Lombardo v. Reliance Elevator Co.
Case Date: 06/30/2000
Court: 1st District Appellate
Docket No: 1-99-1032, 1033 cons.
Lombardo v. Reliance Elevator Co., Nos. 1-99-1032 & 1-99-1033, cons.1st District, June 30, 2000SECOND DIVISION
JUSTICE MCNULTY delivered the opinion of the court: Plaintiff, Dominic Lombardo, suffered injuries when the lift he was riding suddenly fell. A jury rejected the claim againstthe party who maintained the lift, but found the building's owner liable. The building owner and plaintiff filed separateappeals, which we consolidated. Plaintiff worked in the maintenance department of Avenue National Bank in Oak Park. He had a small office in thebasement. When he received an emergency call on November 30, 1994, he took a sidewalk lift to get from the basement tothe parking lot. The lift rose to within a foot of sidewalk level, but then it suddenly fell to the basement, bringing plaintiffdown with it. Plaintiff sustained severe injuries to both feet. Oak Park paid Edwin Jacobitz to inspect all the elevators and lifts in the village twice a year. When he inspected thesidewalk lift in October 1993, he wrote in his remarks: "Replace hoist cable, very rusty and dry. *** Have this done by Nov. 1 1993." Oak Park mailed to the bank a copy of Jacobitz' report. When Jacobitz next inspected the lift in February 1994, he made noremarks. After Jacobitz retired, Oak Park contracted with Elevator Inspection Service (EIS) for the inspections. Thomas Bush, anemployee of EIS, noted no problems with the lift when he inspected it in August 1994. The bank paid Reliance Elevator Company to examine and oil the lift once every three months. On November 11, 1994,Reliance performed its regular maintenance and inspection, noting no problems with the lift. Plaintiff sued Reliance for negligent maintenance, and he sued EIS and Jacobitz for negligent inspections. He also suedW.S. Partners (WS), the beneficiary of the trust which held title to the building, claiming WS had a duty to maintain the liftin safe condition. WS counterclaimed against the three other defendants. Reliance filed a third-party claim for contributionagainst the bank. WS, Reliance, and the bank all admitted that they did not replace the cable between October 1993, whenJacobitz found it defective, and plaintiff's accident in November 1994. Jacobitz, EIS, and the bank reached settlements withplaintiff. Reliance and WS agreed that the jury's apportionment of responsibility on trial of the complaint would govern theapportionment of liability for purposes of the counterclaim. The court denied most of the numerous motions in limine the parties presented. At trial plaintiff admitted that the lift had a "no passengers" sign. He rode the lift perhaps two or three times a year. No onetold him not to ride the lift, and he never asked why it had the sign. One of plaintiff's coworkers testified that as part of his work he periodically needed to take a quantity of plastic containersout of the bank. He would put them on a cart, push the cart onto the sidewalk lift, and then he would ride the lift with thecart to the sidewalk. He said he had to ride the lift because the lift had no walls, rails, or anything to tie down the cart. Thecart could roll on the lift, and if it rolled to the side, it could obstruct the lift, damaging it. Once the cart reached thesidewalk, someone in the basement needed to run the lift to bring it back down. The only control panel was in the basement,near the lift. He could operate the controls easily while standing on the lift. Plaintiff's supervisor, in charge of building maintenance, testified that the letter from Oak Park regarding the sidewalk liftshould have come to his attention. He did not remember ever seeing the letter. As far as he knew, no one ever replaced thecable. The president of Reliance admitted that the contract with the bank required Reliance to inspect the lift's cables. Plaintiffpresented as an exhibit an enlarged copy of part of the contract, and the president read into evidence the paragraph statingits duties under the contract. No party questioned the president about any other part of the contract. The lift had a "nopassengers" sign because the lift's design made it dangerous to ride. A former Reliance employee swore that the person performing maintenance on the lift should lubricate the cablesperiodically. He said that operators could ride on the sidewalk lift even though passengers should not. Woodrow Nelson, a mechanical engineer, testified that he inspected the sidewalk lift after the accident. He showed the juryphotographs of the frayed end of the broken cable, pointing out that it was extremely dry at the break. He found that themost readily accessible portions of the cable had been lubricated, but the portion which failed showed no signs oflubrication. In his opinion, the cable failed due to lack of proper maintenance. While parts of the cable had been recentlylubricated, the part that failed had not been lubricated for several years. Bush, who inspected the lift for EIS before the accident, testified that he worked with elevator maintenance for 50 years.The lift had a design that made it too dangerous for riders. After he inspected the cable he concluded that the lift's platformencountered an obstruction as it rose, and when the motor kept pulling the cable, the cable simply snapped. The condition ofthe equipment had no