Bear v. Power Air, Inc., 1-91-0524

• Court: United States Appellate Court of Illinois
• Citation: 595 N.E.2d 77,230 Ill.App.3d 403
• Docket Number: No. 1-91-0524,1-91-0524
• Parties: , 172 Ill.Dec. 14 Michelle BEAR, Plaintiff-Appellant, v. POWER AIR, INC., Defendant and Third-Party Plaintiff (J. Emil Anderson & Sons, Inc., et al., Defendants-Appellees and Third-Party Defendants).
• Decision Date: 22 May 1992

Page 77

595 N.E.2d 77 230 Ill.App.3d 403, 172 Ill.Dec. 14 Michelle BEAR, Plaintiff-Appellant,
v.
POWER AIR, INC., Defendant and Third-Party Plaintiff (J.
Emil Anderson & Sons, Inc., et al.,
Defendants-Appellees and Third-Party Defendants). No. 1-91-0524. Appellate Court of Illinois,
First District, Fifth Division. May 22, 1992.

Page 78

[230 Ill.App.3d 404] [172 Ill.Dec. 15] Williams & Marcus, Ltd. (John F. Dziedziak, of counsel), Chicago, for plaintiff-appellant.

Tressler, Soderstrom, Maloney & Priess (Edmund J. Siegert, Jay H. Tressler, of counsel), Chicago, for defendants-appellees, J. Emil Anderson & Sons and Richard F. Batchen.

Justice MURRAY delivered the opinion of the court:

Plaintiff, Michelle Bear (Bear), appeals an order of the circuit court granting partial summary judgment in favor of defendants, J. Emil Anderson & Sons, Inc., and Richard F. Batchen. The facts are as follows.

In 1984 LaSalle National Bank, as trustee under Trust No. 47265, owned a building located at 1111 Plaza Drive, in Schaumburg, Illinois. Defendants, J. Emil Anderson & Sons, Inc. (Anderson) and Richard Batchen (Batchen) were the beneficiaries of the trust. In 1984 the Illinois Department of Transportation (IDOT), leased portions of that building. Bear was employed by IDOT. In August 1984 Power Air, Inc. (Power Air), a defendant in the underlying suit, but not a party to this appeal, was performing work on the premises to alter the air conditioning system in the computer room.

Bear testified that she first began experiencing problems with her eyes in approximately 1979 at which time she noticed that her eyes would become blood shot, dry and itchy. As a result, she began receiving medical treatment from Dr. Sidney Bernstein, who placed her on artificial tears. By 1980 her eyes had become dryer and she started to experience "flare-ups." She was told by Dr. Bernstein that she had "dry eyes." She continued to experience problems with her eyes and "flare-ups" from 1980 until August 1984, when the incident which is the subject matter of this litigation occurred.

On the date of her incident, Bear arrived at the IDOT computer room at approximately 7 a.m. She began turning the equipment on. Robert Wagner, a co-worker, entered the computer room with an employee of Power Air. The Power Air employee told Bear that he was going to have to move some ceiling tiles to work on

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[172 Ill.Dec. 16] the duct work above. Wagner told Bear that work was going to commence on the air conditioning unit, and that the computers had to be covered with plastic per the instructions of their boss, Jerry Daleiden. The Power Air employee offered to help Bear. Subsequently, Bear and the Power Air employee began to cover the computers with sheets of plastic provided by IDOT. While covering the machinery Bear spoke with the Power Air employee. Bear's deposition testimony indicated that she [230 Ill.App.3d 405] told the Power Air employee that she was concerned about dust because she suffered from a serious eye condition.

Dust was generated by Power Air employees in the course of moving the ceiling tiles above the computer equipment. Bear described the amount of dust generated as follows:

"Q. How much dust was there in the air? Could you see it?

A. I could see particles blowing in the air.

Q. Were these larger than dust particles?

A. I don't know how you measure them.

Q. You were ably to visibly see the particles, anyway?

A. Some of them."

Bear asked her boss, Mr. Daleiden, if she could leave the room because of the dust created by the work, however, Mr. Daleiden told her to stay with the workman from Power Air. Bear stayed in the room between two and six minutes before she left.

