Rusch v. Leonard

SUPREME COURT CASES

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Rusch v. Leonard

State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-1053 Rel

Case Date: 04/16/2010

Preview:No. 2-08-1053 Filed: 4-16-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ BECKY RUSCH, Special Representative for James Rusch, Deceased, ) Appeal from the Circuit Court ) of Lake County. ) Plaintiff-Appellant, ) ) v. ) No. 06--L--847 ) KYLE LEONARD and CYNTHIA ) LEONARD, ) ) Defendants ) Honorable ) David M. Hall and (Falato Construction Company, Inc., ) Mary S. Schostok, Defendant-Appellee). ) Judges, Presiding. ______________________________________________________________________________ JUSTICE HUDSON delivered the opinion of the court: Plaintiff, Becky Rusch, special representative for James Rusch, deceased, appeals from the trial court's grant of summary judgment in favor of defendant, Falato Construction Company, Inc. (Falato), and from the trial court's denial of her motion for leave to file an amended complaint. Plaintiff argues: (1) that the trial court erred in concluding that her cause of action was barred by application of both the "fireman's rule" and the "open and obvious rule"; and (2) that the trial court abused its discretion in denying her motion for leave to file an amended complaint. For the reasons that follow, we reverse and remand. I. BACKGROUND

No. 2--08--1053 On January 18, 2006, James Rusch, a "firemedic," filed a two-count complaint against defendants, Kyle Leonard and Cynthia Leonard (the Leonards) and Falato, for personal injuries Rusch sustained while responding to an emergency call concerning an injured person on premises owned by the Leonards (the premises). Count I was against the Leonards and Falato. Count II was against Falato. Both counts alleged negligence. Count I of the complaint alleged that, on February 2, 2004, the Countryside Fire Protection District, which employed Rusch as a firemedic, received a call concerning an injured person on the premises and dispatched Rusch to render aid and medical assistance. According to the complaint, as a result of defendants' negligence, Rusch suffered "severe and permanent injuries when he twisted and wrenched his back and body while carrying said injured person down said stairways and landings, which did not have a handrail and were unsecured, unprotected and unguarded." The complaint further alleged that the Leonards had employed Falato to construct a multilevel residence on the premises and that during construction all defendants were guilty of, inter alia, the following negligent acts and omissions: "a. Performed construction work on the premises so that plaintiff was injured; b. Allowed the entrances, landings, stairways and passageways to remain unguarded and unprotected while knowing that invitees would be on and about the premises and building being constructed; c. Permitted a dangerous condition to exist and remain on the premises in an unguarded and unprotected state;

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No. 2--08--1053 d. Failed to implement safety measures or to institute safeguards to prevent injuries to invitees, including the plaintiff, while knowing that invitees would enter on or about the premises and buildings being constructed; e. Failed to post any notice or warning signs alerting persons coming on the premises, including the plaintiff, about the dangerous condition of the entrances, landings, stairways and passageways in the building; f. Permitted unprotected, incomplete entrances, landings, stairways and passageways to exist in the building being constructed on the premises although defendants knew of this unsafe condition; g. Failed to place fencing, barricades or other safeguards around the landings and stairways when defendants knew that invitees would be on and about the premises; h. Failed to construct a handrail along and about the stairways and landings on the premises; i. Allowed the stairways and landings to be constructed in a narrow manner without a handrail while knowing that persons, including the plaintiff, would be on and about the premises; j. Were otherwise careless and negligent." On April 2, 2007, the Leonards moved for summary judgment based on the "fireman's rule." "The fireman's rule is a doctrine [that] limits the extent to which firefighters or other public officers may be allowed to recover for injuries incurred when, in an emergency, they enter onto privately owned property in discharge of their duty." McShane v. Chicago Investment Corp., 235 Ill. App. 3d 860, 864 (1992). According to the Leonards, because "Rusch was engaged in [an] activity related

