Leavitt v. Farwell Tower Ltd. Partnership

• Decision Date: 21 June 1993
• Docket Number: No. 1-91-1582,1-91-1582
• Citation: 192 Ill.Dec. 88,625 N.E.2d 48,252 Ill.App.3d 260
• Parties: , 192 Ill.Dec. 88 Marilyn LEAVITT, Special Administrator of the Estate of Burton Schwartz, Deceased, Plaintiff-Appellant, v. FARWELL TOWER LTD. PARTNERSHIP, David E. Friedman, William F. Fallmer, Barbara Fallmer and Gallaher & Speck, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 48

625 N.E.2d 48

252 Ill.App.3d 260, 192 Ill.Dec. 88

Marilyn LEAVITT, Special Administrator of the Estate of Burton Schwartz, Deceased, Plaintiff-Appellant, v. FARWELL TOWER LTD. PARTNERSHIP, David E. Friedman, William F. Fallmer, Barbara Fallmer and Gallaher & Speck Defendants-Appellees.

No. 1-91-1582.

Appellate Court of Illinois First District, First Division.

June 21, 1993.

Rehearing Denied Sept. 14, 1993.

Jeffrey M. Goldberg & Associates, Ltd., Chicago (Jeffrey M. Goldberg and Stephen D. Blandin, of counsel), for plaintiff-appellant.

Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Perry W. Hoag and Lloyd E. Williams, Jr., of counsel), for defendants-appellees Farwell Tower Ltd. Partnership, David E. Friedman, William F. Fallmer and Barbara Fallmer.

Cassiday, Schade & Gloor, Chicago (Timothy J. Ashe, Lynn D. Dowd and Patricia J. Hogan, of counsel), for defendant-appellee Gallaher & Speck.

Justice CAMPBELL delivered the opinion of the court:

Plaintiff Marilyn Leavitt, Special administrator of the estate of Burton Schwartz, appeals an order of the circuit court of Cook County granting summary judgment to defendants Farwell Tower Limited Partnership ("Farwell"), David E. Friedman, William F. Fallmer, Barbara Fallmer (the Farwell defendants") and Gallaher & Speck. For the following reasons, we affirm.

The record on appeal indicates the following facts. Plaintiff filed a wrongful death action against the defendants named above. Plaintiff alleged that her cousin, Burton Schwartz, was a tenant who resided in apartment 312 of a building located at 2115 West Farwell in Chicago, Illinois. It is alleged that Farwell, Friedman, and the Fallmers were the owners or had legal interests in this building. Gallaher & Speck allegedly contracted with the owners of the building for the maintenance and repair of the building's elevator. Plaintiff claimed that the owners were negligent in maintaining and repairing the elevator. Plaintiff claimed that Gallaher & Speck was similarly negligent and also negligent in specific technical areas that are discussed below, where necessary. Plaintiff claims that defendants' negligence caused Schwartz's death.

Defendants eventually moved for summary judgment; a number of depositions were taken relating to these motions. These depositions indicate that on September 9, 1987, Schwartz was found dead in the sole elevator shaft of the building at 2115 West Farwell. The building is five stories tall.

Ann Abrams, another tenant of the building, stated in her deposition that on the date at issue, she saw Schwartz in the front vestibule of the building at approximately 11 a.m. According to Abrams, Schwartz had a license plate and was exiting the building to put the plate on his car. Schwartz was wearing a white tee shirt and shorts or slacks. Abrams went up to her apartment on the second floor. At approximately 11:10 a.m., Abrams answered a knock at her door from her neighbor, Joyce Rosee. The two women went out into the hallway. Abrams observed that the elevator hoistway doors were open. When Abrams looked upward, she could see the bottom of the elevator cab about six inches above the top of the hoistway. Abrams ran scotch tape across the doorway. Abrams then noticed a package of mail addressed to Schwartz on the floor near the elevator door. Abrams called the building office and spoke with the maintenance man who arrived shortly thereafter.

Joyce Rosee's deposition corroborated much of Abrams' deposition. However, according to Rosee, she first discovered the open elevator door after finishing lunch at approximately 12:15 p.m. Rosee looked into the dark shaft and then knocked on Abrams' door.

Donald Hurley, an elevator repairman from Gallaher & Speck, stated in his deposition that on the date in question, he arrived at the building to repair leaky packing in the elevator pit. When he arrived, Hurley noticed an "Elevator Out of Order" sign on the first floor elevator door. Hurley opened the door with the required special key or tool. Hurley saw the elevator cab stopped between the second and third floors. Hurley then saw Schwartz's body in the pit of the elevator. Hurley indicated that the bottom of the pit of the elevator shaft is roughly four feet from the first floor landing. The body was wrapped around a spring; the travelling power cable had been pulled from underneath the elevator cab and was entangled around the body. The body was clad in pajamas. Hurley inspected the elevator on September 10, 1987, accompanied by Henry King.

