Court of Appeals of Illinois, First District, Fifth Division
CELESTE WALKER, Special Administrator of the Estate of Clarence Allan Walker, Deceased, Plaintiff-Appellee,
THE CHICAGO HOUSING AUTHORITY, a Municipal Corporation, and ITS TIME FOR A CHANGE RMC, an Illinois Non-for-Profit Corporation, Defendants-Appellants
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 09 L 8956. Honorable Drella Savage, Judge Presiding.
For Plaintiff-Appellee, John M. Molloy & Associates and Law Office of Harry C. Lee (John M. Molloy, Paul A. Kotowski, Harry C. Lee and Debra A. Thomas, of counsel).
For Defendants-Appellants, Karen Kies DeGrand and Elizabeth C. Christen of Donohue Brown Mathewson & Smyth LLC and Scott W. Ammarell, General Counsel, George J. Brown, Deputy General Counsel and Theodore E. Bacoyanis, Assistant General Counsel for Chicago Housing Authority.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
[¶1] Plaintiff, Celeste Walker as special administrator for the estate of Clarence
Allan Walker, filed a premises liability action against defendants, Chicago Housing Authority (CHA) and Its Time for a Change RMC (RMC), alleging negligence in the death of the decedent Walker, who fell to his death in the elevator shaft in a building owned by CHA and managed by RMC. Following a bench trial, the trial court found in plaintiff's favor and awarded damages in the amount of $1.5 million to plaintiff.
[¶2] Defendants appeal, arguing that: (1) plaintiff failed to sufficiently prove proximate cause in Walker's death; (2) the trial court erred in failing to assign any contributory fault to Walker's actions; (3) defendants did not owe a duty of care to Walker as a trespasser; and (4) the trial court's finding of willful and wanton misconduct is against the manifest weight of the evidence.
[¶3] At approximately 9 p.m. on July 27, 2009, the decedent Walker was attempting to operate the elevator from the third floor in order for his friend Stephanie Carter to ride to the seventh floor of the residence, located at 365 West Oak, part of the Cabrini Green complex. Carter saw Walker open the hoist way elevator doors, step forward, and disappear with the doors closing behind him. Walker's body was found in the pit at the bottom of the elevator shaft and he died from the injuries sustained in the fall.
[¶4] In July 2009, plaintiff filed a negligence complaint against CHA. The complaint alleged that on July 27, 2009, Walker was a tenant at 365 West Oak Suite 704, in Chicago and CHA used, operated, controlled, or possessed the building at that location. The elevator in the building " failed to have service and had a history of poor maintenance and poor performance." On July 27, 2009, Walker attempted to use or get the elevator to work and " was caused to slip and fall to his death onto the bottom of the elevator shaft." CHA had a duty to exercise care and diligence in the maintenance and performance of said elevator. Plaintiff alleged the following acts and/or omissions against CHA: failed to exercise reasonable care in the operation, management, maintenance and control of the elevator; failed to exercise the highest degree of care and diligence in the operation of the elevator; failed to properly maintain the elevator; maintained the elevator in a defective and unsafe condition representing a hazard; maintained the elevator in a defective and unsafe condition for an unreasonable length of time; failed to timely test and inspect the elevator in accordance with the American National Elevator Safety Code; failed to have the elevator tested and inspected by persons who have knowledge of the function, operation and maintenance of the devices involved and are capable and qualified to make the required inspection and test; and failed to warn Walker of the hazardous condition of the elevator. As a direct and proximate result of these acts or omissions, Walker suffered injuries leading to his death.
[¶5] Plaintiff filed her first amended complaint in February 2010. Plaintiff added RMC, 1st Priority Elevator, and Hubert Wilson, individually and doing business as Top Floor Elevator Contractors, as defendants. In May 2010, plaintiff filed her second amended complaint against the same parties, adding Top Floor Elevator Contractors as a separate defendant.
[¶6] The second amended complaint realleged the same claims against CHA. The
complaint alleged that RMC " managed the premises in question, including the elevator equipment and appurtenances in the subject premises, and was charged, contractually or otherwise, with the management of the entire premises, including, but not limited to, inspection, maintenance and repair of said elevator." The complaint asserted the same negligent acts and/or omissions against RMC that were set forth against CHA, with one additional allegation that RMC was negligent in the management of the premises, and in particular the elevator and its appurtenances.
[¶7] A bench trial was conducted in October 2013 and the following evidence was presented.
[¶8] Stephanie Carter testified that she was friends with Walker for 25 to 30 years. Carter was familiar with the residential building at 365 West Oak and had been visiting Walker there for 15 to 20 years. Walker lived on the seventh floor.
[¶9] On July 27, 2009, Carter went to Walker's building at around 9 p.m. for dinner with her friend Marie Woodard and Woodard's daughter Markell. Carter stated that Walker's apartment was above the front entrance to the building. When she arrived, she called up to Walker for him to bring the elevator down. Carter testified that she called to Walker because the elevator was " always stuck up there." Carter needed the elevators because she uses an oxygen tank. She stated that Walker would bring the elevator down frequently for her and estimated that he had done this " over 20 times." She also saw and heard other people ask Walker to get the elevator for them.
