Garest v. Booth

2013 IL App (1st) 121845

• Court: Appellate Court of Illinois
• Decided: December 9, 2013
• Docket: 1-12-1845 NRel
• Status: Unpublished

Opinion

2013 IL App (1st) 121845

FIRST DIVISION DECEMBER 9, 2013

No. 1-12-1845

SANDRA M. GAREST, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 L 2882 ) BARRY E. BOOTH and BRIGHAM CONSTRUCTION ) COMPANY, ) Honorable ) James E. Sullivan, Defendants-Appellants. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from a November 22, 2011 judgment entered by the circuit court of Cook

County which awarded damages in the amount of $140,388.78 to plaintiff-appellee Sandra M. Garest

(Garest); and a May 23, 2012 order entered by the circuit court which denied the posttrial motions

of defendants-appellants Brigham Construction Company (Brigham) and Barry E. Booth (Booth).

Both defendants appeal raising different issues. We will consider each defendant's arguments in

turn. On appeal, defendant Brigham argues that: (1) the trial court erred in denying its motion for

summary judgment; motion for a directed verdict; and motion for judgment notwithstanding the

verdict; and (2) based on the trial court's errors, it is entitled to a new trial. Defendant Booth argues

that: (1) the trial court erred in allowing Garest to recover on a theory of "implied invitation" because

Garest was a trespasser as a matter of law; (2) the trial court erred in giving improper jury

instructions; (3) the trial court erred in denying Booth's motion for a directed verdict; and (4) based 1-12-1845

on the trial court's errors, Booth is entitled to a new trial. For the following reasons, we affirm in

part and reverse in part the judgment of the circuit court of Cook County.

¶2 BACKGROUND

¶3 On the night of December 21, 2006, Garest sustained multiple injuries when she fell down

a stairwell at Booth Orthodontics located at 12635 West 143rd Street in Homer Glen, Illinois (the

Booth building). The Booth building was built by Brigham and is owned by Booth. On March 14,

2008, Garest filed a complaint for negligence in the circuit court of Cook County against Palos Bank

and Trust Company (Palos). Palos was the trustee of the land trust that owned the Booth building.

Palos is not a party to this appeal. On July 1, 2008, Garest filed her first amended complaint against

Booth and Jane E. Booth (collectively, the Booths). The Booths are the beneficial owners of the

property held by the land trust. On June 18, 2009, the Booths filed a motion for summary judgment

arguing, in pertinent part, that at the time of the accident Garest was a trespasser on the Booths'

property as a matter of law. Thus, the Booths argued that they owed no duty of care to Garest except

to refrain from willful and wanton conduct. On August 26, 2009, the trial court granted the Booths'

motion for summary judgment on Garest's first amended complaint. The court granted Garest leave

to amend her complaint.

¶4 On September 9, 2009, Garest filed a second amended complaint against the Booths. In

Garest's second amended complaint, for record purposes only, she repled count I for negligence. She

also alleged count II for negligence to foreseeable users and/or trespassers, and count III for willful

and wanton conduct. On September 30, 2009, the Booths filed a motion for summary judgment on

Garest's second amended complaint. The Booths repeated the arguments from their first motion for

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summary judgment, and also argued that Garest failed to establish that she was a foreseeable user

and/or reasonably anticipated trespasser; and that the evidence failed to support the allegations of

willful and wanton conduct. On November 16, 2009, the trial court denied the Booths' second

motion for summary judgment. On January 20, 2010, the trial court granted Garest leave to amend

her complaint to add Brigham as a defendant. On March 5, 2010, Garest filed a third amended

complaint against the Booths and Brigham. On April 6, 2011, Brigham filed a motion for summary

judgment, which was denied. The trial court again granted Garest leave to amend her complaint.

On November 15, 2011, Garest filed a fourth amended complaint against Brigham and Booth

individually as the owner of the Booth building. Garest alleged the following counts: count I for

negligence against Brigham, count II for negligence to foreseeable users and/or trespassers against

Booth, count III for willful and wanton conduct against Booth, and count IV for negligence against

Booth. Count IV was repled for record purposes only.

¶5 On November 16, 2011, the matter proceeded to a jury trial in the circuit court of Cook

County on the fourth amended complaint. The evidence adduced at trial established the following.

