Illinois Construction Law Blog : Illinois Construction Lawyer & Attorney : Foran Glennon Palandech & Ponzi Law Firm : Chicago IL

Approximately one month after the Third District Appellate Court in Majetich v. P.T. Ferro Construction Company explained that circumstantial evidence alone cannot establish proximate causation where more than one conclusion can be drawn from the circumstances (see “When is circumstantial evidence sufficient to create a question of fact as to proximate cause?”), the First District Appellate Court in Strutz v. Vicere also affirmed entry of summary judgment in favor of defendants where direct evidence of the cause of injury was lacking.

In Strutz, Henriette Strutz filed a negligence action against Christine and Christopher Vicere for the wrongful death of her husband, Russell Strutz. Russell and Henriette had lived in a two-flat owned by the Viceres when Russell fell down the indoor common stairway at their apartment. As a result of the fall, Russell sustained multiple cervical spine fractures, and he died 23 days later. 

There were no witnesses to the accident. Rather, on the morning of March 6, 2005, Henriette found Russell at the bottom of the stairs. At that time, Russell told Henriette, “I fell down over the railing.” When paramedics arrived, Russell stated that he was walking backwards while taking out the garbage when he slipped and fell. 

The paramedics transported Russell to Advocate Lutheran Hosptial. Shortly after his admission to the hospital, Russell’s condition deteriorated, and he lost the ability to speak, became paralyzed and later died on March 29, 2005. 

In the wrongful death suit, Plaintiff claimed that the Viceres failed to maintain the stairs and railing in a reasonably safe condition. Plaintiff further alleged that the staircase and railing violated the Chicago building code. Defendants moved for summary judgment arguing that the element of proximate cause could not be sustained by Plaintiff. The trial court granted the motion and Plaintiff appealed.

On appeal, Plaintiff argued that a jury could reasonably conclude that Russell’s fall was caused by the alleged defects in the stairs. In support of this argument, Plaintiff offered the testimony of an architect expert. The architect testified that the staircase violated the City of Chicago Building Code and was dangerous due to small treads, inadequate and uneven riser heights and tread widths and inadequate lighting. The architect also testified that the staircase was dangerous because there was no handrail on the wall side of the stairs, the height of the handrail on the opposite side was too low, and the staircase was excessively steep. Further, Plaintiff cited Christopher Vicere who testified that he repaired a loose newel post at the railing after Russell’s fall. Plaintiff maintained that evidence of these defects in conjunction with Russell’s statement that he “fell down over the railing” constituted direct evidence of a causal connection between the condition of the staircase and the accident. In the very least, Plaintiff argued that this evidence was sufficient to create a question of fact as to what caused Russell’s fall. 

Moreover, Plaintiff presented evidence of Russell’s careful habits in arguing that a presumption that Russell was exercising due care at the time of his fall precludes entry of summary judgment.

The Appellate Court held that there was no evidence addressing the issue of proximate cause. Strutz v. Vicere No. 1-07-2564, p. 6 (April 29, 2009). Rather, the evidence simply established defects in the premises. “Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violation caused the injury, do not establish proximate cause.” Id. Evidence of the defendants’ negligence is insufficient to establish the cause of the alleged injuries. Id. Such evidence only establishes the possibility that the alleged conduct caused the slip and fall. Id. Further, the court stated that evidence of careful habits has no bearing on the issue of evidentiary support for the element of proximate cause. Id. at 7. 

The fact that an accident occurred in the presence of building code violations and/or defects in the premises, without more, is not sufficient to create a question of fact as to proximate cause.  Evidence that a defendant’s conduct was a possible cause will not suffice. Rather, the Illinois Appellate Courts have made it clear that some affirmative proof of causation must be established to sustain a claim of negligence.

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Without extrinsic factors altering the situation, generally only the people in possession and control of a property are liable for its negligent maintenance. Most often, the lessee who is in possession is liable for injuries sustained by third-parties and caused by a failure to keep the property in good repair.

