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Donald Van Gelderen and Gelderen v. David Hokin

July 29, 2011

DONALD VAN GELDEREN AND GELDEREN,
ARLENE VAN
PLAINTIFFS-APPELLEES,
v.
DAVID HOKIN,
DEFENDANT-APPELLANT (BRIAN A. SCHROEDER,
CONTEMNOR-APPELLANT).



Appeal from the Circuit Court of Cook County No. 06 L 8665 Honorables Alexander P. White and Sheldon A. Harris, Judges Presiding.

The opinion of the court was delivered by: Justice Cahill

2011 IL App (1st) 093152

Consolidated

JUSTICE CAHILL delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion.

Presiding Justice Garcia dissented, with opinion.

OPINION

¶ 1 Defendant David Hokin appeals an order denying his motion for judgment notwithstanding the verdict entered in a premises liability action brought by plaintiff Donald Van Gelderen and his wife, Arlene Van Gelderen (appeal No. 1--09--3283). Defendant's counsel Brian

A. Schroeder appeals an order finding him in contempt of court for refusing to submit to plaintiff's citation to discover assets proceeding until the trial court ruled on defendant's motion for judgment notwithstanding the verdict (appeal No. 1--09--3152). The appeals have been consolidated.

¶ 2 On November 8, 2004, plaintiff was at defendant's home, installing automated window coverings. As plaintiff was leaving the house that evening, he fell down a flight of stairs and was injured. Plaintiff filed a premises liability action against defendant, alleging the location of the stairs in relation to the door through which he attempted to leave constitutes an unreasonably dangerous condition that defendant, through the use of reasonable care, should have known about and protected against.

¶ 3 Defendant moved for summary judgment, arguing he had no duty to protect against plaintiff's injury because the stairs on which plaintiff fell are not unreasonably dangerous. The trial court denied defendant's motion and the case proceeded to trial. The following evidence was presented to the jury.

¶ 4 Plaintiff was at defendant's home on the day of the injury with Christopher Niven, a sales manager for a window covering manufacturer doing business with plaintiff. Plaintiff and Niven entered defendant's home through a side entrance. The parties dispute whether plaintiff was required to use this entrance; it is undisputed that plaintiff had used the entrance before without incident.

¶ 5 The door to defendant's side entrance opens into the house. From outside, the door opens from the left and swings to the right, where it is stopped by an interior wall at a little more than a 90 degree angle. An entrant has two options on entering. He can either turn to his left and proceed down a stairwell leading to a basement, or he can proceed forward through a hallway that leads to defendant's mudroom. The distance from the inside of the door opening closest to where the stairwell is located and the first riser is five inches. In other words, to the extent the stairwell has a landing separate and apart from the hallway floor, it is five inches in depth.

¶ 6 When leaving defendant's house through the side entrance on November 8, plaintiff grabbed the door handle, which was located on his right-hand side, with his left hand. Plaintiff alleged that as he pulled the door open toward him, he was forced to step to his right, where the basement stairwell was located. Plaintiff lost his balance and fell down the stairwell. Plaintiff did not remember falling.

¶ 7 Niven testified that he did not see the basement stairwell when he entered defendant's home on November 8. Niven followed plaintiff out later that day and was standing behind plaintiff when the accident occurred. Niven testified the accident could have been avoided had the door handle been located on plaintiff's left, suggesting that plaintiff would not have fallen had the door been hinged on the opposite side so as to swing open toward the stairwell. Defendant objected to this testimony, arguing it had not been properly disclosed under Supreme Court Rule 213 (eff. Jan. 1, 2007). The trial court overruled the objection.

¶ 8 Plaintiff's architecture expert Richard Cook testified that, in his opinion, the location of the stairwell in relation to the door, combined with the manner in which the door opens, creates an unreasonably dangerous condition. He explained that a person's natural tendency when opening a door toward himself is either to step backwards, which Cook described as cumbersome, or step to the side where the door is opening. A person, like plaintiff here, who steps to the right when leaving defendant's home through the side entrance door, has five inches before the first riser. Cook testified that in his opinion, five inches is not enough space to move around the door without falling down the stairwell. Cook admitted on cross-examination that there were no scientific studies that would confirm his opinion and that the layout of defendant's side entrance did not violate local building codes or customary rules of design.

¶ 9 Michael Hershenson, the architect who built defendant's house, testified on behalf of defendant. Hershenson said the applicable building code prohibits doors from opening over stairs. The layout of defendant's side entrance conforms with this code and was approved by the village. Hershenson stated that, in his opinion, the stairs do not constitute an unreasonably dangerous condition.

¶ 10 The case went to the jury, which found by special interrogatory that plaintiff's injury was caused by an unreasonably dangerous condition that defendant, through the exercise of reasonable care, should have known about and guarded against. The jury also found that plaintiff was 50% contributorily negligent and reduced damages by one-half. The net amount awarded plaintiff was a little over $1.5 million.

¶ 11 The trial court entered judgment on the verdict on May 11, 2009. On May 22, 2009, plaintiff issued a citation to discover assets. On June 5, 2009, defendant filed a posttrial motion for judgment notwithstanding the verdict. Defendant then moved to stay plaintiff's citation proceedings until the court decided his posttrial motion.

¶ 12 The trial court denied defendant's motion to stay the citation proceedings on October 8, 2009. Defense counsel Shroeder advised the court that he respectfully disagreed with its decision and asked for a finding of contempt to provide immediate appeal of the issue. The trial court entered the contempt order, fining Shroeder $10. A little over a month later, on November 25, 2009, the trial court denied defendant's motion for judgment notwithstanding the verdict.

¶ 13 Plaintiff first argues that the trial court erred in denying his motion for judgment notwithstanding the verdict because plaintiff failed to establish the duty element of his claim. We review this issue de novo. See York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147, 178, 854 N.E.2d 635 (2006) (whether trial court properly denied motion for judgment notwithstanding the verdict presents a question of law that is reviewed de novo); see also LaFever v. Kemlite Co., 185 Ill. 2d 380, 388-89, 706 N.E.2d 441 (1998) (whether a duty exists is a question of law and is reviewed de novo).

¶ 14 Where, as here, a plaintiff obtains recovery against a defendant under a theory of negligence, such as premises liability, judgment notwithstanding the verdict must be granted if the defendant did not owe the plaintiff a duty. See Washington v. City of Chicago, 188 Ill. 2d 235, 238-39, 720 N.E.2d 1030 (1999). "That is so because '[u]nless a duty is owed, there is no negligence' [citation], and plaintiffs cannot recover as a matter of law [citation]." Washington, 188 Ill. 2d at 239.

¶ 15 The existence of a duty is a question of law turning on whether, based on the parties' relationship to one another, public policy should impose a duty on the defendant to act with reasonable care toward the plaintiff. LaFever, 185 Ill. 2d at 388-89. Factors to consider in deciding whether to impose a duty are: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the burden on the defendant to protect against the injury; and (4) the consequences of placing that burden on the defendant. LaFever, 185 Ill. 2d at 388-89. "When, as here, plaintiff alleges he was injured by a condition on defendant's property ***, we decide the foreseeability prong of the duty test by reference to section 343 of the Restatement (Second) of Torts." LaFever, 185 Ill. 2d at 389.

¶ 16 Section 343 of the Restatement reads:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) ...


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