On December 21, 2006, Garest was driving to Modell Funeral Home (Modell) located on 143rd

Street in Homer Glen, Illinois, to meet her friend Kimberly Cescato (Cescato) and attend a wake.

Modell is located just east of the Booth building in the same general area. Modell shares a common

vehicle entrance with the Booth building. Modell's parking lot is between Modell and the Booth

building, and the parking lot runs up to the edge of the building. The Booth building is the building

closest to the street and has a sign in front of it that says "Booth Orthodontics." Modell is farther

back in the parking lot. Cescato stated that she arrived before Garest and waited for her at the

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entrance of Modell, and that she had no trouble distinguishing Modell from the Booth building. The

premises of Modell were well lit to announce that it was hosting an event. Cescato stated that 143rd

Street is a well lit street.

¶6 Garest testified that before the accident, she had never been to Modell. On the night of the

accident, the weather was cool with misty rain and patchy fog. She expected to arrive at Modell a

little after 7 p.m. Garest saw a sign for Modell and pulled into the corresponding parking lot. She

parked her vehicle facing west and began walking toward the building nearest to her vehicle. Garest

was unaware that she was walking toward the Booth building instead of toward Modell. She noticed

two pillars in front of the building that looked like an entrance, and also noticed a light shining on

the building. Garest testified that she could see 4 to 5 car lengths, or 45 to 60 feet, in front of her.

Garest stepped up onto a curb and began walking on the sidewalk alongside the Booth building. The

building and its interior were dark but there was a light on the ground that illuminated the sidewalk.

Garest testified that it took a few moments for her to adjust to the light, which shone in her eyes. She

noticed some shrubs to the left of the sidewalk. The rest of the area around the Booth building was

relatively dark, but there was some general light from the parking lot and street. Garest walked along

the sidewalk for about 15 feet without anything obstructing her view. As she walked, she suddenly

had the feeling that there was no ground beneath her feet and she realized that she was falling.

Garest fell down a stairwell that led to a basement entrance of the Booth building. She felt a

tremendous impact on her face and her teeth. She was not able to break her fall. Garest testified that

she did not see the stairs before she fell. After the fall, while at the bottom of the stairs, Garest did

not see any light fixtures but noticed a door to her right.

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¶7 Garest testified that approximately three weeks after the accident, she returned to the stairwell

of the Booth building around 7:30 p.m. to try and figure out why she had not seen the stairs when

she fell. She took photos and a video of the premises. The weather on that day was cold with a light

snow. Garest parked her vehicle in the same parking lot and noticed the Modell building in the back

of the lot. She walked alongside the Booth building and saw the sign for Booth Orthodontics, a

railing going down the stairwell, and the light along the sidewalk. Garest walked down the stairs and

took a photo and video at the bottom of the stairwell. She noticed a light fixture at the bottom of the

stairwell but it was not turned on.

¶8 Garest received medical treatment for her injuries related to the accident from December

2006 until about December 2009. The total amount of Garest's medical bills was $41,293.86. She

testified that her injuries did not permanently affect her ability to perform the essential functions of

her occupation.

¶9 Booth testified that he owns the Booth building. The Booth building was designed by an

architect named Simon Batistich (Batistich). In spring of 2001, Booth selected Brigham to construct

the Booth building. The drawings of the Booth building were approved by Will County. Booth

testified that when the building was first designed, it did not have a basement exit. The fire inspector

required Booth to include a basement exit in the plans for the building, and the first time the

basement exit was drawn into the plans it was located on the east side of the building. The plans for

the basement exit were modified a few times due in part to the location of a water main. The

basement exit was finally located on the north side toward the middle of the building. The basement

exit contains the stairwell at issue in this case. Around February or March 2002, Booth took

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occupancy of the building.

¶ 10 As Booth explained, the layout of the building is somewhat unique. The north side of the

building, which contains the stairwell, faces the street. However, the north side of the building is

the rear of the building. The entrance and front side of the building is the south side, which faces

away from the street. The parking lot for the Booth building is located to the south of the entrance.

There is no signage indicating that the parking lot to the south of the entrance is for Booth

Orthodontics. Booth testified that Modell's parking lot contains no signage that indicates which

building the parking lot accommodates. Booth allows Modell patrons to park in his parking lot.

