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Greenhill v. Reit Management & Research, LLC

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

ROBERT GREENHILL, Plaintiff/Appellant,
v.
REIT MANAGEMENT & RESEARCH, LLC, CW 600 WEST CHICAGO, LLC and THYSSENKRUPP ELEVATOR CORPORATION, Defendants/ Appellees. and THYSSENKRUPP ELEVATOR CORPORATION, Third-Party Plaintiff/Cross-Appellant,
v.
POWER CONSTRUCTION COMPANY, LLC, and SMS LIQUIDATING, INC., f/k/a SUPERIOR MECHANICAL SYSTEMS, INC., Third-Party Defendants/Cross-Appellees.

          Appeal from the Circuit Court of Cook County No. 2014 L 8541 Honorable Allen Price Walker, Judge Presiding.

          Attorneys for Appellant: Dennis M. Lynch and Patrick C. Anderson of Healy Scanlon, of Chicago, for appellant.

          Attorneys for Appellees: Steven P. Rouse and Brittany L. McElmury of Molzahn, Reed, & Rouse, LLC, of Chicago, for appellee/cross-appellant ThyssenKrupp Elevator Corporation

          Steven A. Hart, Brian H. Eldridge, and Carter Grant of Hart McLaughlin & Eldridge, LLC, of Chicago, for appellees REIT Management & Research, LLC and CW 600 West Chicago, LLC

          Anthony J. Ritrovato, Maisel & Associates, of Naperville, for third-party defendant/cross-appellee Superior Mechanical Systems, Inc.

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

          OPINION

          REYES JUSTICE

         ¶ 1 As plaintiff Robert Greenhill (Greenhill) entered a freight elevator while working as a sprinkler fitter at a construction project, another passenger pressed the "door close" button, causing the elevator gate to descend and strike Greenhill. Greenhill filed an action in the circuit court of Cook County against the building's owner, CW 600 West Chicago, LLC, and the building's manager, REIT Management & Research, LLC (together, REIT), as well as the elevator maintenance company, ThyssenKrupp Elevator Corporation (TKE). Greenhill asserts, in part, that the elevator did not have a functioning audible signal and that the defendants failed to install an electronic sensor in the elevator which had already been approved, ordered, and delivered. TKE filed a third-party complaint for contribution against (i) Greenhill's employer, Superior Mechanical Systems, Inc., n/k/a SMS Liquidating, Inc. (Superior), which was a subcontractor on the construction project, and (ii) the general contractor, Power Construction Company, LLC (Power). The circuit court ultimately granted summary judgment in favor of REIT and TKE in Greenhill's action and granted summary judgment in favor of Superior and Power in TKE's third-party litigation. Power and Greenhill subsequently reached a settlement, and Power has been dismissed from this appeal.

         ¶ 2 Greenhill contends on appeal that the circuit court erred in granting summary judgment and in denying his motion to reconsider. In its cross-appeal, TKE alternatively argues that this Court should reverse the grant of summary judgment in favor of Superior. For the reasons discussed herein, we (i) reverse the grant of summary judgment in favor of REIT and TKE and (ii) affirm the grant of summary judgment in favor of Superior.

         ¶ 3 I. BACKGROUND

         ¶ 4 REIT owned and managed a building at 600 West Chicago Avenue (the 600 building) in Chicago. The 600 building was part of a complex which spanned four addresses. Three freight elevators (#1, #2, and #3) were in the 600 building; freight elevator #6 was at 900 North Kingsbury. REIT and TKE were parties to a contract whereby TKE agreed to provide maintenance services for elevators and escalators in various properties, including this complex.

         ¶ 5 Freight elevator #3 had stationary doors at each floor of the building. An elevator gate inside the elevator door traveled up and down with the elevator. The gate was designed and programmed to close after a pre-set time period or immediately when the "door close" button was pressed. The gate closed vertically, from top to bottom, and the bottom of the gate had a safety boot, i.e., a rubber pad. If the rubber pad made contact with a person or object, a spring-loaded wire inside triggered the gate to reopen.

         ¶ 6 A. Greenhill's Accident

         ¶ 7 Power was the general contractor for an office build-out on the fifth floor of the 600 building. Power retained Superior to provide sprinkler fitting services. On September 25, 2012, Superior employees Greenhill and William Toomey (Toomey) arrived at the worksite on the fifth floor to relocate certain sprinkler heads, but they could not find their equipment. Brian Fiorito (Fiorito), Power's assistant superintendent on the job, offered to show Greenhill and Toomey the location of their equipment, which had been moved to the basement. Freight elevator #3 was the only freight elevator which accessed the basement. The three men entered freight elevator #3, but they accidentally exited at the first floor of the building, not the basement.

         ¶ 8 The men realized their mistake and returned to the elevator. A fourth individual on the elevator held the door open for Fiorito, who entered first. The fourth man was later identified as Robert Plane (Plane), a field service technician who was performing inspections of the generators at the 600 building. Plane later averred that when Fiorito boarded the elevator, Plane looked down toward the elevator's controls to "initiate a close," i.e., press the "door close" button. At that point, Plane did not observe the other two men. Toomey then entered the elevator before Plane pressed the button. As Plane pressed the button, Greenhill was walking onto the elevator. The elevator gate (equipped with the rubber bumper) started to lower, striking Greenhill and knocking his hardhat off his head. The gate then retracted automatically. According to Greenhill, the impact of the lowering gate broke the suspension band inside his hardhat, resulting in a scar on his forehead.

