Zahumensky v. Chicago White Sox, Ltd.

2019 IL App (1st) 172878
FIRST DIVISION
February 19, 2019
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
No. 1-17-2878
THOMAS ZAHUMENSKY and CATHY )
ZAHUMENSKY, )
) Appeal from the
Plaintiffs-Appellants, ) Circuit Court of
) Cook County.
v. )
)
CHICAGO WHITE SOX, LTD.; ILLINOIS SPORTS ) No. 14 L 5911
FACILITY AUTHORITY; BENNETT & BROUSSEAU )
ROOFING, INC.; and SIKA CORPORATION, )
) Honorable
Defendants ) William E. Gomolinski,
) Judge Presiding.
(Chicago White Sox, Ltd.; Bennett & Brousseau Roofing, )
Inc.; and Sika Corporation, Defendants-Appellees). )
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices Griffin and Walker concurred in the judgment and opinion.
OPINION
¶1 As part of his job duties, Thomas Zahumensky, a maintenance electrician hired to service
the outfield scoreboard of U.S. Cellular Field, was required to walk on the polyvinyl chloride
(PVC) membrane-covered outfield roof of the ballpark to check and repair the scoreboard lights
before Chicago White Sox home games. Mr. Zahumensky was performing these duties in the
summer of 2013 when he slipped on a wet area of the roof and suffered career-ending nerve
damage. He and his wife brought negligence and strict liability claims against Sika Corporation
No. 1-17-2878
(Sika), the manufacturer of the PVC roofing material; Bennett & Brousseau Roofing, Inc.
(Bennett), the contractor that installed the roof; and Chicago White Sox, Ltd. (the White Sox),
the baseball team that leases and operates the ballpark. Among other things, the Zahumenskys
contended that Sika and Bennett had a duty to pass along information from which the White Sox
should have determined that the PVC surface of the roof, which becomes very slippery when
wet, was an unsafe work surface because it had no slip-resistant walkways. In three separate
orders, the circuit court granted summary judgment in each defendant’s favor, and Mr.
Zahumensky now appeals. We affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
¶2 I. BACKGROUND
¶3 The following facts are taken from the deposition transcripts, affidavits, and exhibits
relied on by the parties in their summary judgment briefing.
¶4 A. Mr. Zahumensky’s Fall
¶5 On June 29, 2013, Mr. Zahumensky, an employee of a sign company hired by the White
Sox to do electrical maintenance work at the ballpark, was walking on the roof to check the left
field scoreboard before an afternoon home game when he slipped and fell, suffering a severe
hamstring avulsion injury that required several surgeries and has prevented him from returning to
work as an electrician, a job he had been doing for 30 years before his fall. At his deposition, Mr.
Zahumensky testified that he had walked on the outfield roof on many prior occasions over the
years, both before and after the new PVC membrane was installed, that he knew that the material
was very slippery when wet, and that he knew that one had to walk carefully and take small steps
when water was present. On the day in question the weather was clear and the roof appeared dry.
Mr. Zahumensky was not aware of any rain the night before. He put his foot down on a patch of
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water that was difficult to detect against the white PVC material and recalled that it was “slick
like oil.” Mr. Zahumensky “did the splits and *** fell right in it,” his pants and the back of his
shirt absorbing the water.
¶6 Mr. Zahumensky stated that he never received training or safety instructions from the
White Sox or his employer regarding how to access the scoreboard for repairs. Although White
Sox employees would occasionally help troubleshoot issues from inside the scoreboard room,
Mr. Zahumensky was the only person who regularly accessed the roof to work on the
scoreboard. Mr. Zahumensky testified that some of the roofs he had walked on for other clients
had textured walkways for maintenance workers to use. At no time, however, did he complain to
the White Sox or his employer about the lack of such walkways on the ballpark’s roof.
¶7 Jeffrey Szynal, senior manager of scoreboard and TV production for the White Sox,
worked regularly with Mr. Zahumensky to troubleshoot scoreboard issues. On the day in
question, when Mr. Szynal told Mr. Zahumensky that the scoreboard needed to be repaired, he
had no idea if the roof was slippery or if there were slip-resistant walkways installed there. In his
more than 30 years as a White Sox employee, Mr. Szynal had only been on the ballpark roof
three times: in 1991 when it was built and in 2003 and 2016 when new scoreboard screens were
installed. He explained that, as a matter of company policy, the roof is a place that White Sox
employees are generally not permitted to go.
¶8 B. The PVC Membrane Roof
¶9 U.S. Cellular Field (now Guaranteed Rate Field, referred to here simply as the ballpark)
is owned by the Illinois Sports Facility Authority (ISFA) and is managed and operated by the
White Sox. ISFA representative Charles Sampey testified at his deposition that, through an
arrangement between the two, the ISFA reimburses the White Sox for capital repairs to the
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ballpark. In the years leading up to 2010 it was determined that the PVC membrane covering the
low-sloped concrete roof over the ballpark’s outfield deck should be replaced. The project was
slated as an “in kind” replacement. Any modification or improvement of the existing roof—
including the addition of slip-resistant walkways—was not covered and would have required
additional approval by the ISFA. To Mr. Sampey’s knowledge, no such request was ever made.