Likewise, Modell allows Booth patrons to park in its parking lot. Booth testified that he has been

told that, on occasion, people have come into the Booth building thinking they were entering Modell.

The mistaken customers park their vehicles in Modell's parking lot and enter the nearest building.

After the Booth building was constructed, Booth consulted a landscape architect who recommended

that Booth plant some evergreens on the north side of the Booth building because Booth did not want

the stairwell to be the main focus of attention. On the landscape architect's recommendation, Booth

planted evergreens next to the stairwell.

¶ 11 Booth testified that the stairwell in question contains a light fixture at the bottom of the stairs.

The light fixture is controlled by a light switch inside the basement door. Booth stated that the

lightbulb inside the light fixture is a photocell bulb, which means that it turns on when it gets dark

outside. However, in order for the lightbulb to function, the light switch inside the basement door

must be in the "on" position. Booth testified that the light will not automatically remain on. Booth

is responsible for the day-to-day maintenance of the lightbulb and he replaces the bulb when it burns

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out. Booth testified that every night before he leaves the building, he has a checklist of things that

he has to do. Part of Booth's checklist includes making sure that the basement light switch is turned

on. Booth stated that his hours of operation during the week are 8 a.m. to 5 p.m., except for Monday

when the building is open from 12 p.m. to 8 p.m. Booth Orthodontics is closed on Friday, Saturday,

and Sunday. When he closes at 5 p.m., Booth leaves the building around 6 p.m. On the night of the

accident, Booth closed at 5 p.m. and left the building at 6 p.m. Booth testified that he assumed that

on the night of the accident, the light switch was turned on. Booth also makes sure that the outdoor

lights are on. Booth stated that at the bottom of the stairwell, there is a sign that states that the main

entrance is at the rear of the building. Booth testified that he put up the sign because, in the past,

delivery men had left packages in the stairwell on the north side of the building. Booth's staff does

not use the stairwell to exit the building on a regular basis.

¶ 12 James Brigham (James) testified that he has been building commercial and residential

properties as a general contractor for 35 years. In early 2001, Booth retained James and his company

to build the Booth building. James testified that several changes were made to the drawings for the

Booth building before the final plans were submitted and approved. James stated that he constructs

buildings according to the approved drawings. If a change is going to be made from the drawings,

he must get approval before the drawings are changed. Changing the location of the stairwell on the

Booth building is a change that required approval. James testified that the approved drawings for

the building contained instructions for the stairwell which stated "emergency and normal lighting

at the exit stair provided at the eve [sic]." James explained that an eave is an overhang. The permit

drawings also called for down-lights to be installed on three corners of the Booth building. The

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lights above the stairwell and the three down-lights were never installed. James testified that the

decision not to install the lights was a minor change from the plans of the building and did not need

approval from the county.

¶ 13 James acknowledged that he had seen a May 22, 2001 letter from B&F Technical Code

Services (B&F). B&F was hired to review the plans for the Booth building to make sure the plans

complied with the fire code. The May 22, 2001 letter referenced section 1024.1 of the Building

Officials and Code Administrators International code (BOCA code) and stated "normal and

emergency lighting to be installed in exit discharge area." BOCA is a building code that is used by

municipalities in the region around Will County. James was also questioned about an April 16, 2001

letter from the Will County land use department (Will County letter), but he stated that he did not

recall reading that letter. At the time of trial, the Booth building was in compliance with all safety

inspections.

¶ 14 John Van Ostrand (Van Ostrand) testified as an expert for Garest. Van Ostrand has been a

licensed architect in Illinois since 1976. He is a forensic architect who focuses on problems

associated with buildings. Van Ostrand testified that he reviewed numerous depositions and

photographs in addition to conducting two site inspections of the Booth building and the stairwell.

Van Ostrand stated that the drawings for the building differed from the actual construction of the

building. In the drawings, the stairwell is located at the northwest corner of the building, but in

reality it is actually located in the middle of the north side of the building. Also, the drawings show

four lights in the area, but in reality there was only one light that was installed. Van Ostrand testified

that the BOCA code requires that exit discharge areas provide "one foot-candle" of light at the

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walking surface. One foot-candle of light is enough illumination for the area. An exit discharge area

is the means of ingress and egress by which a person enters or leaves the building. The Booth

building stairwell is part of an exit discharge area.

