to the contrary, but later testified that the number 62 represented the number of spectator accident reports for the entire ballpark in 1982. Rathje stated that there were 10 foul ball injuries in the “home plate area,” as defined by Caskey, in 1982.

Defendant called Richard de Flon, senior vice-president and architect with the firm of Hellmuth, Kassabaum & Obata, to testify as an expert witness, de Flon received bachelor’s degrees in environmental design and architecture from the University of Kansas, de Flon testified that he was a licensed architect in more than six States, was a member of the American Institute of Architects and the Missouri Council of Architects, and was accredited with the National Council of Architectural Registration Boards.

Since the 1970s, de Flon limited his work to the area of sports facility design; his work includes the Hoosier Dome in Indianapolis, Indiana, and the suites erected at Comiskey Park and Soldier Field in Chicago. Since joining the Hellmuth firm in 1983, he was involved in the design of between 10 and 15 minor and major league stadiums, de Flon was the principal in charge of the new Comiskey Park in Chicago and was also involved with projects in Baltimore, Maryland; Saint Petersburg, Florida; and Buffalo, New York.

de Flon testified that he had been retained by the Cubs to evaluate the screen at Wrigley Field. He visited the ballpark, viewed the backstop, sat in plaintiff’s seat and measured the angle from the seat to the backstop, de Flon also indicated that the screen at issue was 73 feet wide and 30 feet tall.

de Flon then testified that an architect uses three criteria to determine the appropriate size for a screen: (1) the needs of the team; (2) the needs and desires of the fans; and (3) the physical configuration and constraints of the stadium. Based on a reasonable degree of architectural certainty and on his years of dealing with baseball teams and stadiums, de Flon testified that the screen at issue fell within major league standards of safety and adequacy, de Flon determined the standards of major league baseball by conducting a survey of the screens erected in each of the major league ballparks. These screens ranged in length from slightly less than 40 feet to over 120 feet, de Flon testified that the norm ranged between 65 and 75 feet, placing the screen at issue within the norm. He also stated that architects used historical data for the design process and that he was unaware of any codified standard for major league screens, de Flon opined that plaintiff’s seat was unprotected.

On cross-examination, de Flon testified that he did not have a firm definition of the “area behind home plate,” explaining that this area varies depending on the physical configuration of each stadium. He noted that different people define the term differently, de Flon admitted that other stadiums he visited had warning signs, but that Wrigley Field did not. He also opined that one did not have to have experience with major league ballpark design to be qualified to discuss the size of the screen.

de Flon stated that he did not believe any of the major league screens were inadequate. He further stated that it was not within his expertise to factor the trajectory and angle of balls in designing a protective screen.

The Cubs then called Thomas Cooper, who was employed as the director of stadium operations. Cooper testified that over 36,000 peopie attended the game at which plaintiff was injured; this number would have been close to Wrigley Field’s 1983 capacity. Cooper then testified as to the procedure followed when a spectator is struck by a foul ball. Cooper stated that a review of incident reports for 1982 did not indicate any incidents in the section where plaintiff was struck. Cooper also stated that there were two incidents in the immediate vicinity of that section. He further stated that many times, a spectator struck by a foul ball would not fill out an incident report.

Doctors Jack Arbit, Allen Putterman, Mark Greenwald and Elva Poznanski testified concerning plaintiff’s injuries. Their testimony, however, is not at issue in this case.

At the conclusion of the trial, the jury returned a verdict for plaintiff in the amount of $67,500. Defendant filed a post-trial motion, which was denied. Defendant now appeals.

I

Defendant first contends that the trial court should have granted its motion for judgment notwithstanding the verdict. Such a motion should be entered only in those cases in which all of the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 511, 229 N.E.2d 504, 513-14.) When deciding a motion for judgment n.o.v., the court may not consider errors in the admission or exclusion of evidence. (Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 128, 171 N.E.2d 60, 66.) A general verdict will not be set aside so long as one ground suffices to sustain the verdict “unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1201(d); see Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.

We first address the Cubs’ contention that the trial court erred in submitting the inadequate screening issue to the jury. We begin by taking notice of the position which the sport of baseball, particularly major league baseball, occupies in our nation’s culture. (See Flood v. Kuhn (1972), 407 U.S. 258, 260-64, 32 L. Ed. 2d 728, 732-33, 92 S. Ct. 2099, 2101-03 (plurality opinion).) Indeed, baseball sometimes appears to occupy an anomalous position in American law as well. Flood, 407 U.S. at 282-83, 32 L. Ed. 2d at 743-44, 92 S. Ct. at 2112 (upholding the long-standing yet anomalous exemption of major league baseball — as opposed to other sports — from Federal antitrust laws); see Riley v. Chicago Cougars Hockey Club, Inc. (1981), 100 Ill. App. 3d 664, 666, 427 N.E.2d 290, 292-93 (noting the historical rule of nonliability for spectator injuries at baseball games as opposed to hockey matches).

In the context of negligence law, this court has held that while a ballpark owner-occupier does not absolutely insure the safety of invitees on its premises, the owner-occupier does owe a duty of reasonable care to such invitees. (Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 342, 225 N.E.2d 83, 87.) This duty is usually satisfied if the owner-occupier “ ‘provide[s] [a] screen for the most dangerous part of the grandstand and for those who may be reasonably anticipated to desire protected seats’ ” for a typical game. (Maytnier, 80 Ill. App. 2d at 343, 225 N.E.2d at 87, quoting Brisson v. Minneapolis Baseball & Athletic Association (1932), 185 Minn. 507, 509, 240 N.W. 903, 904.) This standard appears to be the majority rule. See Akins v. Glens Falls City School District (1981), 53 N.Y.2d 325, 330, 424 N.E.2d 531, 533, 441 N.Y.S. 2d 644, 648; see also Coronel v. Chicago White Sox, Ltd. (1992), 230 Ill. App. 3d 734, 737 (referring only to the “most dangerous part of the grandstand”).

The Cubs argue that they are entitled to judgment n.o.v. because the record showed there was a screen behind home plate, but plaintiff failed to introduce evidence regarding the average demand for screened seats.

The Cubs’ formulation of the duty owed in this case is misconceived for two reasons. First, the Coronel court measured the owner-occupier’s duty by whether the screen placed in the most dangerous area of the ballpark was adequate without reference to requests for screened seats. (Coronel, 230 Ill. App. 3d at 737, citing Maytnier, 80 Ill. App. 2d at 343, 225 N.E.2d at 87.) Second, there is a difference between the majority rule quoted above and one that states that ballpark owners are not liable “if they provide [a] screen [in] the most dangerous part of the grandstand *** for those who may be reasonably anticipated to desire protected seats” for a typical game. (See also Clapman v. City of New York (1984), 63 N.Y.2d 669, 468 N.E.2d 697 (summary judgment proper where no material fact existed on either the adequacy of the screen or sufficiency of the number of seats behind the screen).) Thus, plaintiff was not required to produce evidence on the average demand for screened seats.

Accordingly, viewing the evidence most favorably to plaintiff, judgment n.o.v. was not warranted. The record indicates that Caskey and Rathje agreed on a definition of “the area behind home plate,” though Rathje called it the “home plate area” and stated that only the area directly behind home plate was “the most dangerous area of the ballpark.” de Flon testified that the definition of terms such as “the area behind home plate” may vary from stadium to stadium. The jury may have agreed with Caskey that defendant’s failure to screen the area between the extended first and third base lines behind home plate was a breach of the duty of reasonable care in this case.

The Cubs argue that Caskey’s testimony should have been excluded. However, as noted above, alleged errors in the admission of evidence are not considered in passing upon a motion for judgment n.o.v. Therefore, defendant has failed to demonstrate that judgment n.o.v. was required in this case.

