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FIRST DIVISION
December 31, 2003

No. 1-02-3614

Plaintiff, Xaver Schmid, commenced this negligence action against defendants, FairmontHotel (Fairmont) and Maron Electric Company (Maron), to recover for an injury he sustainedwhen he turned on a vanity light switch near the bathroom in his hotel room and received anelectrical shock; contemporaneously, one of the vanity lights sparked, and plaintiff movedbackwards, striking the bathroom door frame. At the time of the incident, in May of 1999,plaintiff was a cargo pilot for Lufthansa Airlines. He was subsequently diagnosed with an injuryto his right shoulder and arm. Plaintiff alleged that his injury resulted from the incident, and thatbecause of the injury, he lost his pilot's license in February of 2001, and can no longer work as apilot.

Plaintiff alleged res ipsa loquitur and common law negligence as theories of recoveryagainst Fairmont and Maron. The basis for his claims against Fairmont was premises liability. The basis for his claims against Maron was that Maron, pursuant to a written contract between itand Fairmont, supplied to Fairmont a licensed electrician named Adolph Schnur (Schnur) to serveas a chief electrician of the hotel, while remaining a Maron employee. Maron also providedFairmont with electrical services and materials. Plaintiff contends that, in doing so, Maronassumed and owed plaintiff a duty of care to maintain the electrical fixtures and wiring inplaintiff's guest room in a reasonably safe condition.

The Fairmont-Maron contract also contained a provision that Maron, an independentcontractor, would indemnify Fairmont from all claims arising out of the work to be performed byMaron. Fairmont initially filed a cross-claim against Maron for contribution and contractualindemnification. Maron moved to dismiss Fairmont's indemnification count, arguing that theindemnification provision of the Fairmont-Maron contract was unenforceable under the IllinoisAnti-Indemnity Act (740 ILCS 35/1 (West 2002)). The trial court granted Maron's motion inpart, and limited Fairmont's indemnification count to that of vicarious liability for Maron's (i.e.Schnur's) conduct.⁽¹⁾ The trial court further decided that it would consider Fairmont'sindemnification count after the jury resolved all other claims.

The jury returned a general verdict finding Fairmont solely liable for plaintiff's injury andMaron not liable. In an answer to a special interrogatory, the jury found that Schnur was notnegligent. Accordingly, the trial court entered judgment for Maron on Fairmont's contributioncount. Following the entry of judgment on the jury's verdict, Maron moved for summaryjudgment on Fairmont's indemnification count, arguing that Fairmont's liability was direct and notvicarious, while Fairmont moved for judgment notwithstanding the verdict (j.n.o.v.), or in thealternative, for a new trial. The trial court denied Fairmont's motion for j.n.o.v. or, in thealternative, a new trial, and granted Maron's motion for summary judgment. Fairmont nowappeals.

BACKGROUND

The Fairmont Hotel is located in Chicago, Illinois. It opened for business in December of1987. At the time of the incident, Fairmont had over 600 guest rooms, each of which contained avanity light fixture with a mirror near the bathroom; the fixture had four decorative light bulbs oneach side of the mirror.

Adolph Schnur, a licensed electrician, was an electrical foreman during Fairmont'sconstruction. After the construction was completed, Charles Biagi (Biagi), Fairmont's director ofengineering, was interested in hiring Schnur as Fairmont's "house" electrician. Fairmontcontracted with Maron for Schnur's services. Pursuant to the Fairmont-Maron contract, Schnurwas to serve as a chief electrician of the hotel, while remaining a Maron employee; in addition,Maron was to provide Fairmont with electrical services and materials. The Fairmont-Maroncontract also contained a provision that Maron, an independent contractor, would indemnifyFairmont from all claims arising out of the work to be performed by Maron. This contract wasrenewed annually between the years 1988 and 2001. Schnur was Fairmont's "house" electricianuntil the time of his death, before this case went to trial. Maintenance at Fairmont was handled bya staff of maintenance engineers.

