## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Eskew v. Burl

ington Northern & Santa F e Ry. Co. , 2011 IL App (1st) 093450

Appellate Court Caption GARY ESKEW and J UDY HENDERSON, as Co-Administrators of the Estate of SCOTT ESKEW, Dec ease d, Plaintiffs- Appellee s, v. THE BU R L I NG T ON NO RTHERN AND S AN T A FE R AIL W AY COMPANY, a For eig n Corporation, and THE NORTHEAST I L L I NOI S R E GI ONAL COMMUTER RAI L ROAD CORPORATI ON, an I llino i s Corporation d/b/a METRA, De fenda nts-Appellants.

District & N o. First District, F irst Division Docke t No. 1-09-3450

Filed September 30, 2011

Held (N ote : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action for the fata l injuri es s u ffe red by a leg ally blind user of a commuter train service when he was struc k by the train he usually used

as it arrived at the station on a differ ent trac k, the judgme nt for the ad m i nistrators of dece dent’s estate assig ning 95% of the liability to defe ndants and 5% to de cede nt w as aff irmed, and the trial court did not abuse its d i s cr etion in deny ing defe ndants’ reque st for an evidentiar y hear ing on the issue of juror misconduc t.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-L -0616; the Hon. Donald Suriano, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Ray mond H. Groble I I I and Brian Geor g e, both of Daley Mohan Groble, P.C., of Chi cag o, for a

ppellants.

Michae l W. Rathsack, J ay Paul Der atan y , and P atrick P. Degnan, all of Chicag o, for a

ppellees.

Panel PRES I DI NG J USTI CE HOF FMAN delivere d the judgme nt of the court, with opinion.
J ustices Kar

nezis a nd Rochford concur

red in the judgme nt and opinion.

OP INION

¶ 1 The plaintiffs, Gar y Eskew and J udy Hende rs o n , as co-a dminist rators of the estate of Scott Eskew (Eske w), de cea sed, brought this action ag ainst the defe ndants, the B urling ton Norther n and Santa Fe Railway Company (B NSF) an d t h e Northea st I llinois Reg ional Commut er Railroad Corporation d/b/a Metra (Metra ), alleg ing that their neg lige nce resulted in the death of Eskew. The jury returne d a v erdic t for the plaintiffs in the amount of $5 milli on, assig ning 85% of the liabil i t y to BN SF, 10% of the liability to Metra, and 5% contributory neg lige nce to Eskew. Ba sed on this verdic t, the circ uit court enter ed judgme nt for $4,750,000 in favor of the plaintiffs, and the defe ndants have appea led. For the rea sons that follow, we a ffirm the judgment of the c ircuit court. ¶ 2 The evidenc e prese nted at trial established that Eskew, who was leg ally blind, habitually

ro d e t h e 1:14 p.m. train from Be rwy n to Chicag o in order to beg in his 3 p.m. shif t as a

secur ity guard at the Art Institut e of Chicag o. Eskew was struck and killed by the eastbound
commuter train as he attempted to cross from the platform on the north side of the trac ks to the southern platform, wher e t h e 1 : 14 p.m. train usually arr ived. The commuter train was

o p er at ed by BN SF under a purcha se of service agree ment with the Northea st I llino i s Reg ional Commut er Railroa d Corporation, which doe s business as Metra

. 1 ¶ 3 The Ber

wy n station is in a legislatively desig nated “quiet zone,” which means t h at t he train’s horn should be sounded only in emer g encie s. There are three train trac ks, the northern
trac k, the cente r trac k, and the southern trac k, which are adjac ent to eac h other and run east and west. The Be rwy

n station building is located on the south side of the trac ks, b et ween

Alt hough BNSF has at ta che d to it s re ply bri ef a phot oco py o f a d ocu m ent purpor ti ng to 1 ind ic at e tha t BNSF al so ent er ed int o a pu rc has e of ser vice agree m ent wit h the Comm ute r Rai l Divisi on of t h e R T A
, we not e tha t thi s doc um ent is not con ta ine d in the re cor d on app eal and
, the re for e, m ay not be con si der ed. See W hit tman har t, Inc

. v. CA, Inc

. , 402 I ll

. App. 3d 848, 852, 932 N.E.2d 520 (20 10) (r e c o gn i zi ng tha t the re cor d on app eal can not be sup ple m ent ed by at ta chi ng doc um ent s t o t he a ppe ndi x of a b ri ef ).

-2-Grove Avenue on the west and Oak Park Avenue on the east. S p ea k er s for the public

announce ment sy stem are located on eac h side of the s t at i on building. Announce ments reg arding trac k and schedule chang es emanate from these speake rs on the southern platform. A small shelt er i s located on the northern platform, direc tly north of the Metra station bui l ding. There are no speake rs on the northern platform. Yellow “tac tiles” border the
paveme nt along the edg e of the northern and southern platforms. Though passeng ers could hear the bells and see the signa l lights when the g ates went down, the g ates would sometimes stay down and the bells would start to ring ag ain. When commuters are on the north platform

an d the crossing gate i s down, t hat gate is behind t he waiting passeng ers. There i s n o gat e inside the platform a

rea

. ¶ 4 The 1:14 p.m. eastbound train to C h i ca go ar ri ved on the s outhern track of the B erwy n station on 90% of its runs, and passeng ers regularly boarde d that tr ai n fr o m the southern platform. Occ asionally
, the eastbound train ran on the northern trac ks, requiring passeng ers to board from the northern platform. On the date of the acc ident, the 1: 1 4 p

. m

. co m muter train was rer outed to the northern trac k due to an unexpected westbound fre ight train that was trave ling on the cente r track

. T he war ning device s at the Grove Avenue crossing wer e working
, and the g ates on the north and south sides of the cros s ing wer e in the down position, and the bell s i gn al s had been activated for 31 seconds before the commut er train

rea ched the Grove Avenue crossing . Also, the train’s be ll was ring ing a s it approac hed the crossing , but the horn had not be en sounded. ¶ 5 Esk ew ’s b ro t h er , Ga ry , who also is leg ally blind, testified that he was familiar with Eskew’ s daily route to the Be rwy n train station. Gar

y stated that Eskew took small steps and walked slowly
, as they had been taug ht. Gar y also testi fi ed that he was familiar with the Be rwy n station. Thoug h the announce ments could be hear d, they co uld not alway s be understood. This was pa

rticularly true if you wer e standingon the north platfor m. ¶ 6 Eskew’ s wife, H eidi, testified t hat s he had seen her husband wait at the crossing when

a train was there

. S h e stated that Eskew would turn his head to chec k whether a train was coming

. He also listened for t h e h o rn or whistle to deter mine if there was a train. Heidi’s mother, J udith Hende rson, confirme d that Eskew walked very car efully

. Eskew’ s neig hbor, Anthony Castrog iovanni, testified that Eskew was very methodical and alway s took the same route to the t rain station. Castrog iovanni stated that Eskew stopped for the lights and bells at Grove Avenue

. ¶ 7 Valer ie Fitzgibbons
, t h e BN SF station ag ent, had seen Eskew in the waiting are a on previous occa sions and was awa re that he had taken the 1:14 p.m. train reg ularly during the prior two year s. She knew that he was leg ally blind and had observe d him holding a paper

v er y cl o s e to rea d it and using a small device to see down the trac k. Acc ording t o Fitzgibbons, Eskew walked hesitantly with a car eful g ait and did the same thing ever y day

. ¶ 8 Fitzgibbons t estified that, on the day of the a ccide nt, she was informed about the track chang e for

the commuter train just minutes before it was due to ar rive. She then ma de two identical announce ments to advise waiting passeng ers that the eastb o u n d train to Chicag o would board from the north rathe r than the south platform, stating “plea se cross over to the north platform.” She made the first announce ment befor e the fre ight tra in arrived, and she

-3-made the second announce ment while the fre ight train was passing through the station.

