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Berke v. Manilow

Court of Appeals of Illinois, First District, Second Division

August 23, 2016

RAYMOND BERKE and CAROL BERKE, Plaintiffs-Appellants,
LEWIS MANILOW, J. GRAHAM DOBBIE, GUSTAVO A. BERMUNDEZ, and MICHAEL KEISER, as Trustees Under Trust Agreement Dated July 1, 1922, and Recorded as Document No. 8181780 and Known as Trust No. 2450 Lakeview Avenue Trust, and WOLIN LEVIN, INC., Defendants-Appellees.

          Rehearing denied October 19, 2016

         Appeal from the Circuit Court of Cook County, No. 12-L-12449; the Hon. Eileen M. Brewer, Judge, presiding. Judgment Affirmed.

         Counsel on appeal

          Todd A. Smith, Brian LaCien, and Lauren Elliott, all of Powers Rogers & Smith, P.C., of Chicago, for appellants.

          Michael Resis, Jamie S. Lane, and Jason T. Mayer, all of SmithAmundsen, LLC, of Chicago, for appellees.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce concurred in the judgment and opinion. Justice Gordon specially concurred, with opinion.


          HYMAN, JUSTICE

         ¶ 1 Plaintiff Raymond Berke fell in the vestibule of an apartment building where he and his wife were staying with friends. A doorman heard but did not see Raymond fall, and there were no eyewitnesses. Raymond sustained spinal injuries rendering him quadriplegic. He has no memory of the incident.

         ¶ 2 Raymond brought a premises liability claim against the building owner and the management company, alleging the vestibule area, and the stairs and doorway in particular, were improperly designed and maintained and were the direct and proximate cause of his injuries. Raymond's wife brought loss of consortium claims against both defendants.

         ¶ 3 Defendants moved for summary judgment, and the trial court entered judgment in their favor. The Berkes argue that they presented sufficient admissible evidence to support their prima facie case of premises liability, precluding summary judgment. They also contend that the trial court erred in striking parts of their expert witness affidavits, submitted in support of their response to defendants' summary judgment motion and that the court should have granted their motion to cite supplemental authority.

         ¶ 4 We affirm. The Berkes presented no evidence other than speculative assertions through expert affidavits that Raymond fell because defendants created and maintained a condition exposing him to an unreasonable risk of injury. Further, the trial court did not abuse its discretion in denying the motion to cite supplemental authority.

         ¶ 5 BACKGROUND

         ¶ 6 In November 2012, Raymond and Carol Berke, who live in California, stayed with friends in a luxury 12-story co-op apartment building. Trust No. 2450 Lakeview Avenue Trust owns the building; Wolin-Levin, Inc., a property management company, manages and maintains it. Toward the back of the building is a west exit from which one can get to the parking garage. The west exit has an exterior building door on top of a threshold with a landing that opened to a stairwell with three steps that led to an exterior door to the outside. The threshold was 7½ inches high on the interior side and 2¼ inches high on the exterior side. The landing was 10½ inches deep. When leaving through the west exit, a person has to walk through the exterior building door, onto or over a 7½-inch threshold, step down 2¼ inches onto the 10½-inch landing, and then up the three stairs out through the exterior door. According to the Berkes, the height and the depth of the threshold and the depth of the landing violated code and industry standards and constituted a tripping hazard. They also assert that the building door violated several building codes and standards because it opened inward and had an automatic closure system that caused it to close too quickly and prevented a person from passing through it safely. The Berkes contend the tripping hazard created by the threshold and door was exacerbated by the lack of any warning signs.

         ¶ 7 On November 2, Raymond and Carol left the apartment building through the west exit and went to their car, which was in the parking garage. Carol forgot her cell phone in the apartment, and Raymond went back to get it. Dan Cooney, the building's doorman, escorted Raymond to the apartment and back. Cooney said he walked with Raymond toward the west exit but Raymond waved him off, indicating he did not need Cooney to open the door for him. Cooney saw Raymond go through the door and saw the door close behind Raymond. Cooney returned to his desk, located a few feet from the exit. Moments later, Cooney heard a noise he described as a "kunk, " went to the west exit, and found Raymond face down on the ground, with his head on the second stair leading out the exit door. Cooney said he did not hear Raymond trip and does not know what caused him to fall.

         ¶ 8 When Cooney reached Raymond he saw that his eyes were closed and clenching. He thought that Raymond might have been trying to move or get up but was unable to do so. Cooney asked a coworker for help, called 911, and then went out to the parking garage to tell Carol that her husband had an accident. When Carol went back inside she saw Raymond lying on the ground with his head on the first step below the landing and his feet two to five inches from the interior door. She said Raymond was not face down but was leaning toward the right with the right side of his face on the stair. He had abrasions on his chin and nose. Later, additional abrasions were found on Raymond's knees. An ambulance took Raymond to St. Joseph Hospital. It was later determined that Raymond was quadriplegic.

         ¶ 9 Raymond, who did not regain consciousness until after surgery, has no memory of his fall. When asked what he remembered from that morning, Raymond said "I remember going to the car in the garage. And that's all that I remember. *** I have no recollection after going to the garage the first time. *** And I have no recollection of anything for the next three days." He said he did not know what caused his fall and could not recall anything about the west exit that may have caused him to fall.

         ¶ 10 The Berkes sued defendants for negligence and loss of consortium. (They also sued St. Joseph Hospital, numerous medical providers, and the City of Chicago; those claims are not a part of this appeal.) The Berkes specifically alleged that defendants were negligent in (1) allowing the premises to remain improperly designed, (2) allowing the premises to remain improperly lit, (3) failing to ensure the premises were free from debris, (4) allowing a hand railing to remain in improper condition, (5) allowing the layout of the premises to "remain contra to applicable safety hazards, " (6) allowing the layout of the premises to remain in an unsafe condition, (7) allowing the layout of the premises to remain in disrepair, and (8) failing to maintain the premises. The Berkes further allege that "one or more" of these acts of negligence proximately caused Raymond's injuries.

         ¶ 11 Defendants filed a motion for summary judgment, arguing that the Berkes have not demonstrated that defendants breached their duty of care and cannot demonstrate that the defendants' conduct was the proximate cause of Raymond's injuries. In response, the Berkes contended defendants had a duty to invitees to maintain the premises in a reasonably safe condition. They also asserted that the west exit's threshold was a tripping hazard and that a reasonable jury could conclude that Raymond tripped and fell as a natural and probable consequence of defendants' negligent failure to inspect and maintain the premises. The Berkes cited to at least four pieces of evidence that make this conclusion reasonable and more probable than any other explanation: (1) the threshold violated building codes and industry standards and was a tripping hazard; (2) ...

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