Court of Appeals of Illinois, First District, Fifth Division
MEGHAN RACKY, Special Administrator of the Estate of MICHAEL J. RACKY, Deceased, Plaintiff-Appellee,
BELFOR USA GROUP, INC. d/b/a BELFOR PROPERTY RESTORATION, Defendant-Appellant.
from the Circuit Court of Cook County. No. 12 L 4466,
Honorable James M. McGing, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Hall concurred in the
judgment and opinion.
1 Plaintiff Megan Racky, special administrator of the estate
of Michael J. Racky, brought this premises liability action
against defendant Belfor USA Group, Inc. (Belfor), along with
others not parties to this appeal, alleging negligence in the
death of her father Michael Racky, who died as a result of
falling through a plate glass window of a property Belfor had
been remodeling. Following a bench trial, the trial court
found in plaintiff's favor and awarded damages in the
amount of $1.875 million to plaintiff after finding the
decedent to be 25% contributorily negligent.
2 Belfor appeals, arguing that (1) the trial court erred in
entering judgment in favor of plaintiff where the evidence
failed to establish that it had a duty because (a) it was not
a possessor of the property, (b) the decedent encountered an
open and obvious danger, and (c) the window was outside the
scope of Belfor's contract; and (2) the trial court erred
in awarding damages on both the survival and wrongful death
counts where (a) the evidence did not establish the decedent
experienced conscious pain and suffering and (b) the amount
of the damage award falls outside the range of reasonable
compensation. For the reasons that follow, we affirm.
4 This case involves the death of the decedent after he fell
through a plate glass window located at 4823 West 95th Street
in Oak Lawn (the property). The property, a strip mall,
consisted of a number of stores. The store primarily at issue
in this case, however, is Miss Fantasia Boutique (the
boutique), which was situated near the corner of 95th Street
and Lacrosse Avenue. The boutique's storefront, which
faced both 95th Street and Lacrosse Avenue, consisted of
large plate glass windows set into a low parapet wall.
5 Six months prior to the decedent's death, a fire had
broken out at Eva's Bridal Salon, a store located in the
middle of the property. The stores to the east of the bridal
salon were not as affected by the fire and reopened shortly
thereafter. The stores to the west of the bridal salon,
however, were quite damaged and in need of repair. Ace
Boarding Company was immediately hired to secure the
property. Two days later, on November 19, 2010, Belfor was
hired by the owner of the property, Evans Karnezis
(Karnezis), to perform fire remediation services on the
stores that sustained fire damage, including the boutique.
Belfor then commenced its work, which included boarding up
the property and repairing the damage caused by the fire and
6 Thereafter, on March 21, 2011, Belfor entered into a second
contract with Karnezis regarding demolishing the interior of
the property, including the interior of the boutique. These
efforts included tearing down the walls between the stores on
the west side of the property. The intention was ultimately
to remodel the interior and exterior of the entire property;
however, the March 21, 2011, contract only involved interior
work. Belfor completed this stage of the project on April 26,
2011. Thereafter, Belfor continued to access the property
while obtaining bids for the final stage of the remodeling
project. On May 24, 2011, the decedent fell through the
boutique's plate glass window adjacent to Lacrosse
Avenue, severely lacerating his leg and succumbed to his
injuries. It should be noted, despite Belfor' remediation
efforts, the boutique never reopened.
7 Subsequently, plaintiff filed the instant lawsuit. The
operative complaint in this matter, the fourth amended
complaint, alleged various counts against Karnezis and the
boutique. Those counts, however, were disposed of prior to
trial and are not at issue in this appeal. The only counts
remaining for adjudication were those against Belfor for
survival and wrongful death based on a premises liability
theory. Plaintiff alleged that Belfor had exclusive
possession of the property at the time of the decedent's
accident and knew or should have known about the dangerous
condition of the boutique's plate glass window. Thus, by
not guarding against the dangerous condition, Belfor
proximately caused the injury suffered by the decedent and
was responsible for the damages that were incurred as a
8 The matter then proceeded to a bench trial, where the
following facts are adduced from 21 witnesses. Plaintiff
presented the following witnesses: (1) Ricardo Rodriguez, the
eyewitness to the accident; (2) Patricia Lynch, the owner of
Miss Fantasia Boutique; (3) Evans Karnezis, the owner of
property where the boutique was located; (4) Dr. Theresa
Schwab, an emergency room physician who treated the decedent;
(5) Tim English, Belfor's project manager; (6) Henry
Manalli, Belfor's general manager; (7) Mark Meshalum, an
expert in the field of building engineering; (8) Dennis
Puchalski, an expert in construction safety; (9) Sean Racky,
the decedent's son; (10) Meghan Racky, the decedent's
daughter; (11) Matthew Racky, the decedent's son; (12)
Molly Racky, the decedent's daughter; and (13) Patricia
Harthun, a licensed clinical professional counselor.