Fitzgibbons acknow ledg ed that she did not inform the waiting p as s en g ers that two trains

wer e cominginto the station, and she was a war e that the announceme nts could not alway s be hea rd whe n a tra in was g oing by

. ¶ 9 Fitzgibbons stated that, afte r making the two announce ments, she called the BN SF train conductor and advised her that passeng ers on the s outh side of the st ation neede d to ge t to that train. Fitzgibbons testified that she asked the conductor to hold up or slow and wait for those passeng ers to cross. Acc ording to Fitzgibbons, she specific ally asked the conductor to hold up befor e Grove Avenue
, and the c onductor a cknowledg ed that re quest and a g ree d to wait. The commuter train arr ived at the station betwee n 5 to 15 seconds afte r the fre ight train had passe d. ¶ 10 Be verly Thompson, the BN SF conductor on the incoming commuter train, testified that,

on the day of the acc ident, she rec eived a call from Fitzgibbons, who told her that there wer e passeng ers standing on the wrong s ide of the trac ks. Thompson testified that she told Fitzgibbons that t h e train would wait for passeng ers to cross over to the north side of the
trac ks. She then asked the train eng ineer to stop short of Oak Park Avenue
, but she did not tell the ticket ag ent that they wer e g oing to stop befor e Oak Park Avenue
, rathe r than Grove Avenue

. ¶ 11 Thomp s o n fu rt h er t es t i fied that she saw a man, whom she later lear ned was Eske w, standing just north of the y ellow “tac tile” strip on the northea st corne r of the Grove Avenue crossing

. He was looking east, and she did not know who he was. When t h e fr ei gh t train clea red the station, the commuter train was almost at t h e edg e of Grove Avenue
, and the
g ates wer e down. As she was moving back to the vestibule, she hear d the sound of the train striking Eskew. When she g ot off the train, she rec ognized Eskew as a man who had ridden the train befor e and was sight disabled. Thompson testified that Eskew was not in a position of saf ety when he was standinginside the pede strian g ate on the platform. ¶ 12 Eng i n ee r J o h n Sz y chlinski testified that he was advised by Thompson that there wer e passeng ers wa iting on the south side of the tra cks. Ac cording to Sz ychlinski, the train was
to stop short of the island circ uit at the Oak Park Avenue crossing in order to allow the g ates to “time out” and g o up, thus permitting waiting passeng ers to cross the trac ks safe ly at Oak Park Avenue

. Sz y chlinski stated that he started to slow the train about 300 fee t west of Grove Avenue as the fre ight train was clea ring Gr ove. He saw a person, later deter mined to be Eskew, standing close to the Grove Avenue crossing

. Eskew was fac ing east, with his back
to the approa ching commuter train, and then turned his head to the south but did not move. Sz ychlinski testified that Eskew went out of his view as the commuter train started to occupy the crossing

. At the east end of the crossing
, he hear d a bang and put the train into emer g ency mode. In Sz y chlinski’s opinion, Eskew was in a place of safe ty when he was standing on the walkwa y or the ve ry

edg e of the platform. ¶ 13 Trainmaste r Timothy L epper t testified that an eng ineer or conductor is require d to sound the horn if they see a passeng er who i s not in a place of safe ty

. That circ umstance is considere d to be an emer g ency , and the city ’s “quiet zone” rule prohibiting the use of the horn does not apply . In addition, the conductor can te ll the eng ineer

to stop.

-4-¶ 14 S ev er al p as s en gers testified that it was diffic u l t t o h ea r an d u n d er s t an d t h e

announce ments on the north platform. Kather ine Z ack testified that she was on the north platform on the day of the acc ident, and she saw Eskew standing on the sidewalk next to the
trac ks as the commuter train started to cross Grove Avenue

. Acc ording to Z ack, Eskew then stepped onto the fir st rail and wa s hit by the train. ¶ 15 The plaintiffs prese nted expert testimony from Kenr ick Van Wy k
, a n a c o u s ti cal e ng ineer
, wh o t es t ified that, in his opinion, the passing fre ight train and the lack of speake rs on the north side of the trac ks interfe red with the intelligibility of the announce ments made over the public addre ss sy stem. Van Wy k also expressed his opinion that, beca use the intelligibility of the announcement had been reduc ed, it was more likely than not that the messag e was confuse d, causi n g E s k ew to cross the trac ks. During Van W y k’s t estimony
, the j ury hear d

a rec ording of an announce ment by a station ag ent at the Be rwy n station, which was overla id with a rec ording of a fre ight train to ref lect the circ ums t an ces that exis ted on the northern platform prior to the acc ident. Van Wy k explained that the lack of speake rs o n t h e north platform rende red Fitzgibbons’ announce ment less intelligible in that location. Acc ording
to Van Wy

k, if the word “north,” which contains soft consonants, was eliminated from that

announce ment, Eskew likely would have understood that he was supposed to cross over the
trac ks to the ot h er p l at form. Van Wy k acknow ledg ed, howeve r, that he had no way of knowingwhat Eskew

actua lly hear d prior to the ac cident. ¶ 16 Daniel Melche r, the plaintiffs’ expert in transportation safe ty eng ineer ing, testified that BN SF owns the Be rwy

n train station and platform, which are located on that railroa d’s rig htof-wa y

. BN SF operates its own fre ight tr ai n s an d Metra commuter trains, and the train
personne l are BN SF employees. The station’s public addre ss sy stem was paid for by Metra
at the time it was installed, but is operated jointly by BN SF and Metra. There fore
, announce ments can be made by the station ag ent wh o i s on-site, or they can be made remotely by the “Voic e of Me tra.” ¶ 17 Melche r explained that, when the crossing g ates are down, Grove Avenue is part of the Be rwy n station platform beca

use that is wher e the train stops and is one of the place s wher e passeng ers board and alig ht from the train. The crossing g ates are outside of the station and

are desig ned to control throug h traff ic. There are no pedestria

n g ates inside the station are a. ¶ 18 M el ch er opined that the Be rwy n station is dang erous and a high- risk train-pe destrian location. In descr ibing the functionality of the crossing device s, Melche r stated that the bells beg in ring ing when the signa l has been activate d, which is about 30 seconds befor e the train is due to arr ive. The g ates beg in to move down about five seconds later. When the g ates are in the down position, the bells stop beca use they are not require d; the g ates war n that a train is approa ching

