Bell v. Bakus , 16 N.E.3d 819 ( 2014 )

2014 IL App (1st) 131043SECOND DIVISION
August 5, 2014
No. 1-13-1043
KHALIL BELL, a Minor by His Mother and ) Appeal from the
Next Friend, Kimberly Street, ) Circuit Court of
) Cook County
Plaintiff-Appellant, )
)
v. )
)
HELEN BAKUS, ABNOEL BAKUS, and ) No. 09 L 5260
NIMO RASHO, )
)
Defendants-Appellees, )
)
(Sam's Moving and Delivery, Inc., ) Honorable
) Lynn M. Egan,
Defendant). ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Simon and Pierce concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Khalil Bell, a minor, suffered burn injuries when his shirt caught on fire as he
walked past the stove in the kitchen of his apartment. His mother, Kimberly Street, had turned
on the burners of the stove because the apartment was cold. The stove bordered the primary
hallway into and out of the kitchen, the same hallway Bell used when he caught on fire. Street
filed a complaint for negligence on Bell's behalf against defendants Helen Bakus and Abnoel
Bakus, who owned the apartment, and Nimo Rasho, the manager of the apartment. 1 Bell
1
We will refer to defendants collectively as they have presented a unified defense, but will also refer to Helen
Bakus and Nimo Rasho individually due to their roles in the facts of this case. Abnoel Bakus co-owned the
property, but Helen Bakus testified that Abnoel had no involvement in the rental of the apartment.
No. 1-13-1043
alleged that the placement of the stove, next to the primary entry and exit to the kitchen, caused
his injuries. The circuit court granted defendants' motion for summary judgment, finding Bell
did not establish proximate cause because the placement of the stove was not the legal cause of
his injuries. At issue is whether the circuit court erred in granting defendants' motion for
summary judgment. We hold Bell presented sufficient evidence that the placement of the stove
could have proximately caused his injuries to defeat defendants' summary judgment motion.
¶2 JURISDICTION
¶3 On February 25, 2013, the circuit court granted defendants' motion for summary
judgment. On March 21, 2013, Bell timely filed his notice of appeal. Accordingly, this court
has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30,
2008).
¶4 BACKGROUND
¶5 On March 10, 2008, Bell suffered burn injuries when his shirt caught on fire as he walked
past the stove in the kitchen of his apartment in Des Plaines, Illinois. Bell's mother, Kimberly
Street, had turned on the burners of the stove because the apartment was cold. When he was
injured, Bell was walking through the primary entrance and exit to the kitchen which abutted the
stove. Street filed a negligence complaint on Bell's behalf against defendants, the owners and
manager of the apartment. Bell alleged that prior to moving into the apartment, defendants had
represented to Street that the apartment would be safe, habitable, and free from hazardous and
dangerous conditions. Street had informed defendants that she would be providing her own gas
range, and defendants assured her that they would unhook the prior tenant's range, install Street's
range, and "prepare the appropriate counter space." Defendants failed to do so, and Street had
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No. 1-13-1043
an employee of the moving company that moved the family's possessions install her range. 2
Street contacted defendants after moving into the apartment and requested they provide heat and
"install a counter to separate their gas range from the entrance/exit to the kitchen." Defendant's
agreed to this arrangement, but failed to do so before Bell was injured.
¶6 Bell alleged defendants owed him a duty of reasonable care and a duty to warn him of
any dangerous conditions and to correct those conditions. Bell alleged defendants knew or
should have known that the heat was not functioning and that there was no counter separating the
gas range in the kitchen from the entry to the kitchen. The absence of a counter separating the
gas range from the entry and exit to the kitchen violated common safety precautions and the gas
range manufacturer's installation instructions. Bell further alleged defendants failed to properly
inspect and prepare the apartment and allowed the gas range to be installed in an unsafe
condition.