II

The Cubs alternatively seek a new trial on the inadequate screening theory. A trial court’s ruling on whether a new trial should be granted will not be reversed unless the verdict is against the manifest weight of the evidence. (See Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969, 973.) A verdict is deemed to be against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based on any of the evidence. (Villa, 202 Ill. App. 3d at 1089, 560 N.E.2d at 973.) Unlike motions for judgment n.o.v., a court may consider errors in the exclusion or admission of evidence and grant a new trial if there were serious and prejudicial errors made at trial. (See Bartlett Bank & Trust Co. v. McJunkins (1986), 147 Ill. App. 3d 52, 63, 497 N.E.2d 398, 406.) We turn again to consider the inadequate screening theory, focusing on defendant’s allegations that it was prejudiced by errors in the admission or exclusion of evidence.

A

The Cubs contend that the trial court erred in denying their motion to exclude Caskey’s deposition testimony. Defendant suggests that Caskey was not qualified to comment on the adequacy of the screen. The Cubs also assert that plaintiff repeatedly failed to establish a foundation for Caskey’s opinions. For example, the Cubs assert that plaintiff never established that the documents and data upon which Caskey relied were of a type reasonably relied upon by experts. The Cubs further assert that plaintiff’s direct examination provided no factual basis for Caskey’s opinion that the area behind home plate would be considered the most dangerous area of the ballpark.

Expert testimony is admissible if it assists the trier of fact in understanding the evidence or deciding a fact in issue and the witness is qualified by reason of knowledge, skill, experience, education or training to give said testimony. (Ruffiner v. Material Service Corp. (1985), 134 Ill. App. 3d 747, 755, 480 N.E.2d 1157, 1162, rev’d on other grounds (1987), 116 Ill. 2d 53, 506 N.E.2d 581.) The question of whether a witness is sufficiently qualified as an expert rests within the sound discretion of the trial court. Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 250, 302 N.E.2d 257, 264.

In this case, the record indicates that Caskey was called as a safety consultant. The record further indicates that Caskey had been involved with the planning, design and development of approximately 300 softball and baseball fields of various sizes. The Cubs note that cross-examination established that Caskey had never designed a major league stadium or its screen and that Caskey conceded the design considerations at the major league level would be different from the level at which Caskey had worked. Although this court may occasionally determine that a witness testified beyond the scope of his or her expertise (Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217), the record here indicates that Caskey had acted as a consultant for the Chicago White Sox in a similar lawsuit. The record also indicates that the Cubs’ expert, Richard de Flon, testified that one need not have designed a major league stadium to render an opinion on backstops. The record further shows that the parties cross-examined the opposing experts, giving the jury ample opportunity to assess their credibility. (Ruffiner, 134 Ill. App. 3d at 755, 480 N.E.2d at 1162.) Based on this record, the trial court could determine that Caskey was qualified to testify as an expert in this case.

Defendant next contends that plaintiff failed to establish the foundational requirement that the documents and data Caskey relied upon were of a type reasonably relied upon by experts in the field. In this regard, it is important to note that defendant’s argument is that the entire deposition should have been excluded for foundational reasons; defendant raised specific objections to specific opinions at trial, but relies upon the broader challenge on appeal. Where the issue is the exclusion or admission of an expert’s entire testimony, the trial court should liberally allow the expert to determine the materials upon which experts in his or her field may rely in rendering an opinion. (Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 383, 523 N.E.2d 1335, 1339.) It is then the opposing party’s responsibility to challenge the basis of the expert’s opinion, with the weight of the opinion ultimately left to the trier of fact. (See Melecosky v. McCarthy Brothers Co. (1986), 115 Ill. 2d 209, 216-17, 503 N.E.2d 355, 358.) Where an expert testifies that his or her opinions are based on a reasonable degree of expert certainty within a given field, a jury may infer that the data upon which the expert relied were of a type reasonably relied upon by such an expert. See Melecosky, 115 Ill. 2d at 216, 503 N.E.2d at 358.

In this case, the record indicates that Caskey testified that his opinions were based upon a reasonable degree of certainty within the area of baseball stadium design, construction and operation. The record also shows that the Cubs subjected Caskey’s qualifications and opinions to extensive cross-examination. Indeed, on cross-examination the Cubs established that Caskey also based his opinions on years of reading publications and documentation regarding the design, operation and safety of baseball fields and stadiums, though he could not recall if any specifically addressed major league stadiums. The record further indicates that Caskey testified that his definition of the area behind home plate was based on his education, training and experience. The record indicates that Caskey stated that he did not make time-distance measurements in this case, and could not recall if any studies conducted by major league baseball established that the area behind home plate is the most dangerous area of the ballpark. However, the jury may have been able to reasonably make that inference based upon Caskey’s years of experience and his reading of documents apparently not prepared by major league baseball. Indeed, we note that numerous courts have recognized the area behind home plate as the most dangerous area of the ballpark. (See Coronel, 230 Ill. App. 3d at 737 (and cases cited therein).) Given this record, the trial court did not err in admitting the entirety of the testimony over the foundational objection.

B

Defendant’s second evidentiary objection concerns the admission of evidence of other foul ball injuries. Defendant contends that the trial court erred in allowing plaintiff to impeach Rathje with the discovery interrogatory indicating 62 foul ball incidents occurred in the “area behind home plate” (as defined by Caskey) during the 1982 baseball season, because there was no foundation establishing that the incidents were similar. The record shows that Rathje testified on rehabilitation that there were 62 foul ball incidents at Wrigley Field during the 1982 season, but only 10 occurred in the area behind home plate. Defendant also contends that the error was compounded because during defendant’s rehabilitation questions on this point, the trial court precluded defendant from establishing that Rathje had noted and explained the error in a 1984 deposition.

Evidence of prior similar occurrences may be admissible for any number of purposes; the determination of whether occurrences are sufficiently similar to the one at issue rests within the sound discretion of the trial court. (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1065, 502 N.E.2d 315, 326.) The other incidents need only be substantially similar; they need not be identical. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441, 396 N.E.2d 534, 538.) At some point, the similarity of circumstances will go only to the weight of the evidence, rather than its admissibility. Yassin, 150 Ill. App. 3d at 1065, 502 N.E.2d at 326.

Regarding the 1982 incidents, defendant wonders whether all of them involved spectators who were sitting quietly or whether some injuries may have resulted because the spectator was attempting to pursue the foul ball. Defendant also wonders whether the 1982 incidents all involved game balls as opposed to practice balls. The record indicates that the interrogatory at issue was designed to determine the number of persons hit by foul balls in a particular area of the stands. Such evidence could be relevant to show the feasibility of the safety measures sought by plaintiff. (Yassin, 150 Ill. App. 3d at 1065, 502 N.E.2d at 325.) Defendant offers no evidence or argument to suggest that the differences hypothesized would significantly affect a determination of the feasibility of a larger screen.

Turning to defendant’s assertion that it was prejudiced by the exclusion of Rathje’s prior consistent statement, the record indicates that Rathje was permitted to explain the error in his previous interrogatory. Even if the prior consistent statement was admissible, reversal is not warranted because the exclusion did not materially affect the result. See, e.g., Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.

C

Defendant’s third and final evidentiary objection is that the trial court erred in precluding defendant from presenting evidence of plaintiff’s alleged contractual assumption of the risk. Defendant based this defense on a disclaimer of liability printed on the back of plaintiff’s ticket.