. The bells rema in silent as the train trave ls throug h the crossing and b egin sounding a g ain when it has c lear ed the c rossingand the g ates g o back up. ¶ 19 Acc ording to Melche r, the ring ing bells do not provide sufficie nt war ning to passeng ers who are inside the platform are a, particula rly wher e tw o t rains are trave ling throug h the station. Melche r explained that, if a second train is approa ching the station at about the same time that the first train has depar ted and clea

red the station, a blind person would not know whether the ring ing bells indicate that the first train has left and it is safe to cross the trac ks

-5-or that a second train is arriving. Melche r stated that these auditory signa ls could indicate that

it is clea r to cross the trac ks beca

use the train has left the station. In Melche r’s opinion, these signa ls creat e a h azard beca use there is no differ ence in the tone of the war ning bells and there is no phy sical cue , such as a g ate, to inform a

pedestria n of an a pproac hing tr ain. ¶ 20 Melche r also expressed his opinion that the lac k o f s p ea k er s o n the north platform violated ac cepte d standards of transportation safe ty car e, and the public addre ss sy stem should have been sufficie nt to inform passeng ers on the north platform that they did not need
to cross. In particula

r, Melche r stated that passeng ers on the north p l at form rec eived a g arble d messag e, which w as not sufficie nt to advise Eskew of the trac k chang e. ¶ 21 M el ch er fu rther testified that the hazardous condition exis ting at the Be rwy n sta t i o n could be addre ssed by installation of a channe ling device
, comprised of a simple fenc e with signs, that would direc t people on the platform who hear a “cha ng e trac k” announce ment to walk eig ht fee t out of their way to a spot behind the crossing g ate. I f the g ate is in the down position, it provides a war ning t h at a second train is coming

. Melche r described this channe ling device as “a chea p and simp l e o p t i o n,” which is used at all CTA stations with
g rade crossing s. Melche r also descr ibed another solution, consisting of the installation of a second g ate in the platform are a to guide the movement of passeng ers who are alre ady in the station, but he stated that this would be a more expensive option. ¶ 22 Melche r st ated th at he had no criticism of t he pedestrian gate s that wer e outs ide of the station are a, and he indicated that they wer e very eff ective and wer e appropr iately desig ned
to c ontrol throug h traff

ic, as we re the bell signa ls. H oweve r, he was of the opinion that the inadequa cy of the public addre ss sy stem and the failure to have a channe ling device or additional platform bar

rier c ontributed to cause the ac cident. ¶ 23 J ames S otille, the pl aintiffs’ railroad safety expert, testi fi ed t h at, if the t rain c onductor believed that Eskew was standing in a dang erous location, she was obligated to instruct the
eng ineer to stop the train. In addition, Sotil le expressed his opinion that the train cre w should have sounded the horn if Es k ew wa s n o t in a place of safe ty

. In Sotil le’s opinion, the communication betwee n Fitzgibbons and Thompson reg arding s t opping the train was inappropriate bec ause it did not allow waitingpasseng ers to cr oss the trac ks safe ly

. ¶ 24 The defe ndants prese nted the expert testimony of Clay ton Weaver
, a civil eng ineer
, who testified that the I llinois Commerce Commi ssion (I CC) does not g overn the platform are as, which are controlled by BN SF. In addition, Weaver acknow ledg ed that announce ments over the public addre ss sy stem can be made by the station ag ent or by Metra. Weaver further testified that the speake rs installed at the Be rwy n station wer e place d on the south side of the
trac ks beca

use that is where most of the inbound tr ains stop a nd is wher e people g o to wait for trains. Acc ording to Weaver
, t h e public addre ss sy stem confor med to eng ineer ing standards, and the warning device s at t he Grove Avenue crossing were adequate and wer e consistent with applicable eng ineer ing require ments. Weaver stated that he believed the additional pedestria

n g ate rec ommended by Melche r would not comply with trac k clea ranc e require ments, and the installation of such a g ate wo u l d limit the maneuve rable space to approximately 12 inches. Weaver ex p re s s ed his opinion that the channe ling device

rec ommended by Melche r also would violate the clea ranc e standards and would leave a 30-

-6-inch g ap at the e dg e of the platform.

¶ 25 Br ian Heikkila, the defen d an t s ’ ra i l ro ad consultant, opined that the communication betwee n Fitzgibbons and Thompson involved the routine exchang e of pertinent information and was appropr iate. Heikkila also testified t hat there was no ne ed to s ound the commut er train’s horn beca

use Eskew was observe d to be stan ding in a position of safe ty on the northern platform at the east sid e o f Gr o ve Avenue

. Heikkila noted that Thompson’s last

announce ment was made while the fr ei gh t train was passing throug h the station, and he
ag ree d that it would be less than ideal if passeng ers on the north platform hear d only snippets of the a nnounceme nts. ¶ 26 Be rnie Morris, who formerly worke d as a chief railroa d en gi neer for the I CC, testi fied that crossing g ates are desig ned to pr otect automobiles and pedestria ns. Morris agree d that the s idewalks along Grove Avenue are p art of the pl atforms of the Berwy n station, and he stated that the safe ty device s at the crossing are adequate. In addition, Morris confirme d that the I CC does not gove rn station platforms. ¶ 27 The plainti ffs’ complaint, as finally amende d, alleg ed that BN SF was neg lige nt in that it (1) failed to adequa

tely communicate to commuters a chang e in the trac k being utiliz ed by the approa ching eastbound train, (2) failed to sound the train horn or whistle when circ umstances require d, (3) failed to stop the train befor e Grove Avenue
, despite knowledg e that passeng ers on the platform neede d to cross the trac ks, (4) failed to provide the additional

car e require d of a common car rier having kn o wl ed g e that its passeng er was phy sically disabled, (5) failed to have in place an adequate public addre ss sy stem to warn pe destrians

on the north side of the platform, (6) made imprope r announc ements on the public addre ss sy stem, causingpedestria ns on the platform to cross the trac ks when the g ates we re down, (7) failed to have in place adequa te communi ca t i o n policies and proce dures to provide

e mp lo ye e s w it

h c le a r in s tr u c tions during schedule chang es and when passeng ers wer e loca te d

on the wrong platform, and (8 ) failed to proper ly locate platform barr iers to preve nt pedestria ns from cr ossing the tr acks when a tr ain was pr ocee ding. ¶ 28 The plaintiffs’ claims ag ainst Metra wer e confine d to neg lige nce in its use and operation of the public addre ss sy stem and wer e predic ated on (1 ) t h e fa i lure to adequately communicate to commuters a chang e in the trac k being utiliz ed by the app ro ac h ing eastbound train, and (2) the failure to adequately communicate s chedule chang es to commuters and the station ticket ag ent. ¶ 29 At the conclusion of the trial, the jury returne d a verdic t for the plaintiffs in the amount of $5 milli on, assig ning 85% of the total liability to BN SF, 10% of the liability to Metra, and 5% contributory neg lige nce to Eskew. The circ uit court enter ed judgme nt for $4,750,000 in favor of the plain t i ff

s

. T h e court subsequently denied the defe ndants’ posttrial motion, as well as their motion reques t i n g an evidentiar y hear ing to deter

mine whether the jury ’s deliberations and verdict we re c ompromised by juror misconduct. This appe al followed. ¶ 30 The issues raised by the defe ndants on appea l fall int o fo u r gen er al ca t egorie s: (1) improper jury instructions, (2) err oneous evidentiar y rulin gs , (3) the improper denial of a d irec ted verdic t in favor of Metra, and (4) the err oneous denial of the motion for an evidentiar y hearing on the issue of juror misconduc t.