¶7 Defendants filed a motion for summary judgment, arguing they did not owe Bell a duty
of care because there was no evidence that the stove's placement or lack of counter space
presented an unreasonable risk of harm. Defendants further argued the stove's placement and
lack of a countertop were not the proximate cause of Bell's injuries. Defendants alleged the
sole proximate cause of Bell's injuries was that the burners on the stove were left on and
uncovered while Street showered and did not attend to Bell. Defendants claimed that, at most,
their alleged negligence only created a condition for, but did not cause, Bell's injuries.
Defendants also disputed Bell's claims that they agreed to move the stove or place a new
2
Bell's complaint contained a count in negligence against the moving company, Sam's Moving and Delivery, Inc.,
but the circuit court dismissed this count. Sam's Moving and Delivery, Inc. is not a party to this appeal.
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No. 1-13-1043
countertop in the kitchen. Defendants argued the lease they entered into with Street did not
contain any such agreements.
¶8 As support for their motion, defendants attached depositions from Kimberly Street, Helen
Bakus, and Nimo Rasho, as exhibits. In her deposition, Street stated when she first viewed the
apartment; she had concerns with the placement of the stove "right off the hallway." She
worried that "someone could *** knock [her] food off the stove or cough on [her] food as they
coming through and things like that." She also described the stove's location as "weird"
because "pots probably get knocked down, or somebody could burn their hand or something like
that." She had never seen a kitchen arrangement like that before and asked Rasho, the manager
of the building, if the stove could be moved. Rasho told her "that she could scoot it over on the
same wall but *** further down." Rasho assured her that moving the stove would be "easy,"
and "that all they would have to do is move the pipes over, make a hole in the wall, and move
pipes over." Street believed Rasho would move the stove and that a "counter would be placed
on the opposite side of the stove." Street acknowledged she did not get anything in writing
regarding changing the placement of the stove prior to her son becoming injured because she
"took [Rasho's] word." Street signed a lease.
¶9 When Street moved into the apartment, none of the agreed-upon changes had occurred
and the apartment had not been cleaned. She called Rasho to complain and she assured her that
"everything would be all right." Street spoke to Rasho a week later and Rasho told her that she
would come over and that "everything would be handled," including moving the gas line.
Street also informed Rasho that the heat in the apartment was not working. Street testified
Rasho began avoiding her calls and she did not actually make contact with Rasho until after
Bell's injuries.
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¶ 10 Street testified that on the day of the accident, she instructed her children, including Bell,
to stay in their room while she took a shower across the hall. Street turned on two burners of
the stove; the front left burner and the back right burner, because it was cold in the apartment.
She warned her children not to go through the house and to stay in their room because the stove
was on. She explained she "put *** pots of water on the stove so it can steam out." She
estimated one of the pots "was probably 6 inches tall." After the water boiled, she took it off
the flame and turned off the burner. She admitted that while she took a shower, the front left
burner was left on without a pot covering it. The front left burner was the one closest to the
hallway. Later during her deposition, she was less clear about which burner was left on,
testifying: "I don’t remember which [burner] it was. *** I know that I cut the water off. I
thought that I cut the water off. And I cut - - see, what I probably tried to do was cut – what I
did do is cut the eye off with the water." After showering, Street went into her room. In her
room, she heard screaming and saw the children running toward her. She saw fire on the
bottom of Bell's shirt, which she put out. Bell was in the hospital for a little over a month due
to his injuries.
¶ 11 After the accident, Street asked Helen Bakus to write her a note to give to the Department
of Child and Family Services (DCFS) to show that the placement of the stove would be changed.
Bakus agreed and signed a document that stated: " ' The counter that *** need[s] to be installed
next to the stove in [Street's] apartment will be done this week.' " Street testified Rasho told her
she was going to move the stove because of the accident. She also told Street she would fix the
heat and install a break counter next to the stove. The agreed-upon repairs were never made.
¶ 12 Helen Bakus testified she owned the apartment and had never received any complaints
from previous tenants regarding the heating or the placement of the stove. She denied that
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No. 1-13-1043
Street requested changes to the apartment. When Street moved in, the apartment was in good
condition and the heat worked. Bakus paid her tenants' heating bills. Bakus agreed to write
the letter to DCFS because she "felt sorry" for Street and thought DCFS would take Street's
children away. She never installed the countertop because Street never called again.