9 Defendant's witnesses were as follows: (1) Dr. Jerry
Bauer, an expert on conscious pain and suffering; (2) Dr.
Patrick Ng, former chief toxicologist for the Cook County
Office of the Medical Examiner; (3) Dr. Christopher Long,
chief toxicologist for St. Louis County, Missouri; (4)
Officer Michael Quinn, a police officer with the Oak Lawn
Police Department; (5) Michael Loughney, a firefighter
engineer with the Oak Lawn Fire Department; (6) Andrew Nieto,
an expert in construction safety; (7) Lindsay Anderson, a
glass expert; and (8) Dr. Andrew Kulik, a psychologist and an
expert in the field of psychiatry.
10 The Accident
11 Ricardo Rodriguez, the only eyewitness to the accident,
testified that on May 24, 2011, at 1 p.m., he was traveling
east along 95th Street in Oak Lawn as a passenger in his
wife's vehicle when he observed the decedent crossing
95th Street on a bicycle.
12 As Rodriguez observed the decedent ride his bicycle across
95th Street, he did not find the decedent's actions to be
unusual. As the decedent approached the curb in front of the
boutique, he "jumped" his bicycle, i.e.,
lifted his front and back tires over the curb, and then
"wobbled a little on the bike" as he attempted to
pedal forward. At this point, the decedent was on the
sidewalk near the side of the boutique's plate glass
window, which was adjacent to Lacrosse Avenue. Rodriguez then
observed the decedent place his left hand on the window in an
apparent attempt to balance himself. Rodriguez was asked to
demonstrate how high off the handle bars the decedent touched
the window. The court stated, "Just for the record, the
witness is indicating a height-can you put your hand back
again? And where are the handlebars? The Court's estimate
is that's somewhere from eight to 12 inches off the
handlebars."  Rodriguez then observed the decedent fall
through the window. Rodriguez testified that the decedent did
not appear to be intoxicated. When asked by plaintiff's
counsel whether he was able to make a statement regarding the
amount of pressure Rodriguez believed the decedent had
exerted on the window, Rodriguez replied, "I want to say
light." Rodriguez then explained, "Because he had
his bike. It wasn't leaning or anything. It was balanced
just when his hand was on the window that he fell."
Rodriguez, however, later testified on cross-examination that
he did not know how much force the decedent used when he
touched the glass or the amount of force the decedent's
body exerted on the glass on impact. Oak Lawn police officer
Michael Quinn, however, testified that Rodriguez informed him
that the decedent lost his balance and "crashed"
into the plate glass window.
13 Upon observing the decedent fall through the window,
Rodriguez shouted to his wife, who stopped their vehicle in
the middle lane of traffic. Rodriguez exited the vehicle, ran
towards the decedent, and called 911. The decedent's
upper body was inside the boutique and, from the thighs down,
his legs were outside, draped over the parapet wall.
Rodriguez testified he heard "a gurgling sound like a
moaning." Rodriguez then demonstrated the sound for the
court and testified the sound continued for two or three
14 Glen Lyman, an off-duty emergency medical technician,
arrived on the scene a few minutes after the incident
occurred. Rodriguez moved the decedent's bicycle out of
the way and Layman attempted to stop the decedent's leg
from bleeding, but ultimately was unsuccessful. Rodriguez
testified that the decedent continued moaning during this
time, but he could not see whether the decedent's eyes
were open because the decedent was wearing sunglasses. The
decedent also did not make any movements.
15 Shortly thereafter, the Oak Lawn Fire Department arrived.
Michael Loughney, a firefighter engineer, testified that when
he arrived at the accident scene at 1:20 p.m., he observed
the decedent's legs hanging out of the window. The jagged
glass that remained in the window made it too dangerous for
him to enter the boutique through the window. A short time
later, the fire engine crew arrived and forced the door to
the boutique open. He entered in through the front door and
observed a large amount of blood on the floor.
16 Loughney approached the decedent and noticed an odor of
alcohol. Loughney testified that at no point was the decedent
responsive; he did not respond to questions, had no muscle
control, his eyes had no reaction to light and did not move,
and the decedent had no blood pressure or pulse. He was,
however, taking three breaths a minute, although Loughney
testified that amount of breathing was not enough to support
life and could be made by a person who is unconscious. The
decedent did not regain consciousness during the 13 minute
drive to the hospital.
