## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Bakes v. St. Alexius Medical Center , 2011 IL App (1st) 101646

Appellate Court Caption ROBERT BAKES, Pla intiff-Appellant, v. ST. ALEXI US MEDICAL CENTER, MATTHEW NOWIKOWSKI, I ndividually and as an Agent of St. Alexius Medical Center, JOHN WALSTAD, Individually and as

an Agent of St. Alexius Medical Center, and I NI T IAL SECURITY, INC. , Defendant-Ap

pellant.

District & No. First District, Fourth Division Docket No. 1–10–1646

Filed June 23, 2011

Held ( Note: T

his syll abu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conven ie nce of the reader. ) The appellate court affirmed the judgment for

defendant hospital in an action for battery and

neglig ence, since the b attery instructi on prope

rly instructed the jury as to plai nti ff’s proper burden of proof, there was sufficient evidenc e to warr

ant a cont ributory negligence instruction, plaint iff’s claim that the evidence supporting a battery was “uncontradicted” was inaccurate, and defenda nts’ alleged viol a tion of

a motion in limine barring evidenc e that plaintiff sent anyone to the ho spital to intimida

te them af

ter he a rrived home did not

warran t a mistrial.

Decision Under Review Appeal from the Circuit Courtof Cook County, No. 2005–L –011620; the Ho n. Ja mes P . Flan nery, Ju dge, pr esidi ng.

Judgment Affirmed.-2-

Counsel on Appeal Stewart D. Stoller and Steven E. Garstki, both of Stoller & Garstki, of Chicag o, for ap

pellant.

RuthV. Enright and Ry an C. Evans, both of Chicago, for appellee

St. Alexius Medical Center.

Patr ick R. Grady, of L

aw Offices of Wolf & Wolfe, L td., of Chica go , for appelle es Matthew Nowikow ski, John Walstad, and Ini ti al Se cu ri ty, Inc.

Panel PRESIDING JU STICE

LAVI N deliver ed the jud

gment of the cour t, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff

Robert B akes, a h

eavily medicated, postsur

gical p atient who attempted to leave St. Alexius hosp ital ag ainst medical advice, claims that he was injured when security guards Matthew Nowikowski and John Walstad thwarted his exit. He responded by lashing out

with his crutche s. Ultimately, he settled in a whee lchair and waited for his wife to take him home. He sued for battery

and the jury

found in f

avor of t he defe ndants. H e appea

ls on a variety of issues, including the propriety of th e b ur de n o f p ro of

in st ru ct io n r eg ar di ng th e t or t o f b at te ry. We affir m.

¶ 2 I. BACKGROUND ¶ 3 The relevant testimony of the va rious witnesses at trial pertinent to Bakes’ appeal wil l be summarize d below. A ny a dditional f

acts as needed w ill be recit e d within the following analy sis. ¶ 4 Bakes testified that his right knee was injured in a 2000 f all while descending a flight of stairs. He sought medical advice from Dr. F reedberg, who recommended a pr oc edure to
reconstruct

the injuredknee an d to repa ir cartilage and ligament dama ge. The knee surge

ry

was performed by

Dr. Freedberg on

July 17, 2000, at St. Alexius. Bakes testified that when he woke from the surgery , his knee and toes were in grea t pain. As to his toe s, Bakes stated that the “nerves felt like they

were popping,” and he

described

it as “almost like a fireworks feeling.” The pain

persisted in his knee and toes over the next few day s and was grea t enou gh such that Bakes did not

wish to participate in any phy sical therapy . Bakes testified that throughout

this time, h

is knee w as heavi ly b andag ed, his le g was se t straig ht i n an immobilizer and he required crutches to ambulate.1 Althou gh Bakes identified Nowikowsk

i and Walstad as the security guards at St. Alexius, he did not distinguish

the two in his descriptio n of the e vents and g enerally

referred to Nowikowski and Walstad collectively

in their actions and statem ents.

-3- ¶ 5 At

around 5 p.m. on July 21, 2000, approximately four days a

fter the surgery , Bakes was notified by nurse Teja

l Patel of his imminent discharge and was presented with a choic e of pain medication to take home. Bakes replied that he was upset and did not understand why he was being released. He then told the nurse that he was “going to g o wait outside,” and that he wished to immediately le ave the hospita l. Despite his condition, Bakes managed to get
outof his bed

and into the restro om, wher e he prom ptly fell. He was able to stand up and use his crutches to make his way out of his fourth-floor room and to the elevator, passing four

nurses without incident. As Bakes took the elevator down to the first floor, he realized that

nurse Carol Szafranksi was at his side, asking him to relax. Bakes felt certa in he did not need
to calm down. Upon reaching the first floor, he perambulated on crutches to the exit, which he said consi sted of a revol ving door and t wo adjoini ng standard do ors. Ba ke s testified he pushed the right-side door open and part ially stepped o ut, but as he was getting his crutches throu gh the door, he w as appr oached by security g

uards Nowikowski and Walstad. They positi oned themselves so they hemmed B akes in between themselves. They then asked B ake s where he was goi ng. 1 Bakes a nswere d he was g oing to g o outside, to which th e secur ity guards responded
, “No, you’ re not.” Bakes nonetheless continued his eg ress and testified that

one of the guards pul led the do or shut and “slamme d” it on hisright f oot, caus ing him to