¶ 10 In November 2010, Bennett submitted a proposal for the job, in which it recommended
removing the existing two layers of PVC roofing system down to the precast concrete roof deck,
replacing any deteriorated insulation, and installing a new, Sika-manufactured PVC membrane.
Bennett was awarded the job and, on November 23, 2010, entered into a contract with the White
Sox for the outfield roof replacement, which took place in the spring of 2011.
¶ 11 Donald Esposito, the senior director of purchasing, construction, and maintenance for the
White Sox, coordinated the bid process and roof replacement. At his deposition, Mr. Esposito
could not recall whether Bennett ever recommended to the White Sox that a slip-resistant
walkway be installed along the length of the new roof. According to Mr. Esposito, a
recommendation like that would have been made in writing. And if the White Sox declined such
a recommendation, that decision would also have been conveyed in writing. Mr. Esposito agreed
that the installation of walkways on the outfield roof of the ballpark would have been considered
a capital improvement that would have required ISFA approval. Mr. Esposito sought and was
granted such approval in 2014, after Mr. Zahumensky’s accident. When asked why the walkways
were installed in 2014, he said he “[j]ust thought it was a better idea putting them up there since
this occurred.”
¶ 12 In 2011, however, walkway material was only installed at the tops and bottoms of the
ladders used to access the scoreboards. Mr. Esposito agreed that SarnaTred walkways were listed
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as an optional item on the Bennett proposal but had no knowledge as to whether Bennett
recommended them. Mr. Esposito stated that although he probably went through the proposal
with Mr. Sampey, he could not recall whether he had also recommended to the ISFA that
SarnaTred be installed. Mr. Esposito’s view was that the ISFA owned the ballpark and had the
money, so it, not the White Sox, decided what would be purchased.
¶ 13 Mr. Esposito stated that twice a year he has the White Sox’s carpenter foreman get on the
roof to inspect it, taking photographs of any debris, clogged drains, or damage to the membrane.
Mr. Esposito has himself been on the roof when it was wet and stated that he “did not have any
issues.” He agreed, however, that at the time he knew the roof was wet and walked more
carefully than he otherwise would have.
¶ 14 Sika manufactured the PVC membrane that covered the ballpark outfield roof. Sika sales
representative Eric Hurst testified at his deposition that he was approached by Bennett to supply
the PVC membrane. Mr. Hurst had no contact with anyone at ISFA or the White Sox during the
course of the project, and Sika played no role in selecting the material that would be used.
According to Mr. Hurst, Sika simply prices and supplies requested materials; it never gives
design advice or makes design recommendations to contractors, other than to indicate whether a
proposed application will meet warranty requirements.
¶ 15 Sika’s roofing applicator handbook provides that “[w]alkways shall be provided for
regular maintenance of rooftop equipment and for roof areas subject to foot traffic.” Sika
manufactures two walkway products for this purpose: SarnaTred and Crossgrip. An undated
copy of a brochure for Crossgrip boasts that the product will “[i]mprove rooftop traction while
preventing unnecessary accidents” and that “[i]nstallation is as simple as rolling out the mat. No
adhesive or mechanical attachment is necessary.” According to Sika, the product is “impervious
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to all weather and provides permanent slip resistance, even in areas where ponding water may
occur.” A December 2010 product data sheet for SarnaTred indicates that that product, by
contrast, is welded to the PVC surface and is designed to protect the PVC membrane “from
mechanical abuse.” The data sheet for SarnaTred makes no mention of slip resistance.
Contractors have access to information about both of these products on Sika’s website.
¶ 16 Mr. Hurst could not remember when Crossgrip first became available but knew that
SarnaTred was available when the ballpark roof replacement took place. Mr. Hurst also testified
that “there [are] a lot of different products in the marketplace” to make PVC less slippery when
wet—and that application of these products will not void the product warranty if they are
installed correctly—including “wood decks, pavers, [and] river rock.” He explained that the
installation of walkways—SarnaTred, Crossgrip, or otherwise—is not a Sika warranty
requirement.
¶ 17 When the roof replacement was finished, Sika inspected the roof and issued a 20-year
warranty on parts and labor. A letter to Steve Niggins at Bennett, dated June 16, 2011, and
signed by Sika warranty supervisor Michelle Cavacas, asked Bennett to “[p]lease forward the
Original Warranty, owner’s Guide, Maintenance Checklist, Caution Sign, Photovoltaic
Installation/Warranty Continuation Policy *** and the Warranty Folder to the building owners
and keep the duplicate for your records.” The continuation policy was a three-page document
explaining how, if a building owner wished to install solar panels on a roof, it could ensure that
the new installation was consistent with Sika warranty requirements. The statement in that
document that “[a]dditional Sarnatred or Crossgrip walkways should be installed in areas of
expected heavy foot traffic” indicates that SarnaTred and Crossgrip were both available at the
time of the outfield roof replacement.
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¶ 18 The caution sign enclosed with the warranty materials was a large yellow and black
sticker that said in boldfaced letters:
“CAUTION
PROTECT YOURSELF!
ROOF AND WALKWAYS MAY BE SLIPPEY WHEN ICY, SNOW
COVERED, OR WET. WHEN THESE CONDITIONS EXIST:
* NOTIFY SUPERVISORY PERSONNEL
* LIMIT ROOF-TOP ACCESS TO EMERGENCIES
* PROCEED WITH UTMOST CAUTION.”
