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Garest v. Booth

Court of Appeals of Illinois, First District, First Division

December 9, 2013

SANDRA M. GAREST, Plaintiff-Appellee,
v.
BARRY E. BOOTH and BRIGHAM CONSTRUCTION COMPANY, Defendants-Appellants.

Appeal from the Circuit Court of Cook County. No. 08 L 2882 Honorable James E. Sullivan, Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.

OPINION

CUNNINGHAM JUSTICE

¶ 1 This appeal arises from a November 22, 2011 judgment entered by the circuit court of Cook County which awarded damages in the amount of $140, 388.78 to plaintiff-appellee Sandra M. Garest (Garest); and a May 23, 2012 order entered by the circuit court which denied the posttrial motions of defendants-appellants Brigham Construction Company (Brigham) and Barry E. Booth (Booth). Both defendants appeal raising different issues. We will consider each defendant's arguments in turn. On appeal, defendant Brigham argues that: (1) the trial court erred in denying its motion for summary judgment; motion for a directed verdict; and motion for judgment notwithstanding the verdict; and (2) based on the trial court's errors, it is entitled to a new trial. Defendant Booth argues that: (1) the trial court erred in allowing Garest to recover on a theory of "implied invitation" because Garest was a trespasser as a matter of law; (2) the trial court erred in giving improper jury instructions; (3) the trial court erred in denying Booth's motion for a directed verdict; and (4) based on the trial court's errors, Booth is entitled to a new trial. For the following reasons, we affirm in part and reverse in part the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On the night of December 21, 2006, Garest sustained multiple injuries when she fell down a stairwell at Booth Orthodontics located at 12635 West 143rd Street in Homer Glen, Illinois (the Booth building). The Booth building was built by Brigham and is owned by Booth. On March 14, 2008, Garest filed a complaint for negligence in the circuit court of Cook County against Palos Bank and Trust Company (Palos). Palos was the trustee of the land trust that owned the Booth building. Palos is not a party to this appeal. On July 1, 2008, Garest filed her first amended complaint against Booth and Jane E. Booth (collectively, the Booths). The Booths are the beneficial owners of the property held by the land trust. On June 18, 2009, the Booths filed a motion for summary judgment arguing, in pertinent part, that at the time of the accident Garest was a trespasser on the Booths' property as a matter of law. Thus, the Booths argued that they owed no duty of care to Garest except to refrain from willful and wanton conduct. On August 26, 2009, the trial court granted the Booths' motion for summary judgment on Garest's first amended complaint. The court granted Garest leave to amend her complaint.

¶ 4 On September 9, 2009, Garest filed a second amended complaint against the Booths. In Garest's second amended complaint, for record purposes only, she repled count I for negligence. She also alleged count II for negligence to foreseeable users and/or trespassers, and count III for willful and wanton conduct. On September 30, 2009, the Booths filed a motion for summary judgment on Garest's second amended complaint. The Booths repeated the arguments from their first motion for summary judgment, and also argued that Garest failed to establish that she was a foreseeable user and/or reasonably anticipated trespasser; and that the evidence failed to support the allegations of willful and wanton conduct. On November 16, 2009, the trial court denied the Booths' second motion for summary judgment. On January 20, 2010, the trial court granted Garest leave to amend her complaint to add Brigham as a defendant. On March 5, 2010, Garest filed a third amended complaint against the Booths and Brigham. On April 6, 2011, Brigham filed a motion for summary judgment, which was denied. The trial court again granted Garest leave to amend her complaint. On November 15, 2011, Garest filed a fourth amended complaint against Brigham and Booth individually as the owner of the Booth building. Garest alleged the following counts: count I for negligence against Brigham, count II for negligence to foreseeable users and/or trespassers against Booth, count III for willful and wanton conduct against Booth, and count IV for negligence against Booth. Count IV was repled for record purposes only.

¶ 5 On November 16, 2011, the matter proceeded to a jury trial in the circuit court of Cook County on the fourth amended complaint. The evidence adduced at trial established the following. On December 21, 2006, Garest was driving to Modell Funeral Home (Modell) located on 143rd Street in Homer Glen, Illinois, to meet her friend Kimberly Cescato (Cescato) and attend a wake. Modell is located just east of the Booth building in the same general area. Modell shares a common vehicle entrance with the Booth building. Modell's parking lot is between Modell and the Booth building, and the parking lot runs up to the edge of the building. The Booth building is the building closest to the street and has a sign in front of it that says "Booth Orthodontics." Modell is farther back in the parking lot. Cescato stated that she arrived before Garest and waited for her at the entrance of Modell, and that she had no trouble distinguishing Modell from the Booth building. The premises of Modell were well lit to announce that it was hosting an event. Cescato stated that 143rd Street is a well lit street.