scream out in pain. Bakes then

attempted to leave through the adjacent re volving door, where the security g

uards “grabbed the revolving door and slammed it” on his foot. The next thing Bakes remembe

red was sitting in a wheel chair

near the exit, with nu

rse Patel offering him morph ine f or hispain . He r

efus ed th is off er. B akesnext

remembered waking up in his bed and being unaware as to how he ar rived there. His wife arrived shortly thereafter, and after receiving discharge

instruction from the nurses, he was taken home by his wife. ¶ 6 Bakes testified that he was unable to walk for over five weeks and that he hadconstant pain in hi s e nt ir e r ig ht le g a nd fo ot . S pe ci fi ca ll y, Bakes d escribe d his foot as hyperse nsitive. Althoug h B akes’ knee and leg rec overed over the passing months, the constant hyp ersensitivity

in his foot did not change. Event ually, Bak es again consu lted D r. Freed berg, who ordered

a varie ty of tests to

be perf ormed and ultimately r

ecommended surg ery

on his foot. Bakes stated the

surger y, w hich occurred in

early 2002, r

elieved the “firework kind of di sp la y” in his toes but did not help with the hypersensitivity , which still persisted at the time of the und

erly ing tria l. ¶ 7 Matthew Nowikowski testifie d that on July 21, 2000, h

e was at S t. Alexius working as

a security g

uard under Initial Security . Although he was posted at St. Alexius, Nowikowski testified th at Ini ti al Se cu ri ty, and not St. Alexius, was completely responsible in instructing him how to conduct himse

lf. He fu rther te stified th at as a security guard, he acknowledged he did not have any police powers or any

more of a

right to arrest or stop an individual than the average citizen. Turning back to the day of the incident, Nowikowski stated he received

a radio call requesting assistance regarding B akes, whom he described as combative. When Nowikowski observed

Bakes on the first flo or, he sa w that Ba kes was o n crutch

es and in-4-

street clothes, with a bandaged foot. Nowikowski differed with Bakes on the number of exit doors, testifying that ther e was one “handicapped” door and one revolving door. The handicapped

door wasoperated by

a push butt

o n, and when activated, the door remained open for a period of time. ¶ 8 As Bakes approached the revolving door, the nur sing staff told Nowikowski that Bakes

was no t allowed

to leave the hospit

al. Nowik

owski indic ated tha

t there w as no time

t o discuss the situat

ion with the

nurses so

he quickl

y f ollo wed the given in struction s. Nowikow ski stepped in bet wee n Ba kes and th e do or a nd t ol d hi m, “I ca n’t let you go .” In stepping in front of Bakes, Nowikowski a dmitted he accide ntally stepped o n Bakes ’ foot, which cau sed a shout of pain. Bakes nevertheless moved throug h the door, striking Nowikows ki in the sh

in with a c

rutch in the process. Nowikowski stated it may have been possible that he put his hands down or touched Bakes in order to preve nt himself from being whacked again by the patient’s crutch. Nowikows ki then sa w nurse Szafrans ki arrive

with a wheelchair and Bakes, who w as visibly fatigue d, slumped down in the wheelchair. ¶ 9 John Walstad te stified th at he wa s employ ed by Initi a l S ec ur it y i n July 2000 and was working at St. Alexiu s along with Nowiko wski. His t esti mony reg arding the underly ing incident was cons istent with

Nowikows ki’s t estim ony. Walstad testified that when he observed the patient near the revolving door, W alstad pu t his foot in f ront of the door to prevent it fr om tur ning . Walstad was pre sented with the incident report written by him on that day which ind

icated th at “security

*** confronted the patient at the handicap exit door,” butWalstad testified that the entire incident took place near the revolving

door and not by the handica

p exit door. Walstad al so stated that Bak es had str uck him i n t he gro in while attemptin g to lea

ve, although Walst

ad neve r touched him until he

later as sisted Ba

kes into the w heelchair w hen it was brought by nurse Szafranski. Finally, Walstad indica ted that altho ugh he was asked by the nursing staff to prevent Bakes fr om exiting, he did not have the time to inquire their reasoning. He further a cknowledged that he wa s o nl y to follow the instructions of his em pl oye r, Ini ti al Se cu ri ty, and that the nursing staff does not actually give the secu rity guard s any

orders. ¶ 10 Nurse Tejal Patel testified that on the afternoon of July 21, 2000, she was working at St. Alexius as a

nurse on the orthopedic floor and that Bakes was one of he r patients. Dr. O’Keefe had entered a

n order dischar ging B akes, wh

ich nurse Patel wasplanning

to effect later that afternoon. She first conducted an initial assessment of Bakes where he stated that he was relatively

comfortable and did not then require pain medi cation. Ba sed on her observations, nurse Patel determined that Bakes was ready to be discharged. She informed Bakes accordingly

and provided a choice of pain medication to use at home, but Bakes became very upset upon he aring that he was to be discharged and started moving around and hypervent ilat ing. Bakes also expressed that the offered pain m edic ations were insufficient and stated, “These medications are not good enough. I thought I was supposed to be dope d up.” Nurse Patel obser ved that Bakes was behaving e rratically a

nd using his crutches im pr op er ly, which she believed could damage his knee and leg. She was concerned tha t Bakes w as not liste

ning to he r discha rge ins tructionsand felt

that he was not acting sa fe ly. She told Bak

es that he could still

stay in the hosp ital if he

was not re ady

to leave , but he did not ap pear to be lis tenin g.-5-

¶ 11 Nurse Patel offered to call Ba kes’ wif e, but he r esponde d that he d

id not wan

t to wait and that he wa s just going to wa lk home. N

urse Pate l told him she

would ca ll his wife because he could not simply walk out, due to his phy sical condition and his on- board me dication s, and that she would call his wife, friend, or a cab to take him home. Bakes angrily disregarded her, and during his attempt to leave, he insisted to nurse Patel that while he was in a lot of pain, he could acquire “better drug s outside.” Nurse Patel also testified that Bakes threatened that “he was going to send his ga ng members to take care of [her] and [her] family .” ¶ 12 Nurse

