Racky v. Belfor U.S. Grp., Inc.

• Decision Date: 16 June 2017
• Docket Number: No. 1-15-3446.,1-15-3446.
• Citation: 83 N.E.3d 440,2017 IL App (1st) 153446
• Parties: Meghan RACKY, Special Administrator of the Estate of Michael J. Racky, Deceased, Plaintiff–Appellee, v. BELFOR USA GROUP, INC. d/b/a Belfor Property Restoration, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 153446

83 N.E.3d 440

Meghan RACKY, Special Administrator of the Estate of Michael J. Racky, Deceased, Plaintiff–Appellee,

v.BELFOR USA GROUP, INC. d/b/a Belfor Property Restoration, Defendant–Appellant.

No. 1-15-3446.

Appellate Court of Illinois, First District, FIFTH DIVISION.

June 16, 2017

Tia C. Ghattas, James G. Argionis, and Elisabeth C. Ross, of Cozen & O'Connor, of Chicago, for appellant.

Michael W. Rathsack, of Law Office of Michael W. Rathsack, and Thomas M. Paris, both of Chicago, for appellee.

OPINION

JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Megan Racky, special administrator of the estate of Michael J. Racky, brought this premises liability action against defendant Belfor USA Group, Inc. (Belfor), along with others not parties to this appeal, alleging negligence in the death of her father Michael Racky, who died as a result of falling through a plate glass window of a property Belfor had been remodeling. Following a bench trial, the trial court found in plaintiff's favor and awarded damages in the amount of $1.875 million to plaintiff after finding the decedent to be 25% contributorily negligent.

¶ 2 Belfor appeals, arguing that (1) the trial court erred in entering judgment in favor of plaintiff where the evidence failed to establish that it had a duty because (a) it was not a possessor of the property, (b) the decedent encountered an open and obvious danger, and (c) the window was outside the scope of Belfor's contract; and (2) the trial court erred in awarding damages on both the survival and wrongful death counts where (a) the evidence did not establish the decedent experienced conscious pain and suffering and (b) the amount of the damage award falls outside the range of reasonable compensation. For the reasons that follow, we affirm.

¶ 3 BACKGROUND

¶ 4 This case involves the death of the decedent after he fell through a plate glass window located at 4823 West 95th Street in Oak Lawn (the property). The property, a strip mall, consisted of a number of stores. The store primarily at issue in this case, however, is Miss Fantasia Boutique (the boutique), which was situated near the corner of 95th Street and Lacrosse Avenue. The boutique's storefront, which faced both 95th Street and Lacrosse Avenue, consisted of large plate glass windows set into a low parapet wall.

¶ 5 Six months prior to the decedent's death, a fire had broken out at Eva's Bridal Salon, a store located in the middle of the property. The stores to the east of the bridal salon were not as affected by the fire and reopened shortly thereafter. The stores to the west of the bridal salon, however, were quite damaged and in need of repair. Ace Boarding Company was immediately hired to secure the property. Two days later, on November 19, 2010, Belfor was hired by the owner of the property, Evans Karnezis (Karnezis), to perform fire remediation services on the stores that sustained fire damage, including the boutique. Belfor then commenced its work, which included boarding up the property and repairing the damage caused by the fire and smoke.

¶ 6 Thereafter, on March 21, 2011, Belfor entered into a second contract with Karnezis regarding demolishing the interior of the property, including the interior of the boutique. These efforts included tearing down the walls between the stores on the west side of the property. The intention was ultimately to remodel the interior and exterior of the entire property; however, the March 21, 2011, contract only involved interior work. Belfor completed this stage of the project on April 26, 2011. Thereafter, Belfor continued to access the property while obtaining bids for the final stage of the remodeling project. On May 24, 2011, the decedent fell through the boutique's plate glass window adjacent to Lacrosse Avenue, severely lacerating his leg and succumbed to his injuries. It should be noted, despite Belfor' remediation efforts, the boutique never reopened.

¶ 7 Subsequently, plaintiff filed the instant lawsuit. The operative complaint in this matter, the fourth amended complaint, alleged various counts against Karnezis and the boutique. Those counts, however, were disposed of prior to trial and are not at issue in this appeal. The only counts remaining for adjudication were those against Belfor for survival and wrongful death based on a premises liability theory. Plaintiff alleged that Belfor had exclusive possession of the property at the time of the decedent's accident and knew or should have known about the dangerous condition of the boutique's plate glass window. Thus, by not guarding against the dangerous condition, Belfor proximately caused the injury suffered by the decedent and was responsible for the damages that were incurred as a result.