17 The Decedent's Medical Treatment and Toxicology
18 Dr. Theresa Schwab, a physician in the emergency
department at Advocate Christ Medical Center, testified that
on May 24, 2011, she assisted in the treatment of the
decedent. The decedent arrived in cardiac arrest, and her
attempts to resuscitate him were unsuccessful. She believed
the decedent's death occurred due to a near amputation of
his leg that led to significant blood loss. There was no
external evidence of neck or head trauma.
19 Dr. Schwab also testified regarding whether the decedent
was conscious at the time of the accident so as to experience
pain. According to Dr. Schwab, there is "a spectrum of
level of consciousness *** all the way from complete brain
death to awake and fully oriented." Accordingly, doctors
assume that individuals who are not brain dead experience
pain, and anyone who demonstrates any signs of consciousness
is treated for pain. Dr. Schwab further opined that the
decedent would have experienced conscious pain and suffering
at the time he fell through the window. Dr. Schwab based her
opinion on the severity of his injuries and the testimony
that the decedent was groaning for a few minutes after
suffering the injury.
20 During the trial, Belfor called Dr. Jerry Bauer, a
neurosurgeon, to testify as an expert on the issue of
conscious pain and suffering. After reviewing of all of the
records in this case, Dr. Bauer opined that the decedent
consciously experienced pain for some unknown period of time
from the point when he was first cut by the glass, while he
was moaning in Rodriguez's presence, and prior to the Oak
Lawn Fire Department's arrival. Dr. Bauer based his
opinions on the fact that an unconscious person cannot ride a
bicycle, thus the decedent must have been conscious while he
was experiencing being cut by the glass, and groaning in pain
because of it. Dr. Bauer also testified that the decedent
fractured his right hip in the fall and that one would not be
able to ride a bicycle with such a broken hip, thus he would
have experienced pain with that fracture. Dr. Bauer
testified, however, that a .203 blood alcohol level would
reduce some effects of pain.
21 Dr. Patrick Ng testified that in 2011 he was the chief
toxicologist for the Cook County Office of the Medical
Examiner. In this capacity, Dr. Ng testified regarding the
effects of alcohol. According to Dr. Ng, the decedent's
blood alcohol concentration at his time of death (1:54 p.m.)
was .203, but it would have been higher, about .283 two to
three hours prior to his death (11:54 a.m.).
22 Dr. Ng further testified that alcohol is a central nervous
system depressant that affects people differently. Typically,
an individual with a blood alcohol concentration over .200
would experience changes to their visual acuity, perception
of objects, motor coordination, and judgment. A blood alcohol
concentration of .203 would not cause an individual to pass
out or become unconscious.
23 There is, however, a difference between a native drinker
(one who drinks rarely) and a chronic drinker (one who drinks
every day). Dr. Ng testified that the affect of alcohol on a
chronic drinker, as opposed to a native drinker, is much less
because chronic drinkers build up a tolerance. According to
Dr. Ng, an individual's history and behavior with alcohol
are "critical" for determining impairment. Dr. Ng
admitted he did not know of the decedent's history of
alcohol consumption and indicated he did not have an opinion
as to whether or not the decedent was impaired at the time of
the accident because "you cannot just look at the
alcohol reading and make that judgment."
24 Dr. Christopher Long, the current chief toxicologist at
the medical examiner's office for the county of St.
Louis, testified as an expert on Belfor's behalf. After
reviewing the records from the Cook County Medical
Examiner's Office, the depositions of the medical
examiner, Dr. Arnkumar, Ng, the police officer and paramedic,
fire department and police department records, and the
decedent's medical records regarding treatment for his
hip and his shoulder, Dr. Long opined that the decedent's
blood alcohol level at the time of his death was greater than
.203. He believed that vitreous fluid alcohol level (.283)
was more accurate. Dr. Long also opined that there was Norco,
a prescription opiate, in the decedent's system at the
time of the accident. According to Dr. Long, Norco depresses
several areas in the brain responsible for cognitive function
and reaction time and makes a person groggy so they do not
feel pain as much. Dr. Long testified that a combination of a
blood alcohol level over .2 and Norco could be fatal.
25 Dr. Long also testified regarding the affect of alcohol on
the body. Specifically, Dr. Long testified that when an
individual has a blood alcohol level of .203, one experiences
double vision, loss of peripheral vision and color
recognition, and loss of control over fine and gross motor
skills. Dr. Long further opined that an individual's
ability to control a bicycle would "without doubt"
26 Dr. Long opined that the decedent's conduct in riding
a bicycle across six lanes of traffic was a "very risky
operation" that "shows lack of comprehension of
what he was doing" and demonstrates "all classical
signs and symptoms of intoxication." According to Dr.