¶ 15 Van Ostrand testified that the drawings for the Booth building called for emergency and

normal lighting at the eave of the stairwell. Van Ostrand explained that the lights were to be

connected to the emergency lighting circuit. The lights were to provide normal and emergency

illumination, which means that the lights would be on all the time and could not be turned off. In

case of a power failure, the power source switches over and the lights are run by an emergency

backup battery that would keep the lights on for one hour after the power failure. The drawings also

called for down-lights to be installed on three corners of the Booth building. The three down-lights

were never installed.

¶ 16 Van Ostrand stated that there was an up-light installed on the Booth building in the northwest

corner. He opined that the up-light was hazardous because it shined up into a person's eyes as he or

she walked past it, as opposed to shining down on the walking surface. Van Ostrand mentioned that

the Will County letter stated that any lighting proposed for the building should be down-lighting.

Van Ostrand testified that he measured the level of illumination in and around the stairwell using a

light meter. Van Ostrand stated that the light fixture in the stairwell was inadequate because it did

not provide enough illumination. The stairwell light fixture only provided one foot-candle of

illumination directly under the light. Van Ostrand testified that the lighting in the area of the

stairwell did not meet the applicable standards for safe ingress and egress. The stairwell light was

also inadequate because it was controlled by a switch, and exit lighting is supposed to be turned on

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100% of the time. Van Ostrand testified that the lighting installed at the Booth building violated the

Will County zoning ordinance and sections 1024.1 and 1024.2 of the BOCA code. He stated that

the accident would have been prevented if the stairwell light had been turned on or if the lighting that

was drawn in the building plans had been installed.

¶ 17 Further, Van Ostrand stated that if the owner did not want to keep the stairs illuminated at

all times, he could have put up a gate that restricted access to the stairway. Van Ostrand testified that

there was no duty to put up a gate, but it was the owner's responsibility to either light the area at all

times or prevent access to the area.

¶ 18 At the close of Garest's case in chief, Booth filed a motion for a directed verdict. Booth

argued that the trial court should direct a verdict in his favor on count II of the fourth amended

complaint because Garest was not a foreseeable trespasser; and also on count III of the fourth

amended complaint because the evidence failed to support the allegations of willful and wanton

conduct by Booth. Brigham also filed a motion for a directed verdict at that time. Brigham argued

that the trial court should direct a verdict in his favor on count I of the fourth amended complaint

because Garest was a trespasser on Booth's premises and she did not allege that Brigham's conduct

was willful and wanton. The trial court denied both motions. Additionally, at the close of all the

evidence, both Brigham and Booth renewed their respective motions for a directed verdict. Again,

the trial court denied both motions. On November 22, 2011, the jury returned a verdict of

$140,388.78 in favor of Garest and against Brigham and Booth. The jury apportioned the legal

responsibility as follows: 64% to Brigham, 34% to Booth, and 2% to Garest. There were three

special interrogatories that were submitted to the jury. Booth originally prepared the special

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interrogatories. However, at the jury instruction conference, Garest proposed amendments to the

special interrogatories that were adopted by the trial court over Booth's objection. The jury answered

the special interrogatories as follows:

"Q. Was Plaintiff Sandra Garest upon the premises of

Defendant Barry E. Booth with express or implied invitation?

A. Yes

Q. Was Plaintiff Sandra Garest a trespasser upon the property

of Defendant Barry E. Booth?

A. No.

Q. Do you find that the plaintiff's contributory negligence was

greater than 50% of the total proximate cause of her injuries?

A. No"

¶ 19 Also, on November 22, 2011, the trial court entered its judgment of $140,388.78 in favor of

Garest and against Booth and Brigham. Both Booth and Brigham respectively filed motions for

extension of time to file a posttrial motion and to stay enforcement of the judgment. Those motions

were granted and both defendants were given until February 3, 2012 to file their posttrial motions.

On February 3, 2012, Booth filed a "renewed motion for directed verdict and post-trial motion."

