Keating v. 68th and Paxton

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-1759 Rel

Case Date: 04/27/2010

Preview:SECOND DIVISION April 27, 2010

No. 1-09-1759

ROBERT F. KEATING, JR., Plaintiff-Appellant, v. 68TH AND PAXTON, L.L.C., an Illinois L.L.C., and DAVID L. OGLESBY and BOBBIE OGLESBY, jointly d/b/a OGLESBY MANAGEMENT COMPANY, an Unincorporated Entity, Defendants-Appellees (Gonzon Construction Co., Inc., an Illinois Corporation and Victor Gonzon, Individually, d/b/a Gonzon Construction, Defendants).

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Appeal from the Circuit Court of Cook County.

No. 07 L 002863

Honorable Thomas Quinn, Judge Presiding.

JUSTICE THEIS delivered the opinion of the court: This case arises out of injuries sustained by plaintiff Robert Keating while repairing a porch at an apartment building owned by defendant 68th & Paxton, L.L.C., and managed by defendant Oglesby Management Company (OMC) (collectively, defendants). Plaintiff filed premises liability claims against defendants in circuit court. In his fourth amended complaint, plaintiff added allegations that defendants knowingly failed to provide him with workers' compensation insurance as required by section 4(d) of the Workers' Compensation Act (Act) (820 ILCS 305/4(d) (West 2006)); therefore, defendants were presumed liable for his injuries.

1-09-1759 On defendants' motion, the circuit court struck the allegations pertaining to the Act for lack of subject matter jurisdiction. The court then granted summary judgment for defendants on plaintiff's premises liability claims. Plaintiff now appeals from the circuit courts' orders. For the following reasons, we affirm. 68th & Paxton owns a three-floor residential apartment building at 6755 S. Paxton Street. OMC manages the building through David and Bobbie Oglesby. OMC sought to replace the wooden porches at the building. It hired Gonzon Construction, Inc. (GCI), owned by Victor Gonzon, to perform the demolition and reconstruction of the porches. GCI in turn hired plaintiff to perform the demolition. On March 1, 2007, plaintiff fell from the third-floor porch at the apartment building and landed on a fence below, suffering severe injuries. Plaintiff sued for damages in the circuit court. In counts I and II of his third amended complaint, plaintiff asserted negligence claims against GCI and Gonzon, respectively. In counts III and V, plaintiff asserted premises liability claims against 68th & Paxton and OMC, respectively. In count IV, plaintiff asserted a negligence claim against David Oglesby individually, which he later voluntarily dismissed. Following the discovery period, defendants filed a motion for summary judgment, arguing that plaintiff failed to establish that any alleged breach of duty by defendants was the proximate cause of his injuries.1 In support of their motion, defendants relied in part upon plaintiff's deposition. Plaintiff testified that he had been working for Victor Gonzon for about

GCI and Gonzon unsuccessfully moved for summary judgment on the claims against them. They are not parties to the instant appeal. -2-

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1-09-1759 18 months demolishing porches, including the one at defendants' apartment building. He testified that he was not a foreman, but that he had the most experience of the workers. Plaintiff testified that he demolished the wooden rails and pickets that surround the perimeter of a porch. Based on the photographic exhibits, the porches have two rails, oriented horizontally, that are attached at both ends to a support post. There are also many pickets, oriented vertically and several inches apart, that are attached to the top and bottom rails. According to plaintiff, the pickets are usually attached to the rails on the outside of the porch. Plaintiff described his general technique in demolishing a porch as follows: "There's a top rail and a bottom rail. *** I usually hit the bottom with the hammer. *** I hit the picket off the bottom rail first. And I hit

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