Plaintiff testified that at the time of the incident, he lived in Germany and worked as acargo pilot for Lufthansa Airlines. On May 6, 1999, plaintiff flew a Lufthansa 747 cargo aircraftnonstop from Frankfurt to Chicago. He arrived at the Fairmont shortly after midnight. Afterchecking in, plaintiff retired to his guest room and went to bed without using the bathroom. Atapproximately 6:00 a.m., plaintiff got out of bed to use the bathroom. The room was dark, andbefore he entered the bathroom, he turned on the light switch with his right hand. According toplaintiff, he felt an electric shock and saw a flash of very bright light from the vanity light in frontof him. This caused plaintiff to jump or fall backward, striking the edge of the bathroom doorframe with his head, neck and the right side of his shoulder. Plaintiff felt pain when he hit thedoor frame, but went back to bed. After waking up, plaintiff called the reception desk becausethe lights in his room did not work. A maintenance engineer was sent to investigate the problem,found that a circuit breaker had tripped, and reset it. As the day progressed, plaintiff began tofeel pain in his neck, right shoulder and arm, and he so notified the reception desk.

Michael Lynch (Lynch), Fairmont's director of loss prevention, went to plaintiff's room toinvestigate the incident. Lynch testified at trial that plaintiff told him what had happened andpointed out to him that he (plaintiff) had removed a light bulb from the vanity socket and put it onthe counter. Lynch observed the empty socket on the left light strip and saw the light bulb on thecounter. He then reinserted the light bulb into the socket, and it sparked and broke in his hand,without electric shock. After that, Suzanne Rosales Weber (Rosales Weber), one of Fairmont'smaintenance engineers, was called to examine the vanity light.

Rosales Weber testified that she first checked the circuit breaker and determined that itwas tripped. She then checked the socket and determined that the wire leading into it hadbecome loose and was touching the metal housing of the fixture, which caused a short circuitwhen plaintiff activated the switch. She covered the wire with electrical tape, as a temporaryrepair, to prevent another short circuit.⁽²⁾

Later in the day, plaintiff went to the Northwestern Memorial Hospital emergency roomto seek medical attention. Plaintiff returned to Germany on May 9, 1999. Upon his return toGermany, he was treated by several doctors for an injury to his right shoulder and arm. Plaintiffoffered expert medical testimony that his injury was produced partly by the mechanical force ofstriking the door frame and partly by the electrical current, in combination; however, there is noscientific formula to permit plaintiff to attribute what part of the injury was due to which cause. The injury may produce continuing pain and is permanent. It includes stiffness and reducedmovement in plaintiff's right shoulder and arm, and prevents him from being a pilot. Plaintiff wasfound unfit to fly and lost his pilot's license in February of 2001.

Plaintiff's theory at trial was that Fairmont and Maron were negligent in maintaining thevanity light fixture and the electrical wiring in plaintiff's guest room, and that because of theirnegligence, a short circuit occurred in the vanity light fixture. This short circuit caused the vanitylight to spark and, at the same time, resulted in plaintiff receiving an electric shock at the lightswitch. Because of this, plaintiff jumped or moved or fell backward and hit the bathroom doorframe, resulting in his injury. Plaintiff, however, presented no electrical experts to establish thefeasibility of his theory. Rather, plaintiff called to testify at trial present and former employees ofthe Fairmont. Their testimony follows.

