Walker v. The Chicago Housing Authority

2015 IL App (1st) 133788FIFTH DIVISION
March 31, 2015
Nos. 1-13-3788 and 1-14-32790
CELESTE WALKER, Special Administrator of the ) Appeal from the
Estate of Clarence Allan Walker, ) Circuit Court of
Deceased, ) Cook County
)
Plaintiff-Appellee, )
v. ) No. 09 L 8956
)
THE CHICAGO HOUSING AUTHORITY, a Municipal )
Corporation, and ITS TIME FOR A CHANGE RMC, )
an Illinois Non-for-Profit Corporation, )
) Honorable
Defendants-Appellants. ) Drella Savage,
) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Celeste Walker as special administrator for the estate of Clarence Allan Walker,
filed a premises liability action against defendants, Chicago Housing Authority (CHA) and Its
Time for a Change RMC (RMC), alleging negligence in the death of the decedent Walker, who
fell to his death in the elevator shaft in a building owned by CHA and managed by RMC.
Following a bench trial, the trial court found in plaintiff's favor and awarded damages in the
amount of $1.5 million to plaintiff.
¶2 Defendants appeal, arguing that: (1) plaintiff failed to sufficiently prove proximate cause
in Walker's death; (2) the trial court erred in failing to assign any contributory fault to Walker's
actions; (3) defendants did not owe a duty of care to Walker as a trespasser; and (4) the trial
court's finding of willful and wanton misconduct is against the manifest weight of the evidence.
Nos. 1-13-3788 and 1-14-3279
¶3 At approximately 9 p.m. on July 27, 2009, the decedent Walker was attempting to operate
the elevator from the third floor in order for his friend Stephanie Carter to ride to the seventh
floor of the residence, located at 365 West Oak, part of the Cabrini Green complex. Carter saw
Walker open the hoistway elevator doors, step forward, and disappear with the doors closing
behind him. Walker's body was found in the pit at the bottom of the elevator shaft and he died
from the injuries sustained in the fall.
¶4 In July 2009, plaintiff filed a negligence complaint against CHA. The complaint alleged
that on July 27, 2009, Walker was a tenant at 365 West Oak Suite 704, in Chicago and CHA
used, operated, controlled, or possessed the building at that location. The elevator in the building
"failed to have service and had a history of poor maintenance and poor performance." On July
27, 2009, Walker attempted to use or get the elevator to work and "was caused to slip and fall to
his death onto the bottom of the elevator shaft." CHA had a duty to exercise care and diligence
in the maintenance and performance of said elevator. Plaintiff alleged the following acts and/or
omissions against CHA: failed to exercise reasonable care in the operation, management,
maintenance and control of the elevator; failed to exercise the highest degree of care and
diligence in the operation of the elevator; failed to properly maintain the elevator; maintained the
elevator in a defective and unsafe condition representing a hazard; maintained the elevator in a
defective and unsafe condition for an unreasonable length of time; failed to timely test and
inspect the elevator in accordance with the American National Elevator Safety Code; failed to
have the elevator tested and inspected by persons who have knowledge of the function, operation
and maintenance of the devices involved and are capable and qualified to make the required
inspection and test; and failed to warn Walker of the hazardous condition of the elevator. As a
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direct and proximate result of these acts or omissions, Walker suffered injuries leading to his
death.
¶5 Plaintiff filed her first amended complaint in February 2010. Plaintiff added RMC, 1st
Priority Elevator, and Hubert Wilson, individually and doing business as Top Floor Elevator
Contractors, as defendants. 1 In May 2010, plaintiff filed her second amended complaint against
the same parties, adding Top Floor Elevator Contractors as a separate defendant.
¶6 The second amended complaint realleged the same claims against CHA. The complaint
alleged that RMC "managed the premises in question, including the elevator equipment and
appurtenances in the subject premises, and was charged, contractually or otherwise, with the
management of the entire premises, including, but not limited to, inspection, maintenance and
repair of said elevator." The complaint asserted the same negligent acts and/or omissions against
RMC that were set forth against CHA, with one additional allegation that RMC was negligent in
the management of the premises, and in particular the elevator and its appurtenances.
¶7 A bench trial was conducted in October 2013 and the following evidence was presented.
¶8 Stephanie Carter testified that she was friends with Walker for 25 to 30 years. Carter was
familiar with the residential building at 365 West Oak and had been visiting Walker there for 15
to 20 years. Walker lived on the seventh floor.
¶9 On July 27, 2009, Carter went to Walker's building at around 9 p.m. for dinner with her
friend Marie Woodard and Woodard's daughter Markell. Carter stated that Walker's apartment
was above the front entrance to the building. When she arrived, she called up to Walker for him
to bring the elevator down. Carter testified that she called to Walker because the elevator was
"always stuck up there." Carter needed the elevators because she uses an oxygen tank. She
1
1st Priority Elevator and Hubert Wilson, individually and doing business as Top Floor Elevator Contractors, have
been dismissed from the case and are no longer parties to the case.
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Nos. 1-13-3788 and 1-14-3279
stated that Walker would bring the elevator down frequently for her and estimated that he had
done this "over 20 times." She also saw and heard other people ask Walker to get the elevator
for them.
¶ 10 While they waited for Walker, Woodard opted to take the stairs to Walker's unit. Carter
waited with Woodard's daughter for the elevator. Carter heard Walker call through the elevator
shaft to come to the third floor. When she reached the third floor, she entered the hallway past a
little wall. She was to the left of the elevator. As she entered the hallway, she saw Walker
pushing the elevator buttons. Carter testified that Walker was turned to his right and looking at
her. Walker then turned around and stepped forward into the elevator and "disappeared." The
only thing Carter could see was the top of Walker's hand. Carter tried to hurry to the elevator,
but the doors "slammed" closed. Carter was not able to see inside the elevator shaft. Carter then
proceeded up the seventh floor to tell Walker's girlfriend Nichelle Dixon what had occurred.