-7-¶ 31 We initially addre ss the defe ndants’ claims that the trial court committed reve rsible er ror in instructing the jury

. A litigant has the rig ht to have the jury instructed on eac h theory that is supported by the evidenc e. Leonardi v. Loyola University of Chicago
, 168 I ll. 2d 83, 100, 658 N.E.2d 450 (1995). J ury instructions are considere d proper wher e they fairly
, fully
, and
compre hensively informed the jury as to the rele vant principles. Leonardi
, 168 I ll. 2d at 100. Be cause the deter

mination of whether t o g ive a jury instruction is a matter within the discretion of the trial court, its dec ision will not be disturbed on re view abse nt an abuse of that discretion. Leonardi
, 168 I ll. 2d at 100

. An ab u se of discretion occur s only if “no

rea sonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co. , 207 I ll. 2d 167, 177, 797 N.E.2d 687 (2003). ¶ 32 The defe ndants first asser t that the trial court err ed by instructing the jury that a common

car rier owes the highe st duty of car e to its passeng ers. Acc ording to the defe ndants, beca use Eskew was not boarding a train but was walking toward the place wher e he normally caught the 1:14 p.m. eastbound train, he was mere ly a pedestria n and could not be considere d to be
a passe ng er at the time of the ac cident. We ca nnot ag ree

. ¶ 33 A common carrier must ex erc ise the hi g hest degree of care to its passeng ers. Katamay

v. Chicago Transit Authority
, 53 I ll. 2d 27, 2 9 -30, 289 N.E.2d 623 (1972); Skelton v. Chicago Transit Authority
, 214 I ll. App. 3d 554, 572, 573 N.E.2d 1315 (1991). A contra ctual relationship betwee n passeng er and car rier beg ins when the passeng er has prese nted himself
at the proper place to be transporte d with the intention of becoming a passeng er and is then either expressly or impliedly acc epted by the car rier for transportation. Skelton
, 214 I ll. App. 3d at 572. The person must b e at s o m e place which is under the control of the car rier and provided for passeng ers, such as the waiting room or pl at fo rm at the station, so that the

car rier may exercise the high degree of car e imposed upon it. Skelton
, 214 I ll. App. 3d at 572. Whether the uncontrove rt ed fac ts establish the relationship of car rier and passeng er is a question of law f

or the c ourt to determine. Skelton , 214 I ll. App. 3d at 573. ¶ 34 Her e, it is undisputed that, immediately befor e Eskew

attempted to cr oss the trac ks, he

was standing on the platform in a place wher e passeng ers routinely boarde d and alig hted from commuter trains. This are a was within the sole control of the defe ndants, as evidenc ed by the fac t that the crossing g ates wer e l o we re d i n t h e down position. In addition, the evidenc e ref

lects that Eskew would not have had to move in order to board the eastbound train and that the passeng ers who wer e waiti n g on the south platform had been advised to

cross over the trac ks in or der to boa rd the train from the north platform. Also, despite their

asser tion that Eskew’ s intent was “in dispute,” the defe ndants have admitted both in the trial court and on appea l that Eskew intende d to board the 1:14 p.m. eastbound train. Thus, the evidenc e established that Eskew was standing in a place t h at h ad been provided for
passeng ers and was u n d er t h e control of the defe ndants and that he intended to catc h his
regular train into the city

. In light of these circ umstances, we find no abuse of discretion in the t rial court’s decision t o instruct the jury that a common ca

rrier owed its passeng ers the highe st duty

of ca re. See Katamay , 53 I ll. 2d at 32; Skelton , 214 I ll. App. 3d at 573. ¶ 35 Next, the defe ndants arg ue that the court committed reve rsib l e er ro r i n re fu s ing to instruct the jury

that the duty

of ordinar

y car e wa s owed with re g ard to a lleg ations relating to the condition and desig n of the B erwy n station. This argument is without m erit.

-8-¶ 36 First, we note that, althoug h the defe ndants reque sted that the jury be instructed that the

standard of ordinary car e applied beca use Eskew was not a passeng er, neither def en d ant tender ed an ordinary car e instruction based on the alleg ations relating to the phy sical aspec ts of the station or the public addre ss sy stem. As a result, t h i s issue has been forf eited on appea l. See Auton v. Logan Landfi ll, Inc. , 105 I ll. 2d 537, 549, 475 N.E.2d 817 (1984). ¶ 37 Second, even if this issue had been prese rved for appea l, suc h an instruction w ould not have been war

rante d. The defe ndants corr ectly asser t that the duty of a car

rier to provide

rea sonably safe depots, platforms, and approa ches for the use of passenge rs require s the exercise of only ordinary car e. Davis v. South Side Elevate d R.R. Co.
, 292 I ll. 378, 384, 127 N.E. 66 (1920); Skelton
, 214 I ll. App. 3d at 5 73. Howeve r, the ordinary car e standard controls the co n du ct of a common car rier when the claim for rec overy is predic ated on a theory of premises liability
, and the i ssue i s the s afe ty of t he premises themselves, such as wher e injury resulted from a defe ct or other dang erous condition in the station or platform. See Skelton , 214 I ll. App. 3d at 573-74. ¶ 38 In arguing that the alleg ations relating to the lack of an ade quate public addre ss sy stem and sufficie nt platform barr ier s s h o u l d be g overne d by the standard of ordinary car e, the defe ndants entirely misconstrue the ap p li c a b ility of the premises liability rule set forth above. The plaintiffs did not alleg e that the failure t o p ro v i de adequate speake rs and channe ling device s or barr iers on the north platform cre ated an inhere ntly dang erous con d ition in the premises themselves. Rather, the failure to provide such device s was alleg ed to support the claim that the defe ndants failed to pr operly war n of and protec t a g ainst the risk of injury to

a passeng er cre ated by a moving train. The standard of ordinary car e does not apply wher e,

as here
, a passeng er is struck and killed by a train as it moves into a station and the claim for

rec overy is based upon alleg ations of neglig ence in the oper ation of the tra in. Skelton , 214 I ll. App. 3d at 573-74. Acc ording ly
, even if an ordinary car e instruction had been reque sted, the trial cour

t would have be en justified in ref using it. ¶ 39 The defe ndants also contend that the trial court committed reve rsible err or by instructing the jury that the defe ndants owed Eskew an additional duty of car e based on the fac t that he suffe red from a visual disability

