                               Illinois Official Reports

                                      Appellate Court



                 Walker v. Chicago Housing Authority, 2015 IL App (1st) 133788



Appellate Court           CELESTE WALKER, Special Administrator of the Estate of Clarence
Caption                   Allan Walker, Deceased, Plaintiff-Appellee, v. THE CHICAGO
                          HOUSING AUTHORITY, a Municipal Corporation, and ITS TIME
                          FOR A CHANGE RMC, an Illinois Non-for-Profit Corporation,
                          Defendants-Appellants.


District & No.            First District, Fifth Division
                          Docket Nos. 1-13-3788, 1-14-3279 cons.


Filed                     March 31, 2015


Decision Under            Appeal from the Circuit Court of Cook County, No. 09-L-8956; the
Review                    Hon. Drella Savage, Judge, presiding.



Judgment                  Affirmed.



Counsel on                Karen Kies DeGrand and Elizabeth C. Christen, both of Donohue
Appeal                    Brown Mathewson & Smyth LLC and Scott W. Ammarell, George J.
                          Brown, and Theodore E. Bacoyanis, all of Chicago Housing
                          Authority, both of Chicago, for appellants.

                          John M. Molloy & Associates (John M. Molloy and Paul A. Kotowski,
                          of counsel) and Law Office of Harry C. Lee (Harry C. Lee and Debra
                          A. Thomas, of counsel), both of Chicago, for appellee.


Panel                     JUSTICE McBRIDE delivered the judgment of the court, with
                          opinion.
                          Presiding Justice Palmer and Justice Gordon concurred in the
                          judgment and opinion.
                                              OPINION

¶1       Plaintiff, Celeste Walker as special administrator for the estate of Clarence Allan Walker,
     filed a premises liability action against defendants, Chicago Housing Authority (CHA) and Its
     Time for a Change RMC (RMC), alleging negligence in the death of the decedent Walker, who
     fell to his death in the elevator shaft in a building owned by CHA and managed by RMC.
     Following a bench trial, the trial court found in plaintiff’s favor and awarded damages in the
     amount of $1.5 million to plaintiff.
¶2       Defendants appeal, arguing that: (1) plaintiff failed to sufficiently prove proximate cause in
     Walker’s death; (2) the trial court erred in failing to assign any contributory fault to Walker’s
     actions; (3) defendants did not owe a duty of care to Walker as a trespasser; and (4) the trial
     court’s finding of willful and wanton misconduct is against the manifest weight of the
     evidence.
¶3       At approximately 9 p.m. on July 27, 2009, the decedent Walker was attempting to operate
     the elevator from the third floor in order for his friend Stephanie Carter to ride to the seventh
     floor of the residence, located at 365 West Oak, part of the Cabrini Green complex. Carter saw
     Walker open the hoistway elevator doors, step forward, and disappear with the doors closing
     behind him. Walker’s body was found in the pit at the bottom of the elevator shaft and he died
     from the injuries sustained in the fall.
¶4       In July 2009, plaintiff filed a negligence complaint against CHA. The complaint alleged
     that on July 27, 2009, Walker was a tenant at 365 West Oak, suite 704, in Chicago and CHA
     used, operated, controlled, or possessed the building at that location. The elevator in the
     building “failed to have service and had a history of poor maintenance and poor performance.”
     On July 27, 2009, Walker attempted to use or get the elevator to work and “was caused to slip
     and fall to his death onto the bottom of the elevator shaft.” CHA had a duty to exercise care and
     diligence in the maintenance and performance of said elevator. Plaintiff alleged the following
     acts and/or omissions against CHA: failed to exercise reasonable care in the operation,
     management, maintenance and control of the elevator; failed to exercise the highest degree of
     care and diligence in the operation of the elevator; failed to properly maintain the elevator;
     maintained the elevator in a defective and unsafe condition representing a hazard; maintained
     the elevator in a defective and unsafe condition for an unreasonable length of time; failed to
     timely test and inspect the elevator in accordance with the American National Elevator Safety
     Code; failed to have the elevator tested and inspected by persons who have knowledge of the
     function, operation and maintenance of the devices involved and are capable and qualified to
     make the required inspection and test; and failed to warn Walker of the hazardous condition of
     the elevator. As a direct and proximate result of these acts or omissions, Walker suffered
     injuries leading to his death.
¶5       Plaintiff filed her first amended complaint in February 2010. Plaintiff added RMC, 1st
     Priority Elevator, and Hubert Wilson, individually and doing business as Top Floor Elevator
     Contractors, as defendants. 1 In May 2010, plaintiff filed her second amended complaint
     against the same parties, adding Top Floor Elevator Contractors as a separate defendant.


        1
         1st Priority Elevator and Hubert Wilson, individually and doing business as Top Floor Elevator
     Contractors, have been dismissed from the case and are no longer parties to the case.