¶ 11 Carter testified that the elevator problems began in January 2009. Carter stated that a
new person, named Hubert Wilson, started working on the elevator at that time. After Wilson
began to work on the elevator, she said the "elevator didn't work anymore." Carter stated that
she was stuck on the elevator once and the fire department had to come and get her off. Carter
also said that one time she was on the elevator and it stopped between floors. She had to open
the doors and jump off. She testified that these problems did not occur until Wilson began
maintaining the elevator nor did Walker have to move the elevator prior to Wilson's
maintenance.
¶ 12 On cross-examination, Carter stated that when Walker stepped into the elevator, he said,
"Oh s***," as he disappeared. After the elevator doors closed, Carter testified that it sounded
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like the elevator fell. She said "it went all the way down and it was like boom. Then it came up
back up and opened up."
¶ 13 Nichelle Dixon testified that she was Walker's girlfriend and lived with him at 365 West
Oak for six or seven years. She admitted that she was incarcerated from July 2008 until January
2009. On the night of July 27, 2009, she was at home with Walker. Dixon was playing cards
with Walker when Carter yelled up for Walker to assist her to get up to Walker's floor. Dixon
stated that Walker put on his shoes and left the apartment to help Carter. She said Walker was
going to carry Carter's oxygen. A short time later, Carter came in the apartment "screaming" that
Walker had fallen down the elevator. Dixon was not present at the time of the incident.
¶ 14 Dixon testified that she ran down the stairs, stopping at every floor calling for him.
When she was on the first floor, the elevator doors opened. Dixon was able to see between a gap
in the lobby floor and the elevator. She got on her knees and saw Walker at the bottom of the
shaft.
¶ 15 Dixon stated that the elevators "were pretty consistent" in the five years she lived in the
building, prior to her incarceration. When she returned in January 2009, the elevator was "down
for two months." She described the elevator problems specifically: "Inconsistency. Worked one
moment. Next minute down. Sometimes fixed quickly. And sometimes broken within 24 hours
of being repaired." She also stated that some of the problems included, "doors not opening.
Door opening and getting stuck and not closing. Not – elevator cab not going completely totally
to the floor that you push, like getting stuck between floors." Dixon testified that Wilson was in
charge of elevator repairs when she returned to the building in January 2009. She stated that she
was not aware of Walker operating the elevators. She testified that Wilson asked Walker to hold
the door open for him a couple times.
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¶ 16 On cross-examination, Dixon stated that she accompanied Walker when he went to speak
to RMC regarding screens for their apartment, but she was not present when he spoke to the
RMC employees. Dixon admitted that she never saw Walker working on top of the elevator cab
or inside the elevator shaft. She also said that Walker never told her he was working on top of
the cab or inside the shaft.
¶ 17 Plaintiff testified about her relationship with her father, Walker. She stated that she
visited him at his residence "all the time." She said that the elevator frequently did not work and
Walker brought the elevator down for her a couple times. She also observed other residents and
visitors call for Walker to bring the elevator down for them. She admitted that Walker did not
have any training working on elevators.
¶ 18 Detective Luke Daly testified that he was employed as a detective with the Chicago
police department. On July 27, 2009, he was assigned to investigate Walker's death at 365 West
Oak. Daly identified multiple photographs from the scene as well as his report. He conducted
interviews with Carter, Woodard, Dixon, Wilson, and Toni Talbert, an RMC employee. At the
end of his investigation, Daly determined that this was a noncriminal matter.
¶ 19 His report summary of his interview with Wilson indicated that Wilson told him that
Wilson was aware that Walker "would manipulate the elevators by moving them between floors
when they got stuck, and he has warned [Walker] against tampering with the machinery in the
past." Wilson also observed Walker with a "Z key" earlier on the day of the incident. Wilson
described the "Z key" as "an implement used to open the elevator doors on the floors to access
the shaft." Wilson indicated that he knew one of Walker's shoes and the "Z key" were found on
top of the elevator cab and the second shoe was found in the pit. Wilson "theorized" that Walker
was on top of the car when he fell. Wilson told Daly that "the dimensions of the shaft allow
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enough space at the rear of the car for a person to fall off the car and plunge to the bottom of the
shaft."
¶ 20 Daly interviewed Carter twice; the first time was the day of the incident and the second
time was the following day. In the second interview, Carter stated to Daly that to "the best of her
recollection she never saw the inside of the elevator cab when the doors opened." She told him
that Walker "on numerous occasions would retrieve the elevator for her and other people in the
building" and she was "unaware" how Walker would retrieve the elevator.
¶ 21 Daly also detailed his interview report with Talbert, the property manager of the building.
She told the detective that Walker had asked for compensation for working on the elevator. On
the day of the incident, Talbert told Walker not to manipulate or work on the elevator because he
was not an employee. She said this conversation was documented.
¶ 22 Daly reaffirmed his deposition testimony regarding his opinion of how the incident
occurred. Based on his investigation, Daly's opinion was that Walker was "atop the elevator
cab." Daly's opinion was also based on the dimensions of the shaft, that "a body of his height
and size would be able to go down that shaft," as well as the location of the shoe and "Z key" on
top of the cab.
¶ 23 Ruby Givens testified that in July 2009, she was the RMC president. She also lived in
the complex at 364 West Oak. Givens stated that she knew Walker and had no criticism of him
as a tenant.
