Lazenby v. MARK'S CONST., INC.
| Decision Date | 22 January 2010 |
| Docket Number | No. 107192.,107192. |
| Citation | 923 N.E.2d 735,236 Ill.2d 83 |
| Parties | Wedge C. LAZENBY et al., Appellants, v. MARK'S CONSTRUCTION, INC., et al., Appellees. |
| Court | Illinois Supreme Court |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
James J. Morici, Jr., of Morici, Figlioli & Associates, David A. Novoselsky and Brian Albert Schroeder, all of Chicago, for appellants.
James R. Branit, of Litchfield Cavo LLP, Chicago, for appellee Mark's Construction, Inc.
Joseph A. Cancila, Jr., James P. Gaughan and Matthew G. Schiltz, of Schiff Hardin LLP, Chicago, for appellee Michael J. Izrael.
John L. Nisivaco, of Dolan & Nisivaco, LLC, Chicago, for amicus curiae Illinois Trial Lawyers Association.
In the early morning hours of August 30, 2001, a fire broke out in the basement of a Park Ridge, Illinois, residence which was under construction. Firefighters Wedge C. Lazenby (Lazenby) and Derek R. Decker (Decker) (collectively hereinafter referred to as plaintiffs) responded to the fire. While attempting to locate the source of the fire, Lazenby fell through an unprotected floor opening to the cement basement below and was severely injured. Decker was injured when he fell from a ladder while attempting to rescue Lazenby. Plaintiffs filed suit in the circuit court of Cook County against Mark's Construction, Inc. (Mark's Construction), the general contractor working on the home.
The trial court entered summary judgment against Decker, finding that Mark's Construction had no duty to prevent Decker's injuries. Following a trial on Lazenby's claims, the trial court entered judgment on the jury's general verdict for Mark's Construction. Both plaintiffs appealed, and the appellate court affirmed the trial court's judgment. No. 1-06-2969 (unpublished order under Supreme Court Rule 23).
The issues presented in this appeal are: (1) whether section 9f of the Fire Investigation Act (Act) (425 ILCS 25/9f (West 2004)) applied retroactively to Decker's claims; and (2) whether the trial court erred in failing to enter a judgment notwithstanding the verdict (judgment n.o.v.) or order a new trial for Lazenby. For the reasons that follow, we affirm the appellate court.
On December 28, 2001, plaintiffs filed a complaint based on negligence against Mark's Builders, Inc., and Marek Kolbiarz, individually and doing business as Mark's Builders, Inc. (later corrected to Mark's Construction, Inc., hereinafter referred to as Mark's Construction). On August 29, 2003, plaintiffs filed their first amended complaint, alleging construction negligence and premises liability and adding Michael Izrael, the owner of the house, as a defendant.1
In response, Mark's Construction filed motions for summary judgment, alleging that plaintiffs' claims were barred by the common law "fireman's rule" because their injuries resulted from risks normally associated with firefighting duties, and that plaintiffs' injuries were unforeseeable.
On April 26, 2004, plaintiffs filed their second amended complaint, the complaint at issue in this appeal. Plaintiffs alleged 12 counts based on theories of construction negligence (counts I and II); premises liability (counts III and IV); violation of statutory duty (counts V and VI); willful and wanton construction (counts VII and VIII); willful and wanton premises liability (counts IX and X); and willful and wanton violation of statutory duty (counts XI and XII).2
On July 28, 2004, the trial court granted summary judgment for Mark's Construction as to Decker's claims in counts II, IV, and VI, finding that under the fireman's rule, Mark's Construction had no duty to Decker for his injuries. The court rejected Decker's argument that section 9f of the Act retroactively imposed a duty on Mark's Construction. 425 ILCS 25/9f (West 2004) (). All of Decker's claims were thus dismissed or disposed of by summary judgment prior to trial. The summary judgment motion directed at Lazenby was denied because the court held that the fireman's rule did not apply to Lazenby's injuries.