bearing on the failure. On cross-examination, Bush conceded that he did not consider himself an expert. He was not an engineer and he had notraining in physics after high school. He did not examine the cable in any detail; he noted only that it had broken. Hereviewed no experts' depositions or other evidence. Plaintiff presented him with facts from those depositions, and detailsconcerning the cable, and asked if those facts could affect his opinion about the cause of the break. Bush answered thatnothing would affect his opinion in the case. He had no idea what object could have obstructed the lift, and he pointed to noevidence - apart from the broken cable - showing such obstruction. He offered no explanation or support for his opinionthat only an obstruction, and not wear, use, or lack of lubrication, could have caused the cable to break. Richard Gregory, an electrical engineer who specialized in elevators, testified for Reliance that the lift did not qualify as anelevator under applicable standards, because it lacked requisite cables, switches and gates. No person should ride the lift,either as a passenger or as an operator. On cross-examination, and over Reliance's scope objection, Gregory admitted thatthe broken cable showed signs of deterioration due to lack of lubrication. The court disallowed further questions which,according to plaintiff's offer of proof, would have elicited the opinion that the lack of lubrication contributed to the failureof the cable. A partner in WS explained that WS entered a financing arrangement with the bank whereby the bank sold its property toWS, then leased the same properties from WS. WS never had possession of the property, as the bank retained full control atall times. The witness admitted that he sat on the bank's board of directors, but neither he nor WS received any notice of theneed to replace the cable. In closing Reliance argued that the cable must have been replaced within a year before the accident. Jacobitz found adangerously dry cable when he inspected the lift in 1993, but his inspection in 1994 revealed no dangers. Plaintiff arguedthat the admissions of all responsible parties showed that no one replaced the cable. Oak Park adopted as its building code the Basic National Building Code recommended by the Building Officials and CodeAdministrators International, Inc. (the Code). Section 3012.1 of the Code provided: "The owner or the owner's legal agent for the building in which the equipment is located shall be responsible for thecare, maintenance and safe operation of all equipment covered by this chapter [concerning elevators and lifts] afterthe installation thereof and acceptance by such owner or agent. The owner or legal agent shall make or cause to bemade all periodic tests and inspections and shall maintain all equipment in a safe operating condition as required bythis chapter." The Code defined an owner as "Any person, agent, firm or corporation having a legal or equitable interest in the property." WS asked the court to instruct the jury: "If a landlord either knows about an existing defect on the premises which is not readily apparent, or knows of factsand circumstances which would indicate that there is such a defect, then he must tell his tenant about it. However, alandlord need not warn his tenant about a defect which the tenant could have discovered by a reasonable inspection." See Illinois Pattern Jury Instructions, Civil, No. 130.01 (3d ed. 1995) (IPI Civil 3d). The court rejected the proposal andinstead adopted plaintiff's instruction stating that plaintiff had the burden of proving: "Defendant W.S. Partners was negligent in one or more of the following ways: (A) Carelessly and negligently failed to inspect the sidewalk freight elevator on said property. (B) Carelessly and negligently failed to maintain the sidewalk elevator in a safe operating condition in violation ofSection 3012.1 of the Village of Oak Park's building code." See IPI Civil 3d Nos. 20.01, B21.02.01. The court read the Code section to the jury and said: "If you decide that a party violated the ordinance on the occasion in question, then you may consider that fact togetherwith all other facts and circumstances in evidence in determining whether and to what extent if any *** the party wasnegligent before and at the time of the occurrence." See IPI Civil 3d No. 60.01. After the court denied a motion for a directed verdict on the defense of contributory negligence, plaintiff sought aninstruction directing the jury to allocate fault between only Reliance, WS and plaintiff. The court instead accepteddefendants' proposal to permit allocation of fault to the bank and EIS also. During deliberations the jury requested several exhibits. The judge discussed the request with the parties and decided tosend nothing back. Shortly after the judge so informed the jurors, they sent a note reiterating the request and specifying theexhibits sought. Without consulting the parties, the judge sent to the jury all the requested exhibits available in court,including the enlarged copy of a portion of Reliance's contract with the bank. The jurors later requested the original of thecontract, although that had not been admitted into evidence. The note specified that the jurors could not "read the ***disclaimer" on the enlargement. After sending the document to the jury, the court permitted plaintiff and WS to state for