An express agreement to assume a risk will not be effective unless it appears that the plaintiff has given his or her assent to the terms of the agreement. (See Restatement (Second) of Torts §496B, Comment c (1977); see also Larsen v. Vic Tanny International (1984), 130 Ill. App. 3d 574, 577, 474 N.E.2d 729, 732 (citing section 496B, Comment d,).) In this case, the trial court ruled that the disclaimer on the back of plaintiff’s ticket could not form the basis of defense because the print was so small that it was not legibly reproduced on the photocopy submitted to the trial court. Plaintiff’s acceptance of a ticket containing a disclaimer in fine print on the back is not binding for the purposes of asserting express assumption of the risk. (Restatement (Second) of Torts §496B, Comment c, Illustration 1 (1977).) The cases relied upon by defendant involve signed agreements and are distinguishable on that basis. Consequently, the trial court did not err in barring the defense.

Ill

Finally, the Cubs argue that the trial court erred in giving certain jury instructions, resulting in an unfair trial. Jury instructions are deemed adequate if they are sufficiently clear to avoid misleading the jury and fairly and correctly state the law. (Villa, 202 Ill. App. 3d at 1087-88, 560 N.E.2d at 972.) An instruction will be deemed properly given if it is supported by some evidence in the record; whether an issue is raised by the evidence and which instruction may be given thereon is within the discretion of the trial court. See Villa, 202 Ill. App. 3d at 1087-88, 560 N.E.2d at 972.

Defendant first contests the instruction which set forth the theories of liability pursued by plaintiff. Defendant’s brief attacks the instruction solely on the ground that “there is no basis in law for the imposition of a duty to warn” in this case; we have limited our review of the instruction accordingly.

In most jurisdictions, a ballpark owner-occupier owes no duty to warn of the risk of being hit by a batted ball while attending a baseball game due to the obvious nature of the risk. (See Falkner v. John E. Fetzer, Inc. (1982), 113 Mich. App. 500, 502-03, 317 N.W.2d 337, 339 (nevertheless recognizing a duty to warn).) In this jurisdiction, a ballpark owner is not always absolved of liability once he or she provides adequate screening. (Maytnier, 80 Ill. App. 2d at 343, 225 N.E.2d at 87.) Indeed, Coronel rejects the sort of per se rule of nonliability urged upon us by defendant, stating:

“ ‘The inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted *** or forgetful of the condition after having momentarily encountered it. If in fact the entrant was also guilty of negligence contributing to his injury, then that is a proper consideration under comparative negligence principles.’ (Emphasis added.)” (Coronel, 230 Ill. App. 3d at 741, quoting Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 152, 554 N.E.2d 223, 232.)

Here, the record indicated that plaintiff was engaged in a discussion about the game with his sister, which could be construed as momentary distraction or forgetfulness. The trial court may have determined, in its discretion, that this evidence warranted an instruction on plaintiff’s duty to warn theory.

Defendant next contends that the trial court erroneously refused to instruct the jury that plaintiff was required to prove that the Cubs knew or should have known of the hazard which injured plaintiff. Defendant notes that such an instruction would conform with section 343 of the Restatement (Second) of Torts (1977), which is the law in Illinois. See Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.

The Cubs zealously maintained throughout this litigation that the hazard in this case was open and obvious. The suggestion that the Cubs may have been unaware of this hazard is somewhat ironic.

Even if it somehow were error to exclude a notice instruction, a reviewing court generally will not reverse on that basis unless the the error clearly misled the jury and resulted in prejudice to the appellant. (Villa, 202 Ill. App. 3d at 1088, 560 N.E.2d at 973.) In this case, Cubs employee Rathje testified that in the 1982 season, there were 62 foul ball incidents, 10 of which occurred in the “area behind home plate,” despite the presence of a screen in that area. Moreover, Rathje testified that the purpose of the screen was to protect spectators in the “area directly behind home plate.” Thus, there appears to be no doubt that the Cubs were aware that some risk was involved. Furthermore, after undertaking the task of protecting spectators in “the most dangerous area of the ballpark,” the Cubs were obliged to exercise reasonable care in that undertaking. (See Restatement (Second) of Torts §323 (1977).) Accordingly, the Cubs have failed to demonstrate that the jury was misled or that the Cubs were prejudiced by this omission.

Moreover, defendant’s invocation of Genaust is unpersuasive. Genaust involved an injury caused by power lines that were neither on the defendant’s property nor within the defendant’s control and there was nothing to suggest that plaintiff would be momentarily distracted. Genaust is therefore distinguishable from this case, in which the hazard is incident to the activity engaged in upon property owned or occupied by defendant and evidence of distraction appears in the record. See Ward, 136 Ill. 2d at 155-56, 554 N.E.2d at 234.

Finally, the Cubs contend that the trial court erroneously gave an instruction allowing plaintiff to recover for future pain and suffering. The Cubs assert that there was no competent medical testimony that the headaches plaintiff suffered were likely to continue into the future. However, plaintiff’s testimony that his headaches were recurring at the time of trial was sufficient to support the instruction. Warp v. Whitmore (1970), 123 Ill. App. 2d 157, 163, 260 N.E.2d 45, 48; Simpson v. Marks (1953), 349 Ill. App. 527, 532, 111 N.E.2d 370, 373; see Onion v. Chicago & Illinois Midland Ry. Co. (1989), 191 Ill. App. 3d 318, 322, 547 N.E.2d 721, 724. But see Young v. Hummel (1991), 216 Ill. App. 3d 303, 309, 576 N.E.2d 1072, 1076 (suggesting in dicta that lay testimony alone is insufficient).

For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed as modified.

O’CONNOR and MANNING, JJ., concur.

        We note that a diagram reflecting these areas was published to the jury, but was not included in the record on appeal. We also note that only two of the photographs referred to in Mrs. Yates’ testimony were included in the record on appeal.

      An opinion in the Coronel case was initially filed on November 19, 1991. That opinion was the subject of plaintiff’s motion for supplemental authority in this case, which was filed on January 10, 1992. On May 19, 1992, another opinion was filed in Coronel that reached the same conclusion as the first. The points in Coronel to which we refer herein appear in both opinions.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    ROBERT BUCZAK, Plaintiff-Appellant, v. CENTRAL SAVINGS AND LOAN ASSOCIATION, Under Trust No. 81088, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1717
    Opinion filed May 26,1992.

      Fishman & Fishman, Ltd., of Chicago (Ronald S. Fishman, of counsel), for appellant.

      Fraterrigo, Best & Beranek, of Chicago (Gary M. Feiereisel, of counsel), for appellee Central Savings & Loan Association.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Diane M. Paserba, and Lloyd E. Williams, Jr., of counsel), for appellee A. Willard Longenecker.
    No brief filed for appellees Pedro Vasquez and Julie M. Vasquez.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Robert Buczak appeals from an order of the circuit court of Cook County which granted summary judgment to defendant Central Savings and Loan Association (Central) and dismissed on limitations grounds the action against defendant A. Willard Longenecker (Longenecker). Buczak seeks reinstatement of his suit against both defendants. For the reasons that follow, we reverse the grant of summary judgment to Central and affirm the dismissal of Longenecker.

On April 9, 1985, plaintiff filed this action for personal injuries which he sustained on April 9, 1983. The complaint alleged that plaintiff was visiting a tenant at a two-flat building in Chicago (the property) when a raised, front porch bannister upon which he was leaning collapsed. Named as defendants were, among others not relevant here, Central, Pedro and Julie Vasquez, and “unknown owners and unknown renters.” Plaintiff alleged that these defendants, as “owners and occupants of the building,” owed plaintiff a duty of care regarding the maintenance of the property. Central answered the complaint admitting an “ownership interest” in the property on the day of injury but denied the remaining allegations. The Vasquezes’ answer denied having an ownership interest in the property on the day of injury.