Lazenby and Mark's Construction proceeded to a jury trial on December 2, 2005. Kolbiarz testified as an adverse witness for the plaintiff and also on his own behalf. He testified that, on the evening of August 29, 2001, he left the residence at approximately 6:30 p.m. after the other workers had left. The stairway to the basement was not yet installed, leaving an open hole in the floor measuring approximately 16 feet by 4 feet. Kolbiarz estimated that the basement floor was about 10 feet below the opening. He admitted that the unprotected hole was a safety hazard. Although a guardrail previously had been installed around the hole, the guardrail was removed that day to permit drywall work and Kolbiarz decided to wait until the next morning to replace the guardrail because the house was locked and he did not expect anyone else to enter the house during the night. When asked on cross-examination why he did not buy a piece of plywood at a lumber store to cover the hole, he replied that the store was closed. Kolbiarz further testified that an orange construction fence surrounded the outside of the residence.
Lazenby testified on his own behalf. He stated that he and his partner, firefighter Karen Carrillo, arrived at the scene in a fire department vehicle. He stated that he received a radio order from his acting battalion chief, Alvin Portell, to "force entry" into the residence. Accordingly, he forced the door open with an axe and entered the residence with Carrillo. Members of the engine crew followed them inside with a hose. The house was filled with smoke, limiting visibility to approximately six to nine inches. According to Lazenby, Lieutenant Plach said that he was going upstairs to look for the fire and Lazenby responded that he would look for the fire in the basement. While crawling on the floor with a flashlight to search for the seat of the fire, Lazenby felt an object with his hand which he thought was the tread and riser of a stair. The object gave way, and he fell head first through an opening in the floor. He heard a loud metallic crash, which he assumed was caused by the object hitting the floor. A folding ladder came down through the hole but was pulled back because it was too small. Decker then fell through the hole, on top of Lazenby. Both firefighters used a second ladder to escape from the hole.
Lazenby testified that the "two-in, two-out" policy is a fire department guideline that is not always followed to the letter. It states that for every two firefighters who enter a building, two firefighters stand at the ready to go in if something happens to them. Lazenby admitted that because he and Carrillo were in the first vehicle on the scene, ordinarily they would stay outside the building and man the backup line as the "two-out" company. When asked if he violated any principles of the two-in, two-out guideline, Lazenby answered that he did not. He testified that the only order he received was to force entry. Lazenby further acknowledged that he was trained to sound the floor for hazards by using a tool such as an axe or a pipe pole, but that he had neither of these tools with him at the time of the accident.
Plaintiff's safety expert, Dennis Puchalski, testified that the protection of open holes in floors is an important safety concern on a construction site. In this instance, the unprotected floor opening violated construction safety customs and practice and violated guidelines issued by the Occupational Safety and Health Administration (OSHA) and by various construction industry associations. After being removed, the guardrails should have been reinstalled to ensure proper site safety. Puchalski testified that "there is never a time-out as far as the protection * * * at all points in time you protect the opening." He stated that if proper protective devices had been used, Lazenby's fall and injury would not have occurred.
At the close of plaintiff's case in chief, Lazenby moved for a directed finding on the issue of Mark's Construction's negligence in failing to cover or protect the floor opening and on the issue of proximate cause. The trial court denied the motion.
Firefighter Carrillo testified on behalf of the defense that she did not hear any orders to "force entry" into the residence or to search for the seat of the fire. Carrillo followed Lazenby inside the residence, followed by the line crew with the hose. As Lazenby was entering the house, he was yelling, "Let's go, let's go." Carrillo heard the acting lieutenant yell, "Wait for the hose." Carrillo yelled to Lazenby, Lazenby then fell through the hole. Carrillo did not hear Lazenby say anything about trying to find the basement.