Patel then notified her charge nurse a nd supervisor of the escalating situation and contacted Bakes’ wife

at tha t time , ask

ing h er to come to the hospital. W

hen n urse Pate l next

saw Bakes, he was on the first floor being assisted into a wheel chair, a nd she off ered him a doseof morphine for hi s pain whic h he ref use d. Upo n being returned to his room, Bakes reiterated his previous threat

to nurse Patel, and when his wife arrived shortly thereafter, he threatened

to injure her as well. Nurse Patel related the discharge instructions to Bakes and his wife, and then Bakes was taken home. ¶ 13 Nurse Carol Szafranski testified that on the date of the incident, she was working at St. Alexius when she received a call from nurse Patel seeking assistance with Bakes. When she

arrived at hi s room, she

observe d Bakeswas “ag itated, u pset, wa lking ar ound the r

oom, throwing things down, [and] complaining about pain medication.” As Bakes l eft his room, he continue d to compla

in of his dis comfort a

nd pain, a nd also sta

ted his inte

ntion to wa

lk home, which wa s approxima tely 10 miles aw ay . Nurse

Szafranski followedhim and saw that Bakes was putting weight on the leg that had been operated on and she was concerned he could reinjure or other wisedamage it. Although she tried to reason with B akes and persuade him to not leave, he wa s unrespon sive and d id not appe ar to be listening to her. N

urse Szafranski accompanied

Bakes as he went down the elevator , and upon arriving on the fir st floor, nurse Szafranski briefly left Bakes to retrieve a whee lchair. ¶ 14 When she returned, she saw Bakes nea r the exit with Nowikowski and Walstad standing by him. S he directed the security guards to prevent Bakes fr om leaving because she was

conce rn ed by the fact Bakes was not properly taking care of his operative leg and was attempting to walk home. She did not see Nowikowski or Walstad touch Bakes at any time. She also admitted that

Nowikowski and Walstad were not hospital employees and, while she could ask for their assistance, she had no direct control over them. When nurse Szafranski brought the wheelchair to Bakes, he sat do wn in it and she broug ht him back to his roo m. Bakes’ wife arrived shortly thereafter; however, nurse Szafra nski testified that Bakes continued to march around his room and yell. Bakes eventually calmed down, and after

nurse Szafranski ensured that he would not be walking home, she deemed Bakes was no longer a danger to himself and discharged him under the care of his wife. ¶ 15 Dr. Yelena Tumashova provided medical expert opinion on beha lf of St. Alexius. She testified that after

a review of Bak

es’ medical records, she concluded that the persisting nerve condition in Bake s’ foot wa s th e re sult of the knee surgery rather than the result of any incident with the security g

uards. She further opined

that numbness and pa

in in his foot could have been due to nerve dy sfunction caused by the surg ery or a

cast that was too tight. All the medical records indicated to Dr. Tumashova th at Bake s’ issues in his right foot were present immediate

ly after th e surge ry , prior to

any incident withthe security g

uards. She testifiedthat2 Whi l e there a re a num ber of I llinois Pattern

Jury I nstructi ons per

taining specifi cally to medicalb a ttery (see Illinois Pattern Jury In structio ns, Civ

il , Nos. 105.0 5 throu gh 10 5.07 (2 006)), the Illinois Pattern Jury

Instructions lack

any similar guidance for

other, nonme dical batteries such as the one alleged by Bakes in the instant case.

-6- Bakes’ ner ve in

ju ry, di scovered by

an electromy ography

(EMG) examination, could not have been caused by some one simply stepping on his foot. Further more, the EMG study

also suggested that, due to the location of the complaint, it would be extremely unlikely that the

nerve injury was ca

used by his leg

becoming jammed in a door. Dr. Tumashova also noted a lack of scar tissue and the absence of damag e to any adja cent nerves and thus concluded that there was no evidence that a phy sical impact had caused physic al damage to the nerve. Fi na ll y, she testified that

Bakes could have injured his foot by walking inappropriately

during his recovery , as the foot was vulnerable from surge ry and bea

ring we igh t on it could compromis e the foot’s blood s upply and nerv es. ¶ 16 After

the trial, the jury re

turned a ve rdict in favo r of all de fendant s and ag ainst

Bakes. Bakes f iled this tim

ely appeal.