When shown the sticker at his deposition, Mr. Niggins could not remember having seen it before,
though he had seen similar warning stickers affixed to roof hatches at other project sites.
¶ 19 At the time of his deposition, Mr. Niggins no longer worked for Bennett, but he had been
the project manager for the ballpark roof replacement. Bennett’s vice president, Chris Eheart was
the salesperson responsible for working with the White Sox to develop a proposal and select the
materials that would be used. It was Mr. Niggins’s job to simply install the product as directed.
According to him, this situation was “a little unique” because a Bennett salesperson was usually
“cradle to grave,” meaning “if you sold it, you project-managed it.” Mr. Niggins could recall no
specifics but believed that the situation arose because Mr. Eheart was busy and “didn’t really
have time to project-manage” this particular project.
¶ 20 Mr. Niggins explained that the role played by Bennett differs depending on whether a
project is negotiated or bid work:
“There’s negotiated work which you go in and you actually sell—you can sell with the
client and decide what the best product is for their roof. And then there’s bid work, which
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they say, [t]his is what you have to use.
***
*** Bid work is when you’re supplied with the plans and specs—here’s your
specifications; this is what you have to use; here’s your plans; here’s where everything
goes together—as opposed to going out and talking to a private client and going up on
their roof and surveying their roof and telling them what they need.”
¶ 21 When asked which type of project the ballpark roof replacement was, Mr. Niggins stated:
“I would have to probably put that under negotiated work because we weren’t working off of a
set of plans and specs.” According to Mr. Niggins, whether walkways were needed in high-
traffic areas was something that a Bennett salesperson would discuss with a client in negotiated
work, by asking the client questions about how the roof would be used. Although Bennett relied
on the information provided by its clients, Mr Niggins agreed that some clients are more
sophisticated than others.
¶ 22 Mr. Niggins did not know whether Mr. Eheart recommended to the White Sox that slip-
resistant walkways be installed in connection with the outfield roof replacement. As approved,
the proposal called only for SarnaTred walkway pads to be installed at the step-offs for ladders.
Mr. Niggins could not remember if Sika’s other walkway product, Crossgrip, was available in
2010 but believed that the company also offered at that time a “sanded surface” product.
¶ 23 Mr. Eheart testified at his deposition that he met with Mr. Esposito in the fall of 2010 to
inspect the roof and develop a proposal for its replacement. It was Mr. Eheart’s understanding
that the roof was being replaced due to its age. Bennett had not installed the old PVC membrane
roof that was being replaced but had done other, minor work for the White Sox in the past. Mr.
Eheart could not recall exactly what was said and was not aware of any documents
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memorializing his conversation with Mr. Esposito.
¶ 24 Mr. Eheart’s original proposal, sent to the White Sox on October 18, 2010, was for an
adhered roofing system, in which the PVC membrane is glued to the roof. On November 4, 2010,
he sent a second proposal that included a less expensive fastened roofing system option, in which
the PVC membrane would be held down with screws and plates. A third and final proposal, sent
on November 9, 2010, reflected a change in the unit price for the materials. This proposal also
included some additional small items, like a roof drain that needed to be replaced. Mr. Eheart
explained that “[t]hose were all items that somehow in the negotiation process they must have
been requested.” Accompanying the final proposal were Bennett’s responses to questions raised
in a report prepared by the architectural firm the White Sox consulted with on the project. Each
of the three proposals included pricing for some optional materials, including “Add price to
install SarnaTred walkway as directed by owner, $18.00 per lineal foot,” and attached the
product data sheet for Sika’s SarnaTred walkway product. The purchase order incorporated into
the final contract between Bennett and the White Sox similarly indicated that SarnaTred would
be priced by the lineal foot and applied only at the White Sox’s direction.
¶ 25 The previous roof at the ballpark was also a Sika PVC membrane, and Mr. Eheart
believed that Mr. Esposito requested that the replacement be by the same manufacturer.
According to Mr. Eheart, Bennett employees are familiar with Sika products because they have
been installing them for years. Product information is available on Sika’s website, in brochures
and technical bulletins, and from Sika sales representatives, who make in-person visits. Mr.
Eheart himself becomes aware of new Sika products through annual trade shows, which he has
attended for 23 years, but he has never received training from Sika regarding when to install
walkways. Mr. Eheart stated that if Sika had recommended the use of slip-resistant walkways for
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the safety of workers, he would have passed that information along to the White Sox. He agreed
that his proposal did not directly address worker safety.
¶ 26 Mr. Eheart’s understanding was that SarnaTred is applied to protect the PVC membrane.
It has a textured surface but, like the roof itself, is made of PVC. Mr. Eheart opined that it “could
be just as slippery as the membrane” and said he would not have recommended it to the White
Sox as a slip-resistant surface to address safety concerns.
¶ 27 Mr. Eheart said that Sika’s other product, Crossgrip, was a product sold by multiple
manufacturers and was “sort of a new thing in the industry *** maybe in the last five years.” He
could not remember if it was available when he drafted the proposal for the ballpark roof
replacement and could not remember when he first became aware of it. Since becoming aware of
it, however, he does not believe he has recommended it to any client or included product data
sheets for it in any of his proposals, even though he has been aware that some of his clients
frequently have workers walking on their roofs.