On March 4, 1986, Central filed a third-party complaint against Longenecker alleging that Longenecker was a contract purchaser of the property pursuant to an installment contract dated November 12, 1981. Central sought contribution and indemnification from Longenecker in the event that Central was held liable for plaintiff’s injuries. Longenecker, in response to Central’s discovery, admitted the terms of the contract and being in possession of the property since November 1981.

On August 5, 1987, Central moved for summary judgment against plaintiff asserting that, under Illinois law, because it was merely a contract seller and not in possession and control of the property on the injury date, it owed plaintiff no duty. On September 11, 1987, 18 months after Central filed its third-party complaint, plaintiff filed an amended complaint which added Longenecker as a party defendant. Longenecker subsequently filed a motion to dismiss plaintiff’s amended complaint alleging that the applicable two-year statute of limitations period had passed.

Plaintiff responded to defendants’ motions by directing the circuit court to (1) paragraph 7 of the installment contract, (2) the affidavit of his attorney, Mark Levin, and (3) Longenecker’s deposition testimony. Plaintiff alleged that these matters precluded the entry of summary judgment and dismissal on limitations grounds.

Regarding paragraph 7, plaintiff claimed summary judgment was not proper as this paragraph established Central to be both legal and equitable owner of the property. Paragraph 7 provided:

“No right, title or interest, legal or equitable, in the premises, or any part thereof, shall vest in Purchaser until delivery of the deed aforesaid by Seller, or until the full payment of the purchase price at the times and in the manner herein provided.”

Regarding Levin’s affidavit and Longenecker’s deposition testimony, plaintiff claimed summary judgment and dismissal were not proper because equitable estoppel should estop Central from denying that it did not own the building on the day in question and prevent Longenecker from asserting a limitations defense.

In Levin’s affidavit, Levin stated that, after being retained by plaintiff in April 1983 and prior to filing suit, he sent a private investigator to the premises to ascertain whether any signs of ownership existed. The investigator was unable to find any signs of ownership. Levin stated he then conducted a title search of the property and found Central to be the record owner of title, with Pedro and Julie Vasquez having some unknown interest in the property. No installment contract was recorded.

Levin stated that during April 1983, he telephoned Central and talked to a bank officer who acknowledged that Central owned the property. The officer refused to divulge any further information, stating: “You can find what you want in the Recorder’s office. I’ll let you find it out.” Levin also telephoned Pedro Vasquez, who informed Levin that the Vasquezes had quitclaimed their interest in the property to Central in December 1981. Vasquez informed Levin that, prior to the conveyance, Central was informed that the front stairs were in poor condition.

Levin asserted that he also attempted to determine ownership by checking with the city of Chicago’s Department of Inspectional Services. Levin learned that on September 20, 1982, the city mailed a notification to the Vasquezes of numerous building code violations, including ones pertaining to the front porch.

Levin stated that on June 23, 1983, he mailed a notice of attorney’s lien to Central and the Vasquezes. On August 31, 1983, Levin received a letter from Michael Boyle of Raymond Bandrigna and Associates, Inc. (Bandrigna), a claims insurance adjusting company, indicating that it represented Home & Auto Insurance Company and that Central was its insured. Boyle requested complete hospital and medical records and that plaintiff sign the enclosed consent form.

Levin stated that he received more letters from Bandrigna dated October 21, 1983, December 16, 1983, February 23, 1984, May 22, 1984, July 17, 1984, and October 3, 1984. Each of these letters was similar in content to the letter of October 21, 1983. Levin received a different letter from an Atlantic Companies’ claims supervisor on June 13, 1985. This letter contained a caption naming Central as a prospective defendant and requested medical and lost wage information necessary to the proper evaluation of the case.

Levin further stated that he had several telephone conversations with Boyle. Boyle indicated to Levin that he was adjusting the matter for Central as owners of the property and that he needed certain information regarding plaintiff’s injuries. Levin concluded his affidavit by stating that at no time did anybody indicate the existence of the installment contract or that Longenecker had any interest in the property.

As for Longenecker’s deposition testimony, Longenecker testified that he was the owner of a real estate company and also a broker. Longenecker testified that an officer at Central told him that Central had purchased the property at a foreclosure sale and that Longenecker could purchase it with no money down under an installment contract. Longenecker decided not to record the agreement as he did not want to place a cloud on the title and because Central was a trustworthy savings and loan. Longenecker testified that the only knowledge he had of the suit was when Central mailed him Levin’s notice of attorney’s lien. Longenecker sent this correspondence to his insurance agent.

On December 1, 1987, Judge Sodaro of the circuit court granted Longenecker’s motion to dismiss plaintiff’s amended complaint. The court rejected plaintiff’s arguments that Longenecker had been timely sued as an “unknown party” pursuant to section 2 — 413 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2— 413) and that equitable estoppel should bar Longenecker from asserting the statute of limitations as an affirmative defense. The court, however, denied Central’s motion for summary judgment, believing that a genuine issue of material fact existed on the issue of whether equitable estoppel precluded Central from asserting it was not in possession and control of the property. In denying Central’s motion, the court noted that future facts could impact its ruling and make the estoppel issue purely one of law.

After taking the deposition of Mark Levin, Central again moved for summary judgment on July 6, 1989. The case at this time was before Judge Hoffman. Hoffman considered Central’s motion to be nothing more than a motion for reconsideration because Central could direct Hoffman to no facts in Levin’s deposition which Judge Sodaro had not already heard. Hoffman entered an order directing that the case be sent back to Judge Sodaro.

After the case was transferred back to Judge Sodaro, Central filed a third motion for summary judgment. Plaintiff filed a motion to strike Central’s motion and also the affidavit of Myles Cunat, an attorney with Chicago Title & Trust Company. Cunat opined in his affidavit that Levin’s verification of Central’s ownership with the Cook County recorder of deed’s office and his reliance upon his findings were reasonable and justified.

On May 23, 1990, Judge Sodaro granted Central’s third motion for summary judgment. The court was persuaded by the new information in Levin’s deposition that he never visited the premises to talk to any of the tenants to determine to whom they paid rent. Sodaro opined that it was unreasonable as a matter of law to sue the bare title holder of the property without checking who occupied the premises. Accordingly, because Central was a mere installment contract seller and not in possession and control of the property, the court entered summary judgment for Central.

Plaintiff appeals the granting of Central’s summary judgment motion and Longenecker’s motion to dismiss. Plaintiff alleges: (1) paragraph 7 of the installment contract requires that summary judgment to Central be denied as it demonstrates Central to be the “owner” of the building or at least raises an issue of fact on the issue; (2) a genuine issue of material fact exists regarding whether equitable estoppel prevents Central from denying ownership and Longenecker from raising the statute of limitations as an affirmative defense; (3) the statute of limitations does not apply to Longenecker as he was timely sued as an “unknown owner” pursuant to section 2 — 413 of the Code (111. Rev. Stat. 1987, ch. 110, par. 2 — 413); and (4) the “discovery rule” and section 13 — 215 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 215), which pertains to fraudulent concealment of a lawsuit, preclude the application of the statute of limitations.

The parties in this case dispute neither the facts as previously set forth nor the applicable law. Rather, the parties dispute what result is required when the law is applied to the facts. Central maintains that summary judgment is proper because, under Illinois principles of premises liability law, liability follows possession and control, not bare ownership. Accordingly, Central asserts that, because it was only an installment contract seller on the day of injury and not in possession or control, it owed plaintiff no duty. Regarding Longenecker, he maintains that summary judgment was proper because, while he had possession and control at the time of injury, plaintiff failed to timely file suit against him.