¶ 17 II. AN ALYS IS

¶ 18 A. Battery Instruction ¶ 19 Bakes’ overarching contention on appeal is that the trial c o urt’s jury instruction on battery misstated the law and was therefore err oneous

. It is within the trial court’s

c on siderab le discretion to give or deny a jury instruction. Bulger v. Chicago Tra nsit Authority
, 345 Ill. App. 3d 103
, 121 (2003). In determining whether this discretion was abused, we will consider the instructions in their entirety and determine whether the jury was fa ir ly, fully , and comp

rehensi vely

informed as t o the relevant legal principles. Id. at 122. Even where a trial court has given f aulty instructi ons, a re

viewing court or dinarily will not

revers e unless the

instructi ons clea

rly misled the jury and re sulted in serious prejudice to the appella nt. Schultz v. Northeast

Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 274 (2002); Bulger , 345 Ill. App. 3d at 121. ¶ 20 We begin with the lamentable fact that there is no I llinois Pattern Jury Instruction on the
tortof ba tt er y. 2 As a result, the parties were left to draft ins tructionsthat purp orted to comport with the exi sting Illinois case law on battery . Unsurprisingly, the instructions offered by

each side at trial were

at odds with each other. Bakes offer ed the following jury instructi on, in per

tinent pa rt: “The Pla intiff ha s the burd

en of pro ving ea

ch of the following

propositio ns: 1. That the Defendant intended to touch the Plaintiff’s body , and 2. That the Defendant actually touched the Plaintiff’s body, a nd 3. That said touching was harmful or offensive, a nd 4. That said contact directly or indirectly ca

used an injury to Plaintiff.”-7-

Defendants’ jury

instruction, in pertinent part, read: “[Plaintiff] has the burden of proving ***:
1. That the defendant had the intent to cause a harmful or offensive contact with plaintiff.
2. That the defendant actually made unauthorizedphysical contactwith plaintiff that was h armful. 3. That plaintiff was injured. 4. That defendant’s action caused the injury to plaintiff.” The learned judge below, after hearing argume nt from bo th partie s, submitte d defend ants’ jury instruction to the jury over B ake s’ o bjection . Bakestakes issu e only with the f

irst element, which touches on the natur e of the p roof re quired r

egard ing the intent of d

efenda nt. He argue s that the t

rial cou rt erre d in instructing the jury that civil battery require s Bakesto prove that

defendants intended to touch him in a harmful or offensive manner, as opposed to simply intending

to touch him. ¶ 21 We should f

irst acknowl edge th at there

exists a dichotomy within the intent requirement for the tort of battery, i.e.
, whether intent eq uates to an intent to harm or

offend, or merely

an intent to touch. This dichotomy among var ious jurisdictions has been the subject of vigorous academ

ic debat e as ref lected in various law review articles. See, e.g. , Ken neth W. Simmons, A Restatement ( Third) of Intentional Torts? , 48 A

riz. L. Rev. 1061 (2 006); Cra ig M. La ws on, The Puzzle

of Intend ed Harm in

the Tort of a

Battery , 74 Temp. L. Rev. 355 (2001). The parties here expe nd c onsiderable effort in arguing that the opponent’s jury instruction is simply not an accurate statement of law in Illinois. Both par ties, howe ver, miss the mark. As we will discuss, Illinois courts have defined the tort of battery in multiple

way s, and arguably , have characterized the element of intent in w ay s that comp ort to both parties’ proffered ju ry i ns tr uc ti on . Ir on ic al ly e n ough, some might even persuasively argue the trial
court could have given either tendere d instruction and found sufficient precedential comfort from our supreme court an d the seve ral appe llate cou rt districts in I

llinois. ¶ 22 Our

dissection of the relevant law on this ancient but somewhat arcane tort begins with the Restatement (Second) of Torts, which provides that battery is committed by an individual if: “(a) heacts inte

nding to cause a harmful or offensive contact with the person of the other

or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact withthe pers on of the other dire ctly or indirectly

results.” Restatem

e nt ( Second) of Torts § 13 (1 965) . From this, we have stated that “ ‘the wilful touching of the person of another

or a succe ssful atte

mpt to commit vio le nc e o n t he pe rs on of an ot he r’ ” c on st it ut es ba tt er y. Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc. , 252 Ill. App. 3d 96, 10 1 (1993) (quoting Parrish v. Donahue , 110 Ill. App. 3d 1081, 1083 (1982)). We have also stated tha t battery involves contact by a de

fendant that

is unauthorized ( Boyd v. City of Chicago , 378 Ill. App. 3d 57, 69 (2007)), where defendant has done some affirmative act intended to cause the unpermitted contact (see McNeil v. Carter , 318 Ill. App. 3d 939, 944 (2001 ); Gaskin v. Goldwasser
, 166 I

ll. App. 3 d 996, 1012 -13 (1988 )). Most n otably , howeve r, we ha ve also stated that battery requires more than anintent to c ontact, in that a de fendant must intend to

cause a harmf ul or off ensive c ontact. See Happel v. Wal-Mart Stores, Inc. , 316 Ill. App. 3d-8-