¶ 13 Nimo Rasho testified she helped Bakus manage the apartment. Her duties included
collecting rent, acting as the tenants' main contact person, and setting the heat for the entire
building. She did not keep written records of tenant issues. Rasho testified Street never told
her that she was bringing her own appliances. She also denied receiving calls from Street
regarding the condition of the unit. She claimed Street told her Bell was burned when Street
"was cooking and hot water f[e]ll or something like that." She could not recall if Street made
any complaints to her after Bell's injury. When asked when she became aware that Street
wanted a counter in between the stove and the hallway entrance to the kitchen, Rasho answered
that she could not recall. Rasho testified that the first time Street ever said anything to her
regarding the location of the stove was on July 28, 2008.
¶ 14 In response, Bell argued that genuine issues of material fact existed as to whether
defendants voluntarily assumed a duty to fix the placement of the stove and whether it was the
proximate cause of his injuries. Bell disputed the significance of the alleged lease, arguing that
Rasho verbally assured Street that the appropriate changes to the kitchen would be made.
Additionally, Bell argued that the alleged lease was not signed by Street. Bell attached
numerous exhibits to his response, including: a photograph of the kitchen showing the stove
bordering the hallway entrance to the kitchen; the note signed by Helen Bakus, dated July 28,
2008, stating, "The counter that is needed to be installed next to the stove in [Street's] apartment
will be done this week", the manufacturer's gas range instructions; the unsigned, alleged lease
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between the parties; Bell's deposition; and an affidavit from David Schroeder, a licensed
architect.
¶ 15 Bell testified that prior to the accident, he was in his bedroom with his siblings cleaning
the floor when he decided to get a broom in the kitchen. He testified:
"I was walking to the kitchen then I turned back around to go get
another shirt because it was cold then I was putting on my shirt
then I went to go get the broom. And I got the broom and I was
walking back to the room and then I saw my shirt on fire."
Bell recalled three of the stove's burners were turned on, all covered with pots. He did not
know how he came into contact with the burners. When he walked by the stove, he could not
see any fire outside of the pots. He testified his shirt was on his body as he walked by the
stove. When he grabbed the broom, he had both of his arms in his sleeves. He could not
recall if the broom caught on fire. When he discovered his shirt on fire, he ran into his brother's
room and his brother tried to put it out. Eventually, his mother put the fire out. Bell recalled
the landlord telling Street prior to the accident that she was going to fix the heat and that she
would move the stove.
¶ 16 David Schroeder, a licensed architect, attested that he reviewed various documents,
including photographs of the apartment's kitchen, installation instructions for the gas range, and
safety and building codes. He described the kitchen as an "L-shaped kitchen with a gas range at
the terminus of the small leg of the 'L' and the side of this gas range aligns with the primary
circulation path leading to and from the kitchen to the rest of the apartment." He found this to
be "an inherently dangerous design," an "unsafe practice," and a hazardous condition. Based on
the installation instructions for the gas range, Schroeder opined that at least five inches of side
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wall on either side of the range was required. Schroeder stated that the stove's location "was a
hazardous condition for those utilizing the primary/sole ingress and egress path to that kitchen
given the increased likelihood of inadvertent contact with the range's flames during use." He
found it likely that the stove's placement caused or contributed to Bell's shirt igniting as he
walked past it. According to Schroeder, a proper break counter or safety barrier between the
range and the hallway likely would have prevented the accident. He opined the gas range's
location rendered the hallway entrance and exit to the kitchen "unsafe any time the range burners
were in use."
¶ 17 In reply, defendants argued that the sole proximate cause of Bell's injuries was that one
burner on the stove was left on and uncovered while Street showered. Defendants argued that
this open flame broke any chain of causation and became the sole proximate cause of Bell's
injuries. Defendants further argued that the written lease contained no agreement to move the
stove or install a break counter.