¶ 24 Givens testified that on the day of the incident, Walker came to her office and asked to be
put on payroll for fixing the elevator. Givens said she told Walker not to try to fix the elevator.
Givens stated that residents had reported more than 50 times that Walker had been getting the
elevator for residents. Givens said she had called Walker into the office about these reports and
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Nos. 1-13-3788 and 1-14-3279
talked to him about it. When asked if these conversations were documented, Givens said it
"should have been documented in his folder." However, Givens was unable to point to any
document which showed these conversations. Givens admitted that she knew long before his
death that Walker was fixing the elevators and moving the elevators for tenants. Givens also
testified that she received complaints on a daily basis that the elevators were out of service.
¶ 25 On cross-examination, Givens identified an entry from Walker's tenant file, dated July
27, 2009, following a meeting between Walker, Talbert, and Givens. The entry indicated that
Walker came to the management office inquiring about screens, asking management why he
should purchase screens when he fixed the elevators. Givens and Talbert informed Walker that
"he should not be touching the elevators under no [sic] circumstances." Givens also stated that
the complaints she received about Walker included that he was on top of the elevator cab, and
she said she advised him to stop. On redirect, Givens admitted that the entry was written by
Talbert and Givens was not present when it was written. She also said that Walker's tenant file
might have had documents purged from it after so many years.
¶ 26 Claudell Williams and Terry Taylor each testified that they worked for First Priority.
Williams stated that he was one of the owners of First Priority and the company had a contract
for the monthly maintenance and repair of the elevator in 365 West Oak beginning in 2008. He
said the elevator in the building was "very old" and installed about 40 years ago. He stated that
the First Priority contract with defendants was terminated in January 2009.
¶ 27 Williams explained the components of the elevator system, including the machine room,
which is a controller at the top of shaft, and the "car top inspection," which is a box mounted on
top of the elevator cab from which the elevator can be run manually. Williams also explained
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Nos. 1-13-3788 and 1-14-3279
that a "Z key" is a "self made key" made from wire in the form of Z that can be used to open the
elevator door.
¶ 28 Williams testified about oil leaks in the elevator controls. He said that a leak from a
gasket happens over the course of 15 or 20 years. When oil leaks from the machine room, there
should be a drip pan under the machine in the machine room to catch any excess. He stated that
the drip pan should "probably hold a half a gallon of oil." If the drip pan overflows, it will leak
onto the floor.
¶ 29 On cross-examination, Williams stated that a maintenance person working on top of an
elevator should wear steel-toed work boots in case anything fell and the traction would prevent
slipping. Williams was shown photographs of Walker's shoes from the time of the incident and
he said the shoes were not appropriate because "the foot is exposed" and "[h]e could very easily
slip and fall on them."
¶ 30 Taylor testified that he was an employee of First Priority and had previously worked on
the elevator at 365 West Oak. Taylor stated that if one or more gaskets or seals break or leak, the
oil leaks onto the floor of the machine room and then could flow onto the cables or the cab top.
Taylor also testified that he spoke with Wilson after the accident. Wilson told Taylor he was
good friends with Walker and they had worked on the elevator together. Wilson said that at the
time of the incident, Walker "was on top of the car trying to basically get it going." Wilson told
him that from time to time, Wilson would show Walker "how to do certain things on the
elevator."
¶ 31 John Donnelly testified as an expert witness for plaintiff. He stated that he has been a
certified elevator inspector since 1987. In preparing his opinion, Donnelly said he reviewed
depositions from Carter, Woodard, Dixon, Daly, Givens, Talbert, Williams, Taylor, Officer
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Nos. 1-13-3788 and 1-14-3279
Fosco, Nannette Watkins, and Richard Gregory. He also reviewed time tickets for First Priority
and Wilson's company, information from RMC regarding billing, police reports, and various
correspondence. Donnelly performed a site inspection on August 5, 2009.
¶ 32 Donnelly testified that his opinion was as follows:
"Basically my opinion is that he basically got on top of the
elevator. It was very slippery and oily due to lack of maintenance
up in the elevator machine room which allowed oil to leak down
on top of the car which created an unsafe, hazardous location."
¶ 33 Based on deposition testimony, Donnelly opined that Walker was working on the
elevator and that RMC management was aware of this. Donnelly disagreed with Carter's
testimony that after Walker fell, she heard the elevator go down and heard a boom, then the
elevator came back to the third floor and opened the doors. Donnelly said the elevator would not
make any booms "because the only booms that are available is if it went all the way past the
bottom floor into the basement, past the basement, and hit one of the buffers where there are
switches down there that would keep it from running back up again." Donnelly testified that he
thinks the boom Carter heard was when Walker hit the pit.
¶ 34 Donnelly also testified that he reviewed the time tickets for elevator repairs for both First
Priority and Wilson's company, Top Floor Elevator. He did not see any time tickets for the 10
days prior to the incident.
¶ 35 During his site inspection, Donnelly saw that oil was overflowing from the drip pan in the
machine room. He stated that the oil had "migrated" two to three feet from the machine, down
the hoist ropes, and then onto the top of the elevator. Donnelly took several photographs,
including photographs of the top of the elevator car, which showed the "Z key" and one of
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Nos. 1-13-3788 and 1-14-3279
Walker's shoes. The top of the elevator car also showed oil. In Donnelly's opinion, it took
months for this amount of oil to accumulate.
¶ 36 Donnelly stated that his opinion that when Walker stepped onto the elevator car top, he
grabbed the hoist ropes, stepped on top of the crosshead, and stepped down to get a firm footing.