Plaintiff responds to defendants’ argument by admitting that under the common law, the duty to maintain the premises rested with Longenecker, not Central. Plaintiff, however, asserts that the conduct of both Central and Longenecker in this case raises a question of fact as to whether: (1) Central should be equitably estopped from asserting an ownership status inconsistent with full ownership, namely, that it is a mere installment contract seller; and (2) Longenecker should be equitably estopped from asserting the statute of limitations defense. Plaintiff additionally responds that paragraph 7 of the installment contract alters the application of premises liability principles under the common law. Plaintiff finally asserts various other matters which he claims defeat the propriety of Longenecker’s dismissal.

Summary judgment shall be entered when “the pleadings, depositions, and admissions on file, together with the 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.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) While the use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

In this case, we must initially agree with the parties’ recitation of the law relative to premises liability. As our cases have noted, liability in tort arising out of a defect in real property hinges on possession and control, not mere ownership. (Conway v. Epstein (1964), 49 Ill. App. 2d 290, 200 N.E.2d 16; Koehler v. Southmoor Bank & Trust Co. (1963), 40 Ill. App. 2d 195, 189 N.E.2d 22; Porter v. Miller (1960), 24 Ill. App. 2d 424, 164 N.E.2d 601; 28 Ill. L. & Prac. Negligence §81 (1957) (and cases cited therein).) Accordingly, an installment contract seller is not ordinarily liable for personal injuries sustained subsequent to his transfer of possession and control. Anderson v. Cosmopolitan National Bank (1973), 54 Ill. 2d 504, 301 N.E.2d 296; Maisenbach v. Buckner (1971), 133 Ill. App. 2d 53, 272 N.E.2d 851.

In an attempt to avoid the generally accepted rules of law noted above, plaintiff directs this court to paragraph 7 of the installment contract, which provides that Longenecker would receive neither equitable nor legal title until Central delivered a deed or until Longenecker made full payment. Plaintiff contends a genuine issue of material fact exists on the issue of ownership, and consequently duty, because this provision, in essence, returns to Central what the common law has taken away. We disagree.

In Anderson (54 Ill. 2d at 505-06, 301 N.E.2d at 297), a tenant of an apartment building brought suit against, inter alia, the sellers of the building under an installment contract for personal injuries sustained from a defect in the building’s interior. Plaintiff’s claim theorized that the defect existed prior to the date of the contract, that the sellers knew of the defect, and that they negligently failed to keep the property in safe repair. Under the installment contract, title would not be conveyed until all installment payments were made, and the sellers retained the right to make repairs and insure the property if the purchasers failed to do so. Anderson, 54 Ill. 2d at 505-06, 301 N.E.2d at 297.

In affirming summary judgment for the sellers, the court reiterated the general rule that “an ordinary vendor of real property is not liable for personal injuries which are sustained subsequent to his transfer of possession and control.” (Anderson, 54 Ill. 2d at 507, 301 N.E.2d at 298.) The court also rejected plaintiff’s argument that, because installment contract sellers retain significant rights under most installment contracts, they should be subjected to a different and more strict liability than that imposed upon other vendors. Anderson, 54 Ill. 2d at 507, 301 N.E.2d at 298-99.

We believe Anderson is dispositive of plaintiff’s argument that paragraph 7 of the installment contract created a genuine issue of material fact. Although the installment contract in Anderson is not set forth entirely in the opinion, Central in this case does not appear to have any more rights under its installment contract than did the installment contract seller in Anderson. Consistent with Anderson, we too will not impose a higher standard of liability on Central merely because it retained certain rights under the contract. See also Marcon v. First Federal Savings & Loan Association (1978), 58 Ill. App. 3d 811, 813, 374 N.E.2d 1028, 1030 (“only a mortgagee exercising dominion and control over the mortgaged property can be held responsible for damages to third parties caused by unsafe conditions on the property”).

We now focus on the application of equitable estoppel to this case. “Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in chancery, from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right.” 18 Ill. L. & Prac. Estoppel §22 (1956).

In Vaughn v. Speaker (1988), 126 Ill. 2d 150, 162-63, 533 N.E.2d 885, 890, cert. denied (1989), 492 U.S. 907, 106 L. Ed. 2d 568, 109 S. Ct. 3218, our supreme court reiterated the six elements of equitable estoppel: (1) defendant undertook words or conduct that amounted to a misrepresentation or concealment of material fact; (2) defendant knew or had reason to know the falsity of his misrepresentation or concealment; (3) plaintiff did not know or have reason to know that defendant’s misrepresentation or concealment was false when made or acted upon; (4) defendant intended or reasonably expected that plaintiff would detrimentally rely on defendant’s misrepresentation or concealment; (5) plaintiff’s detrimental reliance was reasonable and in good faith; and (6) plaintiff would be prejudiced if defendant were permitted to avoid the falsity of his misrepresentation or concealment.

In this case, although not artfully articulated, we interpret plaintiff’s estoppel argument as attempting to bar Central from asserting an ownership status inconsistent with full ownership. So interpreted, we believe plaintiff’s estoppel argument has merit as against Central.

In Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 91-93, 392 N.E.2d 675, 676-77, a case upon which plaintiff heavily relies, the plaintiffs were injured on December 29, 1975, when their vehicle was rear-ended by a semitrailer truck driven by Lawrence Hogsed. The truck bore the name “Ryder Truck Rental, Inc.” On March 23, 1977, plaintiffs' attorney sent a notice of attorney’s lien and cover letter to Ryder. Shortly thereafter, plaintiffs’ attorney received a letter dated April 4, 1977, from Associated Claims Service, Inc. (Associated Claims), signed by John Tasch. The caption of the letter provided: “RE: C. D. Shockley and Emily Shockley vs. Ryder Truck Rental, Inc. and Lawrence Hogsed.” Tasch stated in the letter that Ryder was “self-insured,” that Associated Claims was Ryder’s “Chicago Claims Representative,” and that Associated Claims would be glad to talk about the matter.

Plaintiffs’ attorney wrote Tasch on April 7, 1977, and referred to Ryder as Associated Claims’ insured. The letter briefly described how Hogsed had driven Ryder’s truck into plaintiffs’ car and included plaintiffs’ medical and property damage bills. Plaintiffs’ attorney suggested that an attempt to settle should be made before suit was filed.

Tasch responded with a letter on June 14, 1977, which contained a similar caption and discussed specific settlement numbers. In the letter, Tasch hoped that litigation could be avoided.

Plaintiffs failed to reach settlement and filed suit against Ryder on December 16, 1977. Plaintiffs’ complaint alleged that Ryder’s liability was predicated on Hogsed’s agency relationship with Ryder. On March 7, 1978, three months after the passing of the two-year limitations period, plaintiffs filed an amended complaint which included Azar Nut as a defendant. At the time of the accident, and unbeknownst to plaintiff until after the limitations period had expired, Azar Nut was leasing the truck from Ryder, and Hogsed was actually an employee of Azar Nut. Subsequently, Ryder moved for summary judgment and Azar Nut moved to dismiss on limitations grounds. These motions were granted.

On appeal, plaintiffs asserted that summary judgment should be reversed because a genuine issue of material fact existed as to whether Ryder should be equitably estopped from asserting that Hogsed was not its agent. The appellate court agreed, and reversed and remanded for an evidentiary hearing on the issue of equitable estoppel.

In its analysis, the court discussed at length the doctrine of equitable estoppel, its elements and how they applied to the facts of the case. We find three statements of law from Shockley particularly instructive here.

First, fraudulent intent is not necessary to estoppel. Rather, estoppel is appropriate against a person who adopts a position which reasonably misleads someone into detrimental reliance, regardless of the intent of his actions, if to hold otherwise would have an unjust effect. Shockley, 74 Ill. App. 3d at 95, 392 N.E .2d at 678.