                                                 -2-
¶6         The second amended complaint realleged the same claims against CHA. The complaint
       alleged that RMC “managed the premises in question, including the elevator equipment and
       appurtenances in the subject premises, and was charged, contractually or otherwise, with the
       management of the entire premises, including, but not limited to, inspection, maintenance and
       repair of said elevator.” The complaint asserted the same negligent acts and/or omissions
       against RMC that were set forth against CHA, with one additional allegation that RMC was
       negligent in the management of the premises, and in particular the elevator and its
       appurtenances.
¶7         A bench trial was conducted in October 2013 and the following evidence was presented.
¶8         Stephanie Carter testified that she was friends with Walker for 25 to 30 years. Carter was
       familiar with the residential building at 365 West Oak and had been visiting Walker there for
       15 to 20 years. Walker lived on the seventh floor.
¶9         On July 27, 2009, Carter went to Walker’s building at around 9 p.m. for dinner with her
       friend Marie Woodard and Woodard’s daughter Markell. Carter stated that Walker’s apartment
       was above the front entrance to the building. When she arrived, she called up to Walker for him
       to bring the elevator down. Carter testified that she called to Walker because the elevator was
       “always stuck up there.” Carter needed the elevators because she uses an oxygen tank. She
       stated that Walker would bring the elevator down frequently for her and estimated that he had
       done this “over 20 times.” She also saw and heard other people ask Walker to get the elevator
       for them.
¶ 10       While they waited for Walker, Woodard opted to take the stairs to Walker’s unit. Carter
       waited with Woodard’s daughter for the elevator. Carter heard Walker call through the
       elevator shaft to come to the third floor. When she reached the third floor, she entered the
       hallway past a little wall. She was to the left of the elevator. As she entered the hallway, she
       saw Walker pushing the elevator buttons. Carter testified that Walker was turned to his right
       and looking at her. Walker then turned around and stepped forward into the elevator and
       “disappeared.” The only thing Carter could see was the top of Walker’s hand. Carter tried to
       hurry to the elevator, but the doors “slammed” closed. Carter was not able to see inside the
       elevator shaft. Carter then proceeded up to the seventh floor to tell Walker’s girlfriend Nichelle
       Dixon what had occurred.
¶ 11       Carter testified that the elevator problems began in January 2009. Carter stated that a new
       person, named Hubert Wilson, started working on the elevator at that time. After Wilson began
       to work on the elevator, she said the “elevator didn’t work anymore.” Carter stated that she was
       stuck on the elevator once and the fire department had to come and get her off. Carter also said
       that one time she was on the elevator and it stopped between floors. She had to open the doors
       and jump off. She testified that these problems did not occur until Wilson began maintaining
       the elevator nor did Walker have to move the elevator prior to Wilson’s maintenance.
¶ 12       On cross-examination, Carter stated that when Walker stepped into the elevator, he said,
       “Oh s***,” as he disappeared. After the elevator doors closed, Carter testified that it sounded
       like the elevator fell. She said “it went all the way down and it was like boom. Then it came up
       back up and opened up.”
¶ 13       Nichelle Dixon testified that she was Walker’s girlfriend and lived with him at 365 West
       Oak for six or seven years. She admitted that she was incarcerated from July 2008 until
       January 2009. On the night of July 27, 2009, she was at home with Walker. Dixon was playing
       cards with Walker when Carter yelled up for Walker to assist her to get up to Walker’s floor.

                                                   -3-
       Dixon stated that Walker put on his shoes and left the apartment to help Carter. She said
       Walker was going to carry Carter’s oxygen. A short time later, Carter came in the apartment
       “screaming” that Walker had fallen down the elevator shaft. Dixon was not present at the time
       of the incident.
¶ 14       Dixon testified that she ran down the stairs, stopping at every floor calling for him. When
       she was on the first floor, the elevator doors opened. Dixon was able to see between a gap in
       the lobby floor and the elevator. She got on her knees and saw Walker at the bottom of the
       shaft.
¶ 15       Dixon stated that the elevators “were pretty consistent” in the five years she lived in the
       building, prior to her incarceration. When she returned in January 2009, the elevator was
       “down for two months.” She described the elevator problems specifically: “Inconsistency.
       Worked one moment. Next minute down. Sometimes fixed quickly. And sometimes broken
       within 24 hours of being repaired.” She also stated that some of the problems included, “doors
       not opening. Door opening and getting stuck and not closing. Not–elevator cab not going
       completely totally to the floor that you push, like getting stuck between floors.” Dixon testified
       that Wilson was in charge of elevator repairs when she returned to the building in January
       2009. She stated that she was not aware of Walker operating the elevators. She testified that
       Wilson asked Walker to hold the door open for him a couple times.
¶ 16       On cross-examination, Dixon stated that she accompanied Walker when he went to speak
       to RMC regarding screens for their apartment, but she was not present when he spoke to the
       RMC employees. Dixon admitted that she never saw Walker working on top of the elevator
       cab or inside the elevator shaft. She also said that Walker never told her he was working on top
       of the cab or inside the shaft.
¶ 17       Plaintiff testified about her relationship with her father, Walker. She stated that she visited
       him at his residence “all the time.” She said that the elevator frequently did not work and
       Walker brought the elevator down for her a couple times. She also observed other residents and
       visitors call for Walker to bring the elevator down for them. She admitted that Walker did not
       have any training working on elevators.
¶ 18       Detective Luke Daly testified that he was employed as a detective with the Chicago police
       department. On July 27, 2009, he was assigned to investigate Walker’s death at 365 West Oak.
       Daly identified multiple photographs from the scene as well as his report. He conducted
       interviews with Carter, Woodard, Dixon, Wilson, and Toni Talbert, an RMC employee. At the
       end of his investigation, Daly determined that this was a noncriminal matter.
¶ 19       His report summary of his interview with Wilson indicated that Wilson told him that
       Wilson was aware that Walker “would manipulate the elevators by moving them between
       floors when they got stuck, and he has warned [Walker] against tampering with the machinery
       in the past.” Wilson also observed Walker with a “Z key” earlier on the day of the incident.
       Wilson described the “Z key” as “an implement used to open the elevator doors on the floors to
       access the shaft.” Wilson indicated that he knew one of Walker’s shoes and the “Z key” were
       found on top of the elevator cab and the second shoe was found in the pit. Wilson “theorized”
       that Walker was on top of the car when he fell. Wilson told Daly that “the dimensions of the
       shaft allow enough space at the rear of the car for a person to fall off the car and plunge to the
       bottom of the shaft.”
¶ 20       Daly interviewed Carter twice; the first time was the day of the incident and the second
       time was the following day. In the second interview, Carter stated to Daly that to “the best of