. In support, the defe ndants claim that such a duty is imposed only wher e the passeng er has been acc epted for car riag e and the common car

rier is awa re that the passenge r suffers from a disability that incre ase the dang ers of trave l. See Chevalier v. Chicago Transit Authority
, 338 I ll. App. 119, 86 N.E.2d 838 (1949); Burke v. C h i ca g o & Northw estern R.R. Co. , 108 I ll. App. 565 (1902). ¶ 40 Th e d et er m i n at i o n o f wh at i s sues have been raised by the evidenc e is within the discretion of the trial court. Leonardi
, 168 I ll. 2d at 100. The g iving of an instruction is

war rante d as long as it is suppor ted by some evidenc e in the rec ord, even if the evidenc e is insubstantial. Leonardi
, 168 I ll. 2d at 100-01. On appeal, a trial court will n o t b e re v er sed “for g ivin g fa u l t y instructions unless they clea rly misled the j ury and resulted in prejudice
to the appellant.” Schultz v. Northeast Illinois Regio n a l Commuter R.R. Corp.
, 201 I ll. 2d 260, 274, 775 N.E.2d 964 (2002)

. ¶ 41 In this case , t h e p l ai ntiffs prese nted evidenc e that Fitzgibbons knew that Eskew wa s visually disabled an d t h at h e routinely caught the 1: 14 p.m. train at the Berwy n station. In

-9-addition, Thompson knew that E s k ew wa s s ight disabled and had ridden that train before.

Be fore the acc ident, Thompson saw a man standing near the Grove Avenue crossing
, but she said she did not rec og nize him to be Eskew beca use he was fac ing eas t

. Ba s ed o n this evidenc e, the trial court deter mined that the jury should be instructed reg arding the additional duty owed by a common ca

rrier to a passeng er tha

t is known to be phy sically disabled. ¶ 42 Even if we wer e to conclude that this evidenc e was not sufficie nt to justify an instruction on the additional duty

owed to disabled pa sseng ers, we cannot disce rn how the def endants might have been prejudice d by the trial court’s decision. Considering the nature of Eskew’ s visual disability
, the additional duty of car e, if applicable
, require d the defe ndants to ensure that auditory signa ls and phy sical barr i er s were adequa te to protec t a visually impaired
passeng er from the risk of being struck by a moving train. The prec autionary measure s that the defe ndants could have taken to s at i s fy this duty include: providing an adequate public addre ss sy stem to allow cl ear and intelligible war nings of schedule and trac k chang es, sounding the train’s horn as i t ap p ro ache d the s tation, stopping the train i n advanc e of the Grove Avenue station to allow waiting passeng ers to cross to the north platform safe ly
, and providing platform barr iers to preve nt passeng ers from cros s i n g t h e trac ks when a train is moving into the station. Whil e the failure to take such prec autions would establish a brea ch of the heig htened duty owed to pa sseng ers with disa biliti es, it a lso w ould support a verdic t ag ainst the defe ndants based on the duty owed b y a co m m on car rier to its passeng ers in
g ener al. Consequently
, any possible err or in instructing the jury that the defe n d an t s o wed Eskew an additional du t y o f ca re based on his visual disability would not have resulted in prejudice to the defe ndants, and the jury ’s ver dict is not subject to rever sal on this gr ound. ¶ 43 The de fenda

nts also claim t hat t he trial c ourt committed reve rsible er ror by instructing the jury reg arding Eskew’ s car eful habits and that this err or was compounded by the court’s ref usal of an instruction advising that Eskew’ s attempt to cross the trac ks while a war ning bel l wa s au dible constituted a statutory violation. We revie w both claims of instructional

err or under

the abuse of discre tion standard. See Leonardi , 168 I ll. 2d at 100. ¶ 44 In revie wing the propriety of the car eful habits instruction, w e note that the question of whether Eskew had exercised ordinary car e for his own safe ty was one of the pivotal issues in the case. A t t ri al
, the t estimony of Eskew’s family members and a neighbor established that he wa s very

methodical and alway s took the same route when walking to the train and that he walked car efully and took slow, sma l l s t eps. This testimony was admitted without objection or a reque st for a limit ing instruction, and the trial court instructed the jury that it could consider

that evidenc e whe n decidingwhether Eskew had used ordinary car e for his own safe ty

. ¶ 45 In arguing that the car eful habits instruction was improper
, t h e d ef en d an t s re l y

on Frankenthal v. Grand Trunk W estern R.R. Co. , 120 I ll. App. 3d 409, 413, 458 N.E.2d 530 (1983), which addre ssed t h e admissibili ty of testimony reg arding the car eful habits of the dece dent and held that such evidenc e is admissible to establish the dece dent’s due car e prior
to the acc ident only when there are no eyewitnesses to the acc ident. This rule is premised on the principle that, wher e there are competent eyewitnesses who observe d the incident, habit evidenc e become s unnece ssary and should not be admitted. See Plank v. Holman
, 46 I ll. 2d 465, 469-70, 264 N.E.2d 12 (1970); see also Grewe v. W est W ashington County Unit District

-10-No. 10
, 303 I ll. App. 3d 299, 306-07, 707 N.E.2d 739 (1999) (re cognizi ng this “long standing

rule” in dicta ). ¶ 46 The plaintiffs dispute t h e ap p licability of this rule of nece ssity and cite sever al ca ses stating that I llinois courts have adopted F eder al Rule of Evidenc e 406 (F ed. R. Evid. 406), which permits the admission of habit evidenc e, reg ardle ss of the prese nce of eyewitnesses. See Brad f i el d v. Il l i nois Central Gulf R.R. Co.
, 137 I ll. App. 3d 19, 23, 484 N.E.2d 365 (1985), aff’d on other grounds
, 115 I ll. 2d 471, 505 N.E.2d 331 (1987); Alvarado v. Goepp
, 278 I ll. App. 3d 494, 496-97, 663 N.E.2d 63 (1996); Hajian v. Holy Fam ily Hospital
, 273 I ll. App. 3d 932, 942-43, 652 N.E.2d 1132 (1995)

