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Racky v. Belfor USA Group, Inc.

Court of Appeals of Illinois, First District, Fifth Division

June 16, 2017

MEGHAN RACKY, Special Administrator of the Estate of MICHAEL J. RACKY, Deceased, Plaintiff-Appellee,

         Appeal from the Circuit Court of Cook County. No. 12 L 4466, Honorable James M. McGing, Judge Presiding.

          REYES JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Hall concurred in the judgment and opinion.


          REYES JUSTICE.

         ¶ 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.

         ¶ 3 BACKGROUND

         ¶ 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 smoke.

         ¶ 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 result.

         ¶ 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.[1]

         ¶ 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.[2] 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." [3] 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.[4]

         ¶ 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 minutes.[5]

         ¶ 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 Reports

         ¶ 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" be impaired.

         ¶ 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.[6] 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 the boutique.

         ¶ 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 boutique.

         ¶ 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."[7] 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, ...

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