Second, even in the absence of a confidential relationship, estoppel may be based on conduct consisting of a failure to disclose plus an affirmative statement or act which, together, mislead the party claiming estoppel. “ ‘It is the duty of a person having a right, and seeing another about to commit an act infringing upon it, to assert his right. He cannot by his silence induce or encourage the commission of the act and then be heard to complain.’ ” Shockley, 74 Ill. App. 3d at 96, 392 N.E.2d at 679, quoting Bondy v. Samuels (1929), 333 Ill. 535, 546, 165 N.E. 181.

Third, while a party claiming estoppel cannot unreasonably ignore other means of learning of the facts, there comes a time when a party is entitled reasonably to believe that no further investigation is necessary. Shockley, 74 Ill. App. 3d at 97, 392 N.E .2d at 680.

Shockley, in applying the above principles to the case before it, found that a genuine issue of material fact existed based upon the following facts: (1) Tasch’s failure to disclose the existence of Azar Nut until after the limitations period expired; (2) the captions of Tasch’s letters noting that Ryder was a prospective defendant and self-insured; (3) Tasch’s disclosure in his letter and telephone conversations that he represented Ryder and was negotiating on its behalf; (4) Tasch’s statements that he was interested in settlement and that he would hate to be involved in unnecessary litigation; and (5) plaintiffs’ counsel’s initial reliance on the fact that the truck which injured plaintiff bore Ryder’s name.

We find the facts giving rise to a genuine issue of material fact on the issue of estoppel in Shockley to be substantially present in this case. Foremost is the fact that Central held itself out to the world on the public records as nothing less than the full owner of the property. We distinguish on this ground Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 533 N.E .2d 486, a case on which Central relies. In Dodd, defendant’s womownership was a matter of public record. Here, on the other hand, the public records revealed Central to be the full owner of the property. True, neither Central nor Longenecker had a duty to record the installment contract. However, when faced with a potential claim of liability resulting from a defect in the property, a claim for which it was not responsible, Central remained silent. Only after the applicable limitations period passed did Central inform the world that it had less than full ownership rights and that Longenecker, not it, was the party having possession and control of the property on the injury date.

We also find significant, especially in light of the state of title, the various correspondences and telephone conversations between plaintiff’s attorney, Mark Levin, and Michael Boyle, the adjuster for Bandrigna and Associates, which represented Home and Automobile Insurance Company. Each of these letters indicated that Central was the insured, that Boyle was an adjuster, and that Boyle needed plaintiff’s medical records and a consent form. In telephone conversations, Boyle represented to Levin that he was adjusting the matter for Central as owners of the property.

As stated in Shockley, estoppel may be based on conduct consisting of a failure to disclose plus an affirmative statement or act which, together, mislead the party claiming estoppel. Here, Central both failed to disclose its true relation to the property and made affirmative statements consistent with full ownership. These acts, taken together, raise a question of fact on whether Central should be estopped from asserting an ownership status inconsistent with full ownership.

Finally, we find significant that Levin did in fact take measures calculated to learn the names of all who had an ownership interest in the property on the injury date. Interestingly, these measures led Levin to Central as owner every time, and at no time did Levin learn that Central had other than full ownership rights. Even Levin’s direct inquiry to the bank itself was met with the response that Central owned the property and that Levin would have to rely on the public records for more information. When Levin returned to the public records a second time, Central’s ownership was confirmed.

In the end, whether Levin, as Central asserts, could have easily (1) filed suit against Central earlier and propounded a simple interrogatory, (2) asked tenants to whom they paid rent, or (3) asked Bandrigna whether any additional insureds existed on the policy presented a question of fact for a jury to decide. A jury, not this court, should decide whether Levin unreasonably ignored other means of learning the facts or whether he reasonably believed that no further investigation was necessary.

In summary, we find a genuine issue of material fact existed on whether Central should be equitably estopped from asserting an ownership status inconsistent with full ownership. From the evidence, a jury could find all the essential elements of estoppel and rule against Central. Accordingly, the grant of summary judgment for Central is reversed.

In passing, we distinguish the cases Central cites to support affirmance. In both Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403, and Joliet Mass Transit District v. Illinois Fair Employment Practices Comm’n (1980), 85 Ill. App. 3d 270, 407 N.E.2d 80, the courts prevented plaintiff from asserting an estoppel argument based on the respective State agency’s inability to waive through its conduct the mandatory notice of injury statute. No such statute is involved here.

In Pack v. Santa Fe Park Enterprises, Inc. (1991), 209 Ill. App. 3d 648, 568 N.E.2d 360, upon which Central relies in its motion to cite supplemental authority, summary judgment in favor of defendant was affirmed; the appellate court agreed that plaintiff’s counsel could not rely as a matter of law upon defendants’ insurance agent’s inaccurate representations that plaintiff’s date of injury occurred on September 19, 1985, not September 14, 1985. Clearly, plaintiff’s counsel in Pack was unjustified in relying on defendants’ representations regarding his own client’s date of injury.

Turning next to the application of equitable estoppel relative to Longenecker, we believe dismissal was proper. The record shows that plaintiff waited 18 months after learning of Longenecker’s existence to name him as a defendant. Only when faced with Central’s potentially dispositive summary judgment motion did plaintiff decide to sue Longenecker. As a matter of law, plaintiff’s failure to file suit against Longenecker until 18 months after learning of his existence is patently unreasonable.

We also reject plaintiff’s other procedural arguments which he advances to keep Longenecker as a defendant in this suit. First, plaintiff contends that Longenecker was timely sued as an “unknown party” pursuant to section 2 — 413 of the Code. However, section 2— 413 applies only to in rem or quasi in rem actions. (4 R. Michael, Illinois Practice: Civil Procedure Before Trial §28.6 (1989) (hereinafter Illinois Practice).) The section specifically states “unknown owners *** who may have been interested in the subject matter of the action.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 413.

Additionally, even if the section were to apply, plaintiff failed to file the requisite affidavit or initiate the publication requirements of the section. His failure in this regard requires that his advancement of section 2 — 413 also be rejected.

Misnomer also has no application to this case. A misnomer occurs when the correct person was sued and served, but the name specified was incorrect in some way. (Illinois Practice §28.7, at 20.) Here, Longenecker was not even named in plaintiff’s initial complaint.

Plaintiff’s attempt to set forth the “discovery” rule and fraudulent concealment under section 13 — 215 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 215) must also fail. Here, plaintiff was injured when a defective bannister collapsed. At the time of his injury, plaintiff knew his injury was wrongly caused. Within the limitations period, plaintiff sued Central to recover for his injuries. Under this set of facts, the discovery rule is not applicable as plaintiff knew all along that he was wrongfully injured. (See Illinois Practice §15.2, at 184 (noting that Illinois law limits discovery rule to situations where plaintiff is unaware of a tort when it occurs).) For similar reasons, fraudulent concealment is not available. See Illinois Practice §17.5, at 227 (“The activity of the defendant must conceal the existence of the cause of action, not merely the identity of the prospective defendant”).

For the foregoing reasons, we: (1) reverse the order of the circuit court of Cook County which granted summary judgment to Central; (2) remand the case for an evidentiary hearing on the issue of estoppel relative to Central; and (3) affirm the dismissal against Longenecker.

Affirmed in part; reversed in part and remanded.