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No. 2--08--1053 to his professional duties which was the cause of the accident," they were entitled to judgment as a matter of law. On April 13, 2007, Falato moved to adopt the arguments contained in the Leonards' motion for summary judgment. Falato's motion to adopt was granted on May 29, 2007. On August 10, 2007, Rusch filed a response to defendants' motion for summary judgment. In it, Rusch informed the court that Ronald Meinhardt, the injured person who was rescued by Rusch on February 2, 2004, had filed a complaint against defendants that had been consolidated with this case. During his discovery deposition, Meinhardt testified concerning the injuries he sustained at the premises. Meinhardt stated that he was injured by falling from the attic of the building to the second floor. He stated that there was only one stairway that went from the first floor to the second floor, which he had used approximately five times. He described the stairway as a "carpenter-built temporary stairwell." The stairway may have been made of scrap lumber, and he did not recall any handrails on the stairway. In addition, the stairs "seemed narrow." The stairway had nothing to do with Meinhardt's injuries. According to Rusch, because the cause of his injuries (falling on the stairs) was entirely independent of the cause of Meinhardt's injuries and the reason Rusch was called to the premises (Meinhardt's fall from the attic to the second floor), the fireman's rule did not apply. In the meantime, Rusch died of causes unrelated to this action and, on August 22, 2007, the court granted plaintiff, Becky Rusch, leave to substitute as special representative for Rusch. On October 11, 2007, the court granted summary judgment in favor of defendants. The court held that "the stairway in question presented an open and obvious danger to Rusch as he provided aid to Meinhardt. Under the fireman's rule the Complaint is barred as to all Defendants."

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No. 2--08--1053 On November 13, 2007, plaintiff moved for reconsideration. On March 12, 2008, defendants jointly responded. On April 8, 2008, the court denied plaintiff's motion as to the Leonards but granted it as to Falato. On April 25, 2008, Falato moved for reconsideration of the court's April 8, 2008, order. On July 25, 2008, plaintiff moved for leave to file an amended complaint. Plaintiff noted that she had elected not to appeal the grant of summary judgment in favor of the Leonards. However, she asked leave to file against Falato an amended complaint alleging not only negligence but also willful and wanton conduct. On July 29, 2008, the court granted Falato time to respond to plaintiff's motion for leave to file an amended complaint. Also on July 29, 2008, the court granted Falato's motion for reconsideration of the court's April 8, 2008, order (thereby effectively reinstating summary judgment in Falato's favor). The court rejected plaintiff's argument that the deliberate encounter exception to the open and obvious rule applied, finding that "the deliberate encounter exception is inapplicable with respect to a fireman injured while responding to an emergency call." On September 30, 2008, the court denied plaintiff's motion to file an amended complaint and ordered "that the prior entry of summary judgment in favor of Falato Construction Company is reinstated and that judgment is made final and appealable as of the date of this order." On October 30, 2008, plaintiff filed a notice of appeal, challenging the grant of summary judgment in favor of Falato and the denial of her motion for leave to amend. II. ANALYSIS A. Summary Judgment

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No. 2--08--1053 Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2008). A reviewing court's function is to determine whether a genuine issue of fact was raised and, if none was raised, whether judgment as a matter of law was proper. American Family Mutual Insurance Co. v. Page, 366 Ill. App. 3d 1112, 1115 (2006). The entry of summary judgment is subject to de novo review. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). To prevail on a claim for premises liability, a plaintiff must allege and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach of duty. Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). The existence of a duty is a question of law and, therefore, may be resolved on a motion for summary judgment. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995). Plaintiff maintains that the trial court erred in concluding that, based on the fireman's rule, Falato owed no duty to Rusch. As noted above, "[t]he fireman's rule is a doctrine [that] limits the extent to which firefighters or other public officers may be allowed to recover for injuries incurred when, in an emergency, they enter onto privately owned property in discharge of their duty." McShane, 235 Ill. App. 3d at 864. "Premised on the concept of assumption of the risk, the fireman's rule places a limitation on landowner liability based upon the fact that firefighters knowingly and voluntarily subject themselves to certain hazards while fighting fires." Bally v. Pora, 303 Ill. App. 3d 239, 242 (1999); see 62 Am. Jur. 2d Premises Liability

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