Booth requested that the trial court grant the motion for a directed verdict or, alternatively, grant

judgment notwithstanding the verdict or a new trial for Booth. Likewise, on February 3, 2012,

Brigham filed a "renewed motion for directed verdict and post-trial motion." Brigham renewed its

motion for summary judgment and requested the following relief from the trial court: summary

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judgment in favor of Brigham; a directed verdict in favor of Brigham; judgment notwithstanding the

verdict in favor of Brigham; a new trial on all issues; or a remittitur. On May 23, 2012, the trial

court denied all the posttrial motions filed by both defendants. On June 20, 2012, Brigham and

Booth both filed a timely notice of appeal. Therefore, we have jurisdiction to consider Brigham's

and Booth's arguments on appeal pursuant to Illinois Supreme Court Rule 303 (eff. May 30, 2008).

¶ 20 ANALYSIS

¶ 21 Both Brigham and Booth present numerous arguments on appeal. In the interest of clarity,

we will first discuss Brigham's arguments and will then discuss Booth's arguments.

¶ 22 We determine the following issues related to Brigham: (1) whether the trial court properly

held that Brigham owed Garest a duty of ordinary care; (2) whether the trial court erred in denying

Brigham's motion for a directed verdict, and motion for judgment notwithstanding the verdict; and

(3) whether Brigham is entitled to a new trial based on the court's errors.1

¶ 23 We first determine whether the trial court properly held that Brigham owed Garest a duty of

ordinary care.

¶ 24 We note that Brigham presents many arguments as to why the trial court erred in denying its

various motions. Specifically, Brigham argues that: it owed no duty to Garest because her accident

was not reasonably foreseeable to Brigham; it owed no duty to Garest because the stairwell was an

1 We note that Brigham argues that the trial court erred in denying its motion for summary judgment. However, when the trial court denies a motion for summary judgment and the matter proceeds to trial, the order denying the motion for summary judgment merges with the final judgment and is not appealable. Labate v. Data Forms, Inc., 288 Ill. App. 3d 738, 740 (1997). Therefore, we are unable to address Brigham's arguments regarding its motion for summary judgment.

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open and obvious condition; it owed no duty to Garest because the burden of guarding against

Garest's accident was too high; Garest did not prove that Brigham's conduct was willful and wanton;

and Garest did not establish that Brigham's conduct was the proximate cause of her accident.

However, those assertions are largely dependent on one main issue: whether Brigham owed Garest

a duty of ordinary care or owed her the duty to refrain from willful and wanton conduct as an owner

or occupier of land. Determining the appropriate duty of care Brigham owed to Garest will guide

this court's analysis of Brigham's underlying arguments. Therefore, we first consider the parties'

arguments regarding whether Brigham owed Garest the duty to refrain from willful and wanton

conduct as an owner or occupier of land.

¶ 25 Brigham argues that the trial court erred as a matter of law by holding that Brigham's duty

toward Garest was a duty of ordinary care. Rather, Brigham contends that it owed the same duty of

care toward Garest as Booth owed. That is the duty owed as an owner or occupier of land. Brigham

asserts that in Illinois, a contractor that allegedly creates a dangerous condition on a piece of land

enjoys the same freedom from liability to trespassers as if the contractor were the possessor of the

land. Brigham argues that it is being held liable for the same dangerous condition as Booth, and as

such it should be held to the same duty of care as Booth. Thus, Brigham asserts that it is entitled to

present the same defenses that Booth is able to present, including the defense that Garest was a

trespasser to whom Brigham only owed a duty to refrain from willful and wanton conduct.

¶ 26 In response, Garest argues that the trial court properly held that Brigham owed Garest a duty

of ordinary care. Garest argues that Brigham's duty of care could not be that of an owner or occupier

because Brigham had no control over the Booth building and did not possess the building. Garest

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contends that Brigham's duty of care was based on its status as an independent contractor, and it had

a duty to exercise reasonable care in construction of the Booth building. Also, Garest asserts that

the cases cited by Brigham are distinguishable from the instant case. The contractors in those cases

were considered to be owners or occupiers due to their continuous possession or control over the

premises in question at the time of the occurence. Thus, Garest argues that Brigham's duty of care

was not based on the owner or occupier standard, and she was not required to plead or prove that

Brigham engaged in willful and wanton conduct.

