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04/29/94 L. C. FOX v. TRAVIS REALTY COMPANY

April 29, 1994

L. C. FOX, PLAINTIFF-APPELLANT,
v.
TRAVIS REALTY COMPANY, AN ILLINOIS CORPORATION, 63RD & MICHIGAN VENTURE C/O TRAVIS REALTY, AND HOPKINS ILLINOIS ELEVATOR CO., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KATHY M. FLANAGAN, JUDGE PRESIDING.

Rehearing Denied June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Plaintiff L. C. Fox (Fox) appeals from the trial court's grant of summary judgment in favor of defendants, Travis Realty Co. (Travis), 63rd & Michigan Venture (Venture), and Hopkins Illinois Elevator Co. (Hopkins) in a negligence action brought by Fox for injuries he sustained after falling down an elevator shaft. *fn1 For reasons that follow, we reverse the grant of summary judgment and remand for further proceedings.

Because this is an appeal from a summary judgment, we must consider whether the pleadings, affidavits, depositions and record presented to the trial court established any genuine issue of material fact. ( Palomar v. Metropolitan Sanitary District (1992), 225 Ill. App. 3d 182, 587 N.E.2d 1067, 167 Ill. Dec. 452.) In this case the trial court had before it the deposition testimony of L. C. Fox, Ernest Fields (Fields) and Fatima Griffin (Griffin), the three persons who were involved in the elevator accident which gave rise to the underlying cause of action. According to these depositions, which contradict each other on certain points, the elevator accident transpired as follows:

On August 21, 1989, Fox visited his wife at the Vistra Gardens apartment building located at 6253 South Michigan Avenue. This building is owned by Venture and managed by Travis. The building is serviced by three elevators, which were installed by Hopkins, who was also responsible for maintaining and repairing them.

At about 1:15 p.m. on that day, Fox entered one of the elevators from the 10th floor and pressed the button to go down to the lobby. The elevator, instead, proceeded up to the 23rd floor where another passenger, Ms. Griffin, boarded. Thereafter the elevator descended and then stopped abruptly between floors.

Realizing that the elevator was stuck, Griffin began pressing the emergency button, causing an alarm bell to sound. Although she continued to press the button for several minutes, no one responded. Fox and Griffin then began to yell for help. Griffin testified that she began to panic because she suffers from claustrophobia and because it was a very warm day, the elevator was not air conditioned and it began to get extremely hot inside the stalled elevator.

After Fox and Griffin had been stuck in the elevator for 20 to 30 minutes, their cries for help were answered by Fields. Fields had been descending the stairs from the 16th floor when he heard some screams for help. He entered the hallway of the fourth floor and discovered that an elevator containing two people was stuck between floors. *fn2 Fields testified that the outer elevator door was already open, Griffin testified that Fox forced open the inner door and Fields forced open the outer door. In any event, once the elevators doors were opened, Fields attempted to assist Griffin and Fox to exit the elevator.

Fields testified that the floor of the stalled elevator was about chest high on him. Griffin exited first. She sat on the floor of the elevator with her feet dangling over the edge, then she slid down to Fields, assisted by Fox from above. Fields helped her avoid the open elevator shaft underneath the stalled elevator car.

When Fox attempted to exit the elevator, however, there was no one to hold him from above. He laid down on his stomach and, with his feet hanging over the edge, lowered himself down. Fields testified that he tried to hold Fox's arm to guide him but that he was unable to hang on to him. When Fox let go of the elevator floor, his feet missed the floor and he fell into the elevator shaft. Fox was able to break his fall somewhat by grabbing onto the elevator cables. Nevertheless, he fell to the bottom of the elevator shaft and suffered serious injury to his hip and knee.

At the hearing on defendants' summary judgment motion, it was defendants' argument that any alleged negligence on their part was not the proximate cause of Fox's injury. They argued that Fields' efforts and Fox's decision to exit the elevator without competent assistance when there was no imminent danger, were the intervening and superseding causes of Fox's injury. Plaintiff's counsel argued that any negligence on the part of Fields or Fox in exiting the elevator should be considered under a comparative negligence scheme, but that any negligence on their part was not a basis for granting summary judgment.

The trial court agreed with defendants, finding that exiting an elevator stalled between floors was an unforeseeable dangerous act which broke the causal connection between defendants and Fox's injury. The court cited Hamilton v. Atchison, Topeka & Sante Fe Ry. Co. (1988), 175 Ill. app. 3d 758, 530 N.E.2d 268, 125 ...


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