To the best of her knowledge, at no time did Bear ever have any discussions with anyone from Anderson concerning her eye condition. Moreover, she did not have any knowledge that Power Air or IDOT had any conversations with anyone from Anderson concerning her eye condition.

Robert Wagner testified through his affidavit that at no time did he ever have any communication with anyone from Anderson concerning Bear's eye condition. William Shoemaker, Anderson's property manager, testified that prior to the installation of the air distribution system he did not have any knowledge from any source that Bear suffered an eye condition.

Bear's treating physician, Dr. Noth, testified at a discovery deposition. Dr. Noth's records disclosed that when he first saw Bear she had a history of corneal ulcers, chalzion and dry eyes. She also had a history of blepharitis. She was on a variety of lubricants and ointments. The lubricants were for the dry eyes.

When Dr. Noth first examined Bear he noted that she definitely had blepharities. According to Dr. Noth, dry eye syndrome is not an uncommon entity in patients, especially females after the age of 25 or 30. In Dr. Noth's opinion the exposure to dust or dirt at work could have contributed to her problem.

Bear filed a two-count complaint in tort. Count I alleged negligence by Power Air. Count II sought recovery from the landowner based upon plaintiff's allegations that the landowner failed to provide plaintiff with a safe place to work, failed to warn of the dangerous conditions then and there existing, failed to make a reasonable inspection of the premises and the work being done thereon, and failed to [230 Ill.App.3d 406] provide adequate safeguards to protect plaintiff from injury. After a hearing on January 14, 1991, the trial court granted partial summary judgment in favor of Anderson and Batchen, affecting count II only. The trial court found "no just reason for delaying enforcement or appeal of [the] order."

The sole issue on appeal is whether the trial court properly granted summary judgment as to count II of plaintiff's first amended complaint. For the following reasons we affirm the decision of the trial court.

Bear argues that although the incident did not involve an abnormally dangerous activity, the defendants were liable for harm resulting from their independent contractor's failure to take precautions against the dangers inherent in the work. The risk of harm from falling tools, material and/or debris generated by the construction work was a danger inherent in the work that was both recognizable in advance and preventable. Bear maintains that a genuine issue of material fact exists as to the defendants'

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[172 Ill.Dec. 17] liability to Bear as a probable consequence of the work being performed by the independent contractor.

Bear further argues that the trial court granted defendants' motion for summary judgment holding that no duty ran from the defendants to Bear because defendants did not have knowledge of Bear's preexisting eye condition. Bear further argues that the trial court erred in its holding because foreseeability of the precise type of injury is not, under Illinois law, the sole factor for the court to consider in determining the existence of a duty. Bear maintains that the trial court erred by truncating its analysis to the point that the court construed the terms "duty" and "foreseeability of harm" as strictly synonymous. Defendants maintain that they are not liable for the negligence of the independent contractor and that the trial court's grant of summary judgment was proper.

The evidence submitted to the trial court for consideration in ruling on the motion for summary judgment were the discovery deposition transcripts of Michelle Bear, Robert Wagner, William Shoemaker, Dr. James Noth and Jerome Daleiden. The trial court was also supplied with the affidavits of Robert Wagner, Jerome Dalieden and William Shoemaker. In ruling on the motion for summary judgment the trial court stated:

"[W]hether there is a duty is a question of law. Whether duty has been breached is a question of fact. I don't see a duty here on behalf of this movant when it employed an independent contractor.

[230 Ill.App.3d 407] Further that there is no evidence I have been able to find that the movants knew of this sensitive condition of the plaintiff. Had they known about it--there we get into words you don't like, foreseeability. Had it been foreseeable that this plaintiff would be harmed, there are cases which hold that even though there is an independent contractor, then the owner might have some duty to guard against it. But here it's completely unforeseeable whether or not, to the movants, whether or not there was a sensitivity to this dust. * * *

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There are exceptions to that rule, the rule...