Appeal from the Circuit Court of Adams County; the Hon. Dennis
K. Cashman, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 10, 1986.
On July 20, 1982, plaintiff, John Shaffer, filed suit in the circuit court of Adams County against his father-in-law, Gerald O. Lierly, seeking damages for personal injuries plaintiff suffered on November 11, 1980, while working on premises owned by Lierly. Negligence was charged. During the course of the proceedings and before trial, Lierly died and William Mays, as special administrator, was substituted as party defendant. On March 22, 1985, after a jury trial, the court entered judgment on a verdict in favor of the plaintiff and against the defendant in the sum of $91,021.92 plus costs. The jury found plaintiff to be damaged in the amount of $227,554 but reduced the award because of their determination that plaintiff's conduct created 60% negligence which was the proximate cause of the injuries. Defendant has appealed. We affirm.
Defendant makes two claims of error. We consider both assertions to turn on the question of whether, at the time of the occurrence, Lierly owed plaintiff a duty of care as to the existence of an open stairwell on the premises where the injury occurred. Defendant's first contention is that the court erred in giving the jury, over defendant's objection, the following instruction from Illinois Pattern Jury Instruction, Civil, No. 120.06 (2d ed. 1971):
"The owner of property owed the plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the plaintiff." (IPI Civil No. 120.06 (2d ed. 1971).)
Secondly, defendant maintains that the court should have directed a verdict in his favor. As we will show, the evidence was clearly sufficient for the jury to have concluded that Lierly was negligent in permitting the stairwell to remain open under the circumstances, and the evidence was conclusive that plaintiff was an invitee. That being so, the instruction was proper and the case was one for the jury to decide but only if Lierly owed plaintiff a duty of care at the time.
The following facts were not disputed. On November 11, 1980, plaintiff was aiding Lierly in remodeling a house owned by Lierly. Plaintiff was a home insulation contractor but was working gratuitously for Lierly. Employees of plaintiff were working on the remodeling but were being paid directly by Lierly. By November 11, the work had been going on for three weeks. The work involved the removal of the upper structure of a portion of the house and the rebuilding of it on the existing foundation. A new floor had been built on an existing foundation and an opening for a small stairwell to the basement had been cut. Plaintiff had not worked continuously but had assisted in putting in the new floor and in cutting an opening in the corner of a room for the stairway.
In the morning of November 11, 1981, a decision was made to proceed after lunch with the erection of the roof. Lierly was present and participated in the decision; however, Lierly was not present after lunch when the work started. Plaintiff was called upon to help put trusses in place. These objects were 28 feet in length and weighed 200 to 250 pounds. While moving a truss into place with the aid of another worker, plaintiff was looking upward and towards the person helping him. Suddenly, he stepped into the uncovered hole and fell to the basement, sustaining severe injuries.
Both parties call our attention to the cases of Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465, Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App.3d 868, 423 N.E.2d 942, and Longnecker v. Illinois Power Co. (1978), 64 Ill. App.3d 634, 381 N.E.2d 709. In Genaust, the supreme court indicated that sections 343 and 343A of the Restatement (Second) of Torts are followed in Illinois. Section 343 provides:
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger." (Emphasis added.) (Restatement ...