Keating v. 68th and Paxton, L.L.C.

• Decision Date: 27 April 2010
• Docket Number: No. 1-09-1759.,1-09-1759.
• Citation: 401 Ill.App.3d 456,344 Ill.Dec. 293,936 N.E.2d 1050
• Parties: Robert F. KEATING, Jr., Plaintiff-Appellant, v. 68TH AND PAXTON, L.L.C., an Illinois L.L.C., and David L. Oglesby and Bobbie Oglesby, jointly d/b/a Oglesby Management Company, an Unincorporated Entity, Defendants-Appellees (Gonzon Construction Co., Inc., an Illinois Corporation and Victor Gonzon, Individually, d/b/a Gonzon Construction, Defendants).
• Court: United States Appellate Court of Illinois

936 N.E.2d 1050 401 Ill.App.3d 456 344 Ill.Dec. 293 Robert F. KEATING, Jr., Plaintiff-Appellant, v. 68TH AND PAXTON, L.L.C., an Illinois L.L.C., and David L. Oglesby and Bobbie Oglesby, jointly d/b/a Oglesby Management Company, an Unincorporated Entity, Defendants-Appellees (Gonzon Construction Co., Inc., an Illinois Corporation and Victor Gonzon, Individually, d/b/a Gonzon Construction, Defendants). No. 1-09-1759. Appellate Court of Illinois, First District, Second Division. April 27, 2010.

Lawrence H. Hyman, Cynthia S. Kisser, Lawrence H. Hyman & Assoc., Chicago, IL, for Plaintiff-Appellant.

Paul S. Festenstein, Guy M. Conti, Condon & Cook, L.L.C., Chicago, IL, for Defendants-Appellees.

Justice THEIS delivered the opinion of the court:

[344 Ill.Dec. 297, 401 Ill.App.3d 458]

This case arises out of injuries sustained by plaintiff Robert Keating while repairing a porch at an apartment building owned by defendant 68th & Paxton, L.L.C., and managed by defendant Oglesby Management Company (OMC) (collectively, defendants). Plaintiff filed premises liability claims against defendants in circuit court. In his fourth amended complaint, plaintiff added allegations that defendants knowingly failed to provide him with workers' compensation insurance as required by section 4(d) of the Workers' Compensation Act (Act) (820 ILCS 305/4(d) (West 2006)); therefore, defendants were presumed liable for his injuries. On defendants' motion, the circuit court struck the allegations pertaining to the Act for lack of subject matter jurisdiction. The court then granted summary judgment for defendants on plaintiff's premises liability claims. Plaintiff now appeals from the circuit courts' orders. For the following reasons, we affirm.

68th & Paxton owns a three-floor residential apartment building at 6755 S. Paxton Street. OMC manages the building through David and Bobbie Oglesby. OMC sought to replace the wooden porches at the building. It hired Gonzon Construction, Inc. (GCI), owned by Victor Gonzon, to perform the demolition and reconstruction of the porches. GCI in turn hired plaintiff to perform the demolition. On March 1, 2007, plaintiff fell from the third-floor porch at the apartment building and landed on a fence below, suffering severe injuries.

Plaintiff sued for damages in the circuit court. In counts I and II of his third amended complaint, plaintiff asserted negligence claims against GCI and Gonzon, respectively. In counts III and V, plaintiff asserted premises liability claims against 68th & Paxton and OMC,respectively. In count IV, plaintiff asserted a negligence claim against David Oglesby individually, which he later voluntarily dismissed.

Following the discovery period, defendants filed a motion for summary judgment, arguing that plaintiff failed to establish that any alleged breach of duty by defendants was the proximate cause of his injuries.¹ In support of their motion, defendants relied in part upon plaintiff's deposition. Plaintiff testified that he had been working for Victor Gonzon for about 18 months demolishing porches, including the one at defendants' apartment building. He testified that he was not a foreman, but that he had the most experience of the workers. Plaintiff testified that he demolished the wooden rails and pickets that surround the perimeter of a porch. Based on the photographic exhibits, the porches have two rails, oriented horizontally, that are attached at both ends to a support post. There are also many pickets, oriented vertically and several inches apart, that are attached to the top and bottom rails.

[936 N.E.2d 1055, 344 Ill.Dec. 298]

According to plaintiff, the pickets are usually attached to the rails on the outside of the porch. Plaintiff described his general technique in demolishing a porch as follows:

"There's a top rail and a bottom rail. * * * I usually hit the bottom with the hammer. * * * I hit the picket off the bottom rail first. And I hit—then I hit the top rail, the picket off the top, put my hand on it and give it a whack. And then I throw the picket[s] down one at a time. If they're real sturdy, then what will happen, when I hit the picket at the top, the top rail might come loose. Then I will have to take it off from the section. But most of the time I just take a picket and knock them. Knock them at the bottom, knock them at the top, put them in a pile. * * * Take the top rail off, take the bottom rail off, go onto the next section. * * * [T]he picket is on the outside [of the porch]. * * * [T]he bottom rail is on the inside [of the porch]."