621, 630 ( 2000); Welch v. Ro-Mark , Inc. , 79 Ill. App. 3d 652, 658 (1979). ¶ 23 Ac co rd in gl y, we find leg al support as to bot h whether the intent element of battery requires intent to touch, or the arguably more difficult-to-prove intent to cause a harmful or offensive contact . This prov ides us a s ufficie

nt basis upon which to affirm the jury’s ver

dict based upon the instruction in question, since the instruction supplied an acceptable burden of proof of battery based on extant I llinois ca se law. F

urthermo re, the instructio n could al so easily be inter preted t o mean tha

t defend ant must only intend t o cause a contact, with that
contact ultimately being ha

rmful or offe nsi ve. This would conform to plaintiff’s proposed intentrequire

ment. We recognize, however, the variance in definition here, so the relevant question before us is perhaps not which party’s jury instruction is correct per se , but rather which j ur y in struction

is approp

riate to p roperly frame th e issues u

nder the facts of this specific case. We find

that the tendered instruction was quite appropriate under these specific facts. ¶ 24 Genera

lly, it is fair to state that cases holding that one need not prove intent to harm or offend in a batte

ry action g enerally f

all within t

he ambit o f a medic al b attery or so- c alled “helpful intent” cases. See, e.g. , In re Estate of Allen , 365 I ll. App. 3d 378, 385 (2006 ); Lane

v. Anders on , 345 Ill. A

pp. 3d 256, 261 (2004 ); Curtis v. Jaskey , 326 Ill. App. 3d 90, 93 (2001). In thi s narrow

legal m ilieu, it is a

xiomatic that defendant lacked any intent to harm

or offend, ye

t they are non

eth eless considered batteries. See Lawson , 74 Temp. L. Rev. at 358. Accordingly , medical battery and other similar helpful intent ca ses logi cally direct th eir focus u pon the la

ck of con sent; in oth

er word s, whethe

r the touc h was inte

nded, but s til l unauthorized. It merits mention here tha t Bakes ’ proposed jury

instructi on was de

void of any reference to consent and did not specifically require that the defendant s’ contact be unauthorized. ¶ 25 In any

event, as previ ously

stated, B akes ar

gues tha t the inten t in this case

should simply have required proof of an

intent to touch. We acknowledge the logic in using such a standard in helpful intent cases, such as medical b attery. I f this standard, however, were to be used

across all fact

ual scen arios out side so-c all ed h elpful intent cases, our holding could be construedthat any of

the inten tional co ntacts tha

t might oc cur in

one’s daily life, no matter how benign, could beconsidered a battery should the contact inadvertently be offensive. See Lawson
, 74 Temp. L. Rev. at 363. Such a broad g eneralization would provide nothing but a disser vice to lit igants in batter

y a ctions. ¶ 26 Examination of the aforementioned law review articles and the numerous cases decided in Illin ois prove s to us that co ming to a one-size -fits-a

ll definit ion of civil batter

y isnot only difficul t, it may well be a

fool’s errand, as it may suff ice in some cases, y et be misleading and inapprop

riate in others. T he plead ing and proof at trial in this matter suggest that the jury

was properly instructe d. In his complaint, Bakes based his claim for battery

on allegations that Nowikows ki and Wals tad “sandwiched” Bake s b etwee n their bodies and “twice slammed a door” on Bakes’ foot to prevent him from leaving the hospital. Indeed, those were the only factua l theorie s Bakes pr esented at trial. We note that the threshold for what constitutes a n “offensive” touching is low, and we have stated it occurs when the contact

“ ‘offends a reasonable sense of pe rsonal dignity.’ ” Cohen v. S mith , 269 Ill. App. 3d 1087, 1090 (1995) (quoting Restatement (Second) of Torts § 19 (1965))

.-9-

¶ 27 Given this, if either of B akes’ versions of events were accepte d by the jury , at the very least, an offensive touching would have occur red that would have satisfied the intent element of both sides’ definition of civil battery. O n the other hand, the theory a dvanced by defenda nts, that any contact was purely a ccidental, could not have constituted a battery under
any definitio n of batte

ry . Accor dingly , given

the under lying compla

int and evidence a

t trial,

we find tha t the jury instruction given a t trial properly instructed the jury as to plaintiff’ s proper burden o f proof. Parenthe tically , we shoul d note that we would not reverse here even if the inten t element of the ba ttery instructi on was f

aulty in the w ay

Bakes c laims it wa s, because under the factualcircumst ances of the case advanc ed by

Bakes, the instruction could
nothave resulted in any

prejudice to him such that he would have been depr i ved of a f

air trial. See Schultz , 201 Ill. 2d at 274.

¶ 28 B. Contributory Neg ligence Instruction ¶ 29 Bakes next contends that the jury instruction o n contributory negligence was given

er ro ne ou sl y. More specifically , he argues that any aff irmative defense based on contributory
neg ligencewas irre

levant to the issue s of wheth

er he wa s “sandw iched” b y th e se curity guard s, his foot was stepped on or jammed in a d oor, or whether he was free to lea ve the hospital. As discussed above in our battery analysis, it is within the trial court’s discretion
to g iv e or deny a

jury instruction. Bulger , 345 Ill. App. 3d at 121. The trial court has discretion to review the evidence presented and decide whether that evidence ra ised an issue which requires a par

ticular jury

instruction. Stapleton

v. Moore , 403 Ill. App. 3d 147, 163 (2010). A jury ins truct ion o n cont ribut ory neglige nce h ere is proper if the trial court finds that there is some evidence

in the record that will justify the theory of the

instruction, which is distinct f

rom the heig hte ned stand ard of te sting whether the eviden ce is suf ficient t o persuade the jury. LaFever v. Kemlite Co. , 185 Ill. 2d 380, 406 ( 1998). Maintaining the
necessary and appropriate deference to the trial court, we will not reweigh the evidence or decide whether

a particular re sult

was unwarranted, and we will find that the evidenc e upon which a pa

rticular j ury instruction was prof fered to be sufficient even though it may be insubstan tial. Id . (cit ing Leonardi v. L oyola Unive rsity of Chicago , 168 Ill. 2d 83, 100 (1995)). Ins tr uc ti on s r es pe ct in g c on tr ib ut or y negligenc e should be given w ith refe