¶ 6 Garest testified that before the accident, she had never been to Modell. On the night of the accident, the weather was cool with misty rain and patchy fog. She expected to arrive at Modell a little after 7 p.m. Garest saw a sign for Modell and pulled into the corresponding parking lot. She parked her vehicle facing west and began walking toward the building nearest to her vehicle. Garest was unaware that she was walking toward the Booth building instead of toward Modell. She noticed two pillars in front of the building that looked like an entrance, and also noticed a light shining on the building. Garest testified that she could see 4 to 5 car lengths, or 45 to 60 feet, in front of her. Garest stepped up onto a curb and began walking on the sidewalk alongside the Booth building. The building and its interior were dark but there was a light on the ground that illuminated the sidewalk. Garest testified that it took a few moments for her to adjust to the light, which shone in her eyes. She noticed some shrubs to the left of the sidewalk. The rest of the area around the Booth building was relatively dark, but there was some general light from the parking lot and street. Garest walked along the sidewalk for about 15 feet without anything obstructing her view. As she walked, she suddenly had the feeling that there was no ground beneath her feet and she realized that she was falling. Garest fell down a stairwell that led to a basement entrance of the Booth building. She felt a tremendous impact on her face and her teeth. She was not able to break her fall. Garest testified that she did not see the stairs before she fell. After the fall, while at the bottom of the stairs, Garest did not see any light fixtures but noticed a door to her right.

¶ 7 Garest testified that approximately three weeks after the accident, she returned to the stairwell of the Booth building around 7:30 p.m. to try and figure out why she had not seen the stairs when she fell. She took photos and a video of the premises. The weather on that day was cold with a light snow. Garest parked her vehicle in the same parking lot and noticed the Modell building in the back of the lot. She walked alongside the Booth building and saw the sign for Booth Orthodontics, a railing going down the stairwell, and the light along the sidewalk. Garest walked down the stairs and took a photo and video at the bottom of the stairwell. She noticed a light fixture at the bottom of the stairwell but it was not turned on.

¶ 8 Garest received medical treatment for her injuries related to the accident from December 2006 until about December 2009. The total amount of Garest's medical bills was $41, 293.86. She testified that her injuries did not permanently affect her ability to perform the essential functions of her occupation.

¶ 9 Booth testified that he owns the Booth building. The Booth building was designed by an architect named Simon Batistich (Batistich). In spring of 2001, Booth selected Brigham to construct the Booth building. The drawings of the Booth building were approved by Will County. Booth testified that when the building was first designed, it did not have a basement exit. The fire inspector required Booth to include a basement exit in the plans for the building, and the first time the basement exit was drawn into the plans it was located on the east side of the building. The plans for the basement exit were modified a few times due in part to the location of a water main. The basement exit was finally located on the north side toward the middle of the building. The basement exit contains the stairwell at issue in this case. Around February or March 2002, Booth took occupancy of the building.

¶ 10 As Booth explained, the layout of the building is somewhat unique. The north side of the building, which contains the stairwell, faces the street. However, the north side of the building is the rear of the building. The entrance and front side of the building is the south side, which faces away from the street. The parking lot for the Booth building is located to the south of the entrance. There is no signage indicating that the parking lot to the south of the entrance is for Booth Orthodontics. Booth testified that Modell's parking lot contains no signage that indicates which building the parking lot accommodates. Booth allows Modell patrons to park in his parking lot. Likewise, Modell allows Booth patrons to park in its parking lot. Booth testified that he has been told that, on occasion, people have come into the Booth building thinking they were entering Modell. The mistaken customers park their vehicles in Modell's parking lot and enter the nearest building. After the Booth building was constructed, Booth consulted a landscape architect who recommended that Booth plant some evergreens on the north side of the Booth building because Booth did not want the stairwell to be the main focus of attention. On the landscape architect's recommendation, Booth planted evergreens next to the stairwell.

¶ 11 Booth testified that the stairwell in question contains a light fixture at the bottom of the stairs. The light fixture is controlled by a light switch inside the basement door. Booth stated that the lightbulb inside the light fixture is a photocell bulb, which means that it turns on when it gets dark outside. However, in order for the lightbulb to function, the light switch inside the basement door must be in the "on" position. Booth testified that the light will not automatically remain on. Booth is responsible for the day-to-day maintenance of the lightbulb and he replaces the bulb when it burns out. Booth testified that every night before he leaves the building, he has a checklist of things that he has to do. Part of Booth's checklist includes making sure that the basement light switch is turned on. Booth stated that his hours of operation during the week are 8 a.m. to 5 p.m., except for Monday when the building is open from 12 p.m. to 8 p.m. Booth Orthodontics is closed on Friday, Saturday, and Sunday. When he closes at 5 p.m., Booth leaves the building around 6 p.m. On the night of the accident, Booth closed at 5 p.m. and left the building at 6 p.m. Booth testified that he assumed that on the night of the accident, the light switch was turned on. Booth also makes sure that the outdoor lights are on. Booth stated that at the bottom of the stairwell, there is a sign that states that the main entrance is at the rear of the building. Booth testified that he put up the sign because, in the past, delivery men had left packages in the stairwell on the north side of the building. Booth's staff does not use the stairwell to exit the building on a regular basis.