Donnelly said there was a lot of oil in the spot where one would stabilize his or her foot as he or
she entered. It was his opinion that it was hazardous to anyone getting on top of the car.
Donnelly opined that Walker likely fell over the car top based on the position of Walker's body
in the pit. He noted there was nowhere else Walker could have fallen. He noted that Walker's
shoes were not appropriate because they did not tie and a person's foot could slip out, but the
condition of the car top would have been slippery for someone wearing boots.
¶ 37 Donnelly testified that Walker was a de facto apprentice of Wilson, based on Taylor's
deposition testimony, Walker's possession of a "Z key," and the evidence that Walker had been
working on the elevators.
¶ 38 Richard Gregory testified as an expert for defendants. He stated that he is a licensed
elevator mechanic. He visited the site the day after the incident on July 28, 2009, and again
when Donnelly visited on August 5, 2009. Gregory reviewed the depositions of Carter, Dixon,
and Taylor. He also attended Donnelly's deposition. He read a historical report from RMC. At
the time he conducted his inspection, Gregory observed that the car top inspection station was
bent.
¶ 39 Gregory testified that in his opinion, Walker opened the elevator doors with the "Z key,"
but no elevator was present. The elevator was at the first floor. As Walker stepped in and saw
this, he said, "Oh s***," and fell. Gregory opined that the elevator was at the first floor because
the security guard said it was at the first floor.
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"[Walker] was at the third floor. He used a Z key, which he had
made for himself, to unlock the hoistway door. He could not have
done that if the elevator was present. Even if it was broken, it
wouldn't have worked.
He used that to unlock the hoistway door. He pushed the
hoistway door open. He didn't look at where he was going to go
and he just stepped in and he fell. He hit the top of the car at the
front, hence dropping his Z key and losing one of his slippers,
slide-on type slippers, fell over the crosshead, then fell over the
back of the car. Because the car was down low, the counterweight
was not behind it, and that left room for him to fall over the back."
¶ 40 Gregory further opined that if the elevator had been at the second floor, Walker would
not have fallen into the pit. He disagreed with Donnelly's opinion that a person would grab the
hoist ropes because the ropes are "dirty and greasy." He also disagreed that a person would step
on the crosshead because it is small. He reasoned that Walker was not properly trained to be
accessing and working on elevators. On cross-examination, when asked if Walker stepped in
and slipped on oil and said, "Oh s***," then fell, it would fit the same scenario, Gregory
answered, "possibly."
¶ 41 Following the trial, the trial court entered a written order and opinion, finding in favor of
plaintiff and awarding $1.5 million in damages. The court summarized the parties' positions in
the opinion. Plaintiff claimed the elevator "had failed to give service and had a history of poor
maintenance and performance. As a result, Walker attempted to use the elevator or to get the
elevator to work and perform at the time of his death. Accordingly, she contends that CHA and
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RMC owed a duty of ordinary care." CHA and RMC responded that Walker was a trespasser to
whom they owed no duty. Plaintiff countered that assuming Walker was a trespasser, then the
frequent trespasser doctrine should apply. Defendants also asserted that Walker was not an
intended or permitted user of the elevator under the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2008)), and that
defendant was guilty of contributory negligence for his own death by greater than 50%.
¶ 42 The court found as follows.
"The evidence in the case at bar shows that RMC permitted
Walker to access the elevator shaft and/or top of the elevator to
open the doors that were jammed shut, move the elevator that was
stuck between floors or stuck on one floor in order to assist
residents in moving from floor to floor on numerous occasions
with the use of his homemade Z-Key. He was an intended user
because of his relationship with Wilson who showed him how to
do some things. Additionally, RMC hired Wilson and his self-
styled Top Floor to service the elevator, and keep it operational,
but had no written contract of record with specific terms of
employment. RMC was aware that it was Walker who often
performed the minimum services First Priority owner and
employee described during trial. RMC's acquiescence in allowing
Walker to continually do Wilson's job of making the elevator
operational for the residents made him a defacto [sic] employee.
Wilson was not found to clarify the relationship except for the
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Nos. 1-13-3788 and 1-14-3279
statements he made to Taylor about Walker helping him. RMC's
reminder to Walker not to fix the elevator and/or its revocation of
permission for Walker to do so on the day of Walker's death is not
credible. The testimony of Givens, Defendants' representative was
inconsistent and impeached on the issue of warnings to Walker.
CHA and RMC ran a loose ship. They fired a reputable elevator
company and participated in a well-meaning, but ill-ran in-house
program where the new non-existent elevator company consisted
of one man, Wilson and often, his helper, Walker, acting alone.
After January 2009, the maintenance was lacking, and an already
older and deteriorated and overused single elevator for an entire
building was often unavailable for the residents."
¶ 43 The court concluded that RMC had actual notice of the unsafe condition of the elevator
as well as Walker's access to it. "RMC was on notice of a pattern of Walker retrieving the
elevator in the building for the residents who told them Walker would ask for money." The court
held that "Walker was an intended and permitted user under these unique set of circumstances;
he was Wilson's helper. Further RMC and CHA kept the elevator in such a state of disrepair by
not managing Wilson or the situation, thus causing an unreasonably unsafe condition which
caused residents to, in particular Walker, to fend for themselves and Wilson. It really was a
situation where the CHA residents became their own employee."
¶ 44 The trial court rejected CHA's argument that Walker was a trespasser, but reviewed the
evidence under this theory as an alternative.