. ¶ 47 We need not deter mine the continued validity of the rule of nece ssity descr ibed ab ove beca use the testimony reg arding Eskew’ s car eful habits was admitted without objection. In

rea ching this conclusion, we reje ct the defe ndants’ asser tion that the challeng ed instruction

was improper beca

use the testimony of Eskew’ s car eful habits was elicited to explain “how

a visual l y i mp aire d person was able to function without the use of a seeing -eye dog or a walking stick.” As previously noted, the defe ndants di d n o t re quest a limit ing instruction direc ting the jur

y to consider the ha

bit testimony for that purpose only . See Davis v. Kraff
, 405 I ll. App. 3d 20, 33, 937 N.E.2d 306 (2010). We find no abuse of discretion in the trial court’s de cision to issue the car eful ha bits instruction. ¶ 48 The defen d an t s al s o ch al l en g e the trial court’s ref usal to instruct the jury

reg arding Eskew’ s statutory

duty , as follows: “[n] o pedestria

n shall enter *** or trave rse over a railroa d g rade crossing or pedestria n walkwa y crossing a railroa d trac k when an audible bell *** is operational
g iving war

ning of the prese nce, approa ch, passag e, or depar ture of a railroa d train.” ¶ 49 The trial court proper ly ref used the proposed instruction beca use it was not war

rante d by the evidenc e and would have confuse d the jury

. The instruction tender ed by the defe ndants
sets out the statutory duty of a pedestria n who is confr onted by closed crossing g ates and an audible war

ning bell at a g rade crossing ; it does n ot define the duty of a passeng er who is standing on a station platform. There was no evidenc e that Eskew had attempted to trave rse the crossing befor e he rea ched the platform. Rathe r, the e vidence aff irmatively established that Eskew was waiting on the platform and that he intended to catc h his regular train, which

was schedule d to arr ive at 1:14 p.m. Thus, in deciding how to apportion the relative fault, the ju ry was char g ed with the task of evaluating Eskew’ s conduct as a passeng er on the train platform rathe r than as a pedestria n. In light of these fac ts, we agree that g iving the tender ed instruction would have cre ated confusion and could have been m i s l ea d i n g to the jury

. There fore , we f

ind no abuse of disc retion in the trial court’s ref usal of this instruction. See Malek v. LederleLaboratori es , 125 I ll. App. 3d 870, 872, 466 N.E.2d 1038 (1984). ¶ 50 The defe ndants next argue th at t h e t rial court abused its discretion in makingcer tain evidentiar y ruling s. The admission of evidenc e is a matter within the sound discretion of the trial court, and its decision will not be reve rsed on app ea l u n l es s that discretion has been clea rly abused (

Leonardi
, 168 I ll. 2d at 92), such as wher e “no rea sonable person would take the view a dopted by

the trial cour

t” ( Dawdy , 207 I ll. 2d at 177). ¶ 51 Evidence must be rele vant to be admissible at a trial. Voyk in v. Estate of

DeBoe r , 192 I ll.

-11-2d 49, 57, 733 N.E.2d 1275 (2000); Ford v. Grizzle
, 398 I ll. App. 3d 639, 646, 924 N.E.2d

531 (2010). Evidence i s rele vant when it has a tendenc y to prove a fac t in controve rsy or rende r a matter in issue more or less probable

. In re A.W

. , 231 I ll. 2d 241, 256, 897 N.E.2d 733 (2008). ¶ 52 The de fenda

nts asser t that, beca

use the grade crossingdevice s near the B erwy

n station had been ap p ro v ed b y the I CC, the trial court err ed in (1) excluding evidenc e that those device s wer e adequa

te as a matter of law and (2) permitting the plaintiffs to prese nt evidenc e that additional platform barr iers wer e nece ssary

. In support of this asser tion, the defe ndants rely primarily on Espinoza v. Elgi n, Joliet & E a s t er n Ry. Co.
, 165 I ll. 2d 107, 649 N.E.2d 1323 (1995), which held that the I CC’s investigation of a crossing and approval of a particula r safe ty device cre ates a conclusi v e le g a l p resumption that the device is adequate and
appropr iate, precluding the pl aint iffs from asser ting that the railroad s hould have installed other wa rningdevice s. Espinoza , 165 I ll. 2d at 121. ¶ 53 The defe ndants’ relianc e on Espinoza is misplaced beca use the I CC regulates only those d evice s controlling people on the public way

. The public’s use of the street and sidewalk over the crossingis controlled by g ates and bells, which a

re outside the station and protec t pedestria ns and the occupa

nts of automobiles who are trave rsing the crossing while trave ling
to some other destination. Those g ates do not control and are not intended to p rot ect passeng ers who are standing on the platform awa iting an incoming train. Her e, the plaintiffs did not alleg e that the war ning device s at the Grove Aven u e cr o s s i ng wer e inadequate or

wer e not func tioning. Rather , the plaintiffs cla imed that the safe ty and warning device s on the p l at form wer e inadequate. These claims wer e predic ated on traditional neg lige nce principles as opposed to the violation of I CC regulat i o n s

. T h u s , the fac t that the crossing device s wer e compliant with I CC reg ulations was not rele vant (see In re A.W

. , 231 I ll. 2d at 256), and the plaintiffs wer e not barr ed from prese nting evidenc e that addi t i o n al s afe ty prec autions were nece ssary to protect pa sseng ers on the platform. ¶ 54 The defen d an t s al s o ar gu e t h at t h e t ri al court err oneously prec luded them from introducing evidenc e that the desig n and construction of the Be rwy n station c omplied w ith the Amer icans with Disabilities Act of 1990 (ADA ) (42 U.S.C. § 12101 et seq. (2000)) . In support of this contention, the defe ndants claim that, beca use schedule and trac k information
must be conveyed to those who are deaf
, t h ei r co m p l iance with the terms of the ADA

nece ssarily was rele vant to the issue of whether they had acte d neg lige ntly in war ning Eskew of the approa ching commuter train. In particula r, the defe ndants challeng e the exclusion of evidenc e that the public addre ss sy stem complied with the ADA. Howeve r, the pl ai n t i ffs’ complaint was based exclusively on common-law neg lige nce principles, and the alleg ations relating to the inade q u ac y o f the public addre ss sy stem wer e not based on ADA require ments. As a conseque nce, the question of whether the public addre ss sy stem installed
at the Be rwy

n station complied with the ADA was entirely irrele vant to the issues being tried (see In re A.W

. , 231 I ll. 2d at 256), and the trial court did not abuse its discretion in excluding such evide nce. ¶ 55 T h e d ef

en d ants further contend that the plaintiffs’ alleg ations reg arding t h e p ub l i c addre ss sy stem and platform barr iers wer e time-barr ed beca use they wer e not broug ht within the 10-year statute of repose applicable to claims for faulty construction. This contention is

-12-premised on se ction 13-214(b) of the Code of Civil Procedur e, which pr ovides as follows:
“No action based upon tort, contra ct or otherwise may be broug ht ag ainst any person for an act or omission of such person in the desig n, p l an ning, supervision, observation or manag ement of construction, or construction o f an improvement to

rea l proper

ty afte r 10 y ear s have elapse d from the time of such act or omission.” 735 I L CS 5/ 13-214(b) (West 2006). ¶ 56 This 10-y ear statute of repose “wa s enac ted for the express purpose of i n s u l at i n g all participa nts in the construction proce ss from the onerous task of d ef ending ag ainst stale claims.” MBA Enterprises, Inc. v. Northern Illinois Gas Co.
, 307 I ll. App. 3d 285, 288, 717 N.E.2d 849 (1999). The plain languag e of the statute differ entiate s co n s truction activities from other ty

pes of activities and protec ts ag ainst only those claims that are based on conduct falling within the enumer ated construction-r elated activities. Trtanj v. City of Granite City
, 379 I ll. App. 3d 795, 801-02, 884 N.E.2d 741 (2008); MBA Enterprises, Inc.
, 307 I ll. App. 3d at 288. Though a statute of repose is to be interpre ted liberally to ful fi ll its desig nated
purpose, it must not be expanded to encompa ss circ umsta n ces that are beyond the leg islature’s i n t en t