Long, attempting to "pop a wheelie" over a double
curb "supports impairment because if you make a mistake,
you are on a busy road, you can easily fall into the road,
get run over."
27 The History of the Condition of the Window
28 In addition to the testimony regarding the accident, the
parties provided further testimony and evidence regarding the
condition of the window the decedent fell through and
Belfor's activities on the property.
29 Patricia Lynch, owner of the boutique, testified as
follows. When she opened her business in May 2005, the plate
glass windows adjacent to 95th Street and Lacrosse Avenue
were replaced. In 2006, she noticed a very small hole in the
window on the side of the building facing Lacrosse Avenue.
She placed tape over the hole, but did not repair it. In her
recollection, there was only one hole, which was the size of
a "BB hole, " in the window.
30 Lynch further testified that as a result of the November
2010 fire, her boutique suffered extensive smoke damage as
well as damage caused by the fire department. Consequently,
she never conducted business at that location again. In March
2011, she gave her key to the boutique to a Belfor employee
and thereafter did not have access to the boutique.
31 Lynch did, however, return to the boutique on May 24,
2011, to retrieve flower pots that she had placed outside.
She arrived at the boutique twice, first at 9 a.m. and then
at 11:30 a.m. That day she observed two-foot to three-foot
cracks in a "tree-like pattern" coming from the
lower left side of the plate glass window adjacent to
Lacrosse Avenue from her parked vehicle as well as from the
sidewalk. She had not observed these cracks prior to May 24,
2011, and testified they were not present prior to the fire
on November 17, 2010. She was unaware of how the cracks in
the window came into existence.
32 On cross-examination, Lynch testified that when she
occupied the boutique, she was not concerned with the amount
of pressure she applied to the windows when cleaning them.
Lynch further testified that it was Karnezis who informed her
of the "BB hole" in 2006, but she had no issue with
the hole while she occupied the space. Karnezis, however,
testified that he had no recollection of a conversation with
Lynch regarding a hole in the Lacrosse Avenue window.
33 Karnezis testified that Belfor was hired to restore the
interior of the property damaged by the November 2010 fire.
Karnezis had no expectation that Belfor was going to perform
any work on the boutique windows. Karnezis further testified
that a second contract with Belfor was executed on March 21,
2011, which required Belfor to perform demolition and clean
up of the property interior. The March 21, 2011, contract
also did not require Belfor to "do anything with"
the boutique windows. According to Karnezis, Belfor used a
Bobcat to remove the waste after the wall between the
boutique and an adjacent store was removed. After Belfor
completed the interior demolition work and subsequent to the
decedent's accident, a third phase of construction
commenced which required external changes to the property.
34 Regarding his access to the property, Karnezis testified
that immediately after the fire, Belfor erected a fence
around the property from Eva's Bridal Salon to the
boutique. Karnezis testified that only Belfor's employees
were allowed into the property and that he did not have a key
to access the property. He further testified he was not
allowed inside because he was not one of the laborers, but he
did visit the property frequently between January 2011 and
May 24, 2011.
35 Tim English, Belfor's project manager for the
restoration project, testified that Belfor first commenced
fire remediation services at the property on November 19,
2010. The fire mitigation work included "small scale
cleaning, mopping up, " whereas the construction work at
the property involved the roof structure and structural
steel. Their work also included boarding up portions of the
property that had not been previously boarded up by Ace
Boarding Company on November 17, 2010. According to English,
some of the board up was done at the direction of the Village
of Oak Lawn for aesthetic purposes.
36 According to English, Belfor and Karnezis entered into a
second contract on March 21, 2011, which included work to be
performed inside the boutique. Prior to performing any work,
the boutique was tested for hazardous materials. The boutique
tested positive for floor mastic and asbestos
tile. Thus, according to English, "the work
that was done in Ms. Fantasia's was done not to disturb
or make friable any of the materials that were in the
building." English clarified on cross-examination that
the floor tiles contained asbestos and that Belfor had made
the decision not to use heavy equipment near the boutique due
to the asbestos hazard. Belfor boarded up the front door to
37 English further testified that a sub-contractor,
Robinette, was engaged to perform the demolition work on the
property. English acknowledged that Robinette's proposal
indicated that, " 'The bid is based on using diesel
and air powered equipment as well as cutting torches to
assist in the demolition activities[.]' " English
understood that to mean that Robinette would be using Bobcats
as part of the demolition project. English clarified that the
demolition work was more extensive in the areas of the
property with the most fire damage. According to English,
Robinette was aware of the presence of asbestos in the
38 English also acknowledged that on April 26, 2011, Belfor
met with Robinette at the property to discuss demolition of
the remainder of the building, including the boutique's
windows and parapet wall along Lacrosse Avenue. This portion
of the project, however, had not yet been approved by the
Village of Oak Lawn. Accordingly, the meeting was merely to
create a proposal for the rebuilding of the property. English
did not recall examining the window on that day.