This is usual in most cases, since a lease is traditionally a conveyance of property which ends a lessor’s control over the premises (for an interesting article on the evolution from leases as property interests to more contractual arrangements, see Orth, John, “Leases: Like Any Other Contract”, Green Bag, Autumn 2008).

However, in the recent opinion of Fan v. Auster Company, Inc. et al (1^st Dist. Doc. No. 1-07-2604) ambiguity in the language of a lease has created confusion that could be detrimental to an otherwise protected landlord.

You don’t need to consult the Manual of Style for Contract Drafting to know that ambiguity can cause uncertainty in a contract and that sometimes more particularity is required in your agreements – although Ken Adams has written plenty of informative posts about the topic.

The Fan case raises some interesting issues and is worth the read.  Pertinent to our discussion about lease language, the facts of the case are that a worker was killed after he fell into an open elevator shaft. His widow sued and the case was dismissed by the trial court which found that the lessor of the building had no duty to repair the defects in the elevator that caused the fall because it had no obligation under the lease to do so. The widow appealed.

The lease agreement between the lessor and the lessee said that the lessor was “solely responsible” for maintaining the “structural elements” of the premises and that the lessee was responsible for keeping nonstructural elements “in good repair.”

“Paragraph 14 of the primary lease was entitled “Repairs and Maintenance,” and it described the lessee and the lessor’s respective obligations for both “non-structural” elements and “structural elements.” It stated, in full, as follows:

“A. Lesee shall keep all non-structural portions of the Leased Premises and appurtenances thereto in a clean, sightly and healthy condition, and shall maintain all portions of the Leased Premises (except to the extent the Lessor is obligated to maintain the same, as provided in Section 14.B) in good repair, all according to the statutes and ordinances in such cases made and provided, and the directions of public officers thereunto duly authorized, all at its own expense, and shall yield the same back to Lessor upon the termination of this Lease, whether such termination shall occur by expiration of the term, or in any other manner whatsoever, in the same condition of cleanliness, repair and sightliness as at the date of the execution hereof, loss by insured casualty and reasonable wear and tear excepted. Lessee shall make all necessary non-structural repairs and renewals upon Leased Premises and shall replace broken globes, glass and fixtures with material of the same size and quality as that broken.

“B. Lessor shall be solely responsible, at Lessor’s sole cost and expense, to maintain the roof, foundation and structural elements of the building in which the Leased Premises is located. Notwithstanding the foregoing, Lessee covenants, throughout the term of this Lease, to take good care of all portions of the Leased Premises’ interior and exterior, structural and non-structural, including without limitation, all gas, electric and plumbing fixtures, systems or equipment, other equipment and/or fixtures located upon the Leased Premises, motors, machinery, roof, ceiling and parking lot, and shall promptly repair at Lessee’s sole cost and expense, any damages to the Leased Premises or the building in which the Leased Premises is located, which is caused by Lessee or Lessee’s agents, representatives or contractors. The term ’repairs’ shall include replacements or renewals when necessary, and all such repairs made be Lessee shall be equal in quality and class to the original work and/or item being repaired. At the termination of this Lease, Lessee shall surrender the Leased Premises in the same condition as when received, reasonable wear and tear excepted.”

While the parties to the case had not addressed the issue in their briefs, the Court held that there was an actual issue as to whether or not the cause of the accident was or was not “structural,” e.g. that the failure to have a sliding – interlocking – mechanism in front of the shaft was a “structural” defect. The appellate court remanded the case for a determination regarding whether the cause of the accident fit the definition.

You can see in the language that the lessor’s obligation in Paragraph 14(B) starts to enumerate things like the roof, the foundation and then includes “structural elements,” rather than continuing to define the elements, or than having a “definitions” section at the beginning of the agreement that would elaborate on such a term. If the term were defined, the lessor may have avoided liability (or it could have kept the original summary judgment from happening.) In any event, the lesson is to keep an eye on your contract terminology and make sure the terms you’re using have the meaning and specificity you intend, without ambiguity.