rence t o the particular circumstances of the case and will be found improper where ther e are no facts presented from whic

h a findin g of co ntributor y negli gence could be reached. Cooper v. Chicago Tra

nsit Author

ity , 153 Ill. App. 3d 511, 521 (1987). ¶ 30 Bakes does n ot cha llenge the form of th e instructions or wh

ether they inaccur ately state Illin ois law on this subject but, rather, contends that the instructions wereimproper because there is no evidence or testimony that he cause d his own in

juries. B ecause

Bakes o nly challen ges the

proprie ty o f the instr

uction, w e only

need to a ssess whe

ther the re was so me evidence, even if slight, to justify the trial court’s decision

to instruc t the jury . Here, there is evidence that Bakes had been combative, abusive, and mode rately irra tional prior t o th e altercation at issue. Testimony by various witnesses indicated that Bakes refused to follow medical instructi ons to kee p weigh t off of h is previ ousl y injured leg. In sum, despite being warned that he c ould

potentially reinjure or da mage his leg, Bakes a

ngrily mar

ched around his room, traveled without assistance from the fourth floor to the first floor, did not accept-10-

care instructions that were given to him, ignored requests to stay in the hospital, refused

to wait for a ri de hom e, and indi cated t hat he was at tempt ing to walk 10 mil es back t

o his house, all while using his crutches improperly and putting weight on

his p osto perati ve leg. Medical expert testimonyalso sug gested that if B akes att

empted to walk dep endently

on his postoperative leg, Bakes could have injured his foot as it wa s v ul ne ra bl e f ro m h is su rg er y, and bearing weight on it could compromise blood supp ly a nd th e nerve s in the fo ot. Therefore, it is clea

r that evidence w as in fact presen ted to the trial court that

Bakes’ actions
notonly could ha

ve contr ib uted to the particular circumstance in which Ba kes alleges the defenda nts were negligent, but also that he c ould have negligently contributed to the actual injury of his foot. Acco rdingly , the trial court did not abuse its discretion in deciding that sufficient evidence existed to warrant a contributory negligence jury

instruction.

¶ 31 C. Judgment Notwithstanding the Verdict ¶ 32 Bakes next contends that the trial court erred by denying plaintiff’s motion for

judgment notwithstanding the verdict. The tri al court’s decision on a motion for judgment notwithstanding the verdict is reviewed de novo

. Snelson v. Kamm , 204 I ll. 2d 1, 42 (2003). Judgmentsnotwithstanding the verdict should only be entered in cases in which all the evidence, when viewed in the aspect m ost favor able to the nonmova

nt, so overw

helming ly favors the movant

that no contrary

verdict based on the evidence could ever stand. Pavnica

v. Veguilla , 401 Ill . App. 3d 731 , 738 ( 2010) . The co urt do es not weigh the evidence or make determinations of credibility when r uling on motions for judgments notwithstanding the verdict
, and must not substitute its judgme

nt f or that of the jury mere

ly because

there are
ot her inferences or conclusions that the jury could have drawn or because the re are othe r results that the court believes is more reasonable. Thornton v. Garcini , 382 Ill. App. 3d 813, 817 (2008). ¶ 33 Bakes argue s that the t r ial court should have granted his motion for a j udgmen t notwithstanding the verdict because the “uncontradicted evidence” shows that securit y guards Nowikowski and Walstad “battered Mr. Bakes, and in fact caused injury to him.” Bakes’ claim tha

t the evid ence sup porting a batter y ha d occurr ed was “uncontra

dicted” is wholly inaccurate. Even a cursory review of therecord indicates that the evidence of whe ther
any offensive touching occurred wa s an issue that was in grea t dispute at trial. For example, Bakes argues on appeal

that Nowi

kowski fla

tly a dmitted he

stepped o n Bakes ’ foot, implying intentexisted. A review of the record, however, indica tes that Nowikowski testified that he “a cc id en ta ll y” stepped o n Bakes ’ foot whi le attempting to maneuver around B akes. B akes’ assertion that Nowikowski and Walstad “sandwiched” Bakes, there by intend in g to touch him, is also contradicted by the record as both Nowikowski and Walstad deny sandwiching Bakes with any

intent to touch him. B akes als o argues that the security g

uards slammed the doors on his foot; however, he simply points to his own testimony in support and has failed
to recognize that his version of the incident was hea vily disputed at trial. Bakes further states that it was uncontra

dicted th at he wa s “manha ndled” w ithout his c onsent, bu t the only support for this in the record is his own testimony which w as contradicted by testimony from Nowikows ki, Walstad, and nurse Szafranski. In fact, Nowikowski testified tha t the only instance where he might have touched B akes was when he “may have put [his] hands down-11-

on him” to defendhimself after Bakes struck Nowikowski’s shin with a crutch. Walstad al so testified that

the only time he ma

y ha ve touched Bakeswas when he was a ssisting h

im into

a wheelchair

nurse Szafranski had retrieved. Neither of these instances, however, served as the basis for Bakes’ battery claim. Given this, we cannot say that the evidence was “uncontradicted,” let alone that it so overwhelmingly f avored Bakes that the jury’s ver dict could not stand. Accordingly , the trial co urt did not err in denying Bakes’ motion for judgmen t notwithsta

