Racky v. Belfor USA Group, Inc.
2017 IL App (1st) 153446
| Ill. App. Ct. | 2017Background
- Decedent Michael Racky fell through a plate-glass storefront window at a strip-mall boutique on May 24, 2011, sustaining catastrophic leg lacerations and dying from blood loss; an eyewitness testified Racky touched the glass briefly while riding a bicycle and then the glass collapsed.
- Belfor USA had been contracted by the property owner to perform fire remediation and interior demolition work after a November 2010 fire; Belfor had fenced and secured the site, controlled keys/lockbox access, and left equipment on site in May 2011.
- Plaintiff (special administrator) sued Belfor on premises-liability theories (survival and wrongful death), alleging Belfor possessed and controlled the premises, knew or should have known of the window’s dangerous condition (BB holes and cracks), and failed to protect the public.
- At bench trial the court found Belfor a possessor of the land, credited plaintiff’s experts and eyewitness over Belfor’s experts, concluded the window posed an unreasonable risk (and that demolition likely caused the cracks), and found Belfor negligent but reduced recovery by 25% for decedent’s contributory negligence.
- Damages awarded: $1,000,000 (survival for conscious pain and suffering) and $1,500,000 (wrongful death), reduced 25% to a net $1.875 million; Belfor appealed challenging duty/possession, open-and-obvious defense, contract scope, consciousness for survival damages, and excessiveness of awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Belfor a "possessor" who owed duty under Restatement §343? | Belfor controlled and secured site, had exclusive keys/lockbox, fenced property and supervised demolition, so it was possessor. | Belfor acted under owner/Village authority, lacked exclusive control or intent to control the land, and was not responsible for storefront windows. | Court: Belfor was a possessor — factual findings (fencing, lockbox/keys, boarded doors, exclusion of owner) supported exclusive control; finding not against manifest weight. |
| Was the window condition open and obvious, negating duty? | The cracks/holes made the window dangerous; ordinary persons would not appreciate the risk that light contact would cause failure. | Using a plate-glass window as support is open and obvious; decedent had alternatives (ride in street, not touch glass). | Court: Not open-and-obvious — although condition visible, the risk of collapse from a light touch was not objectively obvious; fact question resolved for plaintiff. |
| Was Belfor’s duty limited by its contract (no obligation to repair windows)? | Plaintiff proceeded on premises-liability (possession) theory, not breach-of-contract duties; possession established duty irrespective of contract scope. | Belfor’s contract covered interior work only and did not obligate Belfor to repair or secure windows, so no duty. | Court: Need not reach contract-scope argument once possessor status and duty under §343 were established; plaintiff’s theory survived. |
| Were survival and wrongful-death damages supported and reasonable? (conscious pain; pecuniary loss to children) | Eyewitness moaning, emergency physician and neurosurgeon experts testified decedent was conscious and experienced painful injuries; adult children showed pecuniary/mental loss. | Groaning alone is speculative; toxicology (high BAC and Norco) could have reduced pain; children were estranged, reducing wrongful-death presumption; damages excessive. | Court: Survival damages upheld — lay testimony + medical testimony supported brief conscious pain; award not against manifest weight. Wrongful-death award upheld — evidence of renewed relationships with sons and emotional/complicated grief for daughters supported pecuniary/mental-loss findings. |
Key Cases Cited
- Ziemba v. Mierzwa, 142 Ill. 2d 42 (Ill. 1991) (duty analysis balances foreseeability and burdens; question of duty is legal)
- Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (Ill. 1996) (open-and-obvious doctrine limits landowner duty)
- O'Connell v. Turner Construction Co., 409 Ill. App. 3d 819 (Ill. App. Ct.) (possession/intent-to-control requires evidence owner surrendered control; summary-judgment context)
- Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511 (Ill. App. Ct. 1987) (lay testimony of moaning can support finding of conscious pain prior to death)
- Moore v. Swoboda, 213 Ill. App. 3d 217 (Ill. App. Ct. 1991) (lay testimony about decedent’s condition may suffice to prove consciousness/pain for survival claim)