¶ 18 The circuit court granted defendant's motion for summary judgment. The circuit court
first found that Bell pled sufficient facts to allege that defendants voluntarily assumed a duty to
place the stove in a safer location but failed to do so. The circuit court also found, however,
that Bell's claim failed because he could not establish the element of proximate cause as
defendants' conduct was not the legal cause of Bell's injuries. The circuit court explained "the
facts do not demonstrate that defendants' placement of the stove directly led to Bell's injuries.
Rather, the action that initiated the chain of events leading to the accident was plaintiff's decision
to leave one of the stove burners on while she took a shower." The court added that "the stove's
location could not possibly have influenced plaintiff's decision to leave the stove unattended."
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¶ 19 ANALYSIS
¶ 20 Bell argues he pled sufficient facts to establish defendants' negligence and preclude
summary judgment. He stresses that he agrees with the circuit court's finding that defendants
voluntarily undertook a duty of care in this matter when Rasho agreed to move the stove and
install a break counter, but argues that the circuit court erred regarding its finding as to proximate
cause. In response, defendants argue that the placement of the stove in the kitchen was not the
proximate cause of Bell's injuries. Defendants maintain that the sole proximate cause of Bell's
injuries was that the gas range had been left on with an uncovered flame. Defendants further
argue that there was no agreement in the lease that they would move the stove or place a new
countertop in the kitchen.
¶ 21 Summary judgment is proper where "the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)
(West 2012). "Summary judgment is to be encouraged in the interest of prompt disposition of
lawsuits, but as a drastic measure it should be allowed only when a moving party's right to it is
clear and free from doubt." Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). The nonmoving
party must present some factual basis that would arguably entitle it to a judgment. Allegro
Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996). In
ruling on a motion for summary judgment, the circuit court is to determine whether a genuine
issue of material fact exists, not try a question of fact. Williams v. Manchester, 228 Ill. 2d 404,
417 (2008). Pleadings are to be liberally construed in favor of the nonmoving party. Id. "A
triable issue precluding summary judgment exists where the material facts are disputed or where,
the material facts being disputed, reasonable persons might draw different inferences from the
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undisputed facts." Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007). Our review
of summary judgment rulings is de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.
2d 107, 113 (1995).
¶ 22 A plaintiff alleging negligence "must establish the existence of a duty, a breach of that
duty, an injury that was proximately caused by that breach, and damages." Jablonski v. Ford
Motor Co., 2011 IL 110096, ¶ 82. The plaintiff in a negligence action has the burden of
proving the elements of negligence throughout the entire proceeding. Krywin v. Chicago
Transit Authority, 238 Ill. 2d 215, 233 (2010).
¶ 23 The element of proximate cause itself contains two requirements: the cause in fact and
the legal cause. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). "Cause in fact
exists where there is a reasonable certainty that a defendant's acts caused the plaintiff's injury."
Krywin, 238 Ill. 2d at 226. "Under the substantial factor test, the defendant's conduct is a
factual cause of the plaintiff's injury if the conduct was a material element and a substantial
factor in bringing about the injury." Lee, 152 Ill. 2d at 455. "Conduct is a material element
and a substantial factor if, absent the conduct, the injury would not have occurred." Krywin,
238 Ill. 2d at 226. Where reasonable minds could disagree on the outcome of the substantial
factor test, it is for the jury to decide whether a defendant's conduct factored substantially in a
plaintiff's injury. Lee, 152 Ill. 2d at 455. Our supreme court has defined the legal cause
requirement of the element of proximate cause as follows:
"Legal cause 'is essentially a question of foreseeability: a
negligent act is a proximate cause of an injury if the injury is of a
type which a reasonable man would see as a likely result of his
conduct.' [Citation.] Thus, an injury will be found not to be within
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No. 1-13-1043
the scope of the defendant's duty if it appears 'highly extraordinary'
that the breach of the duty should have caused the particular injury.
[Citation.]" Id. at 456.
¶ 24 The existence of a duty is a question of law for the court to decide under de novo review.