¶ 28 Although Mr. Eheart knew, based on his inspection of the ballpark roof and its high
traffic areas, that the installation of SarnaTred or some other walkway pad would be appropriate
and was in fact recommended by Sika, he could not recall whether he had any discussion with
Mr. Esposito regarding the need to install walkways. He provided the information on SarnaTred
and let Mr. Esposito decide whether it should be included in the project. Mr. Eheart expected a
client like the White Sox to know that the phrase “mechanical abuse” in the SarnaTred literature
included workers regularly walking on the surface of the PVC membrane. He believed that the
SarnaTred installed at the ladder access points was not chosen by Bennett or the White Sox but
was a warranty requirement of Sika’s. Someone from Sika would have come out once the project
was completed to inspect the roof before issuing a warranty.
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¶ 29 When asked if he thought Mr. Esposito should have known that installing walkways
would have made the roof safer, Mr. Eheart stated: “I don’t know what Don would know. He had
a [Sika PVC-membrane-covered] roof before we installed this one. He would have working
knowledge of how that performed. We just basically replaced the [old] membrane with new
membrane.” Mr. Eheart was not surprised, however, when the White Sox elected not to purchase
the SarnaTred walkways. A lot of clients do not select them because it is an additional expense.
¶ 30 The Zahumenskys retained two experts: Brent Johnson, who performed slip-resistance
tests on Sika’s PVC roof membrane and walkway products, and Russ Kendzior, an expert on
workplace safety standards, who used Mr. Johnson’s data to form his opinions. Mr. Kendzior
testified at his deposition that the membrane itself made a “great roof.” But unlike most roofs,
the ballpark’s PVC roof was also a walking and working surface. PVC membrane has only
moderate traction. As a walking surface, materials in this range are safe only when used indoors.
A roof cannot be kept dry, but a floor can be. For a roof, which will necessarily get wet, a high-
traction walking surface is necessary. In Mr. Kendzior’s opinion, without a slip-resistant
walkway, the ballpark roof was safe to walk on when dry but unreasonably slippery when wet.
¶ 31 Mr. Kendzior testified that what was needed was a product like Crossgrip—a raised grate
that would allow water to drain through. He candidly referred to a sample of the textured
walkway material known as SarnaTred as “crap” that “doesn’t work” and “has a very low co-
efficient of friction.” According to Mr. Kendzior, the Crossgrip name is “like Kleenex,” in that it
is Sika’s version of a widely used product sold under different names by different companies.
His opinion was that, from the presence of ladders and mechanical equipment on the roof,
Bennett knew or should have known that walkways were required for regular maintenance and
failed to adequately inform the White Sox of the need to install them. Bennett should have
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offered the White Sox both SarnaTred and Crossgrip. The White Sox, conversely, should have
known enough to ask Bennett for a high-traction walkway product. In Mr. Kendzior’s opinion,
both parties failed to have the discussion they should have had about the safety ramifications of
workers using the roof on a regular basis.
¶ 32 Mr. Kendzior agreed there was no industry standard expressly requiring high-traction
walkways, only voluntary or recommended standards. He also agreed that the primary purpose of
walkways is to protect the PVC membrane from damage, though he noted that an important
secondary purpose is the safety of workers.
¶ 33 C. Procedural History
¶ 34 Mr. Zahumensky brought negligence claims against Sika, Bennett, the White Sox, and
the ISFA, as well a claim for strict product liability against Sika. Mr. Zahumensky’s wife, Cathy
Zahumensky, brought corresponding claims for loss of consortium against these same parties.
The claims against the ISFA were subsequently dismissed, on the grounds that it enjoyed
statutory immunity, and Mr. Zahumensky does not challenge that ruling on appeal.
¶ 35 The Zahumenskys alleged that Sika sold its PVC roof membrane “without a sufficient or
adequate textured slip/skid resistant walkway,” “without sufficient or adequate warnings as to
how slippery it was when wet,” and “without adequate or suitable warnings and instructions to
sellers, distributors, applicators and buyers of the availability of and need for slip resistant
walkways in foot traffic areas.”
¶ 36 They alleged that the White Sox and Bennett knew or should have known that Mr.
Zahumensky and other workers like him had to walk on the outfield roof in order to perform
their assigned duties and that the PVC membrane covering the roof was extremely slippery when
wet. The Zahumenskys further alleged that irregularities in the roof caused water to “pool
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unnaturally” in some areas and that Mr. Zahumensky fell on an “unnatural accumulation of
water.” According to the Zahumenskys, the White Sox were negligent for failing to “provide
[him] with a safe place to work,” failing “to provide a textured slip/skid resistant walkway” on
the roof, allowing an unnatural accumulation of water to form, failing to adequately inspect the
area, failing to correct the conditions causing the unnatural accumulation of water, and failing to
warn Mr. Zahumensky that there was water on the roof. They alleged that Bennett was negligent
because it “[f]ailed to correct the condition(s) in the subject roof which caused water to
unnaturally accumulate,” “[f]ailed to recommend to Chicago White Sox additional textured
slip/skid resistant walkways” or warn that such walkways “were necessary for [the] safety of
workers,” “[f]ailed to warn the Chicago White Sox of the defects on the roof which led to the
pooling of water,” and “[f]ailed to provide sufficient or adequate textured slip/skid resistant
walkways” on the roof.