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"Accordingly, this Court believes that the evidence of
record supports a finding for [plaintiff] under an ordinary
negligence standard, concluding the immunity does not apply here,
or even if it did, the conduct of CHA and RMC was willful and
wanton. It is also a case where the Frequent Trespasser Doctrine
could apply although the basis for application of the Doctrine
might be supplanted by the Tort Immunity Act. Nevertheless,
because of the Court's finding of willful and want [sic] misconduct
on the part of the Defendants, there is no need to address which
standard should apply in the event there is a need to reconcile the
common law doctrine with the schema of the Tort Immunity Act."
¶ 45 This appeal followed.
¶ 46 Defendants first argue that plaintiff's proof of proximate cause was insufficient as a
matter of law. Specifically, defendants contend that the evidence of causation, even when
viewed most favorably for the plaintiff, so overwhelmingly favored defendants that we should
vacate the trial court's decision and enter judgment for defendants. Plaintiff maintains that she
sufficiently established proximate cause by a preponderance of the evidence.
¶ 47 After a bench trial, we will not disturb the trial court’s findings of fact unless they are
against the manifest weight of the evidence. Southwest Bank of St. Louis v. Poulokefalos, 401
Ill. App. 3d 884, 890 (2010). "The reviewing court gives great deference to the trial court's
findings because, as the trier of fact, the trial court is in a superior position to observe the
witnesses while testifying, to judge their credibility and to determine the weight their testimony
and other evidence should receive." International Capital Corp. v. Moyer, 347 Ill. App. 3d 116,
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Nos. 1-13-3788 and 1-14-3279
121-22 (2004). A finding is against the manifest weight of the evidence only if the opposite
conclusion is apparent or if the finding appears to be arbitrary, unreasonable or not based on the
evidence. Southwest Bank, 401 Ill. App. 3d at 890; Moyer, 347 Ill. App. 3d at 122. " 'A trial
court's judgment following a bench trial will be upheld if there is any evidence supporting it.' "
Southwest Bank, 401 Ill. App. 3d at 890 (quoting Nokomis Quarry Co. v. Dietl, 333 Ill. App. 3d
480, 484 (2002)).
¶ 48 "In order to recover in an action for negligence, a plaintiff must establish the existence of
a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff
proximately caused by the breach." Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). Here,
defendants contend that plaintiff failed to prove proximate cause.
¶ 49 The term "proximate cause" involves two components: cause in fact and legal cause.
First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). Cause in fact exists
where there is a reasonable certainty that a defendant's acts caused the injury or damage, but a
defendant's conduct is a cause in fact of the plaintiff's injury only if that conduct is a material
element and a substantial factor in bringing about the injury. Galman, 188 Ill. 2d at 258. "A
defendant's conduct is a material element and a substantial factor in bringing about an injury if,
absent that conduct, the injury would not have occurred." Galman, 188 Ill. 2d at 258. Whereas,
"legal cause" is a question of foreseeability and "[t]he relevant inquiry here is whether the injury
is of a type that a reasonable person would see as a likely result of his or her conduct." Galman,
188 Ill. 2d at 258. "The plaintiff bears the burden of proof on the issue of proximate cause."
Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 739 (1996).
¶ 50 Defendants assert that plaintiff only presented two witnesses to establish what occurred in
the elevator shaft at the time of the incident, Carter and Donnelly. However, defendants fail to
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acknowledge the considerable circumstantial evidence to be considered with Carter's eyewitness
testimony and Donnelly's expert testimony.
¶ 51 "However, as with any other factual element of a cause of action, proximate cause can be
established by either direct evidence or inferentially by circumstantial evidence. When
circumstantial evidence is relied upon, that evidence must support an inference that is reasonable
and probable, not merely possible." Id. "When a party seeks to rely on circumstantial evidence,
the conclusion sought must be more than speculative; it must be the only probable conclusion
that could be drawn from the known facts." Id. "To be sufficient to support a reasonable
inference, however, circumstantial evidence need not exclude all other possible inferences." Id." 'If as a matter of ordinary experience a particular act or omission might be expected, under the
circumstances, to produce a particular result, and that result in fact has followed, the conclusion
may be permissible that the causal relation exists.' " Id. at 740 (quoting William Lloyd Prosser
and W. Page Keeton, Prosser & Keeton on Torts § 41, at 270 (5th ed. 1984)).
¶ 52 The evidence presented at trial showed that Walker regularly was on top of the elevator
car to run the elevator for residents and visitors and make repairs. Givens testified that she had
known about Walker's activity with the elevator for a long time prior to his death and had
received reports from residents on this. Givens stated that on the day he died, Walker came to
her office seeking compensation for his work on the elevator. Testimony also showed that prior
to January 2009, First Priority maintained the elevators and there were less occurrences of the
elevator being out of service. After that time, Givens terminated the contract and Wilson took
over maintenance and repairs. Givens received complaints daily about the elevator failing to
operate properly. Taylor testified about his conversation with Wilson in which Walker helped
Wilson with the elevator repairs.
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¶ 53 Carter testified that Walker asked her to come to the third floor while he ran the elevator
for her. As she turned into the hallway, she saw Walker pushing the buttons. When the doors
opened, Walker was facing the elevator and stepped forward. She then heard Walker say, "Oh
s***," as he disappeared from view and the doors closed quickly. She heard a boom, which she
assumed was the elevator. Walker's body was found in the pit at the bottom of the elevator shaft.
One of his shoes and his "Z key" were found on the top of the elevator car. Detective Daly's
police investigation concluded that Walker was on the top of the elevator car when he fell.
Donnelly observed an accumulation of oil on the top of the elevator car which he testified came
from improper maintenance. Based on the position of items on the car top and Walker's body in
the pit, Donnelly opined that Walker slipped as he attempted to step onto the car top and fell over
the back of the elevator car.