Bell v. Hutsell, 2011 IL 110724, ¶ 11. The issues of breach of a duty and proximate cause,
however, are factual matters for the trier of fact to decide. Krywin, 238 Ill. 2d at 226; Lee, 152
Ill. 2d at 454 (Questions regarding a breach of a duty and proximate cause of the injury are
reserved for the trier of fact.). This court has held that there are instances where the issue of
proximate cause can be determined as a matter of law on a summary judgment motion, but only
"when the facts are so clearly one-sided that it can be said a party would never be able to
recover." Scerba v. City of Chicago, 284 Ill. App. 3d 435, 439 (1996); Lewis v. Chica
Trucking, Inc., 409 Ill. App. 3d 240, 257 (2011).
¶ 25 Initially, we note that defendants acknowledge in their brief that the circuit court found
they voluntarily assumed a duty of care. See Jablonski, 2011 IL 110096,¶121-23; Hutsell, 2011
IL 110724,¶12-13 (explaining the voluntary undertaking theory of liability). They do not,
however, raise any argument addressing this issue either in their brief or by way of cross-appeal.
Rather, they argue that the lease between the parties contains no express written agreement
regarding the placement of the stove. The circuit court did not address this issue in its order.
Bell did address this issue in his response to defendants' motion for summary judgment and
pointed out that the alleged lease is not signed by Street. We have reviewed the record and
found that Street did admit that she signed a lease. The alleged lease in the record, however, is
not signed by her. Therefore, absent from the record is the alleged lease defendants rely upon
to make this argument. We will not consider this argument because we cannot rely on matters
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No. 1-13-1043
outside of the record. In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009). We will also
proceed under the assumption that Bell has pled sufficient facts to impose a duty upon
defendants based on the voluntary undertaking theory of liability because defendants have not
addressed the issue. This court has held that the failure to elaborate on an argument, cite
persuasive and relevant authority, or present a well-reasoned argument results in waiver of that
argument. Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009); Gandy v. Kimbrough,
406 Ill. App. 3d 867, 875 (2010). Regardless, we have reviewed the circuit court's written order
addressing defendants' voluntary undertaking of a duty and agree with its findings.
¶ 26 After reviewing the evidence in the light most favorable to Bell, the nonmoving party, we
hold he presented sufficient evidence that the placement of the stove could have proximately
caused his injuries. First, the following evidence shows the placement of the stove could have
been the cause in fact of his injuries. Pictures of the kitchen show the stove bordering the
primary entry and exit from the kitchen. David Schroeder confirmed the layout of the kitchen
in his affidavit, and opined that the stove's placement was hazardous. Schroeder noted that
there should have been at least five inches of side wall bordering the stove and counter space.
Schroeder concluded that it was likely that the stove placement contributed to Bell's injuries due
to the likelihood of inadvertent contact with the flames from the range given its location next to
the primary ingress and egress pathway to the kitchen. Bell testified he walked through the
kitchen, grabbed the broom, and noticed his shirt was on fire while he was walking. Bell could
not recall how he caught on fire or how he contacted the stove, but testified that three burners on
the stove were turned on with pots covering them. Based on Bell's testimony and Schroeder's
affidavit, Bell presented sufficient evidence that would allow a reasonable trier of fact to find
that the placement of the stove was a material element and a substantial factor in Bell's injuries.
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Lee, 152 Ill. 2d at 455. Stated differently, had the stove been placed in a different spot than
bordering the primary entrance and exit to the kitchen, we cannot say that Bell would have been
burned as he walked through that hallway to retrieve a broom. Krywin, 238 Ill. 2d at 226("Conduct is a material element and a substantial factor if, absent the conduct, the injury would
not have occurred."). Accordingly, Bell provided sufficient facts showing that the stove's
placement could have been the cause in fact of his injuries.