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       her recollection she never saw the inside of the elevator cab when the doors opened.” She told
       him that Walker “on numerous occasions would retrieve the elevator for her and other people
       in the building” and she was “unaware” how Walker would retrieve the elevator.
¶ 21       Daly also detailed his interview report with Talbert, the property manager of the building.
       She told the detective that Walker had asked for compensation for working on the elevator. On
       the day of the incident, Talbert told Walker not to manipulate or work on the elevator because
       he was not an employee. She said this conversation was documented.
¶ 22       Daly reaffirmed his deposition testimony regarding his opinion of how the incident
       occurred. Based on his investigation, Daly’s opinion was that Walker was “atop the elevator
       cab.” Daly’s opinion was also based on the dimensions of the shaft, that “a body of his height
       and size would be able to go down that shaft,” as well as the location of the shoe and “Z key”
       on top of the cab.
¶ 23       Ruby Givens testified that in July 2009, she was the RMC president. She also lived in the
       complex at 364 West Oak. Givens stated that she knew Walker and had no criticism of him as
       a tenant.
¶ 24       Givens testified that on the day of the incident, Walker came to her office and asked to be
       put on payroll for fixing the elevator. Givens said she told Walker not to try to fix the elevator.
       Givens stated that residents had reported more than 50 times that Walker had been getting the
       elevator for residents. Givens said she had called Walker into the office about these reports and
       talked to him about it. When asked if these conversations were documented, Givens said it
       “should have been documented in his folder.” However, Givens was unable to point to any
       document which showed these conversations. Givens admitted that she knew long before his
       death that Walker was fixing the elevators and moving the elevators for tenants. Givens also
       testified that she received complaints on a daily basis that the elevators were out of service.
¶ 25       On cross-examination, Givens identified an entry from Walker’s tenant file, dated July 27,
       2009, following a meeting between Walker, Talbert, and Givens. The entry indicated that
       Walker came to the management office inquiring about screens, asking management why he
       should purchase screens when he fixed the elevators. Givens and Talbert informed Walker that
       “he should not be touching the elevators under no [sic] circumstances.” Givens also stated that
       the complaints she received about Walker included that he was on top of the elevator cab, and
       she said she advised him to stop. On redirect, Givens admitted that the entry was written by
       Talbert and Givens was not present when it was written. She also said that Walker’s tenant file
       might have had documents purged from it after so many years.
¶ 26       Claudell Williams and Terry Taylor each testified that they worked for First Priority.
       Williams stated that he was one of the owners of First Priority and the company had a contract
       for the monthly maintenance and repair of the elevator in 365 West Oak beginning in 2008. He
       said the elevator in the building was “very old” and installed about 40 years ago. He stated that
       the First Priority contract with defendants was terminated in January 2009.
¶ 27       Williams explained the components of the elevator system, including the machine room,
       which is a controller at the top of shaft, and the “car top inspection,” which is a box mounted on
       top of the elevator cab from which the elevator can be run manually. Williams also explained
       that a “Z key” is a “self made key” made from wire in the form of Z that can be used to open the
       elevator door.



                                                    -5-
¶ 28        Williams testified about oil leaks in the elevator controls. He said that a leak from a gasket
       happens over the course of 15 or 20 years. When oil leaks from the machine room, there should
       be a drip pan under the machine in the machine room to catch any excess. He stated that the
       drip pan should “probably hold a half a gallon of oil.” If the drip pan overflows, it will leak
       onto the floor.
¶ 29        On cross-examination, Williams stated that a maintenance person working on top of an
       elevator should wear steel-toed work boots in case anything fell and the traction would prevent
       slipping. Williams was shown photographs of Walker’s shoes from the time of the incident and
       he said the shoes were not appropriate because “the foot is exposed” and “[h]e could very
       easily slip and fall on them.”
¶ 30        Taylor testified that he was an employee of First Priority and had previously worked on the
       elevator at 365 West Oak. Taylor stated that if one or more gaskets or seals break or leak, the
       oil leaks onto the floor of the machine room and then could flow onto the cables or the cab top.
       Taylor also testified that he spoke with Wilson after the accident. Wilson told Taylor he was
       good friends with Walker and they had worked on the elevator together. Wilson said that at the
       time of the incident, Walker “was on top of the car trying to basically get it going.” Wilson told
       him that from time to time, Wilson would show Walker “how to do certain things on the
       elevator.”
¶ 31        John Donnelly testified as an expert witness for plaintiff. He stated that he has been a
       certified elevator inspector since 1987. In preparing his opinion, Donnelly said he reviewed
       depositions from Carter, Woodard, Dixon, Daly, Givens, Talbert, Williams, Taylor, Officer
       Fosco, Nannette Watkins, and Richard Gregory. He also reviewed time tickets for First
       Priority and Wilson’s company, information from RMC regarding billing, police reports, and
       various correspondence. Donnelly performed a site inspection on August 5, 2009.
¶ 32        Donnelly testified that his opinion was as follows:
                    “Basically my opinion is that he basically got on top of the elevator. It was very
               slippery and oily due to lack of maintenance up in the elevator machine room which
               allowed oil to leak down on top of the car which created an unsafe, hazardous
               location.”
¶ 33        Based on deposition testimony, Donnelly opined that Walker was working on the elevator
       and that RMC management was aware of this. Donnelly disagreed with Carter’s testimony that
       after Walker fell, she heard the elevator go down and heard a boom, then the elevator came
       back to the third floor and opened the doors. Donnelly said the elevator would not make any
       booms “because the only booms that are available is if it went all the way past the bottom floor
       into the basement, past the basement, and hit one of the buffers where there are switches down
       there that would keep it from running back up again.” Donnelly testified that he thinks the
       boom Carter heard was when Walker hit the pit.
¶ 34        Donnelly also testified that he reviewed the time tickets for elevator repairs for both First
       Priority and Wilson’s company, Top Floor Elevator. He did not see any time tickets for the 10
       days prior to the incident.
¶ 35        During his site inspection, Donnelly saw that oil was overflowing from the drip pan in the
       machine room. He stated that the oil had “migrated” two to three feet from the machine, down
       the hoist ropes, and then onto the top of the elevator. Donnelly took several photographs,
       including photographs of the top of the elevator car, which showed the “Z key” and one of


