Appeal from the Circuit Court of Cook County. No. 99 L 5607 Honorable James M. Varga, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
Plaintiff, Xaver Schmid, commenced this negligence action against defendants, Fairmont Hotel (Fairmont) and Maron Electric Company (Maron), to recover for an injury he sustained when he turned on a vanity light switch near the bathroom in his hotel room and received an electrical shock; contemporaneously, one of the vanity lights sparked, and plaintiff moved backwards, striking the bathroom door frame. At the time of the incident, in May of 1999, plaintiff was a cargo pilot for Lufthansa Airlines. He was subsequently diagnosed with an injury to his right shoulder and arm. Plaintiff alleged that his injury resulted from the incident, and that because of the injury, he lost his pilot's license in February of 2001, and can no longer work as a pilot.
Plaintiff alleged res ipsa loquitur and common law negligence as theories of recovery against Fairmont and Maron. The basis for his claims against Fairmont was premises liability. The basis for his claims against Maron was that Maron, pursuant to a written contract between it and Fairmont, supplied to Fairmont a licensed electrician named Adolph Schnur (Schnur) to serve as a chief electrician of the hotel, while remaining a Maron employee. Maron also provided Fairmont with electrical services and materials. Plaintiff contends that, in doing so, Maron assumed and owed plaintiff a duty of care to maintain the electrical fixtures and wiring in plaintiff's guest room in a reasonably safe condition.
The Fairmont-Maron contract also contained a provision that Maron, an independent contractor, would indemnify Fairmont from all claims arising out of the work to be performed by Maron. Fairmont initially filed a cross-claim against Maron for contribution and contractual indemnification. Maron moved to dismiss Fairmont's indemnification count, arguing that the indemnification provision of the Fairmont-Maron contract was unenforceable under the Illinois Anti-Indemnity Act (740 ILCS 35/1 (West 2002)). The trial court granted Maron's motion in part, and limited Fairmont's indemnification count to that of vicarious liability for Maron's (i.e. Schnur's) conduct. *fn1 The trial court further decided that it would consider Fairmont's indemnification count after the jury resolved all other claims.
The jury returned a general verdict finding Fairmont solely liable for plaintiff's injury and Maron not liable. In an answer to a special interrogatory, the jury found that Schnur was not negligent. Accordingly, the trial court entered judgment for Maron on Fairmont's contribution count. Following the entry of judgment on the jury's verdict, Maron moved for summary judgment on Fairmont's indemnification count, arguing that Fairmont's liability was direct and not vicarious, while Fairmont moved for judgment notwithstanding the verdict (j.n.o.v.), or in the alternative, for a new trial. The trial court denied Fairmont's motion for j.n.o.v. or, in the alternative, a new trial, and granted Maron's motion for summary judgment. Fairmont now appeals.
The Fairmont Hotel is located in Chicago, Illinois. It opened for business in December of 1987. At the time of the incident, Fairmont had over 600 guest rooms, each of which contained a vanity light fixture with a mirror near the bathroom; the fixture had four decorative light bulbs on each side of the mirror.
Adolph Schnur, a licensed electrician, was an electrical foreman during Fairmont's construction. After the construction was completed, Charles Biagi (Biagi), Fairmont's director of engineering, was interested in hiring Schnur as Fairmont's "house" electrician. Fairmont contracted with Maron for Schnur's services. Pursuant to the Fairmont-Maron contract, Schnur was to serve as a chief electrician of the hotel, while remaining a Maron employee; in addition, Maron was to provide Fairmont with electrical services and materials. The Fairmont-Maron contract also contained a provision that Maron, an independent contractor, would indemnify Fairmont from all claims arising out of the work to be performed by Maron. This contract was renewed annually between the years 1988 and 2001. Schnur was Fairmont's "house" electrician until the time of his death, before this case went to trial. Maintenance at Fairmont was handled by a staff of maintenance engineers.
Plaintiff testified that at the time of the incident, he lived in Germany and worked as a cargo pilot for Lufthansa Airlines. On May 6, 1999, plaintiff flew a Lufthansa 747 cargo aircraft nonstop from Frankfurt to Chicago. He arrived at the Fairmont shortly after midnight. After checking in, plaintiff retired to his guest room and went to bed without using the bathroom. At approximately 6:00 a.m., plaintiff got out of bed to use the bathroom. The room was dark, and before he entered the bathroom, he turned on the light switch with his right hand. According to plaintiff, he felt an electric shock and saw a flash of very bright light from the vanity light in front of him. This caused plaintiff to jump or fall backward, striking the edge of the bathroom door frame with his head, neck and the right side of his shoulder. Plaintiff felt pain when he hit the door frame, but went back to bed. After waking up, plaintiff called the reception desk because the lights in his room did not work. A maintenance engineer was sent to investigate the problem, found that a circuit breaker had tripped, and reset it. As the day progressed, plaintiff began to feel pain in his neck, right shoulder and arm, and he so notified the reception desk.