¶ 12 James Brigham (James) testified that he has been building commercial and residential properties as a general contractor for 35 years. In early 2001, Booth retained James and his company to build the Booth building. James testified that several changes were made to the drawings for the Booth building before the final plans were submitted and approved. James stated that he constructs buildings according to the approved drawings. If a change is going to be made from the drawings, he must get approval before the drawings are changed. Changing the location of the stairwell on the Booth building is a change that required approval. James testified that the approved drawings for the building contained instructions for the stairwell which stated "emergency and normal lighting at the exit stair provided at the eve [sic]." James explained that an eave is an overhang. The permit drawings also called for down-lights to be installed on three corners of the Booth building. The lights above the stairwell and the three down-lights were never installed. James testified that the decision not to install the lights was a minor change from the plans of the building and did not need approval from the county.

¶ 13 James acknowledged that he had seen a May 22, 2001 letter from B&F Technical Code Services (B&F). B&F was hired to review the plans for the Booth building to make sure the plans complied with the fire code. The May 22, 2001 letter referenced section 1024.1 of the Building Officials and Code Administrators International code (BOCA code) and stated "normal and emergency lighting to be installed in exit discharge area." BOCA is a building code that is used by municipalities in the region around Will County. James was also questioned about an April 16, 2001 letter from the Will County land use department (Will County letter), but he stated that he did not recall reading that letter. At the time of trial, the Booth building was in compliance with all safety inspections.

¶ 14 John Van Ostrand (Van Ostrand) testified as an expert for Garest. Van Ostrand has been a licensed architect in Illinois since 1976. He is a forensic architect who focuses on problems associated with buildings. Van Ostrand testified that he reviewed numerous depositions and photographs in addition to conducting two site inspections of the Booth building and the stairwell. Van Ostrand stated that the drawings for the building differed from the actual construction of the building. In the drawings, the stairwell is located at the northwest corner of the building, but in reality it is actually located in the middle of the north side of the building. Also, the drawings show four lights in the area, but in reality there was only one light that was installed. Van Ostrand testified that the BOCA code requires that exit discharge areas provide "one foot-candle" of light at the walking surface. One foot-candle of light is enough illumination for the area. An exit discharge area is the means of ingress and egress by which a person enters or leaves the building. The Booth building stairwell is part of an exit discharge area.

¶ 15 Van Ostrand testified that the drawings for the Booth building called for emergency and normal lighting at the eave of the stairwell. Van Ostrand explained that the lights were to be connected to the emergency lighting circuit. The lights were to provide normal and emergency illumination, which means that the lights would be on all the time and could not be turned off. In case of a power failure, the power source switches over and the lights are run by an emergency backup battery that would keep the lights on for one hour after the power failure. The drawings also called for down-lights to be installed on three corners of the Booth building. The three down-lights were never installed.

¶ 16 Van Ostrand stated that there was an up-light installed on the Booth building in the northwest corner. He opined that the up-light was hazardous because it shined up into a person's eyes as he or she walked past it, as opposed to shining down on the walking surface. Van Ostrand mentioned that the Will County letter stated that any lighting proposed for the building should be down-lighting. Van Ostrand testified that he measured the level of illumination in and around the stairwell using a light meter. Van Ostrand stated that the light fixture in the stairwell was inadequate because it did not provide enough illumination. The stairwell light fixture only provided one foot-candle of illumination directly under the light. Van Ostrand testified that the lighting in the area of the stairwell did not meet the applicable standards for safe ingress and egress. The stairwell light was also inadequate because it was controlled by a switch, and exit lighting is supposed to be turned on 100% of the time. Van Ostrand testified that the lighting installed at the Booth building violated the Will County zoning ordinance and sections 1024.1 and 1024.2 of the BOCA code. He stated that the accident would have been prevented if the stairwell light had been turned on or if the lighting that was drawn in the building plans had been installed.

¶ 17 Further, Van Ostrand stated that if the owner did not want to keep the stairs illuminated at all times, he could have put up a gate that restricted access to the stairway. Van Ostrand testified that there was no duty to put up a gate, but it was the owner's responsibility to either light the area at all times or prevent access to the area.

ΒΆ 18 At the close of Garest's case in chief, Booth filed a motion for a directed verdict. Booth argued that the trial court should direct a verdict in his favor on count II of the fourth amended complaint because Garest was not a foreseeable trespasser; and also on count III of the fourth amended complaint because the evidence failed to support the allegations of willful and wanton conduct by Booth. Brigham also filed a motion for a directed verdict at that time. Brigham argued that the trial court should direct a verdict in his favor on count I of the fourth amended complaint because Garest was a trespasser on Booth's premises and she did not allege that Brigham's conduct was willful and wanton. The trial court denied both motions. Additionally, at the close of all the evidence, both Brigham and Booth renewed their respective motions for a directed verdict. Again, the trial court denied both motions. On November 22, 2011, the jury returned a verdict of $140, 388.78 in favor of Garest and against Brigham and Booth. The jury apportioned the legal responsibility as follows: 64% to Brigham, 34% to Booth, and 2% to Garest. There were three special interrogatories that ...


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