nding the verdict on his batt

ery claim. ¶ 34 To the extent Bakes claims on appeal that the trial court should have granted his motion for judgment notwithstanding the verdict on any negligence claim, we find such arg uments to be forfeited. Bakes’ posttrial motion onl y mo ved for “judgment notwithstanding the verdict on the issu e of batt

ery ,” and singularl

yasserted that “no contrary verdict on the issue of ba tt er y c ould ever stand.” No argument rela ted to any negligence claim for a judgment notwithsta nding the verd ict was a dvance d. Ill

inois Supre

me Court Rule 366(b) (2)(iii) provides that

a “part y may not urge as error on review of the ruling on the party’s post-trial motion any

point, gr ound, or r elief no t specifi ed in

the motion. ” Ill . S. Ct. R. 366(b)( 2)(iii) (eff. Feb. 1, 1994); see also Brown v. Decatur Memorial Hospital , 83 Ill. 2d 344, 349 (1980) (contentions must be presented with specificity in a posttrial motion to preserve the m for review). Even if we were to overlook this procedural f orfeiture , our re view of the record ind icates that the e

vidence regar ding ne glige

nce wasas much in

dispute a s the previously discusse d evidenc e of batt ery , and thus w e decline to gra nt Bake s any

relief o n this basis

.

¶ 35 D. Motion for a New Trial–Manifest Weight of the Evidence ¶ 36 Bakes next argues that t he trial court er

red in denying

his motion for a new trial. On a motion for a new trial, a trial court will weigh the e vidence and can set aside the verdict and order a new tr ial if the verdict is contrary to the manifest weight of the evidence. Ford v. Grizzle
, 398 Ill. App. 3d 639, 651 (2010). A ver dict is against the manifest weight of the evidence “where

the opposi

te concl usion is cle arly

evident or where the

findings of the jury

are unreasonable, arbitrary and no t bas ed upon any of the evidence.” (I

nternal quotation marks omitted.) Maple v. Gustafson , 151 Ill. 2d 445, 454 (1992). A trial court’s ruling on a motion for a new trial wi ll not be dis turbed un less the party see

king a new trial can

show that the trial court clearly

abused its discre tion. Anders on v. Zamir , 402 Ill. App. 3d 362, 364 (2010). In determining whe ther an abuse of

discreti on occur

red, we must consider whether the jury’s verdict was supported by the e viden ce and whether the complaining party was denied a fair trial. Maple , 151 I ll. 2d at 455. Bakes f

irst arg ues that th

e verdict was ag ainst the manifest weight of the evidenc e. We note

that unde r this basi s, Bake s has conf ined his argument to the actions of Nowikowski and Walstad and has not challenged the jury ’s verdict as it rela tes to St. Al exius or an

y of its employ

ees in hisposttrial

motion or o n appea

l. ¶ 37 Again, Bakes asserts that the “unc o ntradicted” and “uncon troverted” evidence shows that Nowikowski and Walstad committed battery ag ainst Bakes and neg ligently stepped o n his foot, causing in

ju ry. As discussed above, however, the evidence r elevant to Bakes’ battery and neglig ence cl aim was c ontrover ted in a ve

ry thoroug h manner at trial. M oreover, we disagree with Bak es’ assertion that there was no evidence to support the jury ’s ve rdic t. We-12-

ackno wledge Bakes’ own assertions that he was not a dang er to hi mse lf, was im properl y detained, was touched against his will, was “sandwiched” by Nowikowski and Walstad, had his foot slammed in a door (or as now alternatively

argued, stepped on), and that the nerve dama ge and perman ent dama ge to hisfoot wer

e cause d by

the incid

ent. All of

these assertio ns, however , were d isputed a t trial: The nursestestifie d they believe d Bakeswas a danger to himself due to his actions evidencing a disregar d for his o wn care and wel l-bei ng, Nowikowski and W alsta d deny imp roperl y touchin g or “san dwich ing” Bak es, an d alth ough Nowikowski admitted he accidentally steppe d on Bak es’ foot, Dr. Tumashova provided uncontradicted

testimony that Bakes’ lasting foot in juries were nevertheless caused by postoperative complications as opposed to the foot being stepped on or jammed in a door. Dr. Tumashov a furthe

r testified that it

was possible that his injuries resulted from improper postoperative self-care and, as discussed above, th ere wa s evidenc e offer

ed that B akes cou

ld have negligently

contributedto his own in

jury in refusing to follow medical instructions and fa il in g t o e xe rc is e o rd in ar y ca re fo r h is ow n s af et y. ¶ 38 Es se nt ia ll y, the trial involved Bakes offering an uncor roborat ed versi on of eve

nts which

was contradicted by

the remaining witnesses’ versions of t he events. This case, therefore, large ly involved determinations of credibility a nd resolutions of

conflicts in testimony, and it is well established that such determinations and resolutions are for the jury

. York v. RushPresbyte ri an-St. Lu ke’s Medical Center , 222 I ll. 2d 147, 1 79 (2006) . Beca use of thi s, it is
notour duty to reweig

h the evidence or make our own credibility deter

minations. Rather, the only question bef

ore us is whether the jury’ s verdict was supported by the evidence. Our examination of the record reveals there

was indeed sufficient evidence prese nted such that the jury could find that no battery or negligence had oc curred here. For example, based on the testimony at trial, the jury could very we

ll have found that the re was no offe nsive touching of Bakes and that the injury to his foot was not caused by the secur

ity guar ds, and thus no batter

y or neglig ent condu ct as all eged by Bake s had occurred. According ly, the jury’s verdict

as to Nowi

kowski and Walst ad was n ot against the manifest weight of the evidenc e and the

trial cou rt did not e

rr in den yin g Bake s’ motion f

or a new trial.