¶ 54 Based on this evidence, the trial court could have found that it was foreseeable that
Walker would access the top of the elevator car to fix it and run it for residents. Defendants
failed to provide proper maintenance and repairs of the elevator, which led to the accumulation
of oil on the top of the car. Defendants also were aware of Walker's activities in the elevator and
took no action to prevent him from being able to access the elevator shaft. The circumstantial
evidence supported the premise that Walker, in attempting to run the elevator, slipped on the oil
and fell to his death. The fact that Gregory had a differing opinion does not render Donnelly's
opinion and the circumstantial evidence insufficient to satisfy proximate cause.
¶ 55 In Stojkovich, the plaintiff filed a negligence action against the defendant elevator repair
company after he fell into an elevator shaft in the Monadnock building. The evidence at trial
showed that the plaintiff and several other individuals were riding in an elevator when the car
stalled. After waiting at least 30 minutes, the passengers forced the elevator doors open and
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Nos. 1-13-3788 and 1-14-3279
attempted to exit the elevator. The car was between floors and positioned above the building
floor, leaving the elevator shaft exposed. Stojkovich, 281 Ill. App. 3d at 736-37. When the
plaintiff attempted to exit the elevator, none of the other passengers were watching, but some of
the passengers who exited before him did see when the plaintiff was in the act of falling down
the elevator shaft. The plaintiff's injuries prevented him from being able to remember the events.
Id. at 737.
¶ 56 The defendant contended on appeal that the trial court should have entered a directed
verdict or judgment n.o.v. because the plaintiff failed to prove proximate cause. The reviewing
court found that the legal cause was satisfied by the testimony of the defendant's director of
operations, who stated that it was foreseeable that people trapped in a stalled elevator might
attempt to escape and could be injured in their exit. Id. at 738-39.
¶ 57 As to cause in fact, the defendant argued that no one witnessed the plaintiff's exit from
the stalled elevator and fall into the elevator shaft and there was insufficient evidence presented
to show that the defendant's negligence was the cause in fact of the plaintiff's fall. Id. at 739.
The reviewing court found that, "[u]nder the known facts and circumstances of this case, even in
the absence of an eyewitness to plaintiff's attempt to exit the elevator car, the inference that he
fell down the unprotected elevator shaft while attempting to exit the stalled car is both reasonable
and probable and could have been drawn by the jury." Id. at 740. "The proximate causal
relationship between the negligence of [the defendant] and the plaintiff's fall and resulting
injuries is supported by circumstantial evidence and the reasonable inference that might be
drawn therefrom." Id.
¶ 58 Similar to Stojkovich, the evidence at trial supported a finding of proximate cause
between defendants' negligence and Walker's fall. Defendants failed to properly maintain the
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Nos. 1-13-3788 and 1-14-3279
elevator when they had prior knowledge of Walker's actions in repairing and manually running
the elevator from atop the elevator car. The circumstantial evidence supports the trial court's
conclusion that Walker slipped in the accumulated oil and fell into the shaft. The trial court's
finding of proximate cause is not against the manifest weight of the evidence.
¶ 59 We find the circumstances of the instant case to be distinguishable from the case relied
upon by defendants. In Vertin v. Mau, 2014 IL App (3d) 130246, the plaintiff fell down a flight
of stairs and broke her elbow. The plaintiff did not feel anything give way or anything that
caused her to lose her balance. Id. ¶ 3. She based her negligence claim on expert testimony that
the stairs had multiple defects and violations of building codes, including that the stairs lacked
uniformity, an inadequate tread depth, excessive carpeting, and lacked a handrail. Id. ¶ 5. The
trial court granted the defendant's summary judgment motion, finding that the plaintiff failed to
establish proximate cause. Id. ¶ 9. The Third District affirmed, holding that none of the
testimony and affidavits addressed the issue of what caused the plaintiff to fall. Id. ¶ 14.
"Absent any evidence of the cause of Vertin's fall, there is no genuine issue of material fact for
the trier of fact to determine." Id. ¶ 16. Therefore, Vertin is not persuasive.
¶ 60 Defendants also contend that the trial court abused its discretion in admitting Donnelly's
testimony regarding his opinion on what caused Walker to fall. Defendants assert that
Donnelly's testimony that Walker slipped on oil amounted to speculation and contradicted
Carter's eyewitness testimony. Although we recognize that "[a]n expert witness' opinion cannot
be based on mere conjecture and guess" (Dyback v. Weber, 114 Ill. 2d 232, 244 (1986)), as we
have already discussed, Donnelly's testimony was based on his expertise, his observations at the
scene, and the evidence from other witnesses, including Carter, Daly, Givens, and Taylor.
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Nos. 1-13-3788 and 1-14-3279
¶ 61 Defendants cite to a case in which Donnelly's expert testimony was considered
speculation as support. In Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d
383 (1998), the plaintiff was injured when his leg became caught between the elevator car and
the building landing. Donnelly provided expert testimony for the plaintiff. He testified that the
elevator should not move unless the outer door and the inner scissors gate were closed. Harris,
297 Ill. App. 3d at 391. He stated that the gate switch prevents the elevator from operating while
the scissors gate is open. Id. He explained that the elevator could be operated with the scissors
gate open if the wires were tied together or if the gate switch was bypassed at the controller. Id.
In response to a question posed by the plaintiff's attorney, Donnelly opined that the defendant
was negligent based upon the assumption that the gate switch was removed at the time of the
accident. Defense counsel objected that the Donnelly's opinion was contrary to his deposition
testimony. The trial court sustained the objection and allowed defense counsel to question
Donnelly on cross-examination about his deposition testimony to the effect that he did not
believe that an employee of the defendant removed the gate switch. Id. The plaintiff objected
that such opinion testimony was speculative, but the trial court overruled the objection. The trial
court then struck Donnelly's prior opinion testimony. Id. at 391-92.