Of note to practitioners is a portion of the opinion in which the court upheld the contractual obligations of the handwritten language “The Lessee assumes all payment and performance terms of the lease attached hereto. In the event, there is an inconsistency between this and the attached, the attached shall control”  which had been added as an afterthought to a sublease – and which made all the difference in this matter by enforcing the terms of the original lease against the sublessor.

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When the inferences reasonably drawn from the circumstances lead to only one probable (as opposed to possible) conclusion.

In Majetich v. P.T. Ferro Construction Company, the defendants were charged with negligently reconstructing a parking lot, which alleged caused Edythe Majetich to fall and sustain injuries that led to her death.  

P.T. Ferro was in the process of resurfacing the parking lot at the Town and CountryPlaza in Joliet, Illinois. The old pavement had been removed, but the parking lot had not yet been repaved. 

Edythe Majetich, who was approximately 89 years old at the time, fell while attempting to step up from the parking lot to the cement sidewalk in front of the plaza stores. She sustained injuries to her head and died 11 days later.

Allegedly, the step up from the parking lot onto the sidewalk was one-to-two feet in height where a handicapped ramp was previously located. There were no eyewitnesses to the fall. However, after the fall, several workers from the adjacent stores came to Ms. Majetich’s aid. The store workers provided testimony based on their observations and conversations with Ms. Majetich after the fall. Ms. Majetich reportedly stated that the step was too big. Further, she stated that she was reaching for a pole to help herself up the step when she fell. Significantly however, Edythe Majetich did not tell anyone what actually caused her to fall.

The decedent’s physicians testified that she suffered from transient ischemic attacks, which involve blurred vision and dizziness. Additionally, the decedent suffered from macular degeneration, which causes progressive vision loss. Furthermore, Ms. Majetich’s ability to walk was impaired by arthritis. Two years prior to her accident, Ms. Majetich was seen by a neurologist for tremors in her head and hands. Ms. Majetich reported a history of falling and difficulties with balance to the neurologist. 

The defendants (contractor and premises owner) moved for summary judgment claiming that the plaintiff could not establish the proximate cause of decedent’s fall. The trial court granted the motions and the plaintiff appealed.

Appreciably, a plaintiff need only present some evidence creating a genuine issue of fact to defeat a motion for summary judgment. Accordingly, the plaintiff argued that the circumstantial evidence was sufficient to raise a question of fact respecting the cause of the decedent’s injuries/death (i.e. creating and maintaining a dangerous condition). As support, the plaintiff cited the statements made by the decedent to the store workers that she fell while attempting to step up onto the sidewalk where a handicapped ramp was previously located. 

The Appellate Court held that the evidence failed to establish causation. Majetich v. P.T. Ferro Construction Co., No. 3-08-0104, p. 16 (April 1, 2009). The court explained that in order to defeat a motion for summary judgment, circumstantial evidence must make the conclusion more probable rather than merely possible. Id. at 10. The court concluded that the decedent’s post-fall statements provide only circumstantial evidence that the defendants’ negligence was a possible cause as opposed to a probable cause of the accident. Id. at 11. In its reasoning, the court noted the considerable evidence concerning the decedent’s prior medical conditions, including tremors, macular degeneration and history of falling. Id. at 15. Furthermore, while circumstantial evidence may be sufficient when an inference may be reasonably drawn from it, a proper inference cannot be based on speculation as to what possibly caused the injury. Id. As explained by the court, the evidence only establishes that Ms. Majetich (1) noticed a high step, (2) reached for a pole, and (3) fell. Id. Such evidence is insufficient to rule out countless other possible reasons people fall. Id. at 15-16. 

The Majetich decision illustrates how important affirmative evidence concerning proximate causation is to a plaintiff. Circumstantial evidence alone cannot establish proximate causation where more than one conclusion can be drawn from the circumstances. 

