dissenting:
The trial court abused its discretion in allowing Pinnacle to amend its answer to raise the affirmative defense of contributory fault on the second day of trial after plaintiff had presented the great majority of her case.
While pleadings may be amended at any time prior to final judgment (735 ILCS 5/2 — 616(a) (West 1996)), a trial court, in the exercise of its discretion, is to consider whether (1) the proposed amendment would cure the defective pleading; (2) previous opportunities to amend the pleading could be identified; (3) other parties would sustain prejudice or surprise by virtue of the amendment; and (4) the proposed amendment is timely. Loyola, 146 Ill. 2d at 273, 586 N.E.2d at 1215-16; Zook, 268 Ill. App. 3d at 169, 642 N.E.2d at 1357. Here, the motion caused surprise and prejudice and was untimely. The civil rules of discovery are structured to avoid last-minute surprises.
Pinnacle knew of plaintiffs testimony that she flew across the garage from the time it took her deposition 10 months prior to trial. Her trial testimony was similar. The defendant has supplied no reason for the delay in the amendment, except to say the amendment conformed the pleadings to the proof. Once trial has begun, the court ordinarily should not permit an amendment that raises new matters previously known to the pleader if no excuse is offered to explain the failure to assert them earlier. State Farm Fire & Casualty Co. v. M. Walter Roofing Co., 271 Ill. App. 3d 42, 49, 648 N.E.2d 254, 259 (1995).
Since the advent of comparative negligence, the plaintiff no longer has the burden of pleading and proving freedom from contributory negligence. Little v. Economy Preferred Insurance Co., 286 Ill. App. 3d 372, 376, 675 N.E.2d 1048, 1051 (1997) (Maag, J., specially concurring). The defense must raise comparative negligence by affirmative defense to make it an issue. As this court has noted:
“[T]he failure to plead an affirmative defense, which would likely take the opposite party by surprise, waives the asserted defense. [Citations.] It cannot be considered even if the evidence suggests the existence of such a defense.” Blackburn v. Johnson, 187 Ill. App. 3d 557, 565, 543 N.E.2d 583, 588 (1989).
In Blackburn, the defendant did not plead or raise the issue of comparative negligence until the jury instruction conference, and the trial court properly refused to give the requested instruction. Here, the plaintiff prepared for trial and prepared her witnesses not knowing that any issue with regard to her negligence would be raised. The majority concludes that the plaintiff should have known her own conduct would be an issue in the case. I disagree. I would follow Carlisle, 200 Ill. App. 3d 908, 558 N.E.2d 318. Plaintiff was placed at substantial disadvantage by defendant’s springing this new theory on her halfway through the trial.
I would reverse and remand for a new trial.