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Coselman v. Schleifer

AUGUST 23, 1968.




Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN A. KRAUSE, Judge, presiding. Judgment affirmed.


Hazel Coselman (herein called plaintiff) brought this action against the defendants, Ralph and Ann Schleifer, to recover for injuries sustained by her while she was working in the Schleifers' home. The plaintiff died subsequent to trial and Albert E. Coselman, Sr., Administrator of her estate, was substituted as party plaintiff. The jury awarded a verdict of $25,000 to the plaintiff; the trial court entered judgment for the defendants notwithstanding the verdict, and the plaintiff appealed.

The plaintiff did weekly cleaning work for the defendants, and had worked for them at their home in this capacity for about eight years. The occurrence out of which the injury arose took place on the landing and stairs to the basement at about 11:00 a.m., on January 22, 1965. It was raining at the time and apparently was rather dark outside. The plaintiff was on her way to the basement to get a clean bathroom rug and had nothing in her hands or arms.

The landing at the top of the stairs was approximately three by four feet. The back door permitted entry into this landing, which was two steps down from the kitchen. There was no light fixture on the landing itself; one was partially installed, but not yet completed or operable. A light switch was located on the landing which operated the basement lights. It does not appear that these lights were turned on, but the kitchen lights were on.

A gray granite cornerstone, about 4 inches thick, 10 inches high and 16 inches long, was standing on the landing, as were some empty bottles. Mr. Schleifer's work shoes were on the steps. The plaintiff testified that she saw all of these items. A dark-colored, rubber-backed rug, containing some metallic thread, was on the landing. This rug was used as a foot cleaner upon entry to the house by the back door.

The plaintiff testified that she did not see this rug, although she was aware that it usually was there; and that she had stepped down the stairs to the basement with one foot when her other foot caught on the rug. She described it as all crumpled up, although she had not seen it.

The stairs were steep; the first step was narrow or short, and a handrail was located on the left side of the steps. The plaintiff testified that she could not reach this rail from the landing, and that when she started down the stairs to the basement, she had to stoop over because of the low ceiling clearance.

The plaintiff was familiar with the landing and stairs and their condition as described. She had been up and down the stairs innumerable times. She had not complained about the landing or stairs nor the fact that shoes and bottles normally were there and she did not feel that it was her place to do so.

She testified that as she fell she tried to grab the railing, but could not reach it; that she did not touch the stairs as she fell, but fell directly to the basement floor, striking her head and suffering severe injuries; and that she then called out for help to her husband, who was the only other person in the house. The defendants were away at the time.

There was evidence that the plaintiff, who was then seventy-two years old, had taken medication for hypertension for quite some time. Her doctor's records indicated that she had suffered from dizziness from time to time. Part of the history taken by her doctor after the fall stated that plaintiff did not know exactly how she fell — whether she slipped or was dizzy. For purposes of this appeal, however, we assume that the plaintiff did not black out or become dizzy and fall, but rather, tripped on the rug on the landing as heretofore related.

Whether the trial court was correct in overturning the verdict of the jury must be tested by the standard set forth in Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967); that is, whether all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand.

The parties agree that the common law does not make an employer a guarantor of the safety of his employees. It does, however, require that an employer provide his employee a reasonably safe place in which to work. Those risks which an employee, in turn, assumes, are spelled out in Mack v. Davis, 76 Ill. App.2d 88, 221 N.E.2d 121 (1966), at page 97:

"An employee, when he engages in employment, assumes `the risks of known dangers, and such as are so obvious that knowledge of their existence is fairly to be presumed.' Chicago & E.I.R. Co. v. Heerey, 203 Ill. 492, 497, 68 N.E. 74 (1903); also see: Stone v. Guthrie, 14 Ill. App.2d 137, 148, 149, 144 N.E.2d 165 (1957). However, such ordinary risks do not include the negligence of the employer. Kolfski v. Railroad Supply Co., 235 Ill. 146, 156, 85 N.E. 274 (1908); Stone v. Guthrie, supra. The employer must use reasonable care to provide for the safety of his employees. If the employer fails to exercise such care, the risks resulting are said to be extraordinary and are not assumed by the employee unless he knows of the risks and understands them, or ought to know and understand them. Wheeler v. Chicago & W.I.R. Co., 267 Ill. 306, 319, 108 N.E. 330 (1915); Olsen v. Pigott, 39 Ill. App.2d 191, 198, 188 N.E.2d 361 (1963).

"The employee thus assumes all ordinary risks and all extraordinary ones of which he knows, or ought to know, and the dangers of which he appreciates, or ought to appreciate and of which he makes no complaint. Stone v. ...

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