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Rivas v. Westfield Homes of Illinois Inc.

April 03, 1998


(Edward Hamming, Indiv. and as an Employee of Saint Therese Medical Center; and Saint Therese Medical Center, Defendants). Appeal from the Circuit Court of Lake County.

Honorable Bernard E. Drew, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

No. 95L1452

The plaintiffs, Gil Rivas and Jo Ann Rivas, filed a complaint against the defendant Westfield Homes of Illinois, Inc. (Westfield), alleging that Westfield breached a duty of reasonable care that proximately caused an injury to Mr. Rivas's ankle. The trial court determined as a matter of law that Westfield did not owe the plaintiffs a duty of care. Accordingly, it granted the defendant's motion for summary judgment, from which the plaintiffs now appeal. We affirm.

The record shows that the plaintiffs entered into a contract with Westfield for the construction of a new home in Gurnee, Illinois. Throughout the course of the construction, the plaintiffs visited the construction site to inspect the progress of the house. Some of these visits were arranged through a Westfield representative to discuss certain aspects of the construction, while, on some occasions, the plaintiffs visited the site on their own. The parties dispute whether the plaintiffs were permitted to visit their future home during construction without an appointment.

On Friday, September 3, 1993, the plaintiffs visited the site to meet Tom Lawler, the Westfield superintendent, for a "pre-drywall" inspection. Mr. Rivas testified in a deposition that he did not see any drywall on the premises on that date. Mr. Rivas stated that he spent an hour or two on the site and talked with Lawler about several items, including the light fixtures in the dining room. Mr. Rivas said that Lawler answered all his questions satisfactorily. Whether Mr. Rivas would be visiting the site the following week, when the drywall was to be installed, was not discussed. Rivas testified, however, that he understood that the installation of the drywall would begin the following week.

On Saturday, September 4, the day after Mr. Rivas's visit with Lawler, Mr. Rivas visited the construction site with his wife. Mr. Rivas testified that he did not inform anyone at Westfield that he was making the visit. No one from Westfield was at the site. Mr. Rivas stated that he and his wife went to the house to make sure that there were not any "other issues" with the house before the drywall was installed.

Mr. Rivas said that, after looking at the house, he and his wife began cleaning up some of the construction debris. He also spoke with a neighbor. Mr. Rivas stated that, unlike on Friday, he noticed drywall on the site on Saturday. Mr. Rivas added that the drywall was "in virtually every room" and that it "was on its side stacked at an angle up against the walls."

Mr. Rivas testified that, after a couple of hours on the site, he and his wife entered the living room. Mr. Rivas stated that he and his wife started looking at the insulation around the window frames of the house. Near one window was a stack of drywall that leaned against the wall. The drywall was approximately ½ inch thick and measured 4 feet wide and 12 feet in length. Each sheet weighed approximately 70 pounds, and approximately 19 sheets were stacked against the wall at a 30ø angle.

Mr. Rivas testified that there was nothing about the way the drywall was positioned that suggested it created a hazard. Mr. Rivas acknowledged, however, that he did not know the approximate weight of a piece of drywall. Further, Mr. Rivas acknowledged that he knew it was important to be careful around the house while it was being constructed.

Mr. Rivas stated that he walked toward one of the windows to inspect it. The drywall covered the bottom of the window, as the window was only a foot off the floor, and the drywall was 4 feet tall. While looking at the frame, Mr. Rivas rested his hand on top of the stack of drywall, and he tried to peer over and behind the drywall to look at the window frame. Mr. Rivas acknowledged that he attempted to pull the drywall away from the window so that he could get a look at the frame. He stated that he did not remember whether he used one or two hands in pulling the drywall away from the window. As he was touching the drywall, however, the drywall started to tip forward away from the wall. Mr. Rivas attempted to back out of the way, but the drywall fell on top of his ankles, pinning him to the floor.

Patricia Lowe, the neighbor who was in the house on the day of the accident, testified that she did not see either Mr. Rivas or Mrs. Rivas touch the drywall earlier in the day. Lowe stated that, as Mr. Rivas was near the window and started to look at it, Mrs. Rivas told him not to touch the drywall because it was heavy. Lowe said that she saw the stack of drywall fall on top of Mr. Rivas. As the stack was falling, Mr. Rivas put his hands up to try to catch it, but the stack fell on top of him. Lowe said that the stack fell on Mr. Rivas so that all his body below his shoulders was covered by the drywall.

Mrs. Rivas's testimony in her deposition supported Mr. Rivas's version of events. Contrary to Lowe's testimony, Mrs. Rivas stated that she never told Mr. Rivas that the drywall was heavy. Further, Mrs. Rivas stated that the drywall covered Mr. Rivas up to his knees, not to his shoulders.

Mrs. Rivas also expanded on the events leading up to the accident. Mrs. Rivas explained that she looked across the room at her husband and saw him putting his hand on the drywall. Mrs. Rivas stated that she shouted at Mr. Rivas as she saw him attempt to "pull away the drywall." Approximately three seconds later, however, the stack of drywall fell on top of him. Mrs. Rivas added that she shouted at her husband to stop ...

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