                                                    -6-
       Walker’s shoes. The top of the elevator car also showed oil. In Donnelly’s opinion, it took
       months for this amount of oil to accumulate.
¶ 36       Donnelly stated that his opinion that when Walker stepped onto the elevator car top, he
       grabbed the hoist ropes, stepped on top of the crosshead, and stepped down to get a firm
       footing. Donnelly said there was a lot of oil in the spot where one would stabilize his or her foot
       as he or she entered. It was his opinion that it was hazardous to anyone getting on top of the car.
       Donnelly opined that Walker likely fell over the car top based on the position of Walker’s body
       in the pit. He noted there was nowhere else Walker could have fallen. He noted that Walker’s
       shoes were not appropriate because they did not tie and a person’s foot could slip out, but the
       condition of the car top would have been slippery for someone wearing boots.
¶ 37       Donnelly testified that Walker was a de facto apprentice of Wilson, based on Taylor’s
       deposition testimony, Walker’s possession of a “Z key,” and the evidence that Walker had
       been working on the elevators.
¶ 38       Richard Gregory testified as an expert for defendants. He stated that he is a licensed
       elevator mechanic. He visited the site the day after the incident on July 28, 2009, and again
       when Donnelly visited on August 5, 2009. Gregory reviewed the depositions of Carter, Dixon,
       and Taylor. He also attended Donnelly’s deposition. He read a historical report from RMC. At
       the time he conducted his inspection, Gregory observed that the car top inspection station was
       bent.
¶ 39       Gregory testified that in his opinion, Walker opened the elevator doors with the “Z key,”
       but no elevator was present. The elevator was at the first floor. As Walker stepped in and saw
       this, he said, “Oh s***,” and fell. Gregory opined that the elevator was at the first floor because
       the security guard said it was at the first floor.
                “[Walker] was at the third floor. He used a Z key, which he had made for himself, to
                unlock the hoistway door. He could not have done that if the elevator was present. Even
                if it was broken, it wouldn’t have worked.
                     He used that to unlock the hoistway door. He pushed the hoistway door open. He
                didn’t look at where he was going to go and he just stepped in and he fell. He hit the top
                of the car at the front, hence dropping his Z key and losing one of his slippers, slide-on
                type slippers, fell over the crosshead, then fell over the back of the car. Because the car
                was down low, the counterweight was not behind it, and that left room for him to fall
                over the back.”
¶ 40       Gregory further opined that if the elevator had been at the second floor, Walker would not
       have fallen into the pit. He disagreed with Donnelly’s opinion that a person would grab the
       hoist ropes because the ropes are “dirty and greasy.” He also disagreed that a person would step
       on the crosshead because it is small. He reasoned that Walker was not properly trained to be
       accessing and working on elevators. On cross-examination, when asked if Walker stepped in
       and slipped on oil and said, “Oh s***,” then fell, it would fit the same scenario, Gregory
       answered, “possibly.”
¶ 41       Following the trial, the trial court entered a written order and opinion, finding in favor of
       plaintiff and awarding $1.5 million in damages. The court summarized the parties’ positions in
       the opinion. Plaintiff claimed the elevator “had failed to give service and had a history of poor
       maintenance and performance. As a result, Walker attempted to use the elevator or to get the
       elevator to work and perform at the time of his death. Accordingly, she contends that CHA and


                                                    -7-
       RMC owed a duty of ordinary care.” CHA and RMC responded that Walker was a trespasser to
       whom they owed no duty. Plaintiff countered that assuming Walker was a trespasser, then the
       frequent trespasser doctrine should apply. Defendants also asserted that Walker was not an
       intended or permitted user of the elevator under the Local Governmental and Governmental
       Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2008)), and
       that defendant was guilty of contributory negligence for his own death by greater than 50%.
¶ 42       The court found as follows.
                    “The evidence in the case at bar shows that RMC permitted Walker to access the
                elevator shaft and/or top of the elevator to open the doors that were jammed shut, move
                the elevator that was stuck between floors or stuck on one floor in order to assist
                residents in moving from floor to floor on numerous occasions with the use of his
                homemade Z-Key. He was an intended user because of his relationship with Wilson
                who showed him how to do some things. Additionally, RMC hired Wilson and his
                self-styled Top Floor to service the elevator, and keep it operational, but had no written
                contract of record with specific terms of employment. RMC was aware that it was
                Walker who often performed the minimum services First Priority owner and employee
                described during trial. RMC’s acquiescence in allowing Walker to continually do
                Wilson’s job of making the elevator operational for the residents made him a defacto
                [sic] employee. Wilson was not found to clarify the relationship except for the
                statements he made to Taylor about Walker helping him. RMC’s reminder to Walker
                not to fix the elevator and/or its revocation of permission for Walker to do so on the day
                of Walker’s death is not credible. The testimony of Givens, Defendants’ representative
                was inconsistent and impeached on the issue of warnings to Walker. CHA and RMC
                ran a loose ship. They fired a reputable elevator company and participated in a
                well-meaning, but ill-ran in-house program where the new non-existent elevator
                company consisted of one man, Wilson and often, his helper, Walker, acting alone.
                After January 2009, the maintenance was lacking, and an already older and
                deteriorated and overused single elevator for an entire building was often unavailable
                for the residents.”
¶ 43       The court concluded that RMC had actual notice of the unsafe condition of the elevator as
       well as Walker’s access to it. “RMC was on notice of a pattern of Walker retrieving the
       elevator in the building for the residents who told them Walker would ask for money.” The
       court held that “Walker was an intended and permitted user under these unique set of
       circumstances; he was Wilson’s helper. Further RMC and CHA kept the elevator in such a
       state of disrepair by not managing Wilson or the situation, thus causing an unreasonably unsafe
       condition which caused residents to, in particular Walker, to fend for themselves and Wilson. It
       really was a situation where the CHA residents became their own employee.”
¶ 44       The trial court rejected CHA’s argument that Walker was a trespasser, but reviewed the
       evidence under this theory as an alternative.
                    “Accordingly, this Court believes that the evidence of record supports a finding for
                [plaintiff] under an ordinary negligence standard, concluding the immunity does not
                apply here, or even if it did, the conduct of CHA and RMC was willful and wanton. It is
                also a case where the Frequent Trespasser Doctrine could apply although the basis for
                application of the Doctrine might be supplanted by the Tort Immunity Act.
                Nevertheless, because of the Court’s finding of willful and want [sic] misconduct on