¶ 27 Defendants rely on Street's testimony to argue that the cause in fact of Bell's injuries was
that one of the burners, presumably the one that made contact with Bell, had been left open and
uncovered. Street did testify, although not that clearly, that she may have left one burner turned
on and uncovered. Bell, however, raised a genuine issue of material fact regarding whether any
of the burners were left uncovered when he provided his own deposition where he stated that
three burners were on and all were covered with pots. Furthermore, "[w]here reasonable minds
could differ[] whether the defendant's conduct was of such a substantial factor in bringing about
the plaintiff's injury is for the jury to decide." Lee, 152 Ill. 2d at 455. In this matter,
reasonable minds could disagree on whether the stove's placement, with or without the burners
being covered, was a substantial factor in Bell suffering burns as he walked in the kitchen.
Accordingly, whether the stove's placement was the cause in fact of Bell's injuries is an issue for
the trier of fact to decide.
¶ 28 In order to withstand summary judgment, Bell also had to provide evidence showing that
the stove's placement was the legal cause of his injuries. We hold he has done so here.
Specifically, a reasonable person could foresee that the stove's placement bordering the primary
entry and exit to the kitchen could lead to the injuries Bell sustained. Lee, 152 Ill. 2d at 456("Legal cause 'is essentially a question of foreseeability: a negligent act is a proximate cause of
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No. 1-13-1043
an injury if the injury is of a type which a reasonable man would see as a likely result of his
conduct.' "(quoting Masotti v. Console, 195 Ill. App. 3d 838, 845 (1990))). To show this, Bell
provided Schroeder's affidavit in which Schroeder attested that the stove's placement was "an
inherently dangerous design" and a hazardous condition. Schroeder attested that the installation
instructions for the gas range required at least a five-inch side wall on the side of the range. He
attested further that "the failure to separate the outside corner of the gas range from the outside
corner of the kitchen is an unsafe practice." Defendants' themselves even provided evidence
supporting the idea that the stove's placement was the legal cause of Bell's injuries when it
attached Street's deposition to their motion. Street testified she wanted the stove moved away
from the hallway. She found the stove's location "weird" and feared that pots could "get
knocked down, or somebody could burn their hand or something like that." Based on
Schroeder's affidavit and Street's testimony explaining why she wanted the stove moved away
from the hallway, we hold Bell presented sufficient evidence to support his argument that the
placement of the stove was also the legal cause of his injuries. Accordingly, we hold Bell
presented sufficient evidence that the placement of the stove could have proximately caused his
injuries to defeat defendants' summary judgment motion.
¶ 29 We also note that the circuit court, in its written order, found that it was "plaintiff's
decision to leave one of the stove burners on while she took a shower." It appears the circuit
court improperly referred to Bell's mother, Kimberly Street, as the plaintiff in this case. Street,
however, filed suit on Bell's behalf due to Bell's status as a minor. Furthermore, it is also
important to note that Street's alleged negligence cannot be imputed to her child, Bell. See
Sheley v. Guy, 29 Ill. App. 3d 361, 366 (1975).
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¶ 30 CONCLUSION
¶ 31 The judgment of the circuit court of Cook County is reversed, and the cause is remanded.
¶ 32 Reversed and remanded.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
KHALIL BELL, a Minor by His Mother and
Next Friend, Kimberly Street,
Plaintiff-Appellant,
v.
HELEN BAKUS, ABNOEL BAKUS, and
NIMO RASHO,
Defendants-Appellees,
(Sam's Moving and Delivery, Inc.,
Defendant).
No. 1-13-1043
Appellate Court of Illinois
First District, Second Division
August 5, 2014
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Simon and Pierce concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Honorable Lynn M. Egan, Judge Presiding.
Law Offices of Jonathan P. Remijas, 407 South Dearborn, Suite 1310, Chicago, IL
60605, (Jonathan P. Remijas, of counsel), for APPELLANT.
Law Offices of Jonathan P. Remijas, 1 South Dearborn, Suite 2120, Chicago, IL
60603, (Jonathan P. Remijas, of counsel), for APPELLANT.
Bruce Farrel Dorn & Associates, 120 North LaSalle Street, Suite 1900, Chicago, IL
60602, (Ellen J. O'Rourke and Carol P. Woosley, of counsel), for APPELLEE.