¶ 62 On cross-examination, defense counsel elicited Donnelly's opinion that "some
representative of the building management had both removed the gate switch prior to [the
plaintiff's] injury and later replaced the switch." Id. at 392. The trial court granted the
defendant's motion for directed verdict, finding that the causation testimony pointed to a third
person being the cause, not the defendant. Id. On appeal, the reviewing court found Donnelly's
opinion as to who removed the gate switch to be speculation and that the trial court should not
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Nos. 1-13-3788 and 1-14-3279
have allowed this opinion to be admitted or to have relied on it without a proper basis in
directing a verdict in favor of the defendant. Id. at 393-94.
¶ 63 Donnelly's testimony in Harris has no bearing on the instant case. The circumstances in
Harris are not analogous to the facts in this case. Further, the mere fact that a prior decision
found a portion of Donnelly's testimony in an unrelated case to be speculation does not follow
that his testimony in the present case is speculation. The trial court did not abuse its discretion in
admitting Donnelly's expert testimony regarding his opinion on how Walker fell.
¶ 64 Next, defendants argue that the trial court failed to assign any contributory negligence to
Walker. Defendants initially contend that the trial court may have misapprehended the law
based on a comment in plaintiff's closing argument, but they fail to point to any misstatement of
the law in the trial court's opinion and instead speculate that the trial court "may have
erroneously relied on the plaintiff's error in stating the law."
¶ 65 "In a bench trial, a trial judge is presumed to know the law, and this presumption is
rebutted only when the record affirmatively shows the contrary." People v. Taylor, 344 Ill. App.
3d 929, 937 (2003). Defendants have failed to point to anything in the record that rebuts the
presumption that the trial court knew and applied the law in this case. The trial court specifically
recounted in the statement of the case that defendants "maintained that Walker was guilty of
contributory negligence for his own death by greater than 50%." The trial court clearly was
cognizant of defendants' claim of contributory negligence and we decline to ignore the
presumption that the court knew the law.
¶ 66 Defendants also assert that the trial court's decision not to find Walker contributorily
negligent was against the manifest weight of the evidence. Defendants contend that the evidence
of Walker's negligent conduct was "undeniable." Defendants base their argument that Walker
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Nos. 1-13-3788 and 1-14-3279
was contributorily negligent on: Walker's shoes, testimony that Walker had bad feet and trouble
walking, Walker had prior notice of the oil on the elevator car top, and his lack of training and
experience in accessing the elevator car top. Plaintiff responds that none of these points establish
the proximate cause of Walker's fall.
¶ 67 "We must give great deference to the trial court's findings because the trial court, as the
trier of fact, is in a superior position to observe the demeanor of the witnesses while testifying, to
judge their credibility and to determine the weight their testimony and other evidence should
receive." Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590, 599 (2000).
"Where the determination of the case depends largely upon the facts found in the record, the
findings and judgment of the trial court 'will not be disturbed by the reviewing court, if there is
any evidence in the record to support such findings.' " (Emphasis in original.) Id. (quoting
Schioniger v. County of Cook, 116 Ill. App. 3d 895, 899 (1983)). "In order to warrant reversal,
'the appellant must present evidence that is so strong and convincing as to overcome, completely,
the evidence and presumptions, if any, existing in the appellee's favor.' " Id. (quoting Raclaw v.
Fay, Conmy & Co., 282 Ill. App. 3d 764, 767 (1996)).
"Restatement (Second) of Torts, section 465(1) (1965), states:
'The plaintiff's negligence is a legally contributing cause of
his harm if, but only if, it is a substantial factor in bringing
about his harm and there is no rule restricting his
responsibility for it.' " Owens v. Stokoe, 115 Ill. 2d 177,
183 (1986).
¶ 68 In Martin v. Chicago Housing Authority, 264 Ill. App. 1063 (1994), an elevator helper
was injured when he fell from atop an elevator car while he was attempting to repair the elevator,
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Nos. 1-13-3788 and 1-14-3279
located on a CHA property. There, the evidence showed that CHA had terminated its contact for
elevator maintenance and only provided for repairs to restore the elevators to operation. The
repairs were performed by the plaintiff, a mechanic's helper, and an elevator mechanic. Id. at
1065-66. On the day of his injury, the plaintiff was on top of the elevator car and was attempting
to control the elevator, but the controls were in disrepair and malfunctioned. The plaintiff was
unable to control the speed of the elevator and he fell from the top of the elevator. Id. at 1066-
67. The jury found in favor of the plaintiff and awarded $3,059,000 in damages, which were
reduced by 17% the degree of the plaintiff's contributory negligence. Id. at 1065.
¶ 69 In one of the arguments on appeal, CHA contended that the plaintiff worked on the
elevator and assumed the risk of injury because he knew the state of disrepair of the elevators.
Id. at 1079. The reviewing court rejected CHA's argument.
"Even had plaintiff known of the dangerous condition,
however, the CHA would nevertheless remain liable because the
circumstances here indicate that the CHA could and should have
anticipated that plaintiff would have proceeded to encounter the
danger in order to perform his normal job duties under the contract.
(See Restatement (Second) of Torts § 343A, at 218 (1965); Deibert
[v. Bauer Brothers Construction Co.], 141 Ill. 2d 430, ***
[(1990)]; Dinkins v. Ebbersten, 234 Ill. App. 3d 978, *** [(1992)].