                                                    -8-
                the part of the Defendants, there is no need to address which standard should apply in
                the event there is a need to reconcile the common law doctrine with the schema of the
                Tort Immunity Act.”
¶ 45        This appeal followed.
¶ 46        Defendants first argue that plaintiff’s proof of proximate cause was insufficient as a matter
       of law. Specifically, defendants contend that the evidence of causation, even when viewed
       most favorably for the plaintiff, so overwhelmingly favored defendants that we should vacate
       the trial court’s decision and enter judgment for defendants. Plaintiff maintains that she
       sufficiently established proximate cause by a preponderance of the evidence.
¶ 47        After a bench trial, we will not disturb the trial court’s findings of fact unless they are
       against the manifest weight of the evidence. Southwest Bank of St. Louis v. Poulokefalos, 401
       Ill. App. 3d 884, 890 (2010). “The reviewing court gives great deference to the trial court’s
       findings because, as the trier of fact, the trial court is in a superior position to observe the
       witnesses while testifying, to judge their credibility and to determine the weight their
       testimony and other evidence should receive.” International Capital Corp. v. Moyer, 347 Ill.
       App. 3d 116, 121-22 (2004). A finding is against the manifest weight of the evidence only if
       the opposite conclusion is apparent or if the finding appears to be arbitrary, unreasonable or not
       based on the evidence. Southwest Bank, 401 Ill. App. 3d at 890; Moyer, 347 Ill. App. 3d at 122.
       “ ‘A trial court’s judgment following a bench trial will be upheld if there is any evidence
       supporting it.’ ” Southwest Bank, 401 Ill. App. 3d at 890 (quoting Nokomis Quarry Co. v.
       Dietl, 333 Ill. App. 3d 480, 484 (2002)).
¶ 48        “In order to recover in an action for negligence, a plaintiff must establish the existence of a
       duty owed by the defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff
       proximately caused by the breach.” Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). Here,
       defendants contend that plaintiff failed to prove proximate cause.
¶ 49        The term “proximate cause” involves two components: cause in fact and legal cause. First
       Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). Cause in fact exists where
       there is a reasonable certainty that a defendant’s acts caused the injury or damage, but a
       defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct is a material
       element and a substantial factor in bringing about the injury. Galman, 188 Ill. 2d at 258. “A
       defendant’s conduct is a material element and a substantial factor in bringing about an injury if,
       absent that conduct, the injury would not have occurred.” Galman, 188 Ill. 2d at 258. Whereas,
       “legal cause” is a question of foreseeability and “[t]he relevant inquiry here is whether the
       injury is of a type that a reasonable person would see as a likely result of his or her conduct.”
       Galman, 188 Ill. 2d at 258. “The plaintiff bears the burden of proof on the issue of proximate
       cause.” Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 739 (1996).
¶ 50        Defendants assert that plaintiff only presented two witnesses to establish what occurred in
       the elevator shaft at the time of the incident, Carter and Donnelly. However, defendants fail to
       acknowledge the considerable circumstantial evidence to be considered with Carter’s
       eyewitness testimony and Donnelly’s expert testimony.
¶ 51        “However, as with any other factual element of a cause of action, proximate cause can be
       established by either direct evidence or inferentially by circumstantial evidence. When
       circumstantial evidence is relied upon, that evidence must support an inference that is
       reasonable and probable, not merely possible.” Id. “When a party seeks to rely on
       circumstantial evidence, the conclusion sought must be more than speculative; it must be the