Henry King, a fifty percent owner of Gallaher & Speck, stated in his deposition that he had experience as an elevator mechanic. Both Hurley and King indicated in their depositions that the elevator cab was stuck due to a physical obstruction between the vanes in the hoistway and the cam that sat on top of the elevator cab. King indicated that on September 9, 1987, none of the hoistway doors had spirators, which are automatic door closure devices. King indicated he had not recommended installing spirators prior to that date. According to King, the City of Chicago later required the installation of spirators.

Plaintiff also submitted the affidavit of elevator mechanic Russell G. Kramer. The affidavit indicated that from 1983 to 1988, it was the custom and practice of elevator repair and maintenance personnel to install or recommend the installation of spirators for elevators that did not have automatic door closure devices. The affidavit indicated the failure to install or recommend installation of spirators was a deviation from safe practice.

On February 26, 1991, following a hearing, the trial court granted summary judgment in favor of all defendants except Gallaher & Speck. Plaintiff filed a motion to reconsider this ruling. On April 23, 1991, the trial court denied plaintiff's motion to reconsider and also granted summary judgment in favor of Gallaher & Speck. Plaintiff now appeals.

I

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Alop v. Edgewood Valley Community Association (1987), 154 Ill.App.3d 482, 484, 107 Ill.Dec. 355, 357, 507 N.E.2d 19, 21.) If the papers submitted would constitute all the evidence before a court and would require the court to direct a verdict, summary judgment should be entered. (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 561, 543 N.E.2d 1304, 1308.) Thus, summary judgment should be entered for defendants where all the evidence, when viewed most favorably toward plaintiff, so overwhelmingly favors defendants that no contrary verdict could ever stand. (See Pedrick v. Peoria & Eastern Rail Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill.App.3d 1, 86 Ill.Dec. 335, 475 N.E.2d 549.

II

Plaintiff brings her claim under the Wrongful Death Act (Ill.Rev.Stat.1987, ch. 70, par. 1 et seq.) ("Act"). In order to maintain a claim under the Act, plaintiff must demonstrate: (1) defendant owed a duty to decedent; (2) defendant breached that duty; (3) the breach of duty proximately caused decedent's death; and pecuniary damages arising therefrom to persons designated under the Act. (See Old Second National Bank of Aurora v. Aurora Township (1987), 156 Ill.App.3d 62, 65, 109 Ill.Dec. 31, 34, 509 N.E.2d 692, 695.) If plaintiff fails to establish one of these elements from the papers on file, summary judgment for defendants is proper. (See Pyne, 129 Ill.2d at 358, 135 Ill.Dec. at 560, 543 N.E.2d at 1307.) The questions raised on appeal relate to elements of duty and causation. We address each question in turn.

A

Defendants claim that plaintiff failed to show that they owed a duty to decedent. Plaintiff argues that defendants have waived the argument because they failed to raise it below. Although the trial court granted defendants' motions on the proximate cause issue, the record indicates that the issue of duty was raised in the memoranda submitted in support of and in opposition to summary judgment. This court may affirm summary judgment for any reason that properly appears in the record, regardless of whether that reason is the reason relied upon by the trial court. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill.App.3d 408, 418, 112 Ill.Dec. 92, 99, 513 N.E.2d 506, 513.) Consequently, this court may consider the issue on appeal.

Gallaher & Speck, which maintained the elevator at issue, was legally required to exercise that degree of care that an ordinarily prudent elevator maintenance business would exercise under the same or similar circumstances. (Jardine v. Rubloff (1978), 73 Ill.2d 31, 41, 21 Ill.Dec. 868, 872, 382 N.E.2d 232, 236.) For example, Gallaher & Speck may be charged with the duty to take reasonable steps to discover problems with an elevator and the duty to take reasonable steps to correct any problem so discovered. See Davlan v. Otis Elevator Co. (7th Cir.1987), 816 F.2d 287, 291.

Gallaher & Speck argues that none of the prior problems with the elevator at issue involved the door closure devices and therefore Gallaher & Speck had no prior knowledge of any problem with the door closure devices. However, plaintiff introduced the affidavit of an elevator mechanic that it was the custom and practice of elevator maintenance personnel to install or recommend the installation of spirators and that failure to do so was a deviation from accepted safe practice. The record indicates that Gallaher & Speck did not recommend the installation of spirators before the events at issue here occurred. Thus, plaintiff raised a question of material fact as to whether Gallaher & Speck breached a duty to decedent to recommend or install spirators...