Michael Lynch (Lynch), Fairmont's director of loss prevention, went to plaintiff's room to investigate the incident. Lynch testified at trial that plaintiff told him what had happened and pointed out to him that he (plaintiff) had removed a light bulb from the vanity socket and put it on the counter. Lynch observed the empty socket on the left light strip and saw the light bulb on the counter. He then reinserted the light bulb into the socket, and it sparked and broke in his hand, without electric shock. After that, Suzanne Rosales Weber (Rosales Weber), one of Fairmont's maintenance engineers, was called to examine the vanity light.
Rosales Weber testified that she first checked the circuit breaker and determined that it was tripped. She then checked the socket and determined that the wire leading into it had become loose and was touching the metal housing of the fixture, which caused a short circuit when plaintiff activated the switch. She covered the wire with electrical tape, as a temporary repair, to prevent another short circuit. *fn2
Later in the day, plaintiff went to the Northwestern Memorial Hospital emergency room to seek medical attention. Plaintiff returned to Germany on May 9, 1999. Upon his return to Germany, he was treated by several doctors for an injury to his right shoulder and arm. Plaintiff offered expert medical testimony that his injury was produced partly by the mechanical force of striking the door frame and partly by the electrical current, in combination; however, there is no scientific formula to permit plaintiff to attribute what part of the injury was due to which cause. The injury may produce continuing pain and is permanent. It includes stiffness and reduced movement in plaintiff's right shoulder and arm, and prevents him from being a pilot. Plaintiff was found unfit to fly and lost his pilot's license in February of 2001.
Plaintiff's theory at trial was that Fairmont and Maron were negligent in maintaining the vanity light fixture and the electrical wiring in plaintiff's guest room, and that because of their negligence, a short circuit occurred in the vanity light fixture. This short circuit caused the vanity light to spark and, at the same time, resulted in plaintiff receiving an electric shock at the light switch. Because of this, plaintiff jumped or moved or fell backward and hit the bathroom door frame, resulting in his injury. Plaintiff, however, presented no electrical experts to establish the feasibility of his theory. Rather, plaintiff called to testify at trial present and former employees of the Fairmont. Their testimony follows.
Mike Ruhl (Ruhl), Fairmont's chief engineer at the time of the incident, testified that he was aware that the vanity light sockets would short out on occasion; *fn3 however, this occurrence was not common. In such a situation where a "hot wire" was exposed and touched the housing of the fixture, the condition was a "dead short"-the circuit breaker *fn4 would trip, but nothing else would occur. He further testified that there is no way to predict whether a short circuit will occur in any lighting fixture, even if he opened up a light fixture and visually inspected it inside. Ruhl also explained the preventive maintenance program at Fairmont. With respect to the vanity lights and switches, a member of the engineering staff was to turn the lights on and make sure they work. He also testified that it is a common practice in any well-maintained building to test larger circuit breaker panels and larger pieces of electrical equipment with a thermal scan. *fn5 This scan could show if there is a loose connection or another abnormality in the equipment. Ruhl stated that Fairmont contracts with someone to scan its circuit breakers and large pieces of equipment, but not its light fixtures because it is not feasible to do a thermal scan on every light fixture, as there are tens of thousands of them. He further testified that he never heard of anybody else scanning light fixtures.
Damien McKenna, former Fairmont maintenance engineer, similarly testified that, over his career at Fairmont from July of 1994 to July of 2001, the vanity sockets would periodically require changing, and he had repaired about ten sockets that short circuited. In his opinion, the sockets would short circuit because they loosened over time as Fairmont's housekeeping staff changed the light bulbs. When the socket short circuited, it would blow the circuit breaker. The light would spark, and the housekeeper would call one of the maintenance engineers to come down and fix it. He testified that Schnur was aware that these short circuits would occur. However, McKenna never heard of anyone at Fairmont receiving an electric shock from a vanity fixture or the light switch. He also testified, over Fairmont's hearsay objection, that Schnur had stated that the vanity fixtures were "horse shit."
Rosales Weber similarly testified that she repaired about ten sockets a year because they short circuited, and that she had discussed this issue with Biagi and Schnur. In her experience, the vanity lights could short if the sockets became loose. She was of the opinion that the reason they became loose was because sometimes the sockets would turn when a housekeeper was screwing in a light bulb. Rosales Weber further testified that a short at the vanity light fixture immediately sends a surge of electricity through the metal switch box inside the wall to the circuit breaker, and the circuit breaker trips and shuts down the electricity beyond its point. Based on her knowledge of maintenance engineering, she did not think that it was possible to get a shock at the switch if the vanity socket shorted. She never heard of anyone getting a shock at the switch *fn6 and did not consider the ...