CAMPBELL and MANNING, JJ., concur.


text:
    JAMES A. PIERSALL, Plaintiff-Appellant, v. SPORTSVISION OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1963
    Opinion filed May 26,1992.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.
    Katten, Muchin & Zavis, of Chicago (Donald E. Egan, Kirk T. Hartley, and Carole J. Ryczek, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, James Piersall (Piersall), appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendants Jerry Reinsdorf (Reinsdorf) and Edward Einhorn (Einhorn) as to counts I, II, and IV of his amended complaint. Counts I and II alleged that Reinsdorf and Einhorn tortiously interfered with Piersall’s business relationship and contract with WMAQ radio, and count IV alleged that Reinsdorf libeled Piersall by calling him a liar. On appeal, plaintiff contends that: (1) he sufficiently alleged a cause of action against Reinsdorf for defamation in count IV of his amended complaint, and (2) that counts I and II are sufficient to show that Reinsdorf engaged in tortious interference of contract. Reinsdorf cross-appeals, alleging that the trial court erred in permitting the continued prosecution of this action in light of Piersall’s alleged unverified answers to interrogatories. For the following reasons, we affirm the judgment of the trial court.

The record discloses the following relevant facts. Piersall is a former All-Star major league baseball outfielder. In 1981, Reinsdorf and Einhom, owners of the Chicago White Sox baseball team, hired Piersall for the 1981 and 1982 baseball seasons as a broadcast commentator on “SportsVision,” a cable television program that they owned and operated. During that time, Piersall was also employed by NBC-owned radio station WMAQ as an announcer and talk show host. On April 5, 1983, following the first White Sox game of the season, Einhorn and Reinsdorf discharged Piersall as a SportsVision broadcaster.

On September 19, 1983, in the course of interviews after the game in which the White Sox clinched the 1983 American League Western Division title, reporters asked Reinsdorf about Piersall and Harry Caray, another former White Sox announcer. In response to questions posed by reporters, Reinsdorf was quoted as making the following statements about Piersall and Caray:

“I don’t mind criticism, but they both told a lot of lies. They wanted us to lose. They thought they were bigger than the club and did not want the attraction shifting to the field.” (Chicago Sun-Times, September 19, 1983.)

And:

“The public could not know the truth about them; they are both liars. They both said things on the air they knew were not true.” Chicago Tribune, September 19,1983.

On the following day, September 20, 1983, during a radio interview on the Wally Phillips Show, Reinsdorf stated:

“But I also think people would not have listened to these two people if they had realized what kind of character they actually had and I just felt that I wanted to go public because I don’t mind criticism but what I have never been able to understand [is] lying and they just lied.”

The above remarks are the subject of the alleged libel in count IV of Piersall’s amended complaint.

On November 2, 1983, Piersall was discharged from his WMAQ talk show host position. In counts I and II, Piersall contends that Reinsdorf conspired to interfere with his business relationship with WMAQ and coerced WMAQ’s management into terminating his employment contract.

Defendants presented a motion for summary judgment on counts I, II, and IV, and submitted a number of affidavits and depositions in support thereof. The trial court granted defendants’ motion, concluding that there were no facts that would support a finding of actual malice on the defamation count and that there was no evidence of tortious interference. This timely appeal followed.

Piersall contends that the trial court erred when it granted summary judgment as to the defamation action contained in count IV of the amended complaint. Piersall concedes that he is a public figure, and argues that he has proved that Reinsdorf’s statements were made with “actual malice” as required by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, and extended to public figures in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.

To establish actual malice, a defamation plaintiff must show that (1) the utterance was false and (2) that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. (New York Times, 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.) “Reckless disregard” has been defined as proceeding to publish the defamatory matter despite a high degree of awareness of probable falsity or entertaining serious doubts as to its truth. St. Amant v. Thompson (1968), 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323; Mittleman v. Witous (1989), 135 Ill. 2d 220, 552 N.E.2d 973.

The burden of proving malice is on the party claiming injury. (Vantassell-Matin v. Nelson (N.D. Ill. 1990), 741 E Supp. 698, 706.) This burden is not satisfied by the bare allegation that a defendant acted maliciously and with knowledge of the falsity of the statement; the plaintiff must allege facts from which actual malice may be inferred. Vantassell, 741 F. Supp. at 706 (citing American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 632, 435 N.E.2d 1297).

At the summary judgment stage, a judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 250, 91 L. Ed. 2d 202, 212-13, 106 S. Ct. 2505, 2511.) When a motion for summary judgment is made by a defendant in a defamation case, the plaintiff must set forth by “clear and convincing” evidence that there is a genuine issue of material fact as to whether the defendant made an alleged defamatory statement with actual malice. (Anderson, All U.S. at 252, 91 L. Ed. 2d at 214, 106 S. Ct. at 2512; Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 512, 530 N.E.2d 474, 482.) Summary judgment may be granted in favor of the defendant where the plaintiff has failed to raise a triable issue of fact by presenting clear and convincing evidence that the defendant made his allegedly libelous statements with actual malice. (Anderson, All U.S. at 255, 91 L. Ed. 2d at 216, 106 S. Ct. at 2514.) The party opposing summary judgment cannot rely upon his complaint or answer alone to raise a genuine issue of material fact. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.

Reinsdorf argues that the granting of summary judgment was proper because there was no genuine issue of material fact over whether he made his statements with actual malice. In his amended complaint, Piersall alleged that Reinsdorf “falsely and maliciously, with the intent to injure and destroy Piersall’s good name *** made certain false and defamatory remarks.” Reinsdorf supported his motion for summary judgment with his own sworn affidavit wherein he delineated a number of statements made by Piersall that Reinsdorf knew were not true, and that Reinsdorf had in mind at the time that he made the statements that Piersall was a liar.

In his response to the motion for summary judgment, Piersall relied upon the allegations of his amended complaint supported by his own affidavit. Therein, Piersall admitted to making a number of the statements, knowing them to be untrue, but insisting in some instances that the statements were made in jest.

For example, Reinsdorf states in his affidavit that in 1981, in the course of a television interview, Piersall said that the wives of the baseball players did not understand the game of baseball and were merely “horny broads *** who say yes very easily.” Reinsdorf testified that he had met and knew the wives of various baseball players and thought that Piersall’s statement was false. Piersall responds that this statement was “a quick pop goofy answer” to an interview question and admits that the White Sox suspended him for making the remark.

Reinsdorf testifies to various statements by Piersall regarding Tony LaRussa, the White Sox’ manager, that he knew to be untrue. After the “homy broads” statement, Piersall made a statement to the effect that LaRussa threatened Reinsdorf that he would not bring the White Sox players onto the field if Piersall was in the broadcasting booth. Reinsdorf knew that LaRussa had not made that threat to Piersall. Piersall admits that he made the statement about LaRussa based upon information he received from a young White Sox intern, whom he did not know by name, and that he had no other indication that the players were being kept off the field. Piersall also admits that the players were not kept off the field.

On September 10, 1981, Reinsdorf saw a newspaper article which quoted Piersall as saying on a television broadcast, “I have never ripped Tony LaRussa on the air.” Reinsdorf stated that he heard Piersall criticize LaRussa on the air too many times to count in broadcasts prior to September 10, 1981. Piersall admits that he did criticize LaRussa during broadcasts prior to September 10,1981.

Reinsdorf further testifies that Piersall made an untrue statement regarding an altercation he had had with sportswriter Bob Gallas in 1980. On Piersall’s call-in radio program on May 22, 1983, Piersall denied choking Gallas, insisting instead that he held Gallas for only three seconds. Reinsdorf relied, however, on newspaper reports and eyewitness accounts of the altercation, wherein it was described that Piersall choked Gallas and had to be pulled off of him by Art Kusnyer, a White Sox coach. On the basis of these accounts, and knowing that Kusnyer was the strongest man in the clubhouse, Reinsdorf believed that Piersall lied when he gave his own account of the Gallas incident on the radio program. Piersall did not recall the 1983 radio program, but states that this is one example of an instance where Reinsdorf failed to investigate the truth of the situation by asking him personally what had occurred instead of relying on newspaper accounts.