Mike Ruhl (Ruhl), Fairmont's chief engineer at the time of the incident, testified that hewas aware that the vanity light sockets would short out on occasion;⁽³⁾ however, this occurrencewas not common. In such a situation where a "hot wire" was exposed and touched the housing ofthe fixture, the condition was a "dead short"--the circuit breaker⁽⁴⁾ would trip, but nothing elsewould occur. He further testified that there is no way to predict whether a short circuit will occurin any lighting fixture, even if he opened up a light fixture and visually inspected it inside. Ruhlalso explained the preventive maintenance program at Fairmont. With respect to the vanity lightsand switches, a member of the engineering staff was to turn the lights on and make sure theywork. He also testified that it is a common practice in any well-maintained building to test largercircuit breaker panels and larger pieces of electrical equipment with a thermal scan.⁽⁵⁾ This scancould show if there is a loose connection or another abnormality in the equipment. Ruhl statedthat Fairmont contracts with someone to scan its circuit breakers and large pieces of equipment,but not its light fixtures because it is not feasible to do a thermal scan on every light fixture, asthere are tens of thousands of them. He further testified that he never heard of anybody elsescanning light fixtures.

Damien McKenna, former Fairmont maintenance engineer, similarly testified that, over hiscareer at Fairmont from July of 1994 to July of 2001, the vanity sockets would periodicallyrequire changing, and he had repaired about ten sockets that short circuited. In his opinion, thesockets would short circuit because they loosened over time as Fairmont's housekeeping staffchanged the light bulbs. When the socket short circuited, it would blow the circuit breaker. Thelight would spark, and the housekeeper would call one of the maintenance engineers to comedown and fix it. He testified that Schnur was aware that these short circuits would occur. However, McKenna never heard of anyone at Fairmont receiving an electric shock from a vanityfixture or the light switch. He also testified, over Fairmont's hearsay objection, that Schnur hadstated that the vanity fixtures were "horse shit."

Rosales Weber similarly testified that she repaired about ten sockets a year because theyshort circuited, and that she had discussed this issue with Biagi and Schnur. In her experience,the vanity lights could short if the sockets became loose. She was of the opinion that the reasonthey became loose was because sometimes the sockets would turn when a housekeeper wasscrewing in a light bulb. Rosales Weber further testified that a short at the vanity light fixtureimmediately sends a surge of electricity through the metal switch box inside the wall to the circuitbreaker, and the circuit breaker trips and shuts down the electricity beyond its point. Based onher knowledge of maintenance engineering, she did not think that it was possible to get a shock atthe switch if the vanity socket shorted. She never heard of anyone getting a shock at the switch⁽⁶⁾and did not consider the vanity lights to be of any danger to the guests. Rosales Weber alsotestified, however, that it was possible that the switch plate, which was metal, was directlyconnected with metal screws to the switch box inside the wall.

Biagi testified that in over 14 years of experience at Fairmont, he had never heard ofanyone getting a shock at the switch when the vanity lights shorted. When asked whether gettinga shock in this manner was possible, he responded, "[the electricity] would usually go back to thebreaker or, if not, most of your toggle switches are plastic. I don't know how it would conduct.*** Anything is possible. But I wouldn't see how." He further testified that Schnur was an"outstanding" electrician.

The jury returned a general verdict finding Fairmont solely liable for plaintiff's injury andMaron not liable. In an answer to a special interrogatory, the jury found that Maron, through itsagent Schnur, was not negligent. The trial court, thereafter, entered judgment for Maron onFairmont's contribution claim. Following the entry of judgment on the jury's verdict, Maronmoved for summary judgment on Fairmont's indemnification claim, arguing that Fairmont'sliability was direct and not vicarious, while Fairmont moved for j.n.o.v., or in the alternative, for anew trial. The trial court denied Fairmont's motion for j.n.o.v. or, in the alternative, a new trial,and granted Maron's motion for summary judgment. Fairmont now appeals.