¶ 27 A cause of action for negligence consists of the following elements: "(1) a duty owed to the

plaintiff by the defendant; (2) a breach of that duty; and (3) an injury proximately caused by the

breach." Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1051 (2010). "Whether a duty

exists is a question of law to be determined by the court." Id. In determining whether a duty exists,

four factors are typically considered: "(1) the reasonable foreseeability of injury; (2) the likelihood

of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of

placing that burden on the defendant." Id. at 1051-52.

¶ 28 A landowner owes a reasonable duty of care to all entrants upon his property regarding the

state of the premises. Benamon v. Soo Line R.R. Co., 294 Ill. App. 3d 85, 89 (1997). As to

trespassers, no duty of reasonable care is owed except to refrain from willfully and wantonly injuring

the trespasser. Id. On the other hand, a cause of action for negligent construction is not dependent

upon an injured party's status as a business invitee, as may be the case with a cause of action for

negligence against an owner or operator of a business. Marshall v. Burger King Corp., 222 Ill. 2d

422, 432 (2006). "The law in Illinois is that in order for a defendant to be an owner-occupier or

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possessor of land, he must occupy or possess the land with the intent to control it." Williams v.

Sebert Landscape Co., 407 Ill. App. 3d 753, 756-57 (2011); see also Madden v. F.H. Paschen/S.N.

Nielson, Inc., 395 Ill. App. 3d 362 (2009); Kotecki v. Walsh Construction Co., 333 Ill. App. 3d 583

(2002).

¶ 29 Yet, Brigham argues that it owed a duty of care to Garest to the same extent as an owner or

occupier of land. In support of its argument, Brigham cites numerous cases that held that a general

contractor was subject to liability to the same extent as an owner or possessor of land. See Lange

v. Fisher Real Estate Development Corp., 358 Ill. App. 3d 962 (2005); Randich v. Pirtano

Construction Co., 346 Ill. App. 3d 414 (2004); Deibert v. Bauer Brothers Construction Co., 188 Ill.

App. 3d 108 (1989); Corcoran v. Village of Libertyville, 73 Ill. 2d 316 (1978). However, the cases

cited by Brigham are not analogous to the instant case. In Corcoran, the supreme court addressed

the issue of whether a county that caused the condition on which a child was injured was subject to

the same liability as the village that owned the premises. Corcoran, 73 Ill. 2d at 324. In finding that

the county and village were subject to the same liability, the court noted that the county managed,

maintained, and controlled the premises in addition to creating the hazardous condition. Id. In

Lange and Deibert, the appellate court held that the defendant contractors were subject to liability

to the same extent as though they were possessors of land. Lange, 358 Ill. App. 3d at 964-67;

Deibert, 188 Ill. App. 3d at 109-110. However, in both cases the contractors were actually in

possession of the land when the plaintiffs' injuries occurred. Lange, 358 Ill. App. 3d at 964-65;

Deibert, 188 Ill. App. 3d at 109. In Randich, the appellate court held that the defendant contractors

came within the scope of the fireman's rule because they were working on an easement on behalf of

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the owners of the easement. Randich, 346 Ill. App. 3d at 424. Unlike the cases cited by Brigham

in this case, Brigham had completed construction of the Booth building several years before Garest's

accident and had no further ties with the building until the accident occurred. After construction of

the Booth building was completed, Brigham had absolutely no authority to possess, control, or

manage the building. Therefore, Brigham had no relationship with the Booth building that would

qualify it as an owner or occupier of the building.

¶ 30 Further, as the trial court noted in its May 23, 2012 order denying the defendants' posttrial

motions, Brigham's arguments regarding its duty to Garest as an owner or occupier are based on

premises liability theories. However, Garest's only allegations against Brigham in this case are based

on ordinary negligence theories. Therefore, neither the allegations in Garest's fourth amended

complaint nor Brigham's status as a general contractor supports Brigham's argument that as an owner

or occupier it only owed Garest a duty to refrain from willful and wanton conduct. Accordingly, we

hold that the trial court properly held that Brigham owed Garest a duty of reasonable care in

construction of the Booth building.

¶ 31 We next determine whether the trial court erred in denying Brigham's motion for a directed

verdict, and motion for judgment notwithstanding the verdict.