. R

yan v. Commonwealth Edison Co.
, 381 I ll. App. 3d 877, 883, 885 N.E.2d 544 (2008)

. ¶ 57 In this case , the plaintiffs’ claims alleg ing the lack of an adequate public addre ss sy stem and sufficie nt platform barr iers did not seek rec overy for faulty construction or installation of an improvement to rea l proper ty

. Rather, those claims wer e predic ated on the defe ndants’
ong oing duty to main t ai n and operate the platform and the publ ic address sy stem in a safe

manner that would protec t ag ainst the risk of injury from a moving train. As such, they wer e not time-barr ed by the construction statute of repose set forth in section 13-214(b)

. See Ryan
, 381 I ll. App. 3d 888-89; Trtanj
, 379 I ll. App. 3d at 801-02; MBA Enterprises, Inc.
, 307 I ll. App. 3d at 288-89. ¶ 58 We next addre ss the asser tion that the trial court committed reve rsible err or by ref using
to enter a direc ted verdic t in favor of Metra beca use (1) the term “Metra ” is only a trade mark and is not a leg ally rec og nized entity
, and (2) any claims ag ainst Met ra wer e time-barr ed pursuant to the one-year statute of limit ations g overning claims against the Reg ional Transpor tation Authority

(RTA). The se asse rtions are without merit. ¶ 59 Wit h reg ard to the first asser tion, we note that co u n s el fi l ed both an appea ranc e and

answe r on behalf of “the Northea st I llinois Reg ional Commut er Railroad Corporation d/b/a Metra” in Marc h 2006. No motion to strike the “d/b/a Metra” desig nation was ever filed, and the contention that Metra could not be sued beca use it is not a leg ally rec og nized entity was not raised until the defe ndants filed their motion for a direc ted verdic t on August 18, 2009,
at the conclusion of the eight-day trial. At that time, defe nse counsel acknow ledg ed that the Northea st I llinois Reg ional Commut er Railroad Corporation has the tra d e n a me “Metra .” We find that, as the plaintiffs argued in oppositio n t o the defe ndants’ motion, even if Metra should not have been included as a named defe ndant, the err or could be reme died at any time under the statutory

provision allowing f

or the c orre ction of the name of a party sued under

a misnomer (735 I L CS 5/2-401(b) (West 2008)). Consequently
, it cannot be said that the trial
court e rre d in denying the motion for a dire cted ve rdict on this gr ound.

-13-¶ 60 As to the secon d as s er t i o n , t h e d ef en d an t s rely on section 5.03 of the Reg ional Transpor tation Authority Act, which states that all claims aga i n s t t h e RTA for wrong ful death or injury to a per son must be commence d within one y ear from the date the cause of action acc rued. 70 I L CS 3615/5.03 (West 2008). The clea r and unequivoca l languag e in this provision establishes t h at t he one-y ear statute of l imitations applies onl y to claims ag ainst the RTA. ¶ 61 Her e, the rec ord demonstrates that the RTA, which was name d as a d ef en d an t in the plaintiffs’ orig inal complaint, filed a motion to dismiss
, in part, due to the fac t that the action
ag ainst it was not timely filed. In August 2006, the claims ag ainst the RTA wer e dismiss ed, and the trial court enter ed an order stating that “[t] his matter conti n u es as to all other parties.” The defe ndants do not contend that M et ra , t h e n ame under which the Northea st I llinois Reg ional Commut er Railroad Corporation does business, is the same as the RTA and should have been simil arly dismiss ed out in August 2006, nor do they cite any prec edential authorit y or evidentiar

y support in the rec ord explaining how the one-year statute of li m i t at i o n s g overning claims ag ainst the RTA applies to the claims ag ainst Metra here

. Acc ording ly
, this contention has been fo rfe ited on appea l. See I ll. S. Ct. R. 341(h)( 7) (eff. Sept. 1, 2006). ¶ 62 Finally
, the defe ndants argue that the trial court erred i n d en y ing their reque st for a n evidentiar y hear ing on the issue of juror misconduct. In support of t h i s argument, the defe ndants rely on statements contained in cer tain entries of an internet blog maintained by a juror, a lleg ed to be Eve Br adshaw , who desc ribed he r experienc es duringthe trial. ¶ 63 The rec ord ref lects that the blog entry posted on August 16, 2009, contains the following
statements: “B ut I can tell you some stuff. At one point on Fr iday
, in the privac y of the jury
room, one of the jurors said, ‘Well, all t h at ’s l ef t n ow is deciding how much.’ I looked at her in disbelief. ‘L alalala lalala! ’ I singsong ed, holding m y fi n ger s in my

ear s. ‘You cannot talk that way , J uror L ,’ I said, ‘You h av e t o wa i t until AL L the evidenc e is in and we ’ve he ard f rom AL Lthe witnesses.’
‘How c ome? ’ she sa id, *** ‘It’s clea r to me who’s at fault.’
‘You don’t know that,’ chimed in my buddy
, J uror F. ‘What i f t hey show us a suicide letter?’ ‘Ther e’s a suicide letter?’ ‘No, no, no!’ we said in unison, and then J F continued, ‘but you don’t know what else they might tell us or show us. You have to wait to make up your mind!’

* * *
We spend our time in the jury room trying–but not succe eding –to NOT talk about the case

. When deputy D pokes her head in, she looks around suspiciously

. ‘You’r e not talking a

bout the case , are you? ’ she sa y s. * * *
One more thing: I tell Mr. Peevie [t he juror’s husband] things about the case , but I ’m very car eful not to g ive awa y any details that might let him know what the case

-14-is. (Even if I did, he wouldn’t pursue it. He ha s too much integ rity and cha rac ter to do so. He is packe d with all sorts of annoying ethics.) But the other night, as we wer e talking, I almost–AL MOST–let the name of (lar g e compa ny ) slip out. I n fac t, I did let the first syllable slip out. Twice. Oops.” Another e ntry

posted on August 12, 2009, states as follows:
“Of course , it ain’t over ’til it’s over. After four full day s of plaintiff-side witnesses, we’ ve only hear d one witness for the defe nse. The other jurors and I are guarding our objectivity fierc ely until the l ast syllable of testimony has been utte re d and the last molecule of

evidenc e has be en pre sented.” ¶ 64 T h e d ef

en d an t s cl ai m that the trial court err ed in ref using to conduct voir d i r e t o deter mine whether the integ rity of the jury ’s proce ss ha d been compromised. Ac cording to the defe ndants, the blog entries quoted above indicate that (1) jurors discussed the case among st themselves before it was delivered to them for d el i b er at i on and decision, (2) one juror stated to other members of the jury that she had ma de up her mind on liabili ty

befor e the close of t he evidence, and (3) the j uror alleg ed to be Eve Br adshaw discu s s ed t h e case with her husband during the trial. The defe ndants asser t that the trial court err ed in failing to investigate whether the verdic t was contami n ated beca use some of the jury members violated their oaths and w ere prese nted with improper “ extraneous information.” We disagree