¶ 37 Sika moved for summary judgment, arguing that it had no duty to insure the safety of the
White Sox’s business invitees; that its roof was a building component, not a “product” subject to
a claim of strict product liability; and that the PVC membrane it sold was not physically flawed
or defective but had in fact performed well as a roof. Sika maintained that, because it played no
part in the design of the roof or in the selection or installation of the PVC membrane, it had no
duty to warn the White Sox of the need for slip-resistant walkways. In any event, Bennett, a
certified installer of Sika’s products, knew that the PVC membrane was slippery when wet and
was aware that, in its product literature, Sika offered and recommended that walkways be
installed in areas of foot traffic. Sika also argued that it had fulfilled any duty to warn it may
have had by providing Bennett a caution sticker expressly addressing the slipperiness of the roof
and the need for walkways, which was supposed to be passed on to the building owner.
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¶ 38 Bennett’s motion for summary judgment rested on its insistence that it had no duty to the
Zahumenskys because it was not the owner or operator of the ballpark and had not voluntarily
undertaken the responsibility of safeguarding workers accessing the ballpark roof. Bennett
argued that it had been hired to do one thing: replace the PVC membrane on the roof “in a
professional manner and in accordance with the plan and specifications of the project.” Bennett’s
position was that it had given the White Sox information about SarnaTred walkways and the
White Sox had made the decision not to include them.
¶ 39 The White Sox also moved for summary judgment on the basis that it had no duty to
warn Mr. Zahumensky because it had no actual or constructive notice of standing water on the
ballpark roof on the day in question.
¶ 40 Counsel for the Zahumenskys argued that it did not matter whether the White Sox knew
about standing water on the day in question because the standing water was not the defective
condition. Rather, the absence of slip-resistant walkways was the defective condition, and the
White Sox knew or should have known that the roof—which would necessarily sometimes be
wet—was an unsafe walking surface absent the installation of such walkways. Counsel argued
that summary judgment was not proper because questions of fact existed regarding (1) whether
Sika and Bennett had passed along information about the need for and availability of slip-
resistant walkways to the next party in the project’s sequence, (2) what Bennett and the White
Sox knew about the availability of and need for slip-resistant walkways, and (3) whether the
White Sox, as the operator of the ballpark, ultimately made an informed decision to not include
them. As counsel explained to the circuit court judge:
“[S]omeone had a duty to make the roof reasonably safe for Tom Zahumensky. Now, if
you think that the roof is reasonably safe as it is, then I suspect the entire case ends. If the
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roof is not reasonably safe or if it’s a question of fact, which I think it is, then the
question is, who had the duty to make it reasonably safe and then who discharged their
duty.”
Counsel also argued that the defendants’ focus on whether each of them owed a duty directly to
the Zahumenskys was misguided because Bennett, for example, may have owed a duty to warn
the White Sox, the breach of which was a proximate cause of Mr. Zahumensky’s injury.
¶ 41 The circuit court granted summary judgment in favor of each of the defendants. With
respect to Sika, it found both that the PVC membrane was a building component and not a
“product” susceptible to a claim of strict product liability and that Sika owed no duty to third-
party invitees of the end users of its products. The court found that the White Sox had no duty to
Mr. Zahumensky because they had no notice of a dangerous condition (“I don’t think there [is]
any duty. I think it’s based upon actual or constructive notice as to whether or not that [sic] that
roof is slippery when—you know, when—or whether there was this natural or unnatural
accumulation on this roof.”). With respect to Bennett, the court relied on Hunt v. Blasius, 74 Ill.
2d 203 (1978), and Thompson v. Gordon, 241 Ill. 2d 428 (2011), cases Bennett had not cited, but
that the court felt stood for the proposition that Bennett had no liability because it was not
involved in the design or selection of the roof but was simply hired to replace the PVC
membrane with exactly what was there already.
¶ 42 II. JURISDICTION
¶ 43 The circuit court granted summary judgment in favor of Bennett, the White Sox, and Sika
in a series of orders culminating with the disposal of all remaining claims against Sika on
October 3, 2017. At that time, Mr. Zahumensky’s motion for reconsideration or clarification of
the court’s prior order granting summary judgment in favor of Bennett was still pending. The
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circuit court denied that motion on October 23, 2017, and Mr. Zahumensky timely filed his
notice of appeal on November 2, 2017. We have jurisdiction pursuant to Illinois Supreme Court
Rules 301 and 303, governing appeals from final judgments entered by the circuit court in civil
cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 44 III. ANALYSIS
¶ 45 At issue in this appeal is whether summary judgment was properly entered in favor of
each defendant on the Zahumenskys’ negligence claims and—in the case of Sika—on their
additional claim for strict product liability.
¶ 46 Summary judgment is appropriate where, construed liberally in favor of the party
opposing judgment (Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 25), “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 2016)). Although summary judgment is
“encouraged as an aid in the expeditious disposition of a lawsuit,” it is “a drastic means of
disposing of litigation and, therefore, should be allowed only when the right of the moving party
is clear and free from doubt.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
“[W]here reasonable persons could draw divergent inferences from the undisputed material facts
or where there is a dispute as to a material fact, summary judgment should be denied and the
issue decided by the trier of fact.” Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998).
