Rivas v. Westfield Homes of Illinois, Inc.
Case Date: 03/31/1998
Court: 2nd District Appellate
Docket No: 2-97-0545
________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ________________________________________________________________ GIL RIVAS and JO ANN RIVAS, ) Appeal from the Circuit Court ) of Lake County. Plaintiffs-Appellants, ) ) v. ) No. 95L1452 ) WESTFIELD HOMES OF ILLINOIS, ) INC., ) ) Defendants-Appellees ) ) (Edward Hamming, Indiv. and as ) an Employee of Saint Therese ) Medical Center; and Saint ) Honorable Therese Medical Center, ) Bernard E. Drew, Defendants). ) Judge, Presiding. ________________________________________________________________ JUSTICE COLWELL delivered the opinion of the court: The plaintiffs, Gil Rivas and Jo Ann Rivas, filed a complaint against the defendant Westfield Homes of Illinois, Inc. (Westfield), alleging that Westfield breached a duty of reasonable care that proximately caused an injury to Mr. Rivas s ankle. The trial court determined as a matter of law that Westfield did not owe the plaintiffs a duty of care. Accordingly, it granted the defendant s motion for summary judgment, from which the plaintiffs now appeal. We affirm. The record shows that the plaintiffs entered into a contract with Westfield for the construction of a new home in Gurnee, Illinois. Throughout the course of the construction, the plaintiffs visited the construction site to inspect the progress of the house. Some of these visits were arranged through a Westfield representative to discuss certain aspects of the construction, while, on some occasions, the plaintiffs visited the site on their own. The parties dispute whether the plaintiffs were permitted to visit their future home during construction without an appointment. On Friday, September 3, 1993, the plaintiffs visited the site to meet Tom Lawler, the Westfield superintendent, for a pre- drywall inspection. Mr. Rivas testified in a deposition that he did not see any drywall on the premises on that date. Mr. Rivas stated that he spent an hour or two on the site and talked with Lawler about several items, including the light fixtures in the dining room. Mr. Rivas said that Lawler answered all his questions satisfactorily. Whether Mr. Rivas would be visiting the site the following week, when the drywall was to be installed, was not discussed. Rivas testified, however, that he understood that the installation of the drywall would begin the following week. On Saturday, September 4, the day after Mr. Rivas s visit with Lawler, Mr. Rivas visited the construction site with his wife. Mr. Rivas testified that he did not inform anyone at Westfield that he was making the visit. No one from Westfield was at the site. Mr. Rivas stated that he and his wife went to the house to make sure that there were not any other issues with the house before the drywall was installed. Mr. Rivas said that, after looking at the house, he and his wife began cleaning up some of the construction debris. He also spoke with a neighbor. Mr. Rivas stated that, unlike on Friday, he noticed drywall on the site on Saturday. Mr. Rivas added that the drywall was in virtually every room and that it was on its side stacked at an angle up against the walls. Mr. Rivas testified that, after a couple of hours on the site, he and his wife entered the living room. Mr. Rivas stated that he and his wife started looking at the insulation around the window frames of the house. Near one window was a stack of drywall that leaned against the wall. The drywall was approximately |