¶ 32 As a preliminary matter, we note that in addition to its other arguments, Brigham argues that

it owed no duty to Garest because the stairwell was an open and obvious condition and Garest did

not prove that Brigham's conduct was willful and wanton. However, those arguments are grounded

in premises liability theories and are dependent upon the notion that Brigham owed a duty of care

to Garest to the same extent as an owner or occupier of land. See McDonald v. Northeast Illinois

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Regional Commuter R.R. Corp., 2013 IL App (1st) 102766-B, ¶ 22 ("The open and obvious doctrine

is an exception to [the landowner's] general duty of reasonable care *** and provides that the

landowner is not liable for physical harm to individuals caused by any activity or condition on the

land whose danger is known or obvious unless the landowner should anticipate the harm despite such

knowledge or obviousness ***.); Lange, 358 Ill. App.3d at 966 ("[A] landowner owes no duty of

care to a trespassing adult except to refrain from willfully and wantonly injuring him."). Because

we have established that Brigham cannot be considered a landowner in this case, it follows that

Brigham is unable to avail itself of arguments pertaining to landowners that are based on premises

liability principles. Thus, we need not address Brigham's arguments regarding the open and obvious

doctrine and willful and wanton conduct as those arguments relate to theories that are unavailable

to Brigham.

¶ 33 Turning to the merits of Brigham's remaining arguments, we determine whether the trial court

erred in denying Brigham's motion for a directed verdict, and motion for judgment notwithstanding

the verdict. Brigham argues that the trial court erred in denying its motions because Brigham owed

no duty to Garest since her accident was not reasonably foreseeable to Brigham when the Booth

building was constructed. Brigham argues that Garest's accident was unforeseeable due to the

individual and combined acts of Booth failing to maintain a lighted stairwell; Garest inexplicably

wandering onto Booth's premises; and Garest failing to notice the stairwell. Brigham contends that

it installed a light in the stairwell and could expect that Booth would maintain the light and ensure

that the light was turned on. Further, Brigham asserts that Garest was negligent for walking onto

Booth's premises and falling down the stairwell. Brigham points out that there were lights in the area

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of the stairwell, nothing was obstructing Garest's vision, and Garest was able to see other details of

the building. Also, Brigham argues that it was not foreseeable that a person would try to walk into

a darkened building, through a fire exit, at night. Thus, Brigham contends that because Garest's

accident was not reasonably foreseeable to Brigham, it did not owe a duty to Garest.

¶ 34 Also, Brigham argues that it did not owe a duty to Garest because the burden of guarding

against Garest's accident was too high. Brigham contends that it installed a light in the stairwell of

the Booth building during construction and the light emitted 1.22 foot-candles of illumination when

it was turned on. Brigham points out that Van Ostrand testified that Garest would have seen the light

if it had been turned on. Thus, Brigham asserts that by holding it liable for Garest's accident, the trial

court imposed a duty on Brigham to ensure that the stairwell light remained lit at the time of the

accident. Brigham claims that the burden of this duty is too high. Brigham argues that it constructed

the Booth building four years before Garest was injured and that it had no relationship with the

building after construction. After Brigham turned over the building to Booth, it had no right to

control, enter, or use the premises. Brigham claims that it cannot have been expected to maintain

the light at all times and ensure that it was functioning. Therefore, Brigham argues that it owed no

duty to Garest because the burden of guarding against her accident was too high.

¶ 35 Further, Brigham argues that Garest failed to prove that its conduct was the proximate cause

of her accident. Specifically, Brigham contends that its conduct was neither the cause in fact nor the

legal cause of Garest's accident. Brigham claims that its conduct was not the cause in fact of Garest's

accident because it installed a light in the stairwell, and Van Ostrand testified that the light would

have prevented Garest's accident. Brigham asserts that its conduct was not the legal cause of Garest's

18 1-12-1845

accident because its relationship with the Booth building was too attenuated, and it could not foresee

the intervening acts of Garest entering the building at night and Booth failing to turn on the stairwell

light. Brigham claims that its failure to install additional lights was simply a condition by which the

accident was made possible. Thus, it argues that its conduct was not the proximate cause of Garest's

accident. This is in contrast to the unrebutted expert testimony of Van Ostrand. He testified that the

absence of lighting as included in the approved plans was the cause of Garest's fall. Nevertheless,

Brigham argues that the trial court erred in denying its motion for a directed verdict, and motion for

judgment notwithstanding the verdict.