However, plaintiff stated that the pickets on the porch at defendants' apartment building were attached to the rails on the inside of the porch. He stated that he would take the porch apart differently under these circumstances. Specifically:

"[I]n a case like this I wouldn't take the pickets out. * * * I would take it and I would remove the top rail first. * * * And pull the thing down so it's on the deck. * * * And then remove the bottom rail. * * * And then pull the whole thing off in one piece, and then knock the pickets off.

Q. Okay. And then after you would do that, would there be nothing?

A. There would be nothing there."

He later reiterated that he would not strike the pickets while they were attached to the rails on the inside of the porch because in that case, he would have to "lean over the rail to get to them. And that's a lot of work. * * * [I]f you just knock them—knock it down and lean it up against the wall, you can smack the pickets out."

He also testified that the rails on the porch at defendants' apartment building were "screwed together," rather than nailed, which meant that he had to "whack it harder." He testified that the rails may have been screwed together because the wood was "bad." In fact, he indicated in a photograph that the wooden posts were rotten and that may have been the reason that the rails and posts were screwed together. He described the porch at defendants' building as being in "bad shape." He recognized that it had been "patched" in places where the porch had been previously repaired. Nevertheless, he acknowledged that "when I go out to a job site * * * the guy is buying a new porch, it is not because the old one is good."

About an hour after starting work, plaintiff fell from the porch and impaled himself on a wrought iron fence post below. He testified that he did not know how he had fallen. He stated:

"I remember having the hammer in my hand. * * * I remember hitting one picket, and that's all I remember for the whole rest of the day. The next thing I remember is two days later I woke up in the hospital. * * * I can't really tell you how I fell."

When shown a photograph of the accident site, he could not identify from where he had fallen. He also could not remember what direction his body was facing when he fell, or whether his feet had come out from under him before he fell. Although other workers were present on the day of the accident, plaintiff did not know whether anyone had witnessed his fall.

[936 N.E.2d 1056, 344 Ill.Dec. 299]

Plaintiff did not know if he was holding onto the railing or whether his body was in contact with the railing in any way at the time of the accident. He also did not recall leaning over the railing to remove the pickets. He acknowledged that he may have told some people in the course of conversation that he was leaning over the railing when it collapsed, but admitted that he was only guessing.

Plaintiff also testified that it was raining while he was working and that he had gotten slightly wet. He acknowledged that the wooden porch floor became slippery when wet. However, he did not recall slipping or sliding. Nevertheless, he stated that he had to be more careful than usual to avoid slipping and falling. When asked whether the rain may have contributed to his fall, he replied, "I couldn't tell you. * * * I don't remember anything. The only thing I remember is I went there,I had the hammer in my hand, I gave it a whack, and then I was in the hospital." When asked what he took a " whack" at, he replied:

"A. The rail, but I don't remember if it was the top rail, the bottom rail or the picket, I just—

Q. Just some parts of the railing?

A. Yeah."

Chester and Joseph Drapinski also were working at the apartment building on the day of the accident. However, neither of them saw plaintiff fall from the balcony. They had their backs toward plaintiff as they worked.

In response to the summary judgment motion, plaintiff admitted that there was no direct evidence of the cause of his injury. However, he argued that there was circumstantial evidence to support his contention that regardless of whether he was leaning on the rail or slipped and fell into the rail, the rail itself failed to protect him from falling off of the porch because it was improperly attached to the support post. To support his contention, he relies on three pieces of evidence: (1) a 2004 building inspection report; (2) the affidavit of a construction administration expert; and (3) an excerpt from Gonzon's deposition. The building inspection report, prepared for David Oglesby in 2004, stated in relevant part that "numerous structural members of the wood rear porch were improperly/inadequately fastened and were not properly bolted together."

Plaintiff's expert, Christopher Chwedyk, asserted in his affidavit that city building code required a wooden porch rail to be able to withstand 200 pounds of thrust force. Although plaintiff only weighed 175 to 180 pounds, Chwedyk concluded that it was "more likely than not that the reason that the railing detached from the post in the area where plaintiff fell is because it was not adequately or properly attached to support plaintiff's weight coming in contact with it." Chwedyk did not inspect the accident site, but reviewed photographs of it, as well as the building inspection report and the depositions taken in this case. He was not deposed.

During his examination by p...