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09/29/87 Frances Tsourmas Et Al., v. Dora Dineff Et Al.

September 29, 1987





515 N.E.2d 743, 161 Ill. App. 3d 897, 113 Ill. Dec. 758

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding. 1987.IL.1451


JUSTICE STAMOS delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.


Plaintiffs Frances Tsourmas (Tsourmas) and Ann Yurinich (Yurinich) filed suit against several defendants for injuries that they had sustained as a result of carbon monoxide poisoning. For purposes of this appeal, however, Jack Yelnick, d/b/a Jack Yelnick Construction Company (Yelnick), is the only appellee. Yelnick filed a motion for summary judgment. On September 22, 1986, the trial court entered an order granting Yelnick's motion for summary judgment. This appeal of Tsourmas and Yurinich is taken from that order.

In 1964, Dr. William Gogan (Gogan) leased a building located at 7623 W. 63rd Street, Summit, from Christ Dineff. In order to convert the building into his medical office, Gogan had to have extensive remodeling work done. Gogan spoke to Yelnick about doing the remodeling work. Gogan wanted carpentry, electrical, decorating and plumbing work done on the building. Although Yelnick was only a concrete and carpentry contractor, Yelnick agreed to do the entire remodeling job. Yelnick had on about 20 prior occasions and on over 100 subsequent occasions arranged for other tradesmen to do work as part of the job that he was handling. In other words, Yelnick had taken on the role of general contractor many times.

Gogan and Yelnick then entered into a contract. Yelnick submitted a written proposal (dated December 23, 1964) to Gogan. The written proposal stated that for the sum of $6,750, Yelnick would complete all of the construction work (carpentry, electrical, decorating and plumbing) that Gogan had requested. The proposal also stated that if a new furnace were used there would be an additional cost of $200. Yelnick himself completed the carpentry part of the contract. Yelnick bricked up the only two windows at the rear of the building, partitioned all of the walls so as to make examining rooms, and dropped the ceiling. Yelnick hired subcontractors to do the electrical, plumbing and decorating work.

During the remodeling period, a gas forced-air heater was placed in the building. Contradictory testimony exists as to which contractor actually installed the heating system. Gogan stated that Yelnick had installed the heating system. To the contrary, Yelnick stated that a new furnace was definitely not installed, that he was not asked to install a furnace and that he does not install furnaces. Furthermore, one of Gogan's employees stated that she heard that Summit Sheet Metal Company (Summit) had installed the furnace. The trial court concluded that, based upon a fair reading of the depositions, "a new furnace was installed through Yelnick and that this furnace was installed by two men by the name of Ziomek, who operated a business called Summit Sheet Metal."

Upon completion of the remodeling, Gogan moved into his office. In about 1967, Tsourmas, a registered nurse, began working for Gogan in his Summit office. Yurinich began working as a receptionist in the same building in 1972. While working in the building, Tsourmas, Yurinich and Gogan frequently smelled a sewer gas odor. Gogan complained several times about the odor, but nothing was ever done to eliminate it.

Beginning in 1979-80, Tsourmas and Yurinich complained to Gogan of chest pains, fast pulses and headaches. Despite their different ages and lifestyles, both Tsourmas and Yurinich experienced the same symptoms and entered the hospital within a short time of each other. Tsourmas had a mitral valve prolapse that was supposed to have been due to carbon monoxide poisoning. In addition, Tsourmas experienced fatigue, memory loss, cyanosis of the fingertips, air hunger, visual disturbances and watery, itchy eyes. Tsourmas and Yurinich were later diagnosed as having carbon monoxide poisoning. Gogan himself experienced headaches and irregular heartbeats. After talking with a Dr. O'Donohue, Gogan felt that carbon monoxide poisoning might be the cause of his symptoms.

Sometime in 1980, Gogan hired Mr. Davis (Davis) to take an analysis of the atmosphere in the building. Davis came out to the building twice. Davis gave Gogan a verbal report and then later sent Gogan a written report of his findings. Davis concluded that there were two main problems in the building that were responsible for Gogan's employees' symptoms. First, sewer gas was getting into the air return from the underground duct work. Second, the furnace had an exhaust leak that had caused an excess of carbon monoxide to go into the air. In his deposition, Gogan stated that he believed that the exhaust gas was the source of the problem and that the symptoms that his employees had experienced were obviously caused when they had ingested the carbon monoxide.

Plaintiffs-appellants, Tsourmas and Yurinich, request that the summary judgment entered for Yelnick below be reversed. The plaintiffs argue that material issues of fact exist. First, the plaintiffs argue that Yelnick is directly liable for the plaintiffs' injuries because of construction work that Yelnick had personally performed on Gogan's building. Yelnick responds that he cannot be directly liable for the plaintiffs' injuries because he was not personally involved in the installation of the furnace which is the alleged source of the plaintiffs' injuries.

Second, the plaintiffs contend that Yelnick is vicariously liable for the plaintiffs' injuries because Yelnick, as general contractor, is responsible for the actions of the subcontractor who installed the heating system in Gogan's building. In reply to the plaintiffs' second contention, the defendant argues that Summit, the subcontractor who installed the furnace, was an independent contractor. Yelnick reasoned that because he did not have any ...

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