¶ 39 E. Motion for a New Trial–Violation of the Motion in Limine ¶ 40 Bakes ne xt argue s that he isentitled t o a new tr

ial beca use he wa s prejudiced b y defenda nts’ violation of a

motion in limine . A violation of a motion in limine is not per se

revers ible error. Jones v. Chicago Osteopathic Hospital , 316 Ill. App. 3d 1121, 1132(2000). Any alleged violation of a motion in limine here will warrant a new trial only where the order is specific, the violation is clear, and the violation deprived Bake s of a fair trial. Garden View, LLC v. Fletcher , 394 Ill. App. 3d 577, 589 (2009). ¶ 41 Prior to trial, Bakes filed a motion in limine . The motion, in pertinent part, requested the follo wing:
“10. T he de fendan ts and their attor neys shou ld be b arred f rom su ggestin g, i mp lying or insinua

ting tha t the plain

tiff sent any one to the

hospital to

intimidate themafter he arrived home, or nicknames or descriptions of such persons. The testimony from the nurse Szafranski is that a big gentleman arrived after

Mr. Bakes-13- was home, and was looking for the secu rity guard . She testi fied a ‘ very big phy sically
appear ance-w ise threatening man who spoke very politely and nice to me that he was there to talk to the guard

who stepped on Mr. Bakes’ foot. He was ve ry polite, but he also wa s very cle ar tha t he was there on a mission. I told him he could not see the security guard and if he had no business here, he would have to leave whichhe did.’

*** There is no evidence that Mr. Bakes sent any one to see the security

guard. Any testimony about this person i s irrele vant. The hospital and its security g uards had already stopped a

nd detained Mr. B akes ag ainst h is will, they had alrea dy injured him, and thereafter they

had released him. This person is therefore irrele vant to any issues in this cas e, beca

use his la ter pre sence di d not make it any more or le ss likely that the aforesaid events occurred. F urther, nurse Szafranski’s only evide nce that this

man was th reaten ing is that h e was bi g. Other than that, he was ‘very

polite,’ and he left when asked.” The trial court granted the motion in limine . At trial, counsel for St. Alexius displayed twofoot by three- foot “blow-ups” of certain medical rec ords and prog ress no tes at some point during n urse Pate l’s testimo ny. One of se

veral ha ndwritte n entrie s on a displ ay ed prog ress note p rovid ed the follo wing:
“7/21/00 a Tall male arrived to the unit with a female. Stated he’s her e to p/u pt’s belong ings. Gave him a ce wra p icing, tape, ic e bag f

or Ic e Man Mac

hin e an d Immobilizer. He then asked for security office . Told him where it

is locate d. Secur

ity office informed of this man’s appearenc e [ sic ].” During nurse P atel’s te st imony, a sidebar oc curred where Bake s’ counsel objected to the display of the progress note and moved for a mistrial. Af ter a discussion between

the parties and the trial cou

rt, the trial court held that a violation of the motion in limine had indeed occurred and ordered the displa

y to be remov ed, but de

nied Ba kes’ motio n for a mis trial, stating that t

he vio lation did not sufficiently prejudice B akes such that he was deprived of a fair tr ial. ¶ 42 Bakes argue s on appe al that the “viola tion was made for the purpose of inflamingand prejudicing the jury ,” and that it was “a direct attack on Plaintiff’s character and ver acity.” Bakes also men tions that a note was sent to the trial court during jury deliberations which requested a copy of the

progress note. We ar

e unp ersuaded by

Bakes’ argument. The evidence here constituted a progress note that wasenlarged and placed bef ore the jury, which

nurse Patel read from. Theentry that B akes alleges violated the motion in limine , however,

was never a

ctually read to the jury

or otherwise referred to. Further more, despite the fact the jury request ed a cop y of

the prog ress note during d elibera tions, that by itself does not make it cl ea r t o t hi s c ou rt th at th e j ur y re ad th e e nt ry at i ssue at all. Assuming a violation had neverth eless occurr

ed, howe ver, pro perly elicited testimony from nurse Patel ha d already indicatedthat Bakes had made a number of threa ts, twice threatening nurse Patel to the effect that “he was going to send his ga ng members to takecare of [her] and [her] family,”and that Bakes had stated, “He stepped on my foot, I know people, I ’mg oing to take care of this.” This testimony, which was dee med relevant an d properly a dmitted, is far more damaging than anything c ontained in a progress note entry that was not read aloud and may or may not have been read

by the jury . Essentially, other evidenc e relating the same information, which-14-

was of at le as t e qu al ly d am ag in g v al ue , w as al re ad y pr op er ly b efor e t he ju ry. We therefore find that no prejudice had occurred in the display of the entry a

nd that Bakes was not deprivedof a fair trial. Accordingly , we find that Bakes’ motion for

a mistria l was prop erly denied.

¶ 43 II I. CONCL

USION ¶ 44 For

the foregoing reasons, the judg ment of the ci rcuit court of Cook

County is affirmed. ¶ 45 Affirmed.