¶ 8 The matter then proceeded to a bench trial, where the following facts are adduced from 21 witnesses. Plaintiff presented the following witnesses: (1) Ricardo Rodriguez, the eyewitness to the accident; (2) Patricia Lynch, the owner of Miss Fantasia Boutique; (3) Evans Karnezis, the owner of property where the boutique was located; (4) Dr. Theresa Schwab, an emergency room physician who treated the decedent; (5) Tim English, Belfor's project manager; (6) Henry Manalli, Belfor's general manager; (7) Mark Meshulam, an expert in the field of building engineering; (8) Dennis Puchalski, an expert in construction safety; (9) Sean Racky, the decedent's son; (10) Meghan Racky, the decedent's daughter; (11) Matthew Racky, the decedent's son; (12) Molly Racky, the decedent's daughter; and (13) Patricia Harthun, a licensed clinical professional counselor.

¶ 9 Defendant's witnesses were as follows: (1) Dr. Jerry Bauer, an expert on conscious pain and suffering; (2) Dr. Patrick Ng, former chief toxicologist for the Cook County Office of the Medical Examiner; (3) Dr. Christopher Long, chief toxicologist for St. Louis County, Missouri; (4) Officer Michael Quinn, a police officer with the Oak Lawn Police Department; (5) Michael Loughney, a firefighter engineer with the Oak Lawn Fire Department; (6) Andrew Nieto, an expert in construction safety; (7) Lindsay Anderson, a glass expert; and (8) Dr. Andrew Kulik, a psychologist and an expert in the field of psychiatry.

¶ 10 The Accident

¶ 11 Ricardo Rodriguez, the only eyewitness to the accident, testified that on May 24, 2011, at 1 p.m., he was traveling east along 95th Street in Oak Lawn as a passenger in his wife's vehicle when he observed the decedent crossing 95th Street on a bicycle.¹

¶ 12 As Rodriguez observed the decedent ride his bicycle across 95th Street, he did not find the decedent's actions to be unusual. As the decedent approached the curb in front of the boutique, he "jumped" his bicycle, i.e. , lifted his front and back tires over the curb, and then "wobbled a little on the bike" as he attempted to pedal forward.² At this point, the decedent was on the sidewalk near the side of the boutique's plate glass window, which was adjacent to Lacrosse Avenue. Rodriguez then observed the decedent place his left hand on the window in an apparent attempt to balance himself. Rodriguez was asked to demonstrate how high off the handle bars the decedent touched the window. The court stated, "Just for the record, the witness is indicating a height—can you put your hand back again? And where are the handlebars? The Court's estimate is that's somewhere from eight to 12 inches off the handlebars."³ Rodriguez then observed the decedent fall through the window. Rodriguez testified that the decedent did not appear to be intoxicated. When asked by plaintiff's counsel whether he was able to make a statement regarding the amount of pressure Rodriguez believed the decedent had exerted on the window, Rodriguez replied, "I want to say light." Rodriguez then explained, "Because he had his bike. It wasn't leaning or anything. It was balanced just when his hand was on the window that he fell." Rodriguez, however, later testified on cross-examination that he did not know how much force the decedent used when he touched the glass or the amount of force the decedent's body exerted on the glass on impact. Oak Lawn police officer Michael Quinn, however, testified that Rodriguez informed him that the decedent lost his balance and "crashed" into the plate glass window.⁴

¶ 13 Upon observing the decedent fall through the window, Rodriguez shouted to his wife, who stopped their vehicle in the middle lane of traffic. Rodriguez exited the vehicle, ran towards the decedent, and called 911. The decedent's upper body was inside the boutique and, from the thighs down, his legs were outside, draped over the parapet wall. Rodriguez testified he heard "a gurgling sound like a moaning." Rodriguez then demonstrated the sound for the court and testified the sound continued for two or three minutes.⁵

¶ 14 Glen Lyman, an off-duty emergency medical technician, arrived on the scene a few minutes after the incident occurred. Rodriguez moved the decedent's bicycle out of the way and Layman attempted to stop the decedent's leg from bleeding, but ultimately was unsuccessful. Rodriguez testified that the decedent continued moaning during this time, but he could not see whether the decedent's eyes were open because the decedent was wearing sunglasses. The decedent also did not make any movements.

¶ 15 Shortly thereafter, the Oak Lawn Fire Department arrived. Michael Loughney, a firefighter engineer, testified that when he arrived at the accident scene at 1:20 p.m., he observed the decedent's legs hanging out of the window. The jagged glass that remained in the window made it too dangerous for him to enter the boutique through the window. A short time later, the fire engine crew arrived and forced the door to the boutique open. He entered in through the front door and observed a large amount of blood on the floor.

¶ 16 Loughney approached the decedent and noticed an odor of alcohol. Loughney testified that at no point was the...