         ¶ 9 As the freight elevator continued to descend, Greenhill leaned against the elevator wall. When the elevator reached the basement, all four of the men exited. Greenhill worked for a few hours that day but left early due to neck pain. When deposed in 2015, he testified that he had not worked since the date of the accident and was awaiting neck surgery.

         ¶ 10 B. The Initiation of Litigation

         ¶ 11 Greenhill filed an action in 2014 against REIT and other entities; TKE was subsequently added as a defendant and other defendants were dismissed. TKE then filed third-party complaints against Superior and Power, asserting that TKE was entitled to contribution from them for any judgment amount in excess of TKE's pro rata share of liability. Superior[1] moved for summary judgment, contending: (i) it owed no duty relative to the design and maintenance of the elevator; (ii) no negligence on Superior's part caused or contributed to Greenhill's accident; and (iii) the functioning of the elevator was open and obvious to Greenhill, so no duty was owed to him.

         ¶ 12 REIT filed counterclaims against TKE, including counts based on contribution and indemnification. According to REIT, TKE violated its duties under their contract by improperly maintaining freight elevator #3 and by failing to procure general liability insurance which satisfied the contractual requirements.[2] TKE then filed counterclaims for contribution against REIT. TKE alleged, in part, that it had proposed the installation of a new electronic safety edge (discussed below) on freight elevator #3 in March 2012, but REIT did not approve the installation until August 22, 2012. TKE then commenced the installation of the new safety edge in September 2012 - after Greenhill's accident - but was not paid by REIT until February 2013.

         ¶ 13 On December 6, 2017, Greenhill filed his third amended complaint, which is the operative complaint for purposes of this appeal.

         ¶ 14 C. The Operative Complaint and Answers

         ¶ 15 In counts I and II of the operative complaint, Greenhill alleged, in part, that REIT had a duty to exercise the highest degree of care in relation to the freight elevators in the 600 building, which REIT breached by doing one or more of the following: improperly operating, managing, maintaining, or controlling the building so that freight elevator #3 was in an unreasonably dangerous condition; failing to properly inspect the premises; failing to repair the condition of the elevator; failing to have a proper sensor on the elevator; failing to assign a trained elevator operator or to give proper training to those operating the freight elevators; failing to have a proper annunciating device to alert individuals that the door or the inner gate of freight elevator #3 were closing, including a properly functioning audible signal and/or a flashing light; and failing to warn invitees, including Greenhill, of the dangerous condition of freight elevator #3 and of the differences between that elevator and other elevators in the building.

         ¶ 16 In count III, Greenhill alleged that TKE owed a duty to exercise ordinary care for the safety of elevator users, which it breached by doing one or more of the following: improperly maintaining, inspecting, or operating the elevators in an unreasonably dangerous condition; failing to properly inspect the elevator; failing to repair the condition of the elevator; failing to timely install a proper sensor or annunciating devices on the elevators; and failing to warn users, including Greenhill, of the dangerous condition of the elevator.

         ¶ 17 REIT and TKE each filed answers and affirmative defenses. Their affirmative defenses included: Greenhill's contributory negligence; that Plane was the sole proximate cause of Greenhill's alleged injuries; that the condition of the elevator was "open and obvious"; and that pursuant to the 10-year construction statute of repose (735 ILCS 5/13-214 (West 2012)), the defendants did not have an ongoing duty to improve and/or upgrade the sensor or audible warnings. While denying that TKE had any liability toward Greenhill, REIT also alleged in the alternative that TKE breached its duty of care by failing to timely install the electronic door edge and failing to advise REIT that the elevator should have been taken out of service until the electronic door edge or other upgrades were installed.

         ¶ 18 D. Motions for Summary Judgment - TKE and REIT

         ¶ 19 TKE filed a motion for summary judgment. First, TKE asserted that it did not breach its duty of care in maintaining the elevator because it had no notice that a dangerous condition existed. Second, TKE argued that Plane's pressing of the "door close" button caused the inner gate to close and strike Greenhill's hardhat. Third, TKE claimed it owed no duty to warn Greenhill of an open and obvious danger, i.e., the closing elevator gate. Fourth, TKE contended that it had no duty to install upgraded sensors or audible devices pursuant to the statute of repose.

         ¶ 20 In its motion for summary judgment, REIT joined in TKE's arguments. In addition, REIT argued that Greenhill's theory was impermissibly speculative because a frame-by-frame analysis of video footage of the incident did not indicate that Greenhill crossed the gate and thus he would not have triggered an electronic door edge, which would have been installed approximately one inch inside the gate. According to REIT, Greenhill's elevator expert Shawn Johnson did not apply a reliable methodology when opining that an infrared beam would have prevented the accident. REIT further asserted that it had no duty to train Plane or to assign a dedicated operator to the elevator and that Greenhill could not establish with reasonable certainty that the presence of an audible signal or flashing light would have prevented the accident.

         ¶ 21 The support for the motions for summary judgment included the video recording of the occurrence (without audio), ...


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