On appeal, Fairmont argues that the trial court erred in (1) denying its motion for j.n.o.v.or, in the alternative, a new trial; and (2) granting in part Maron's motion to dismiss thecontractual indemnification count, and later granting summary judgment for Maron on that count. With respect to its motion for j.n.o.v., Fairmont contends that it is entitled to a j.n.o.v. because,under the circumstances of this case, it did not owe plaintiff a duty of care; in the alternative, evenif the existence of duty is found, Fairmont argues that plaintiff failed to carry his burden ofproving that Fairmont's conduct was the proximate cause of his injury. With respect to its motionfor a new trial, Fairmont argues that it is entitled to a new trial because it was irreparablyprejudiced by McKenna's testimony that Schnur said the vanity lights were "horse shit." Lastly,with respect to the contractual indemnification count, Fairmont argues that the indemnificationprovision of the Fairmont-Maron contract does not violate the Anti-Indemnity Act, and,therefore, Maron is required to indemnify Fairmont for the verdict and all other costs associatedwith this case.

For the reasons that follow, we reverse the judgment against Fairmont and in favor ofplaintiff, and dismiss as moot the appeal from the judgment in favor of Maron and againstFairmont on the issue of indemnification.

ANALYSIS

As a preliminary matter, plaintiff points out that there was no compliance with the IllinoisSupreme Court Rule 323(b) "notice of completion" requirement, providing that "[e]ach shorthandreporter who transcribes a report of proceedings shall certify to its accuracy and shall notify allparties that the record of proceedings has been completed and is ready for filing." Plaintiff furtherargues that there are other omissions, in that the record on appeal is missing the followingportions of the transcript of the proceedings: (1) all closing arguments at trial; (2) all argumentsregarding Fairmont's post-trial motion; and (3) all exhibits showing photos of the hotel room, thevanity lights and the switch. Given these omissions, plaintiff urges that this court may presumethat the trial court's ruling on Fairmont's motion had sufficient legal and factual basis. SeeWebster v. Hartman, 195 Ill. 2d 426, 432, 749 N.E.2d 958, 962 (2001); Foutch v. O'Bryant, 99Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984) (in the absence of a sufficiently complete recordon appeal, the reviewing court may presume that the trial court's order was in conformity with thelaw and had a sufficient factual basis; any doubts arising due to the incompleteness of the recordwill be resolved against the appellant). However, with respect to plaintiff's Rule 323(b) argument,plaintiff admits that sections of the report proceedings were separately certified as correct by thereporters who transcribed them. Moreover, plaintiff concedes that "[t]his is a makeweight point,since all the verbal evidence is in the record." Accordingly, despite these alleged omissions, wefind the record sufficient to dispose of the matter before us on its merits. See State FarmInsurance Co. v. Jacquez, 322 Ill. App. 3d 652, 656, 749 N.E.2d 462, 465 (2001).

In order to state a cause of action for negligence, the plaintiff must prove the existence ofa duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury whichproximately resulted from that breach. American National Bank & Trust Co. of Chicago v.National Advertising Co., 149 Ill. 2d 14, 25, 594 N.E.2d 313, 318 (1992). It is well establishedthat where a plaintiff has obtained recovery against a defendant based on negligence, a judgmentnotwithstanding the verdict is required if the defendant did not owe the plaintiff a duty. Washington v. City of Chicago, 188 Ill. 2d 235, 238-39, 720 N.E.2d 1030, 1032 (1999). Amotion for judgment notwithstanding the verdict presents a question of law which we review denovo. Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 409, 741 N.E.2d1055, 1057 (2000). If the evidence, viewed in a light most favorable to the non-moving party, sooverwhelmingly favors the moving party that no contrary verdict could stand, a judgmentnotwithstanding the verdict should be granted. Maple v. Gustafson, 151 Ill. 2d 445, 453, 603N.E.2d 508, 512 (1992); Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d504, 513-14 (1967).

Our Supreme Court has embraced Dean Prosser's view of the duty aspect in a negligencecase:

"Necessary to any recovery based on the theory of common law negligence is theexistence of a duty or an obligation requiring one to conform to a certain standard ofconduct for the protection of another against an unreasonable risk. Whether under thefacts of a case such a relationship exists between two parties as to require that a legalobligation be imposed upon one for the benefit of another is a question of law to bedetermined by the court." Barnes v. Washington, 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538(1973), quoting W. Prosser, Handbook of the Law of Torts