[¶10] While they waited for Walker, Woodard opted to take the stairs to Walker's unit. Carter waited with Woodard's daughter for the elevator. Carter heard Walker call through the elevator shaft to come to the third floor. When she reached the third floor, she entered the hallway past a little wall. She was to the left of the elevator. As she entered the hallway, she saw Walker pushing the elevator buttons. Carter testified that Walker was turned to his right and looking at her. Walker then turned around and stepped forward into the elevator and " disappeared." The only thing Carter could see was the top of Walker's hand. Carter tried to hurry to the elevator, but the doors " slammed" closed. Carter was not able to see inside the elevator shaft. Carter then proceeded up the seventh floor to tell Walker's girlfriend Nichelle Dixon what had occurred.
[¶11] Carter testified that the elevator problems began in January 2009. Carter stated that a new person, named Hubert Wilson, started working on the elevator at that time. After Wilson began to work on the elevator, she said the " elevator didn't work anymore." Carter stated that she was stuck on the elevator once and the fire department had to come and get her off. Carter also said that one time she was on the elevator and it stopped between floors. She had to open the doors and jump off. She testified that these problems did not occur until Wilson began maintaining the elevator nor did Walker have to move the elevator prior to Wilson's maintenance.
[¶12] On cross-examination, Carter stated that when Walker stepped into the elevator, he said, " Oh s***," as he disappeared. After the elevator doors closed, Carter testified that it sounded like the elevator fell. She said " it went all the way down and it was like boom. Then it came up back up and opened up."
[¶13] Nichelle Dixon testified that she was Walker's girlfriend and lived with him at 365 West Oak for six or seven years. She admitted that she was incarcerated from July 2008 until January 2009. On the
night of July 27, 2009, she was at home with Walker. Dixon was playing cards with Walker when Carter yelled up for Walker to assist her to get up to Walker's floor. Dixon stated that Walker put on his shoes and left the apartment to help Carter. She said Walker was going to carry Carter's oxygen. A short time later, Carter came in the apartment " screaming" that Walker had fallen down the elevator. Dixon was not present at the time of the incident.
[¶14] Dixon testified that she ran down the stairs, stopping at every floor calling for him. When she was on the first floor, the elevator doors opened. Dixon was able to see between a gap in the lobby floor and the elevator. She got on her knees and saw Walker at the bottom of the shaft.
[¶15] Dixon stated that the elevators " were pretty consistent" in the five years she lived in the building, prior to her incarceration. When she returned in January 2009, the elevator was " down for two months." She described the elevator problems specifically: " Inconsistency. Worked one moment. Next minute down. Sometimes fixed quickly. And sometimes broken within 24 hours of being repaired." She also stated that some of the problems included, " doors not opening. Door opening and getting stuck and not closing. Not -- elevator cab not going completely totally to the floor that you push, like getting stuck between floors." Dixon testified that Wilson was in charge of elevator repairs when she returned to the building in January 2009. She stated that she was not aware of Walker operating the elevators. She testified that Wilson asked Walker to hold the door open for him a couple times.
[¶16] On cross-examination, Dixon stated that she accompanied Walker when he went to speak to RMC regarding screens for their apartment, but she was not present when he spoke to the RMC employees. Dixon admitted that she never saw Walker working on top of the elevator cab or inside the elevator shaft. She also said that Walker never told her he was working on top of the cab or inside the shaft.
[¶17] Plaintiff testified about her relationship with her father, Walker. She stated that she visited him at his residence " all the time." She said that the elevator frequently did not work and Walker brought the elevator down for her a couple times. She also observed other residents and visitors call for Walker to bring the elevator down for them. She admitted that Walker did not have any training working on elevators.
[¶18] Detective Luke Daly testified that he was employed as a detective with the Chicago police department. On July 27, 2009, he was assigned to investigate Walker's death at 365 West Oak. Daly identified multiple photographs from the scene as well as his report. He conducted interviews with Carter, Woodard, Dixon, Wilson, and Toni Talbert, an RMC employee. At the end of his investigation, Daly determined that this was a noncriminal matter.
[¶19] His report summary of his interview with Wilson indicated that Wilson told him that Wilson was aware that Walker " would manipulate the elevators by moving them between floors when they got stuck, and he has warned [Walker] against tampering with the machinery in the past." Wilson also observed Walker with a " Z key" earlier on the day of the incident. Wilson described the " Z key" as " an implement used to open the elevator doors on the floors to access the shaft." Wilson indicated that he knew one of Walker's shoes and the " Z key" were found on top of the elevator cab and the second shoe was found in the pit. Wilson " theorized" that Walker was on top of the car when he
fell. Wilson told Daly that " the dimensions of the shaft allow enough space at the rear of the car for a person to fall off the car and plunge to the bottom of the shaft."
[¶20] Daly interviewed Carter twice; the first time was the day of the incident and the second time was the following day. In the second interview, Carter stated to Daly that to " the best of her recollection she never saw the inside of the elevator cab when the doors opened." She told him that Walker " on numerous occasions would retrieve the elevator for her and other people in the building" ...