                                                    -9-
       only probable conclusion that could be drawn from the known facts.” Id. “To be sufficient to
       support a reasonable inference, however, circumstantial evidence need not exclude all other
       possible inferences.” Id. “ ‘If as a matter of ordinary experience a particular act or omission
       might be expected, under the circumstances, to produce a particular result, and that result in
       fact has followed, the conclusion may be permissible that the causal relation exists.’ ” Id. at
       740 (quoting Prosser & Keeton on the Law of Torts § 41, at 270 (W. Page Keaton et al. eds. 5th
       ed. 1984)).
¶ 52        The evidence presented at trial showed that Walker regularly was on top of the elevator car
       to run the elevator for residents and visitors and make repairs. Givens testified that she had
       known about Walker’s activity with the elevator for a long time prior to his death and had
       received reports from residents on this. Givens stated that on the day he died, Walker came to
       her office seeking compensation for his work on the elevator. Testimony also showed that prior
       to January 2009, First Priority maintained the elevators and there were less occurrences of the
       elevator being out of service. After that time, Givens terminated the contract and Wilson took
       over maintenance and repairs. Givens received complaints daily about the elevator failing to
       operate properly. Taylor testified about his conversation with Wilson in which Walker helped
       Wilson with the elevator repairs.
¶ 53        Carter testified that Walker asked her to come to the third floor while he ran the elevator for
       her. As she turned into the hallway, she saw Walker pushing the buttons. When the doors
       opened, Walker was facing the elevator and stepped forward. She then heard Walker say, “Oh
       s***,” as he disappeared from view and the doors closed quickly. She heard a boom, which she
       assumed was the elevator. Walker’s body was found in the pit at the bottom of the elevator
       shaft. One of his shoes and his “Z key” were found on the top of the elevator car. Detective
       Daly’s police investigation concluded that Walker was on the top of the elevator car when he
       fell. Donnelly observed an accumulation of oil on the top of the elevator car which he testified
       came from improper maintenance. Based on the position of items on the car top and Walker’s
       body in the pit, Donnelly opined that Walker slipped as he attempted to step onto the car top
       and fell over the back of the elevator car.
¶ 54        Based on this evidence, the trial court could have found that it was foreseeable that Walker
       would access the top of the elevator car to fix it and run it for residents. Defendants failed to
       provide proper maintenance and repairs of the elevator, which led to the accumulation of oil on
       the top of the car. Defendants also were aware of Walker’s activities in the elevator and took no
       action to prevent him from being able to access the elevator shaft. The circumstantial evidence
       supported the premise that Walker, in attempting to run the elevator, slipped on the oil and fell
       to his death. The fact that Gregory had a differing opinion does not render Donnelly’s opinion
       and the circumstantial evidence insufficient to satisfy proximate cause.
¶ 55        In Stojkovich, the plaintiff filed a negligence action against the defendant elevator repair
       company after he fell into an elevator shaft in the Monadnock building. The evidence at trial
       showed that the plaintiff and several other individuals were riding in an elevator when the car
       stalled. After waiting at least 30 minutes, the passengers forced the elevator doors open and
       attempted to exit the elevator. The car was between floors and positioned above the building
       floor, leaving the elevator shaft exposed. Stojkovich, 281 Ill. App. 3d at 736-37. When the
       plaintiff attempted to exit the elevator, none of the other passengers were watching, but some
       of the passengers who exited before him did see when the plaintiff was in the act of falling


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       down the elevator shaft. The plaintiff’s injuries prevented him from being able to remember
       the events. Id. at 737.
¶ 56       The defendant contended on appeal that the trial court should have entered a directed
       verdict or judgment n.o.v. because the plaintiff failed to prove proximate cause. The reviewing
       court found that the legal cause was satisfied by the testimony of the defendant’s director of
       operations, who stated that it was foreseeable that people trapped in a stalled elevator might
       attempt to escape and could be injured in their exit. Id. at 738-39.
¶ 57       As to cause in fact, the defendant argued that no one witnessed the plaintiff’s exit from the
       stalled elevator and fall into the elevator shaft and there was insufficient evidence presented to
       show that the defendant’s negligence was the cause in fact of the plaintiff’s fall. Id. at 739. The
       reviewing court found that, “[u]nder the known facts and circumstances of this case, even in
       the absence of an eyewitness to plaintiff’s attempt to exit the elevator car, the inference that he
       fell down the unprotected elevator shaft while attempting to exit the stalled car is both
       reasonable and probable and could have been drawn by the jury.” Id. at 740. “The proximate
       causal relationship between the negligence of [the defendant] and the plaintiff’s fall and
       resulting injuries is supported by circumstantial evidence and the reasonable inference that
       might be drawn therefrom.” Id.
¶ 58       Similar to Stojkovich, the evidence at trial supported a finding of proximate cause between
       defendants’ negligence and Walker’s fall. Defendants failed to properly maintain the elevator
       when they had prior knowledge of Walker’s actions in repairing and manually running the
       elevator from atop the elevator car. The circumstantial evidence supports the trial court’s
       conclusion that Walker slipped in the accumulated oil and fell into the shaft. The trial court’s
       finding of proximate cause is not against the manifest weight of the evidence.
¶ 59       We find the circumstances of the instant case to be distinguishable from the case relied
       upon by defendants. In Vertin v. Mau, 2014 IL App (3d) 130246, the plaintiff fell down a flight
       of stairs and broke her elbow. The plaintiff did not feel anything give way or anything that
       caused her to lose her balance. Id. ¶ 3. She based her negligence claim on expert testimony that
       the stairs had multiple defects and violations of building codes, including that the stairs lacked
       uniformity, had an inadequate tread depth, had excessive carpeting, and lacked a handrail. Id.
       ¶ 5. The trial court granted the defendant’s summary judgment motion, finding that the
       plaintiff failed to establish proximate cause. Id. ¶ 9. The Third District affirmed, holding that
       none of the testimony and affidavits addressed the issue of what caused the plaintiff to fall. Id.
       ¶ 14. “Absent any evidence of the cause of Vertin’s fall, there is no genuine issue of material
       fact for the trier of fact to determine.” Id. ¶ 16. Therefore, Vertin is not persuasive.
¶ 60       Defendants also contend that the trial court abused its discretion in admitting Donnelly’s
       testimony regarding his opinion on what caused Walker to fall. Defendants assert that
       Donnelly’s testimony that Walker slipped on oil amounted to speculation and contradicted
       Carter’s eyewitness testimony. Although we recognize that “[a]n expert witness’ opinion
       cannot be based on mere conjecture and guess” (Dyback v. Weber, 114 Ill. 2d 232, 244 (1986)),
       as we have already discussed, Donnelly’s testimony was based on his expertise, his
       observations at the scene, and the evidence from other witnesses, including Carter, Daly,
       Givens, and Taylor.
¶ 61       Defendants cite to a case in which Donnelly’s expert testimony was considered speculation
       as support. In Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383 (1998),
       the plaintiff was injured when his leg became caught between the elevator car and the building