Our review of a circuit court’s grant or denial of summary judgment is de novo. Doria v. Village
of Downers Grove, 397 Ill. App. 3d 752, 756 (2009).
¶ 47 To succeed on a claim of negligence, a plaintiff must generally prove that (1) the
defendant owed a duty of reasonable care to the plaintiff, (2) the defendant breached that duty,
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and (3) the breach was the proximate cause of the plaintiff’s injury. Hills v. Bridgeview Little
League Ass’n, 195 Ill. 2d 210, 228 (2000).
¶ 48 In this case, the Zahumenskys seek to hold three parties liable: the White Sox as the
possessor of land on which Mr. Zahumensky was injured, Bennett as a contractor who performed
work for the White Sox, and Sika as a manufacturer supplying the materials for that work. The
duty of reasonable care has been defined differently in each of these contexts.
¶ 49 A possessor of land is liable for injuries to invitees resulting from a dangerous condition
on the land when it
“(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and (b)
should expect that they will not discover or realize the danger, or will fail to protect
themselves against it, and (c) fails to exercise reasonable care to protect them against the
danger.” Restatement (Second) of Torts § 343 (1965).
¶ 50 A contractor “who on behalf of the possessor of land erects a structure or creates any
other condition” on the possessor’s land is subject to liability to invitees
“for physical harm caused to them by the dangerous character of the structure or
condition after [the contractor’s] work has been accepted by the possessor, under the
same rules as those determining the liability of one who as manufacturer or independent
contractor makes a chattel for the use of others.” Id. § 385.
¶ 51 A manufacturer is liable to the end users of its product for negligence if it “(a) knows or
has reason to know that the chattel is or is likely to be dangerous for the use for which it is
supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will
realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its
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dangerous condition or of the facts which make it likely to be dangerous.” Id. § 388.
¶ 52 To recover on a product liability action against a manufacturer, a plaintiff must prove
“that the injury resulted from a condition of the product, that the condition was an unreasonably
dangerous one, and that the condition existed at the time the product left the manufacturer’s
control.” Sollami v. Eaton, 201 Ill. 2d 1, 7 (2002). “A product may be found unreasonably
dangerous by virtue of a physical flaw, a design defect, or a failure of the manufacturer to warn
of the danger or instruct on the proper use of the product as to which the average consumer
would not be aware.” Id.
¶ 53 A. Sika
¶ 54 In granting Sika’s motion for summary judgment, the circuit court concluded both that
the PVC membrane was not a “product” separate and divisible from the roof of the building and
that Sika had no duty to warn the third-party invitees of the end users of its products regarding
potentially dangerous design applications of those products. The Zahumenskys’ theory is, of
course, not that Sika’s PVC membrane is physically defective as a roof. Their claims against
Sika—for both negligence and for product liability—are based on a failure to warn that the PVC
is unsafe to walk on without slip-resistant walkways. “A manufacturer has a duty to warn where
the product possesses dangerous propensities and there is unequal knowledge with respect to the
risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that
harm may occur absent a warning.” Id. Because we hold that the undisputed facts demonstrate
that Sika adequately discharged its duty to warn, summary judgment in Sika’s favor was proper.
We need not decide whether the PVC membrane itself qualifies as a product.
¶ 55 As an initial matter, we are unpersuaded by Sika’s insistence that it had no duty to warn
because its PVC membrane was never intended to be used as a work surface, and by Sika’s
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insinuation that allowing workers to walk on its roofs was an unusual “secondary use” that Sika
could not have anticipated. There is evidence that Sika was fully aware that workers walk on its
PVC membranes, and in fact, it is undisputed that Sika offers walkway products specifically
designed to accommodate this use.
¶ 56 The necessary warning in this case would have been to Bennett, the purchaser of Sika’s
PVC membrane. We agreed, in Venus v. O’Hara, 127 Ill. App. 3d 19, 25-26 (1984), with a line
of cases holding that “at the very least, a supplier has a duty to supply adequate warnings to its
immediate vendee, and may be held liable to the ultimate user for its failure to do so.” We
reasoned that a manufacturer’s duty to warn “will rarely extend beyond the communication of
warnings to the immediate vendee, since, as a practical matter, the vendor has neither the means
of controlling the vendee’s subsequent actions nor the opportunity to provide warnings directly
to the ultimate user.” Id. at 25.
¶ 57 Here, the undisputed facts demonstrate that Sika did warn Bennett, its immediate vendee,
that PVC membranes are slippery when wet, that this presents a danger to workers walking on
the roof, that walkways should be used in areas of high foot traffic, and that slip-resistant
walkways were available to prevent accidents. Sika recommended the use of walkways in high
traffic areas in its roofing applicator handbook and advised in its product data sheets that
Crossgrip provided a slip-resistant walking surface designed to “prevent[ ] unnecessary
accidents.” Although some portions of Sika’s website are not available to the general public,
Sika’s elite contractors, like Bennett, can use it to access all of the product literature for Sika’s
products. At argument, none of the defendants disputed that Crossgrip was available when the
ballpark roof was being replaced, and indeed, the product is mentioned in the warranty materials
Sika provided to Bennett at the completion of the project.
