                                       2015 IL App (1st) 133788

                                                                       FIFTH DIVISION
                                                                       March 31, 2015

Nos. 1-13-3788 and 1-14-32790

CELESTE WALKER, Special Administrator of the                   )              Appeal from the
Estate of Clarence Allan Walker,                               )              Circuit Court of
Deceased,                                                      )              Cook County
                                                               )
       Plaintiff-Appellee,                                     )
v.                                                             )              No. 09 L 8956
                                                               )
THE CHICAGO HOUSING AUTHORITY, a Municipal                     )
Corporation, and ITS TIME FOR A CHANGE RMC,                    )
an Illinois Non-for-Profit Corporation,                        )
                                                               )              Honorable
       Defendants-Appellants.                                  )              Drella Savage,
                                                               )              Judge Presiding.


       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.
Nos. 1-13-3788 and 1-14-3279


¶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




                                                  2
Nos. 1-13-3788 and 1-14-3279


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.

¶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


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.

                                                        3
Nos. 1-13-3788 and 1-14-3279


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 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




                                                 4
Nos. 1-13-3788 and 1-14-3279


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. 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. 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.



                                                   5
Nos. 1-13-3788 and 1-14-3279


¶ 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



                                                 6
Nos. 1-13-3788 and 1-14-3279


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 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



                                                   7
Nos. 1-13-3788 and 1-14-3279


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




                                                  8
Nos. 1-13-3788 and 1-14-3279


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.

¶ 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



                                                 9
Nos. 1-13-3788 and 1-14-3279


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



                                                10
Nos. 1-13-3788 and 1-14-3279


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.



                                                     11
Nos. 1-13-3788 and 1-14-3279


               "[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



                                                 12
Nos. 1-13-3788 and 1-14-3279


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



                                               13
Nos. 1-13-3788 and 1-14-3279


               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.




                                                14
Nos. 1-13-3788 and 1-14-3279


                        "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 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,



                                                   15
Nos. 1-13-3788 and 1-14-3279


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



                                                  16
Nos. 1-13-3788 and 1-14-3279


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 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 William Lloyd Prosser

and W. Page Keeton, Prosser & Keeton on Torts § 41, at 270 (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.



                                                 17
Nos. 1-13-3788 and 1-14-3279


¶ 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



                                                18
Nos. 1-13-3788 and 1-14-3279


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 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



                                                  19
Nos. 1-13-3788 and 1-14-3279


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, an inadequate tread depth, 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.




                                                 20
Nos. 1-13-3788 and 1-14-3279


¶ 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 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 the 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




                                                 21
Nos. 1-13-3788 and 1-14-3279


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



                                                  22
Nos. 1-13-3788 and 1-14-3279


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 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. 1063 (1994), an elevator helper

was injured when he fell from atop an elevator car while he was attempting to repair the elevator,



                                                  23
Nos. 1-13-3788 and 1-14-3279


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



                                                 24
Nos. 1-13-3788 and 1-14-3279


               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.

¶ 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.



                                                 25
Nos. 1-13-3788 and 1-14-3279


¶ 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



                                                  26
Nos. 1-13-3788 and 1-14-3279


(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

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



                                                 27
Nos. 1-13-3788 and 1-14-3279


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.




                                               28