                                                   - 11 -
       landing. Donnelly provided expert testimony for the plaintiff. He testified that the elevator
       should not move unless the outer door and the inner scissors gate were closed. Harris, 297 Ill.
       App. 3d at 391. He stated that the gate switch prevents the elevator from operating while the
       scissors gate is open. Id. He explained that the elevator could be operated with the scissors gate
       open if the wires were tied together or if the gate switch was bypassed at the controller. Id. In
       response to a question posed by the plaintiff’s attorney, Donnelly opined that the defendant
       was negligent based upon the assumption that the gate switch was removed at the time of the
       accident. Defense counsel objected that Donnelly’s opinion was contrary to his deposition
       testimony. The trial court sustained the objection and allowed defense counsel to question
       Donnelly on cross-examination about his deposition testimony to the effect that he did not
       believe that an employee of the defendant removed the gate switch. Id. The plaintiff objected
       that such opinion testimony was speculative, but the trial court overruled the objection. The
       trial court then struck Donnelly’s prior opinion testimony. Id. at 391-92.
¶ 62        On cross-examination, defense counsel elicited Donnelly’s opinion that “some
       representative of the building management had both removed the gate switch prior to [the
       plaintiff’s] injury and later replaced the switch.” Id. at 392. The trial court granted the
       defendant’s motion for directed verdict, finding that the causation testimony pointed to a third
       person being the cause, not the defendant. Id. On appeal, the reviewing court found Donnelly’s
       opinion as to who removed the gate switch to be speculation and that the trial court should not
       have allowed this opinion to be admitted or to have relied on it without a proper basis in
       directing a verdict in favor of the defendant. Id. at 393-94.
¶ 63        Donnelly’s testimony in Harris has no bearing on the instant case. The circumstances in
       Harris are not analogous to the facts in this case. Further, the mere fact that a prior decision
       found a portion of Donnelly’s testimony in an unrelated case to be speculation does not follow
       that his testimony in the present case is speculation. The trial court did not abuse its discretion
       in admitting Donnelly’s expert testimony regarding his opinion on how Walker fell.
¶ 64        Next, defendants argue that the trial court failed to assign any contributory negligence to
       Walker. Defendants initially contend that the trial court may have misapprehended the law
       based on a comment in plaintiff’s closing argument, but they fail to point to any misstatement
       of the law in the trial court’s opinion and instead speculate that the trial court “may have
       erroneously relied on the plaintiff’s error in stating the law.”
¶ 65        “In a bench trial, a trial judge is presumed to know the law, and this presumption is rebutted
       only when the record affirmatively shows the contrary.” People v. Taylor, 344 Ill. App. 3d 929,
       937 (2003). Defendants have failed to point to anything in the record that rebuts the
       presumption that the trial court knew and applied the law in this case. The trial court
       specifically recounted in the statement of the case that defendants “maintained that Walker was
       guilty of contributory negligence for his own death by greater than 50%.” The trial court
       clearly was cognizant of defendants’ claim of contributory negligence and we decline to ignore
       the presumption that the court knew the law.
¶ 66        Defendants also assert that the trial court’s decision not to find Walker contributorily
       negligent was against the manifest weight of the evidence. Defendants contend that the
       evidence of Walker’s negligent conduct was “undeniable.” Defendants base their argument
       that Walker was contributorily negligent on: Walker’s shoes, testimony that Walker had bad
       feet and trouble walking, Walker had prior notice of the oil on the elevator car top, and his lack


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       of training and experience in accessing the elevator car top. Plaintiff responds that none of
       these points establish the proximate cause of Walker’s fall.
¶ 67        “We must give great deference to the trial court’s findings because the trial court, as the
       trier of fact, is in a superior position to observe the demeanor of the witnesses while testifying,
       to judge their credibility and to determine the weight their testimony and other evidence should
       receive.” Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590, 599 (2000).
       “Where the determination of the case depends largely upon the facts found in the record, the
       findings and judgment of the trial court ‘will not be disturbed by the reviewing court, if there is
       any evidence in the record to support such findings.’ ” (Emphasis in original.) Id. (quoting
       Schioniger v. County of Cook, 116 Ill. App. 3d 895, 899 (1983)). “In order to warrant reversal,
       ‘the appellant must present evidence that is so strong and convincing as to overcome,
       completely, the evidence and presumptions, if any, existing in the appellee’s favor.’ ” Id.
       (quoting Raclaw v. Fay, Conmy & Co., 282 Ill. App. 3d 764, 767 (1996)).
                    “Restatement (Second) of Torts, section 465(1) (1965), states:
                          ‘The plaintiff’s negligence is a legally contributing cause of his harm if, but
                    only if, it is a substantial factor in bringing about his harm and there is no rule
                    restricting his responsibility for it.’ ” Owens v. Stokoe, 115 Ill. 2d 177, 183 (1986).
¶ 68        In Martin v. Chicago Housing Authority, 264 Ill. App. 3d 1063 (1994), an elevator helper
       was injured when he fell from atop an elevator car while he was attempting to repair the
       elevator, located on a CHA property. There, the evidence showed that CHA had terminated its
       contact for elevator maintenance and only provided for repairs to restore the elevators to
       operation. The repairs were performed by the plaintiff, a mechanic’s helper, and an elevator
       mechanic. Id. at 1065-66. On the day of his injury, the plaintiff was on top of the elevator car
       and was attempting to control the elevator, but the controls were in disrepair and
       malfunctioned. The plaintiff was unable to control the speed of the elevator and he fell from the
       top of the elevator. Id. at 1066-67. The jury found in favor of the plaintiff and awarded
       $3,059,000 in damages, which were reduced by 17% the degree of the plaintiff’s contributory
       negligence. Id. at 1065.
¶ 69        In one of the arguments on appeal, CHA contended that the plaintiff worked on the elevator
       and assumed the risk of injury because he knew the state of disrepair of the elevators. Id. at
       1079. The reviewing court rejected CHA’s argument.
                    “Even had plaintiff known of the dangerous condition, however, the CHA would
                nevertheless remain liable because the circumstances here indicate that the CHA could
                and should have anticipated that plaintiff would have proceeded to encounter the
                danger in order to perform his normal job duties under the contract. (See Restatement
                (Second) of Torts § 343A, at 218 (1965); Deibert [v. Bauer Brothers Construction
                Co.], 141 Ill. 2d 430 *** [(1990)]; Dinkins v. Ebbersten, 234 Ill. App. 3d 978 ***
                [(1992)]. As stated, the CHA was aware that the elevator was in an unsafe condition
                because it had been informed as such as early as November 8, 1983, by the City of
                Chicago. Nevertheless, the CHA refused to allow Mid-American or any other company
                to perform anything other than ‘emergency repairs’ on the elevator. The CHA ignored
                the requests by Mid-American for authorization to perform badly needed maintenance
                on the elevator, despite its deteriorated condition. Yet it invited and permitted
                repairmen, including plaintiff, to work on and about the elevator to make emergency
                repairs.” Id. at 1081-82.