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¶ 58 Sika went beyond just warning Bennett. It also provided materials to aid Bennett in its
obligation to warn the White Sox. The caution sticker Sika included in its warranty materials was
clearly addressed to the end users of the roof. It stated in bold letters, “ROOF AND
WALKWAYS MAY BE SLIPPERY WHEN ICY, SNOW COVERED, OR WET.” The sticker
further advised to “LIMIT ROOFTOP ACCESS TO EMERGENCIES” and “PROCEED WITH
UTMOST CAUTION” when such conditions were present. It warned users to “CONFINE
ROOF-TOP TRAFFIC TO WALKWAYS WHENEVER POSSIBLE.” In its cover letter, Sika
instructed Bennett, its authorized installer, to forward these materials on to the building owner. It
is difficult to conceive of what else a manufacturer, with no direct contact with the building
operator or owner, could have done to discharge its duty to warn. Notably, although the
Zahumenskys quote Mr. Eheart’s statement that if Sika had recommended slip-resistant walking
surfaces for worker safety, he would have passed that information on to the White Sox, their
lawyer questioned neither Mr. Eheart nor Mr. Esposito about the caution sticker that
unequivocally warning of the dangers of slipping on wet PVC.
¶ 59 Because the undisputed evidence demonstrates that Sika adequately discharged its duty to
warn, summary judgment in its favor was proper.
¶ 60 B. Bennett and the White Sox
¶ 61 We find, however, that summary judgment in favor of Bennett and the White Sox was
not proper. Bennett clearly had a duty of reasonable care to the White Sox and the White Sox
had a duty of reasonable care to Mr. Zahumensky. There are obvious questions of fact as to
whether anyone at Bennett warned the White Sox about the slipperiness of the PVC membrane
or offered alternatives to protect workers, and also about the extent to which the White Sox acted
in response to such warnings, as well as their own knowledge about how slippery PVC was to
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walk on. There are also questions of fact regarding the feasibility and effectiveness of various
safety alternatives. The defendants point to nothing in the record that suggests these factual
issues were resolved in their favor at summary judgment.
¶ 62 The White Sox spend most of their brief arguing that Mr. Zahumensky slipped on a
natural, as opposed to an unnatural, accumulation of water and that the White Sox had no actual
or constructive knowledge that an unnatural accumulation of water was present on the ballpark
roof on the day in question. The “natural accumulation rule” is an exception to the general rule
that a possessor of land is liable for physical harm caused to its invitees by known dangerous
conditions on the land (Restatement (Second) of Torts § 343(a) (1965)). Under the natural
accumulation rule, a landowner has no duty to remove a natural accumulation of precipitation
from its property, even if the landowner is aware of the accumulation. See Watson v. J.C. Penney
Co., 237 Ill. App. 3d 976, 978 (1992).
¶ 63 But the “condition” that the Zahumenskys allege the White Sox knew or should have
known about was not a particular accumulation of water or the presence of “divots” in the
concrete roof that might have caused water to accumulate, but the fact that, without walkways or
other safety provisions, the PVC membrane was too slippery for workers to safely navigate when
any amount of water was present. We agree with the Zahumenskys that the presence of an
unusually slippery walking surface sufficiently distinguishes this case from those in which the
natural accumulation rule has been applied. The situation is similar to that presented in Sommese
v. Maling Brothers, Inc., 36 Ill. 2d 263, 265 (1966), where the plaintiff slipped and fell on a
terrazzo entryway not treated with any abrasive material. Our supreme court stated in that case:
“[C]onsidering the evidence most favorable to the plaintiff, it was a jury question as to
whether the defendant knew or should have known that the material used in the
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composition of the floor, upon becoming wet and damp, became very slippery and
dangerous and that the defendant failed to warn the person lawfully on its premises of its
unsafe condition. It is this feature of the condition of an outside terrazzo floor which
distinguishes this case from those cases in which recovery has been denied as a result of
slipping and falling on a wet floor.” Id. at 266.
¶ 64 This exception to the natural accumulation rule has been applied in a number of other
cases. See, e.g., Fanning v. Lemay, 78 Ill. App. 2d 166, 173 (1966), rev’d in part on grounds
applicable only to other defendants, 38 Ill. 2d 209 (1967) (“we conclude that under the pleadings
here plaintiff could prove that defendants knew, or should have known, that the asphalt tile, like
the terrazzo in Sommese, upon becoming wet, became very slippery and dangerous, and failed to
warn plaintiff, lawfully on their premises, of its unsafe condition”); Buscaglia v. United States,
25 F.3d 530, 535 (7th Cir. 1994) (concluding that questions of fact existed “on the theory that the
composition of the floor, either by itself or in combination with an accumulation of water, caused
[the plaintiff’s] injury”); Scarelli v. United Parcel Service, Inc., No. 10 C 8240, 2011 WL
4738273, at *2 (N.D. Ill. Oct. 3, 2011) (noting that the plaintiff’s “allegations [went] beyond the
question of whether the method by which the water accumulated was natural or not” and to “the
materials used for the floor and coatings,” which the plaintiff alleged caused the floor “to
become excessively slippery when it was wet”).