therecord their strenuous objections to sending the contract to the jury. The contract includes the following disclaimer: "[Reliance] shall not under any circumstances be liable directly or indirectly for any accident, injury, breakage, ordamage to the elevators or any machinery, appliances, or property connected therewith - nor shall it under anycircumstances be liable directly or indirectly for any accident, injury, or damage to any person or personswhomsoever while riding upon or being in or about said elevators however caused and we agree to insure and to save[Reliance] harmless therefor - nor shall it in any way be liable for any damage caused directly or indirectly by strikes,lockouts, accidents, or other causes beyond its control." Because no party asked any questions concerning this clause, the parties had no opportunity to argue to the jury about theinterpretation and effect of the clause. The jury returned a verdict against WS but in favor of Reliance, attributing 50% of the negligence to WS, 25% to the bank,5% to EIS, 20% to plaintiff, and none to Reliance. The jury assessed total damages of $940,000. Following reductions forcontributory negligence and the settlements, the court entered judgment against WS for $604,178.87. Both WS and plaintiffappealed from the judgment, and we consolidated the appeals. Reliance suggests that we should address WS's appeal first, because a decision against WS could render plaintiff's appealmoot. We accept the suggested procedure. Reliance contends that WS waived most of its arguments by agreeing to let the jury's apportionment of responsibilitygovern the apportionment for purposes of the counterclaim. WS sought appropriate instructions and presented evidencerelevant for determining the relative degrees of fault of the defendants. We do not see how the agreement to this mode ofdecision on the issues constitutes waiver of the arguments presented. Cf. Harden v. Playboy Enterprises, Inc., 261 Ill. App.3d 443, 455, 633 N.E.2d 764 (1993). WS advances several grounds for a judgment notwithstanding the verdict. WS contends that it owed no duty to plaintiff oranyone else on the bank's property because it did not retain control over the property. The parties agree that the court statedthe applicable law in Gilbreath v. Greenwalt, 88 Ill. App. 3d 308, 309-10, 410 N.E.2d 539 (1980): "[A] lessor is not generally liable for injuries resulting from defective conditions where premises are wholly demised.[Citations.] Exceptions to the latter rule of nonliability include situations *** where the injury results from the lessor'sviolation of a statute or ordinance which prescribes a duty for the protection and safety of a class to which a lesseebelongs and the harm is of the kind against which the statute or ordinance is designed to protect ***." The trial court held that the Oak Park ordinance adopting the Code prescribed a duty for the protection of a class includingplaintiff, and plaintiff presented evidence that WS violated that duty. WS admits that it falls within the Code's broaddefinition of an owner (see People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 489, 389 N.E.2d 540 (1979)), but it claimsthat it does not qualify as the owner for purposes of section 3012.1. WS suggests that the Code must mean that the singleparty in control of the premises has the duty described in section 3012.1, and not every party who meets the broad definitionof an owner. In particular, WS relies on the Code's singular reference to "[t]he owner," and argues that only one of the manyentities that count in the Code as owners qualifies as "[t]he owner" for section 3012.1. Illinois statutes provide general guidelines for interpretation, and courts have applied those guidelines for interpretingordinances. See Rippinger v. Niederst, 317 Ill. 264, 269, 148 N.E. 7 (1925). As a rule, "[w]ords importing the singularnumber may extend and be applied to several persons or things." 5 ILCS 70/1.03 (West 1994). Accordingly, the reference to"the owner" includes all owners as defined in the Code, including WS. In Wright v. Mr. Quick, Inc., 109 Ill. 2d 236, 486 N.E.2d 908 (1985), our supreme court restated Gilbreath's generalprinciple of lessor immunity and held that the contract at issue imposed no further duties on the lessor. The court did notdiscuss any ordinance or statute. WS argues that the Code, as the trial court interpreted it, effectively nullifies the generalrule of Mr. Quick. While we do not decide the application of the Code to cases not before us, we note that the allegedconflict with a judicial decision provides no grounds for invalidating the ordinance. See City of Elgin v. County of Cook,169 Ill. 2d 53, 63, 660 N.E.2d 875 (1995). We cannot ignore the plain language of the ordinance, which imposes dutiesupon WS as a firm having an equitable interest in the property. WS maintains that by the lease it effectively delegated its duties to its agent, the bank, and the ordinance plainlycontemplates such delegation. The ordinance explicitly refers to the responsibility of "the owner's legal agent." Butappropriate delegation of duties does not exonerate a landowner. Stewart v. Beegun, 126 Ill. App. 2d 120, 261 N.E.2d 491(1970). The ordinance imposed a nondelegable duty on WS to maintain the lift in safe operating condition. See Restatement(Second) of Torts |
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