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05/27/94 MICHAEL R. STEPHEN v. MARGARET SWIATKOWSKI

May 27, 1994

MICHAEL R. STEPHEN, PLAINTIFF-APPELLANT,
v.
MARGARET SWIATKOWSKI, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ODAS NICHOLSON, JUDGE PRESIDING

Released for Publication July 14, 1994.

Gordon, Murray, Cousins, Jr.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Plaintiff, Michael R. Stephen, filed this action in the circuit court of Cook County seeking damages for personal injuries allegedly sustained as a result of the negligence of defendant, Margaret Swiatkowski. Plaintiff appeals from the circuit court's order granting summary judgment in defendant's favor.

Facts

Except as noted below, the facts in this case are undisputed. On or about August 8, 1984, the home of defendant, Margaret Swiatkowski, was damaged by fire. Defendant extended an invitation to the National Broadcasting Company (NBC) to visit the premises to present a television news report on the fire which was thought to have been deliberately set for racial reasons. On August 10, 1984, plaintiff, Michael R. Stephen, and two fellow NBC employees, a cameraman and a reporter (hereinafter "the news team"), were assigned to cover the story. Plaintiff was the sound man. His on site duties were to record the video signals from the camera and "mix the audio for interviews or extraneous noise." This necessitated his carrying a 32-pound videotape recorder connected by cable to the camera which the cameraman held.

The news team arrived at defendant's house on the morning of August 10, approximately ten to fifteen minutes before defendant and John Danno arrived. John Danno was a realtor allegedly involved in Mrs. Swiatkowski's purchase of the house. While the news team waited, plaintiff noticed that the structure appeared intact, except for a hole in the left side of the roof. The windows were boarded and there was burned clothing and furniture on the front lawn. When defendant and Mr. Danno arrived, the news team filmed the exterior ofthe house and conducted an interview with defendant on the front lawn.

According to plaintiff's deposition, upon being asked about the condition of the interior, defendant stated that it was "burned out but still able to enter" and that she and Mr. Danno had been inside. Defendant then invited the news team to go inside and told them it was safe to go into the house. According to plaintiff's deposition, when the back door was opened he saw charred walls and hanging electrical wires. He then asked defendant if she was sure it was safe to enter. Defendant answered, "Yes, it is." Although defendant's unverified answer denies that she made any representation as to the safety of the premises, we note that this disputed fact is not dispositive on the question of whether summary judgment was proper.

It is undisputed that the news team walked with defendant through the kitchen, where plaintiff noticed no debris on the floor. They then proceeded to the dining room. There, plaintiff noticed that the walls had been severely charred, the windows were boarded, and the room was "fairly dark." At this point, plaintiff first noticed charred debris on the floor. Plaintiff stated in his deposition that he could not clearly see the floor, but he noticed no nails or metal on its surface. Except for a small amount of sunlight coming around the window boards, the only light in the room was a small 30-volt, 120-watt light bulb, like a small spotlight, attached to the camera. The camera light illuminated only the space directly ahead of them but not the floor at their feet. When the cameraman finished filming in the dining room, he wanted to proceed to the living room at the front of the house. Plaintiff was leading the cameraman who, because of the equipment he was carrying, could not see where he was going. Plaintiff, taking a step backward in preparation to lead the cameraman into the next room, stepped on a nail protruding approximately one inch from a board on the floor. The nail penetrated plaintiff's shoe and foot, causing nerve damage to the foot.

When asked during his deposition why he asked defendant for reassurance as to the safety of the house before entering, plaintiff stated, "Because I don't go into burned down buildings, and I know what could possibly happen." Plaintiff also stated that he entered the dining room cautiously with an awareness of potential danger, watching the entire room. When asked if he exercised caution of his own and didn't rely completely on defendant's statement, plaintiff replied "Based on my years of experience of being out doing different stories, I have exercised my own judgment." Plaintiff also admitted that, if he had looked directly at the floor where he stepped, he would have noticed the nail protruding from the board.

Plaintiff filed a complaint against defendants Margaret Swiatkowski and John Danno alleging damages from injury proximately caused by defendants' negligently maintaining the premises in a dangerous condition by permitting a board containing a nail to remain on the floor and by failing to warn plaintiff about it. A voluntary dismissal was subsequently granted as to John Danno. Defendant filed a motion for summary judgment to which plaintiff's deposition was attached. The trial court granted the motion, finding that plaintiff was a licensee on defendant's premises and that the board with the protruding nail was an open and obvious condition. This appeal followed denial of plaintiff's motion to reconsider.

Opinion

On appeal, plaintiff contends that the trial court erred in determining as a matter of law that plaintiff's status was that of licensee rather than invitee and that the nail in the board was an open and obvious condition. Plaintiff also contends that, even if the latter determination had been correct, defendant nevertheless had a duty of reasonable care toward plaintiff because defendant should have anticipated that plaintiff would be distracted from noticing the dangerous condition. Lastly, plaintiff contends that by assuring plaintiff that the premises were safe, defendant voluntarily assumed a duty of care independent of plaintiff's status.

Summary judgment is proper only where, construing the pleadings, affidavits, admissions, and depositions strictly against the movant and liberally in favor of the opponent, "there is no genuine issue as to any material fact" and the movant is "entitled to judgment as a matter of law." ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 95 Ill. Dec. 305 (citing Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c)); see also Gatlin v. Ruder (1990), 137 Ill. 2d 284, 293, 560 N.E.2d 586, 148 Ill. Dec. 188.) "It is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis of a case wherein a material dispute may exist." ( Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 642, 411 N.E.2d 1168, 44 Ill. Dec. 802.) Even where the facts are undisputed, a triable issue exists if fair-minded ...


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