APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
527 N.E.2d 469, 173 Ill. App. 3d 236, 123 Ill. Dec. 6 1988.IL.1114
Appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
This appeal by plaintiff Ethel N. Mattice arises from a negligence action brought by her for injuries suffered when she was knocked down in a revolving door while leaving a building owned by defendants Bruce Goodman, Joan Rosenberg, and Nancy Feldman (defendants). At trial, the jury returned a verdict for defendants upon which the court entered judgment. For the reasons set forth below, we affirm.
Defendants own and operate the Carlson Building in Evanston, Illinois. The doorway of the Carlson Building has one revolving door flanked by two ordinary doors. The ordinary doors have signs that read "please use revolving door." The only other exit is through a drugstore adjacent to the lobby. In 1982, defendants employed an elevator starter named John Roach, whose job description included assisting the elderly and disabled as they went through the doors.
On April 20, 1982, Ethel Mattice, age 77, was leaving the Carlson Building through the revolving door. As Mattice stepped out of the revolving door, an unidentified person ran into the door. The door spun and hit Mattice in the back, knocking her to the ground. At that time, Roach was standing in the lobby drinking a soda pop and looking away from the door.
Mattice suffered a severe fracture of a thigh bone and a broken finger. Paramedics treated her at the scene and took her to a hospital, where she remained for three months, including six weeks in traction. Mattice spent another two months in a nursing home. Her left leg is now two inches shorter than her right leg. At the time of the injury, Mattice was recovering from hip surgery, and although she carried a cane, she used it only to negotiate stairways. Mattice suffered subsequent falls in her apartment building lobby in 1985 and in her bathroom in 1986.
Mattice brought a negligence action for the injury at the Carlson Building, alleging that the defendants had breached a duty of care that they voluntarily had assumed by placing an employee in the lobby 3 to assist the elderly, disabled and handicapped. Mattice further argued that the floor under the revolving door was worn, making the door unsafe, and that the revolving door violated several provisions of the Evanston Building Code (Evanston Municipal Code ch. 2, § 4 -- 2 -- 1(1979), BOCA Basic Building Code (8th ed. 1981) (the Building Code)). Mattice also argued that the injury, which made her left leg shorter than her right, was a cause of her subsequent falls.
The trial court ruled that the safety of the door, and any Building Code violations, required expert testimony. Because Mattice offered no experts, the evidence concerning the worn floor was not admitted, and the trial court refused jury instructions offered by Mattice that restated Building Code sections applicable to revolving doors. Mattice did offer expert testimony that the falls in 1985 and 1986 were caused by the injury in the revolving door, which the trial court refused to allow. As stated, the jury returned a verdict in favor of the defendants, and judgment was entered accordingly, which Mattice appeals.
The primary issue is whether the defendants voluntarily assumed a duty to assist persons such as Mattice because the elevator starters, in accordance with their job description, customarily assisted the elderly or disabled by standing near the revolving door as they used it or by holding open the ordinary doors. Two cases, however, Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 863, and Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80, appeal denied (1977), 66 Ill. 2d 629, establish that as a matter of law the defendants assumed no affirmative duty to assist Mattice.
Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 863, held that although the defendant grocery store ordinarily helped customers carry their bags of groceries from its store, defendants had no duty to help customers where assistance was not undertaken to protect customers from an unreasonable risk of harm. In Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80, appeal denied (1977), 66 Ill. 2d 629, the plaintiff sued her landlord for injuries from a fall on an icy sidewalk, arguing that the landlord's 15-year custom of clearing the sidewalk of ice and snow whenever necessary created a duty to clear the sidewalk. The plaintiff relied on Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769, where the defendant had voluntarily conducted safety inspections of its insured and was found liable for injuries suffered in the insured's factory.
Chisolm distinguished Nelson, however, correctly stating that the defendant in Nelson had been found liable for negligent performance of the safety inspections. The defendant in Nelson was therefore liable for what Chisolm termed "misfeasance": failing to exercise due care in a voluntary undertaking. In Chisolm, the defendant's failure to clear the sidewalks, although he customarily did so, was termed "nonfeasance": not acting in the absence of a duty to act. Thus the terms "misfeasance" and "nonfeasance" distinguish between not exercising reasonable care when acting, regardless of whether a duty to act exists, and not performing voluntary tasks in all instances, where there is no duty to act. Liability arises from misfeasance (e.g., Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769), but not from nonfeasance (e.g., Chisolm v. ...