Racky v. Belfor USA Group, Inc.
2017 IL App (1st) 153446
| Ill. App. Ct. | 2017Background
- Michael Racky died after falling through a plate-glass storefront window at a strip mall Belfor was restoring; he suffered an almost complete amputation of his leg and massive hemorrhage and died shortly after the accident.
- Belfor had been contracted to perform fire remediation and interior demolition at the property; it erected fencing, posted "no trespassing" signs, controlled a lockbox with keys, boarded entries, and supervised subcontractor Robinette.
- Photographs and testimony showed at least one BB‑size hole in the Lacrosse‑facing window (existing earlier) and later two BB holes plus large cracks emanating from the lower left corner that appeared after Belfor’s interior work.
- Eyewitness Ricardo Rodriguez saw Racky wobble, place his left hand on the window (court found ≈8–12 inches above handlebars), hear groaning for a few minutes, and then observed Racky unresponsive; medical and toxicology evidence showed a high BAC and presence of Norco but physicians and experts testified Racky was conscious and likely experienced pain for a short period.
- After a bench trial the trial court found Belfor a possessor of the land, that the window presented an unreasonable risk, and Belfor knew or should have known; it awarded $1.875 million after reducing the verdict 25% for Racky’s contributory negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Belfor was a "possessor of land" under Restatement §343 (duty) | Belfor exercised exclusive possession and control (fence, lockbox, keys, boarded doors, site supervision) and thus owed a duty to invitees | Belfor answered to owner/Village, lacked authority to control premises, and was offsite at the time of accident | Court upheld finding Belfor a possessor — evidence supported occupation and intent to control; not against manifest weight of evidence |
| Whether the window condition was open and obvious (no duty) | The window’s cracks and BB holes made it dangerous and the risk (that slight pressure would cause collapse) was not apparent to a reasonable person | Large plate glass is visibly obvious; risk of collapse from light touch was open and obvious; Racky should have avoided touching it | Court found the risk was not open and obvious — fact question resolved for plaintiff after weighing expert and eyewitness testimony |
| Whether Belfor’s duty was limited by the contractual scope (no window responsibility) | Plaintiff sued on premises liability, not breach of contractual duties; as possessor Belfor had duties independent of contract scope | Belfor argued duties cannot be extended beyond its contractual obligations for windows | Court declined to decide contract‑scope defense because duty properly arose from possession; premises liability governs |
| Appropriateness and amount of damages (survival pain & suffering; wrongful death) | Evidence (eyewitness groaning, ER physician, expert testimony) supported brief conscious pain; children suffered pecuniary/mental loss — awards justified | Groaning speculative; alcohol and Norco likely reduced/obliterated pain; parent‑child estrangement negates presumption of pecuniary loss; awards excessive | Court affirmed awards: survival award supported by lay and medical testimony of brief conscious pain; wrongful‑death awards supported by evidence of renewed father‑son relationships and grief; overall award not against manifest weight |
Key Cases Cited
- Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34 (Ill. App. Ct.) (ordinary negligence principles apply to premises possession cases)
- Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (Ill.) (open-and-obvious doctrine limits landowner duty)
- Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511 (Ill. App. Ct.) (moaning by a decedent may support finding of conscious pain and suffering)
- Moore v. Swoboda, 213 Ill. App. 3d 217 (Ill. App. Ct.) (lay testimony of decedent’s condition can support survival damages)
- Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (Ill. App. Ct.) (general contractor’s knowledge of dangerous condition is precondition to direct liability)
- Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362 (Ill. App. Ct.) (definition of possessor: occupation with intent to control)
- Kotarba v. Jamrozik, 283 Ill. App. 3d 595 (Ill. App. Ct.) (contract scope may limit duty where no possession/control)
- Thompson v. Gordon, 241 Ill. 2d 428 (Ill.) (duties do not extend beyond contractual obligations when negligence theory is contract‑based)