Fire Lieutenant Alvin Portell also testified for the defense. Portell was the shift commander and the highest ranking officer at the fire scene. He stated that he never gave Lazenby an order to enter the residence or to search for the seat of the fire, nor did any other officer order Lazenby to enter the building. Portell stated that an order to "force entry" is to force open a door, but not necessarily to enter a building. Lazenby engaged in "freelancing" and violated the chain of command by entering the building without receiving orders to do so. Portell explained that "freelancing" is a term of art which means that a firefighter does things on his own without an order and without communication with others, putting themselves and other firefighters in danger. Both Portell and Carrillo further testified that when they arrived at the scene they noticed that the house was obviously under construction.
Defense expert witness John Agosti testified that Lazenby would have been in...
To continue reading
Request your trial
-
Solis v. BASF Corp.
...denying BASF's motion for judgment n.o.v. and the decision to direct a verdict for Solis. Id.; Lazenby v. Mark's Construction, Inc., 236 Ill.2d 83, 100, 337 Ill.Dec. 884, 923 N.E.2d 735 (2010).¶ 27 Statute of Limitations ¶ 28 BASF contends that Solis's claims are barred by the two-year pers......
-
Great Am. Ins. Co. of N.Y. v. Heneghan Wrecking & Excavating Co.
...a presumption that the jury found in favor of the winning party on every defense raised. Lazenby v. Mark's Construction, Inc., 236 Ill.2d 83, 102, 337 Ill.Dec. 884, 923 N.E.2d 735 (2010) ; see also Strino v. Premier Healthcare Associates, P.C., 365 Ill.App.3d 895, 904, 302 Ill.Dec. 784, 850......
-
Hayashi v. Ill. Dep't of Fin. & Prof'l Regulation
...a statute and whether a party's constitutional rights have been violated are reviewed de novo. Lazenby v. Mark's Construction, Inc., 236 Ill.2d 83, 93, 337 Ill.Dec. 884, 923 N.E.2d 735 (2010).¶ 23 In determining whether a statute may be applied retroactively, as opposed to prospectively onl......
-
Cook v. AAA Life Ins. Co.
...Ass'n v. Danner, 2012 IL App (4th) 110461, ¶ 30, 359 Ill.Dec. 806, 967 N.E.2d 836 (quoting Lazenby v. Mark's Construction, Inc., 236 Ill.2d 83, 93, 337 Ill.Dec. 884, 923 N.E.2d 735 (2010) ). We review the trial court's decision to grant or deny a motion for summary judgment de novo. Id. (ci......
-
Table of Cases
...v. A&B Excavating, Inc., 365 Ill App3d 559, 850 NE2d 215, 302 Ill Dec 778 (1st Dist 2006), §30:455 Lazenby v. Mark’s Construction, Inc. , 236 Ill2d 83, 923 NE2d 735, 337 Ill Dec 884 (2010), §3:12 Learning Curve International, Inc. v. Seyfarth Shaw LLP , 392 Ill App3d 1068, 911 NE2d 1073, 33......
-
Statutes of Limitations
...would violate defendant’s right to due process and summary judgment was properly granted. [ Lazenby v. Mark’s Construction, Inc., 236 Ill2d 83, 923 NE2d 735, 337 Ill Dec 884 (2010).] §3:13 When Statute Not Readily Apparent To determine which statute of limitations applies, the court will lo......
-
Statutes of Limitations
...ILLINOIS PRETRIAL PRACTICE 3-12 company’s right to due process under the Illinois Constitution. [ Lazenby v. Mark’s Construction, Inc., 236 Ill2d 83, 923 NE2d 735, 337 Ill Dec 884 (2010).] §3:13 When Statute Not Readily Apparent To determine which statute of limitations applies, the court w......
-
Statutes of Limitations
...law would violate the construction company’s right to due process under the Illinois Constitution. [ Lazenby v. Mark’s Construction, Inc., 236 Ill2d 83, 923 NE2d 735, 337 Ill Dec 884 (2010).] §3:13 When Statute Not Readily Apparent To determine which statute of limitations applies, the cour......