As stated, the CHA was aware that the elevator was in an unsafe
condition because it had been informed as such as early as
November 8, 1983, by the City of Chicago. Nevertheless, the
CHA refused to allow Mid-American or any other company to
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Nos. 1-13-3788 and 1-14-3279
perform anything other than 'emergency repairs' on the elevator.
The CHA ignored the requests by Mid-American for authorization
to perform badly needed maintenance on the elevator, despite its
deteriorated condition. Yet it invited and permitted repairmen,
including plaintiff, to work on and about the elevator to make
emergency repairs." Id. at 1081-82.
¶ 70 Similarly, in the present case, defendants knew the elevator was routinely out of service.
RMC terminated the services of First Priority in the beginning of 2009 and opted for Wilson's
company. The volume of the complaints about the elevator increased. RMC was aware that
Walker frequently entered the elevator shaft, performed repairs, and manually controlled the
elevator for residents. "The duty is one of reasonableness under the circumstances, and the CHA
can still expect that its passengers and repair personnel will exercise reasonable care for their
own safety." Id. at 1082-83. While defendants elicited testimony regarding Walker's lack of
training and his shoes at the time of the incident, the determination of the degree of contributory
negligence, if any, was for the trier of fact. The trial court's opinion made it clear by not
assigning any degree of negligence to Walker that it rejected defendants' argument. We cannot
say that any evidence relied upon by defendants was so strong as to overcome our deference to
the trial court's determination. Accordingly, we find that the trial court's decision was not against
the manifest weight of the evidence.
¶ 71 Defendants further argue that Walker was a trespasser, not an intended or permitted user,
and, thus, they did not owe him any duty of care under the Tort Immunity Act. Plaintiff
maintains that the trial court properly found Walker to be an intended and permitted user of the
top of the elevator car.
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Nos. 1-13-3788 and 1-14-3279
¶ 72 Section 3-102(a) of the Tort Immunity Act provides:
"Except as otherwise provided in this Article, a local public entity
has the duty to exercise ordinary care to maintain its property in a
reasonably safe condition for the use in the exercise of ordinary
care of people whom the entity intended and permitted to use the
property in a manner in which and at such times as it was
reasonably foreseeable that it would be used, and shall not be liable
for injury unless it is proven that it has actual or constructive notice
of the existence of such a condition that is not reasonably safe in
reasonably adequate time prior to an injury to have taken measures
to remedy or protect against such condition." 745 ILCS 10/3-
102(a) (West 2008).
¶ 73 Under section 3-102(a), a municipality owes a duty of care to intended and permitted
users of municipal property. 745 ILCS 10/3-102(a) (West 2008). " '[A]n intended user of
property is, by definition, also a permitted user; a permitted user of property, however, is not
necessarily an intended user.' " Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 616-17 (2010)
(quoting Boub v. Township of Wayne, 183 Ill. 2d 520, 524 (1998)). "[T]he duty of a municipality
depends on whether the use of the property was a permitted and intended use" and "[w]hether a
particular use of property was permitted and intended is determined by looking to the nature of
the property itself." (Emphasis omitted.) Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 162-
63 (1995). "[A]s the statute makes clear, it is the intent of the local public entity that is
controlling, for the duty expressed by section 3-102(a) is limited to those 'whom the [local
public] entity intended and permitted to use the property' [citation]." Boub, 183 Ill. 2d at 525
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Nos. 1-13-3788 and 1-14-3279
(quoting 745 ILCS 10/3-102(a) (West 1996)). The relevant factors to consider regarding the
imposition of a duty are: "(1) foreseeability that the defendant's conduct will result in injury to
another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the
consequences of placing that burden upon the defendant." Curatola v. Village of Niles, 154 Ill.
2d 201, 214 (1993). "Because the [Tort Immunity] Act is in derogation of the common law, it
must be strictly construed against the local public entity." Curatola, 154 Ill. 2d at 208.
¶ 74 As we have previously discussed, the evidence at trial showed that RMC was aware of
Walker's actions in accessing the top of the elevator car to perform minor repairs and manually
control the elevator. As the trial court found in its determination that Walker was an intended
user:
"The evidence in the case at bar shows that RMC permitted Walker
to access the elevator shaft and/or top of the elevator to open the
doors that were jammed shut, move the elevator that was stuck
between floors or stuck on one floor in order to assist residents in
moving from floor to floor on numerous occasions with the use of
his homemade Z-Key."
¶ 75 We agree with the trial court. The evidence showed that RMC continued to permit
Walker to access the top of the elevator car despite numerous notifications of such actions. The
trial court found Givens' testimony not credible for the statement that Walker had received
written warnings, but other than one entered the day he died, the warnings had been purged from
his tenant file. It was foreseeable that defendants' conduct in keeping the elevator in a state of
disrepair would likely cause injury to Walker. Defendants could have employed multiple
measures to guard against Walker's continued access to the elevator car top, such as, powering
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Nos. 1-13-3788 and 1-14-3279
off the elevator when it was out of service to prevent Walker from manually controlling the
elevator. Defendants also could have ensured that the elevator was properly maintained as to
prevent the accumulation of oil on the top of the elevator car. The burden of these actions was
minor in comparison to the risk to Walker's safety. Given the unique set of circumstances
presented in this case, Walker's continued access and the acquiescence of RMC to this access
showed that Walker was an intended and permitted user of the property.
¶ 76 Since we have concluded that the evidence supports a finding that Walker was an
intended and permitted user and thus owed a duty of due care, we need not consider whether
defendants' actions were willful and wanton and whether Walker was a trespasser.
¶ 77 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
¶ 78 Affirmed.
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