39 English further testified that Belfor completed its work
pursuant to the second contract on April 26, 2011, and was
off of the job site, but had left some equipment inside the
property and the fence remained intact. Belfor then returned
to the site on May 24, 2011, after the accident and removed
some of its equipment.
40 Regarding the condition of the windows at the property,
English testified he walked by the window at issue 30 times
and never viewed a BB hole in the window. English testified
that had he observed a BB hole, he would have notified
Karnezis and either boarded up the window or secured it.
English further testified that Belfor complied with the
general safety provisions of the International Building Code.
41 Regarding Belfor's control over the property, English
testified that prior to May 24, 2011, Belfor had erected a
fence on Lacrosse Avenue that "went out approximately 24
feet and then headed east, made a right angle and headed
east." Belfor directed where the fencing was placed and
later modified the fence by bolting it into the asphalt for
security and safety. On March 30, 2011, the fence was
extended to the southwest corner of the property where the
boutique was located. That same day, Belfor banners were
placed on the fence along with three "no
trespassing" signs. According to English, "It's
incumbent upon us to put those [no trespassing] signs up. So
if anyone is inside, a policeman drives by, they know they
are trespassing if they are not a Belfor employee." The
fence also had a gate with a chain lock and a lockbox.
According to English, a lockbox is a box that holds keys that
are accessible by punching in a four digit code. The lockbox
belonged to Belfor and keys to the property were placed in
the lockbox. English further testified that Karnezis was on
site every day and "had full access to the
building" in that he "had the code to the lockbox,
and he also had his own master keys."
42 Henry Manalli, the general manager of Belfor's Downers
Grove office, testified that had the BB hole been brought to
his attention, he would have left the window "as
is" and not boarded it up. According to Manalli, the BB
hole had a minimal impact on the strength of the glass. He
further testified that no cracks were observed while Belfor
was working on the job site. He also testified, however, that
had he observed a crack in the window that began in the
bottom corner, Belfor "most likely would have boarded it
up." This is because "a crack tends to be something
that may be a live crack. *** It could get worse, so we
wouldn't leave that in place. We would board it up and do
the safe thing." According to Manalli, the safety
inspector on site did not observe any cracks in the glass
during the April demolition.
43 Manalli acknowledged that, at a minimum, three months
prior to the accident Belfor was aware of plans that the
window through which the decedent fell was going to be
removed in the near future. Manalli clarified that the window
was not being removed because it was damaged, but because the
building was being redesigned.
44 Plaintiff's Expert Testimony
45 Plaintiff provided the following expert testimony in
support of its case.
46 Mark Meshalum testified as an expert on behalf of
plaintiff in the field of building engineering with a
specialty in windows and glass. Meshalum based his testimony
on his review of the photographic evidence, the records of
Belfor, and the deposition testimony. Meshalum further
testified that he also visited the site and "performed
some computerized calculations on glass strength" in
coming to his opinions in this matter.
47 Meshalum testified that plate glass breaks more easily
than tempered glass and, when it does, it tends to break in
very large, sharp shards. Meshalum further testified that
plate glass, when hit with a "BB, " has what is
called a conchoidal fracture. In such a fracture, where the
BB first impacts the glass there is a relatively small
circular hole with a larger hole on the opposite side in a
cone-shaped formation. Meshalum testified that upon his
examination of a photograph he observed two BB holes in the
plate glass window, each covered with two pieces of tape.
48 Meschalum also testified that a photograph, taken from the
interior of the boutique and looking out of the broken
window, demonstrated "a deformation on the aluminum
storefront framing where it appears that they are pushed
towards the exterior of the building." The photograph
further indicated "an indentation in the glazing gasket
and then beyond that, to the left, is what appears to be the
origin point of the two cracks that we discussed that were
reported by Patricia Lynch." Meschalum opined that the
cracks were caused by a "strong outward force [that] was
applied in those areas."
49 Meschalum further opined that "it would take very
minimal pressure or force to cause the glass to fail in the
way that it did when Mr. Racky fell through it."
Meschalum based his opinion on his extensive experience
observing and creating glass breakage under a variety of
different conditions and a knowledge of how the glass
industry cuts glass. According to Meschalum, the glass
industry cuts plate glass by placing a small scratch on the
surface of the glass by a robot arm and then cracking the
glass. The cut is done "very, ...