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The Skyline is reporting that Sunday’s anticipated capping of the Trump Tower has been postponed, indefinitely.

Chicago Real Estate Daily is reporting on the new mortgage foreclosure rates and figures for October.

For those of you involved in contracting for snow and ice removal on residential properties:  In a case from the First District, Divis v. Woods Edge Homeowners’ Association (Doc. No. 1-08-0411), the court has held that the Snow and Ice Removal Act (745 ILCS 75/1) applies to a company that contracted with the condominium homeowners association for the removal of ice and snow and that the company could assert the act as an affirmative defense to a suit brought by a condominium resident against the association, the management entity and the company that was contracted to remove the ice and snow for a fall that he suffered when he slipped after exiting his unit.

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The internet's record of history regarding the revolving door is a bit murky.  For some reason, Answers.com informs us that the revolving door was in use somewhere in Chicago in 1790, and then, in an entry regarding the happenings of 1888 insists that 1888 was the year that Theopholis Van Kannel gave it to the world by installing the first revolving door somewhere in Philadelphia.  We know that Van Kannel received a patent for the door, after a German, H. Bockhacker, but Wikipedia says it was U.S. Patent 387,571, and invent.org insists it was # 641,563 and makes no mention of Bockhacker.  (There were multiple patents awarded to Van Kannel, both are for doors, but 387,571 was the first). 

The purposes listed for the thing involve every intent from controlling crowd capacity to keeping the windows from blowing out of skyscrapers and rarely mention that the fine folks at MIT have definitively stated and proven that the door saves energy and should probably be considered a sustainable instrument... and if you have a greater interest, you can always pick up Beardmore's "The Revolving Door Since 1881."

Whatever the use and history, our interest stems from a case recently decided by the Illinois 1^st District Appellate Court called Britton v. University of Chicago Hospitals.

The plaintiff was attempting to enter the Hospital through a revolving door when the door jammed and he decided to give it a "shove."  After he pushed, the door didn't move and next, the outer glass surrounding the door broke and injured the plaintiff's left shin and knee.

Plaintiff sued the University of Chicago Hospital alleging that it was careless in its management of the revolving door alleging that the Hospital had a duty to maintain a proper ingress and egress from the premises and stating that the Hospital failed to make a reasonable inspection of the entrance and that the failure amounted to constructive notice that the door was defective - he also argue that whether the Hospital made a proper inspection was a question of fact.

The trial court granted summary judgment for the Hospital.  The appellate court affirmed the decision for the Hospital noting that the plaintiff was required to have some evidence tending to prove that a specific condition under the Hospital's control caused the glass to break.

"There is nothing in the record regarding any defect in the glass or the revolving door.  There is nothing in the record regarding maintenance of the revolving door.  Further, there is nothing in the record to indicate that the hospital had actual or constructive notice of any defect in the revolving door.  Here the record merely contains general allegations against the defendant but no evidence creating any issues of material fact."

The court also addressed the plaintiff's contention that the door's breaking constituted evidence of negligence in-and-of itself under the legal doctrine of res ipsa loquitor (the thing, for/to itself, speaks).  The court rejected this argument stating that the plaintiff was operating the door and caused it to revolve and... "where a structure not obviously dangerous has been in daily use for an extended period of time" [note that they didn't resolve the 1881/1790/1888 issue] "and has proven adequate, safe, and convenient for the purposes to which it was being put, it may be further continued in use without the imputation of negligence."

That last language is important.  The court came to that reasoning through its understanding that the plaintiff (or anyone) was using the door and taking a distinct part in the operation of the door and thereby, the person is chargeable with the exercise of due care as well.

The case isn't earth-shattering, but it is a good one that people operating a building should have in the deck for premises liability claims.  And, if nothing else, noting the name of Van Kannel could get you another role of the die in trivial pursuit.

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