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05/16/96 MICHAEL STOJKOVICH v. MONADNOCK BUILDING

May 16, 1996

MICHAEL STOJKOVICH, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
THE MONADNOCK BUILDING, ET AL., DEFENDANTS, AND WESTINGHOUSE ELECTRIC CORPORATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ALFRED PAUL and GARY BROWNFIELD, JUDGES PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Westinghouse Electric Corporation (Westinghouse) appeals from a jury verdict entered in favor of the plaintiff, Michael Stojkovich, in his suit for personal injuries resulting from a fall down an elevator shaft located in the Monadnock Building. Westinghouse claims that the trial court erred in denying its motion for a directed verdict and its post-trial motion for the entry of a judgment notwithstanding the verdict. The plaintiff has cross-appealed from the denial of his pre-trial motion for leave to file an amended complaint seeking punitive damages against Westinghouse. For the reasons which follow, we affirm.

The plaintiff, along with his co-employees, attended a party held on the third floor of the Monadnock Building. After the party, the plaintiff and 11 others boarded an elevator on the third floor intending to go to the first floor. The elevator started its descent but stopped unexpectedly between the second and third floors. The occupants were unable to restart the elevator, and their attempts to summon assistance through the use of an alarm bell and an intercom were unavailing. After 30 minutes to an hour passed, one of the occupants opened both the elevator car door and the second floor shaftway door. The floor of the elevator was positioned 24 to 33 inches below the top of the second floor shaftway door opening and approximately five feet above the second floor landing. In addition to enabling the occupants to exit the stalled elevator car, opening the doors of the car and the shaftway resulted in a five-foot unprotected opening to the elevator shaft below the stalled car.

Once the doors were opened, the occupants began jumping out of the stalled car and down to the second floor landing. Nine of the occupants exited before the plaintiff, several sustaining relatively minor injuries.

None of the occupants remaining in the stalled car or the nine occupants who exited the car before the plaintiff actually observed the plaintiff attempt to exit the elevator car. Several of the individuals who had exited before the plaintiff did, however, see the plaintiff as he was in the act of falling down the elevator shaft below the stalled car. The injuries sustained by the plaintiff as a result of his fall rendered him unable to recall anything about the occurrence.

On pages 10 and 11 of its brief on appeal, Westinghouse argues that:

"Absent evidence of what caused him to fall, the most Stojkovich could prove is that Westinghouse's alleged negligence created a condition which made falling down the shaft a possibility. Without some evidence that this condition did more than just set the stage for the fall, there was a failure of proof on the element of proximate cause."

Based upon this argument, Westinghouse concludes that the trial court erred in failing to grant its motion for a directed verdict at the close of all of the evidence and in failing to grant its post-trial motion for judgment notwithstanding the verdict.

The standard to be employed in directing verdicts or entering judgments non obstante veredicto (n.o.v.) is well settled. "Verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). Since Westinghouse has argued its entitlement to a directed verdict or a judgment notwithstanding the verdict only by reason of a failure of proof going to the proximate cause element of the plaintiff's claim, we will apply the Pedrick standard to the trial evidence relating to causation, taking as conceded that the plaintiff introduced sufficient evidence establishing Westinghouse's duty and its breach of that duty.

Westinghouse has very succinctly stated its issue on appeal. As framed, the issue involves two considerations. We must determine first, whether the acts or omissions of Westinghouse merely furnished a condition which made the plaintiff's injury possible, and second, whether the plaintiff introduced sufficient evidence to support a reasonable inference that the acts or omissions of Westinghouse caused the plaintiff's injuries.

Illinois has long subscribed to the proposition that if the acts of a defendant do nothing more than furnish a condition by which an injury is made possible by reason of some subsequent, independent act, the creation of the condition is not a proximate cause of the injury. Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942). For decades, reviewing courts in this State have sought to distinguish between an act which is the cause of an injury and an act which merely creates a condition upon which some subsequent act operates to produce an injury. We find no useful purpose to be served by an in-depth analysis of these cases. Suffice it to say that under the circumstances of this case, Westinghouse's condition argument fails as there is nothing in the record to support the conclusion that plaintiff's injury was the result of some unforeseeable independent act. Culhane v. Ludford, 148 Ill. App. 3d 763, 499 N.E.2d 686, 102 Ill. Dec. 129 (1986).

The act or omission of a defendant in breach of a legally recognized duty does not of itself form the basis of tort liability. An essential element of any tort action is a proximate causal relationship between the act or omission of the defendant and the damage suffered by the plaintiff. Ney v. Yellow Cab Co., 2 Ill. 2d 74, 117 N.E.2d 74 (1954). The plaintiff's damage must be the natural and probable result of the defendant's breach of duty. Neering v. Illinois Central Railroad Co., 383 Ill. 366, 50 N.E.2d 497 (1943). This element, proximate cause, embodies two distinct concepts: cause in fact and legal cause. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493, 178 Ill. Dec. 699 (1992). "Cause in fact can only be established when there is a reasonable certainty that a defendant's acts caused the injury or damage." Lee, 152 Ill. 2d at 455. Legal cause is essentially a question of foreseeability ( Lee, 152 Ill. 2d at 456), that is, the plaintiff's injury must be of ...


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