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¶ 70        Similarly, in the present case, defendants knew the elevator was routinely out of service.
       RMC terminated the services of First Priority in the beginning of 2009 and opted for Wilson’s
       company. The volume of the complaints about the elevator increased. RMC was aware that
       Walker frequently entered the elevator shaft, performed repairs, and manually controlled the
       elevator for residents. “The duty is one of reasonableness under the circumstances, and the
       CHA can still expect that its passengers and repair personnel will exercise reasonable care for
       their own safety.” Id. at 1082-83. While defendants elicited testimony regarding Walker’s lack
       of training and his shoes at the time of the incident, the determination of the degree of
       contributory negligence, if any, was for the trier of fact. The trial court’s opinion made it clear
       by not assigning any degree of negligence to Walker that it rejected defendants’ argument. We
       cannot say that any evidence relied upon by defendants was so strong as to overcome our
       deference to the trial court’s determination. Accordingly, we find that the trial court’s decision
       was not against the manifest weight of the evidence.
¶ 71        Defendants further argue that Walker was a trespasser, not an intended or permitted user,
       and, thus, they did not owe him any duty of care under the Tort Immunity Act. Plaintiff
       maintains that the trial court properly found Walker to be an intended and permitted user of the
       top of the elevator car.
¶ 72        Section 3-102(a) of the Tort Immunity Act provides:
               “Except as otherwise provided in this Article, a local public entity has the duty to
               exercise ordinary care to maintain its property in a reasonably safe condition for the use
               in the exercise of ordinary care of people whom the entity intended and permitted to use
               the property in a manner in which and at such times as it was reasonably foreseeable
               that it would be used, and shall not be liable for injury unless it is proven that it has
               actual or constructive notice of the existence of such a condition that is not reasonably
               safe in reasonably adequate time prior to an injury to have taken measures to remedy or
               protect against such condition.” 745 ILCS 10/3-102(a) (West 2008).
¶ 73        Under section 3-102(a), a municipality owes a duty of care to intended and permitted users
       of municipal property. 745 ILCS 10/3-102(a) (West 2008). “ ‘[A]n intended user of property
       is, by definition, also a permitted user; a permitted user of property, however, is not necessarily
       an intended user.’ ” Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 616-17 (2010) (quoting
       Boub v. Township of Wayne, 183 Ill. 2d 520, 524 (1998)). “[T]he duty of a municipality
       depends on whether the use of the property was a permitted and intended use” and “[w]hether
       a particular use of property was permitted and intended is determined by looking to the nature
       of the property itself.” (Emphasis omitted.) Vaughn v. City of West Frankfort, 166 Ill. 2d 155,
       162-63 (1995). “[A]s the statute makes clear, it is the intent of the local public entity that is
       controlling, for the duty expressed by section 3-102(a) is limited to those ‘whom the [local
       public] entity intended and permitted to use the property’ [citation].” Boub, 183 Ill. 2d at 525
       (quoting 745 ILCS 10/3-102(a) (West 1996)). The relevant factors to consider regarding the
       imposition of a duty are: “(1) foreseeability that the defendant’s conduct will result in injury to
       another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the
       consequences of placing that burden upon the defendant.” Curatola v. Village of Niles, 154 Ill.
       2d 201, 214 (1993). “Because the [Tort Immunity] Act is in derogation of the common law, it
       must be strictly construed against the local public entity.” Curatola, 154 Ill. 2d at 208.
¶ 74        As we have previously discussed, the evidence at trial showed that RMC was aware of
       Walker’s actions in accessing the top of the elevator car to perform minor repairs and manually

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       control the elevator. As the trial court found in its determination that Walker was an intended
       user:
               “The evidence in the case at bar shows that RMC permitted Walker to access the
               elevator shaft and/or top of the elevator to open the doors that were jammed shut, move
               the elevator that was stuck between floors or stuck on one floor in order to assist
               residents in moving from floor to floor on numerous occasions with the use of his
               homemade Z-Key.”
¶ 75       We agree with the trial court. The evidence showed that RMC continued to permit Walker
       to access the top of the elevator car despite numerous notifications of such actions. The trial
       court found Givens’ testimony not credible for the statement that Walker had received written
       warnings, but other than one entered the day he died, the warnings had been purged from his
       tenant file. It was foreseeable that defendants’ conduct in keeping the elevator in a state of
       disrepair would likely cause injury to Walker. Defendants could have employed multiple
       measures to guard against Walker’s continued access to the elevator car top, such as, powering
       off the elevator when it was out of service to prevent Walker from manually controlling the
       elevator. Defendants also could have ensured that the elevator was properly maintained as to
       prevent the accumulation of oil on the top of the elevator car. The burden of these actions was
       minor in comparison to the risk to Walker’s safety. Given the unique set of circumstances
       presented in this case, Walker’s continued access and the acquiescence of RMC to this access
       showed that Walker was an intended and permitted user of the property.
¶ 76       Since we have concluded that the evidence supports a finding that Walker was an intended
       and permitted user and thus owed a duty of due care, we need not consider whether defendants’
       actions were willful and wanton and whether Walker was a trespasser.
¶ 77       Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 78      Affirmed.




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