. ¶ 65 The deter

mination of whethe r j u ro rs have been influence d and prejudice d to such an
extent that they would not, or could not, be fair and imparti al re s t s within the sound discretion of the trial court. People v. Runge
, 234 I ll. 2d 68, 104-05, 917 N.E.2d 940 (2009). To compel a posttrial evidentiar y hearing on juror m i s co n duct, the moving party must produce “ ‘spec ific, detailed and nonconjec tural evidenc e in support of [i ts] position.’ ” People v. Kuntu
, 188 I ll. 2d 157, 161, 720 N.E.2d 104 7 (1 9 9 9 ) (q uoting People v. Towns
, 157 I ll. 2d 90, 102, 623 N.E.2d 269 (1993))

. In g ener al, a verdic t canno t b e impeache d by testimony or aff

idavits relating to the motive, m et h o d
, and proce ss of jury deliberations. Redmond v. Socha
, 216 I ll. 2d 622, 636, 837 N.E.2d 883 (2005); Stallings v. Black & Dec ker ( U.S.) , Inc. , 342 I ll. App. 3d 676, 680, 796 N.E.2d 143 (2003). However
, a verdict may be challeng ed by testimony or aff idavi t s es tablishing the exis tence of improper extraneous influence s on the jury

. Redmond, 216 I ll. 2d at 636; Stallings , 342 I ll. App. 3d at 680. ¶ 66 Even wher e a jury has been exposed to improper extraneous information, the verdic t is
not subject to automatic reve rsal. People v. W illmer
, 396 I ll. App. 3d 175, 181, 919 N.E.2d 1035 (2009). “The party challeng ing the verdic t must establish prejudice by showing that the information relates direc tly to something at issue in the case and that it may have influence d the verdic t.” W

illmer
, 396 I ll. App. 3d at 181. “B eca u s e it is impossibl e to prove whether extraneous information af fec ted jurors’ de cisions, the courts do not re quire proof of actua l prejudice when deter

mining whether a jury verdic t has been tainted.” Stallings 342 I ll. App. 3d at 681. Rather, a presumption of prejudice exis ts “if the extraneous information bear s on

a cr ucial issue in the ca se and ma y have improperly influence d the verdict.” Stallings
, 342 I ll. App. 3d at 681; see a lso People v . Holmes , 69 I ll. 2d 507, 519, 372 N.E.2d 656 (1978). Once this presumption has been trig g ere d, the burden then s hif t s t o the prevailing party to show that no actua l pr ejudice oc curr ed. W illmer , 396 I ll. App. 3d at 181; Stallings
, 342 I ll.

-15-App. 3d at 681.

¶ 67 In this c ase, the trial court c orre ctly observe d that the defe ndants had not pr oduced any showing that the jurors wer e exposed to improper ex t ra neous information bear ing on the

cruc ial issues in the case

. Nothing in the blog entries indicated that any informat i o n was

rec eived either from the husband of the juror who maintained the blog or from any other

source

. Although the rec ord indicates that some comments wer e posted in response to cer tain of the blog en t ri es re ference d above, the defe ndants did not bring the substance of those
comments to the attention of the trial court. Thus, the nature and content of such comments

are not included in the rec ord on appea l, and we cannot presume that the jury was prejudice d by exposure to extraneous information that bore on a cruc ial issue in the case and may have improperly influence d the verdic t. See Stallings
, 342 I ll. App. 3d at 681; Holmes
, 69 I ll. 2d
at 5 1 9

. I n ad d i tion, one juror’s statement that “all that’s left now is deciding how much,” “[i] t’s clea

r to me who’s at fault” cannot be fairly char acte rized as extraneous information. Rather, the statement constituted a verba l ar t i cu l at i o n of the result of the juror’s consideration of the evidenc e prese nted as of that point in the trial. Thoug h it was expressed
prematurely
, this stateme nt me rely ref lected that juror’s mental proce ss. We agree with the trial court’s conclusion that the statements contained in the blog entries are not sufficie nt to show that the jury ’s ver dict was tainted by external influence s. ¶ 68 We a lso rejec t the defe ndants’ conte ntion that the blog e ntries demonstrate that cer tain members of the jury eng ag ed in improper premature deliberations, which biased their later,
actua l deliberations. Questions of possibl e i n t ra -j ury influence or misconduct are treated differ ently from asser

tions of contamination by external influence s. Runge
, 234 I ll. 2d at 103. “ ‘[A] trial judge is vested with broad discretion in re s p o n d i n g t o an alleg ation of jury misconduct, and that discretion is at its bro ad es t wh en the alleg ation involves internal misconduct such as premature deliberations ***.’ ” Runge
, 234 I ll. 2d at 105 (quoting United States v. Dominguez
, 226 F.3d 1235, 1246 (11th Cir. 2000)). The supreme court has observe d that, althoug h premature jury deliberation is “not nece ssarily proper , [i t] is not as serious as [t he exertion of external influence s on a jury], nor does ever y incident of juror misconduct require [ ] a new trial. [C itation.] What is cruc ial is not that jurors keep silent with eac h other about the case but that eac h juror keep an open mind until the case has been submitt ed to the jury .” (Interna l quotation marks omi t t ed

. ) Runge
, 234 I ll. 2d at 125. Improper jury deliberation mandates reve rsal only wher e the de fenda

nt has bee n so prejudice d as to ha ve been de nied a f

air trial. Runge , 234 I ll. 2d at 128. “The important question in this reg ard is
not whether the jurors kept silent with eac h other about the case , but whether eac h juror kept

an open mind until the case was submitt ed to them.” (Interna l quotation marks omitted. ) Runge , 234 I ll. 2d at 128. ¶ 69 Her e, the de fenda nts’ argument that the ver dict was the r esult of bias due to premature jury deliberations fails to acknow ledg e that the posted blog entries ref lect that the jurors wer e committed to keeping an open mind and were “guarding their obj ectivity fierc ely until the last syllable of testimony [had] been uttered and the las t molecule of evidenc e [had] been
prese nted.” I n addition, the bl og ref lects t hat, when one of the juror s expressed an opinion
reg arding liability
, other jury members immediately responde d and emphatica lly cautioned
t h at t h ey had to wait until all of the evidenc e had been prese nted befor e rea ching any

-16-conclusions. The blog entries on which the defe ndants rely do not indicate that pre m at u re

deliberations re sulted in a jury that was biased when it commence d its de liberations or that the j ury ’s actual deliberations and verdict wer e affec ted by any discussions during trial. In fac t, the entries indicate just the opposite. In light of these circ umstances, we conclude that the trial court did not abuse its discretion in denying the defe ndants’ reque st for an evidentiar y hearing on the issue of juror misconduc t. ¶ 70 For

all of the for eg oing r easons, the judgment of the c ircuit court is af firmed.

¶ 71 Affir

med.

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