In addition, Reinsdorf states, in February 1983, in response to a question about a recent White Sox trade, Piersall stated, “there is no one in the White Sox organization smart enough to hold a gun to anyone’s head.” Reinsdorf testified that he had personal knowledge that a number of people in the White Sox organization were intelligent enough to make a good trade. Piersall admitted to making the statement, stating that he did not believe the statement at the time he made it, and thought that he was “making a joke.”

Reinsdorf also relies on Piersall’s statement that “the writers for The Sun Times were a bunch of alcoholics.” Piersall admits that he made the statement and that he was told that he could not “use the White Sox network to get back at somebody.”

Piersall’s argument that Reinsdorf’s “failure to investigate” is evidence of malice is unpersuasive. In Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 532 N.E.2d 790, the Illinois Supreme Court held that “failure to investigate does not itself establish actual malice if the defendants did not seriously doubt the truth of [his] assertions.” Costello, 125 Ill. 2d at 421.

In the present case, Piersall has presented no facts which clearly and convincingly show that Reinsdorf seriously doubted the truth of his statements. The record indicates that it is undisputed that Piersall made a number of untrue statements. Although the trial court was very generous in allowing Piersall to engage in discovery over eight years of litigation, Piersall has not submitted any evidentiary facts showing that Reinsdorf entertained serious doubts that Piersall did not tell the truth. Nothing in the record, even with the benefit of reasonable inferences, supports a finding of knowing falsity on Reinsdorf’s part. Therefore, Piersall has not established a genuine issue of material fact as to whether Reinsdorf acted with actual malice.

Piersall similarly fails to show that Reinsdorf s various statements are actionable per se as unprotected expressions of opinion. Piersall argues that a statement that someone is a “liar” is libel per se. We agree with the trial court that the general statement that someone is a liar, not being put in context of specific facts, is merely opinion.

In libel actions, words are considered defamatory per se where they: (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability in his trade, profession or business. Mittleman, 135 Ill. 2d at 238-39.

The distinction between fact and opinion is a matter of law. (Brown & Williamson Tobacco Corp. v. Jacobson (N.D. Ill. 1986), 644 F. Supp. 1240, 1256.) A written or oral statement is to be considered in factual context, with the words and the implications therefrom given their natural and obvious meaning. To determine whether a statement is fact or opinion, a court must evaluate the totality of the circumstances and should consider whether the statement is capable of objective verification as true or false. Brown & Williamson, 644 F. Supp. at 1256.

In reliance on Fried v. Jacobson (1983), 99 Ill. 2d 24, 457 N.E.2d 392, Piersall argues that the statement “Piersall is a liar” is libelous per se because the statement imputes to Piersall a want of integrity in the discharge of his business. (99 Ill. 2d at 26.) However, in Fried, the defendants made specific charges about the plaintiff with reference to specific facts that plaintiff alleged were not true.

Piersall’s further reliance on Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695, is unavailing. There, a newspaper reporter wrote an article in which he implied that Milkovich, a high school wrestling coach, lied under oath at a judicial proceeding about an incident involving Milkovich and his wrestling team. The Court held that the connotation that Milkovich committed perjury is sufficiently factual to be susceptible of being proved true or false, as the alleged defamatory language is an articulation of an objectively verifiable event. (Milkovich, 497 U.S. at 21-22, 111 L. Ed. 2d at 19-20, 110 S. Ct. at 2707.) The Court explained that summary judgment was improper because the truth or falsity of the statement could be answered by comparing the hearing testimony before the school board with the plaintiff’s subsequent testimony before the trial court.

Piersall relies on Milkovich for dicta wherein the Court concludes that the sentence “Jones is a liar” may imply a false assertion of fact, even if those specific facts are either incorrect or incomplete, or if the speaker’s assessment of them is erroneous. (Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at 17-18, 110 S. Ct at 2705-06.) However, in the present case, there are no specific facts at the root of Reinsdorf’s statement, complete or incomplete, capable of being objectively verified as true or false.

Similarly, in a recent case, this court found the statement “He lies a lot” to be libelous per se only because the statement was made in response to a statement made by the plaintiff about facts that the defendant knew not to be true. (Pease v. International Union of Operating Engineers Local 150 (1991), 208 Ill. App. 3d 863, 567 N.E.2d 614.) There, a newspaper reporter interviewed Dugan, a representative of defendants’ union, regarding a charge made by Pease that defendants engaged in acts of vandalism. In response to a reporter’s question Dugan stated: “He lies a lot.” The court held that statement was libel per se because it was made in a specific factual context.

Piersall does not cite any authority for his contention that without a factual basis surrounding a statement, a statement that a plaintiff is a “liar” can amount to libel per se. Therefore, the trial judge properly determined that Reinsdorf’s statements were opinion and properly granted summary judgment in his favor.

Next, as alleged in counts I and II of his amended complaint, Piersall contends that defendants conspired to tortiously interfere with his business relationship with WMAQ and caused his contract cancellation. Piersall argues for the first time on appeal that the alleged defamatory statements made by Reinsdorf contributed to the cancellation of his contract and that these allegations are “tangential” to the defamation allegation. We note that issues not raised in the trial court are generally considered waived on appeal. Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 386, 546 N.E.2d 558, 560.

Notwithstanding such waiver, Piersáll has failed to meet the standard of proof on summary judgment that a genuine material issue of fact remains to be resolved at trial. In determining whether a moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 483 N.E.2d 210.) If facts are undisputed on motion for summary judgment, inferences may be drawn from such facts to determine if defendant is entitled to judgment as a matter of law. Purdy Co. v. Transportation Insurance Co. (1991), 209 Ill. App. 3d 519, 568 N.E.2d 318.

In their summary judgment motion, defendants attached numerous affidavits and depositions of WMAQ personnel stating that Reinsdorf had nothing to do with Piersall’s termination. Piersáll failed to present any evidence or affidavits to refute these facts. Thus, the trial court properly granted summary judgment on the tortious interference claims.

Finally, defendants contend on cross-appeal that the trial court should have dismissed this action earlier and not wasted their valuable legal resources because Piersáll failed to file verified answers to interrogatories during discovery. This cross-appeal is inappropriate.

A party who has obtained by judgment all that was sought in the trial court cannot appeal that judgment. (People ex. rel Village of Buffalo Grove v. Village of Long Grove (1988), 173 Ill. App. 3d 946, 526 N.E.2d 670.) It is the judgment that gives rise to an appeal and not what else may have been said by the trial court. (Buffalo Grove, 173 Ill. App. 3d at 953, citing Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.) Specific findings adverse to the appellee do not require a cross-appeal as long as the judgment was entirely in favor of the appellee. (Buffalo Grove, 173 Ill. App. 3d at 953.) In the present case, the trial court granted summary judgment entirely in defendants’ favor. Thus, defendants’ cross-appeal is dismissed.

For the reasons set forth above, the judgment of the trial court is affirmed and defendants’ cross-appeal is dismissed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      Piersall brought this action in 1984 against SportsVision of Chicago, Reinsdorf and Einhorn as its principals, and National Broadcasting Company (NBC), d/b/a WMAQ, for wrongful discharge, and against Einhorn and Reinsdorf for defamation. The trial court dismissed the wrongful discharge claims against NBC/WMAQ and SportsVision, and dismissed an earlier defamation claim against Reinsdorf. Piersall does not appeal from these orders of dismissal.

      At oral argument, plaintiff waived any relief against Einhorn on any count, having failed to argue any issues against him.