¶ 65 This is not, as the White Sox insist, a “new theory of liability” raised by the
Zahumenskys for the first time on appeal. The Zahumenskys alleged in their complaint that “[a]t
all times relevant, the [roof membrane] was slippery when wet,” that “defendant, Chicago White
Sox, knew the [roof membrane] was slippery when wet,” and that, despite this knowledge, it
“[f]ailed to provide [Mr. Zahumensky] with a safe place to work,” i.e., “[f]ailed to provide a
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textured slip/skid resistant walkway.” Although the complaint also alleged an unnatural
accumulation of water to avoid the “natural accumulation” doctrine, it is clear from our review of
the record that the focus of discovery was whether and to what extent the various parties knew
and attempted to mitigate the inherent slipperiness of the PVC membrane.
¶ 66 We are not persuaded by Bennett’s argument that Hunt and Thompson, the cases relied
on by the circuit court, are controlling here. Hunt stands for the proposition that “[a]n
independent contractor owes no duty to third persons to judge the plans, specifications or
instructions which he has merely contracted to follow.” Hunt, 74 Ill. 2d at 209. “If the contractor
carefully carries out the specifications provided him, he is justified in relying upon the adequacy
of the specifications unless they are so obviously dangerous that no competent contractor would
follow them.” Id. In keeping with this holding, our supreme court then concluded in Thompson
that a contractor had no liability where the detailed contract drafted by the property owner in that
case required the contractor to replace a bridge deck “exactly as it had existed.” Thompson, 241
Ill. 2d at 439, 449.
¶ 67 We agree with the Zahumenskys that these cases are not controlling here because
“Bennett was not engaged to blindly replicate the existing roof without input or relevant
commercial thought”; rather, the White Sox “sought Bennett’s expertise, advice, and direction.”
This was certainly the White Sox’s view of the relationship. In their briefing in the trial court, the
White Sox said that they “hired Bennett *** for its expertise and professional judgment and to
make recommendations about any safety equipment that might be required or recommended for
this type of roof based on *** best practices in the field of roofing installation.”
¶ 68 Mr. Eheart and Mr. Esposito engaged in extended discussions, Mr. Eheart submitted
multiple proposals to Mr. Esposito before the details of the project were finalized, and Mr.
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Eheart responded in detail to requests made by the White Sox and the architectural firm it
consulted with. Bennett’s project manager, Mr. Niggins, made clear that the ballpark roof
replacement was not the sort of “bid work” that Bennett now tries to say it was, and that Bennett
was not simply handed plans and specifications and told what to do by the White Sox. Mr.
Niggins instead categorized the project as “negotiated work”—the type of work in which Bennett
would meet with the client to ascertain the client’s needs and select the appropriate materials and
applications.
¶ 69 In addition, we find no support in the record for the position, taken by Bennett’s counsel
at argument, that we can conclude on this record as a matter of undisputed fact that the White
Sox would have rejected out of hand any recommendation to install slip-resistant walkways.
¶ 70 We also reject Bennett’s argument that it had no duty to warn Mr. Zahumensky directly
that the PVC membrane would be slippery when wet because that danger was already known to
him and was thus “open and obvious.” See Restatement (Second) of Torts § 388(b) (1965)
(providing that a manufacturer or supplier only has a duty to warn of a danger if it “has no reason
to believe that those who use the [product] will realize its dangerous condition”). A warning that
slip-resistant walkways were needed would have done Mr. Zahumensky no good. He was not the
one with the ability to install or seek approval for the installation of such walkways. That power
resided with Bennett’s client, the White Sox. Bennett, as an experienced roofing contractor
presumed to have familiarity with the products it was installing, had a duty to provide the White
Sox with enough information for the White Sox to make an informed decision regarding how to
address the slipperiness of the PVC membrane for the individuals the White Sox hired to walk on
its roof.
¶ 71 We recognize that although the White Sox were Bennett’s client, they did not own the
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ballpark. Both Bennett and the White Sox were constrained by certain limitations put on the
project as a result of the agreement between the ISFA and the White Sox. But we cannot agree,
as a matter of law, that Bennett had no duty to at least recommend slip-resistant walkways to the
White Sox because it was a mere contractor following someone else’s detailed plans. Nor can we
conclude, as a matter of law, that the White Sox had no ability to provide safety protection for
Mr. Zahumensky. The record indicates that, although they did not seek such approval in 2010 or
2011, when the roof replacement project was underway, the White Sox were able to obtain ISFA
approval for Crossgrip walkways in 2014. See Herzog v. Lexington Township, 167 Ill. 2d 288,
300-01 (1995) (noting that evidence of subsequent remedial measures is “admissible for the
purpose of proving feasibility of precautionary measures where disputed”). Whether the White
Sox knew in 2010 and 2011 that such walkways should be installed but failed to request them, or
lacked—as a result of Bennett’s failure to provide sufficient product information and
recommendations—the information it needed to make such a decision are among the questions
of fact that make summary judgment for these defendants improper.
¶ 72 IV. CONCLUSION
¶ 73 For the above reasons, we affirm the circuit court’s grant of summary judgment in favor
of Sika, reverse its orders granting summary judgment in favor of Bennett and the White Sox,
and remand for further proceedings consistent with this opinion.
¶ 74 Affirmed in part and reversed in part; cause remanded.
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