¶ 36 In response, Garest argues that her accident was reasonably foreseeable to Brigham.

Primarily, Garest contends that Brigham confuses the concept of duty with the concept of breach of

duty. Garest claims that the effect of Brigham failing to properly install a stairwell light raises an

issue of breach of duty for the jury to decide. Garest asserts that Brigham owed her a duty of

reasonable care as an independent contractor in construction of the Booth building. Garest argues

that it is entirely foreseeable that an accident could occur because Brigham failed to install the

normal and emergency lighting, and the corner down-lighting, as mandated by the plans approved

for the construction of the building. The evidence showed that the light in the surrounding area of

the stairwell was inadequate and in violation of the BOCA codes. Also, Garest argues that it was

for the jury to weigh the evidence and decide whether she was negligent in falling down the stairwell.

Thus, Garest argues that her accident was reasonably foreseeable to Brigham.

¶ 37 Next, Garest argues that Brigham owed her a duty of reasonable care to guard against the

accident. Such a burden was within the bounds of propriety. Garest contends that Brigham

19 1-12-1845

incorrectly states that the court held that Brigham's duty was to maintain the stairwell light and

ensure that it remained lit at the time of the accident. Rather, Garest points out that her allegations

against Brigham were based on negligent construction of the Booth building for failing to adequately

light the sidewalk and stairwell in violation of the BOCA codes; and failing to reasonably inspect

the premises after construction. Garest did not allege that Brigham was negligent for failing to

maintain the stairwell light. Thus, Garest argues that Brigham's only burden was to show that it had

constructed the Booth building according to the plans and in compliance with the applicable safety

codes. Garest contends that Brigham's burden was minimal and had nothing to do with continually

maintaining the building or the lighted stairwell. Therefore, Garest argues that Brigham's burden of

guarding against her accident was not too high, as Brigham argued because it owed her a duty of

reasonable care.

¶ 38 Further, Garest argues that Brigham's conduct was the proximate cause of her accident.

Garest contends that proximate cause is a fact specific issue meant for the jury's consideration.

Garest asserts that proximate cause can only be decided as a matter of law where the facts show that

the plaintiff would never be entitled to recover. Also, Garest points out that Brigham argues that its

relationship with the Booth building was too attenuated to be the proximate cause of her accident.

Garest contends that Brigham's argument is misplaced because its liability is based on failing to

construct the building in accordance with the approved plans and safety codes, not based on the

maintenance or control of the stairwell light. Further, Garest argues that her actions and Booth's

actions were not intervening acts that broke the chain of causation between Brigham and Garest. She

asserts that Illinois law states that there can be more than one proximate cause, and a person that is

20 1-12-1845

guilty of negligence cannot avoid liability simply because another person was also guilty of

negligence and contributed to the same injury, even though the injury would not have occurred but

for the latter's negligence. Garest argues that Booth's negligence in no way excuses Brigham's

negligence. Therefore, Garest asserts that she sustained her burden of proof on the issue of

proximate cause. Based on all of her arguments, Garest contends that the trial court did not err in

denying Brigham's motion for a directed verdict, and motion for judgment notwithstanding the

verdict.

¶ 39 "Judgment notwithstanding the verdict is properly granted where all the evidence, when

viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no

contrary verdict based on that evidence could ever stand." Washington v. City of Chicago, 188 Ill.

2d 235, 238 (1999). When the plaintiffs have recovered against the defendants for negligence,

judgment notwithstanding the verdict is required if the defendants did not owe the plaintiffs a duty.

Id. at 238-39. The trial court's ruling on a motion for judgment notwithstanding the verdict is

reviewed de novo. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 21. A motion for

a directed verdict will only be granted if the evidence so overwhelmingly favors the movant that no

contrary verdict based on that evidence could ever stand. Krywin v. Chicago Transit Authority, 238

Ill. 2d 215, 225 (2010). An order disposing of a motion for a directed verdict is reviewed de novo.

Id.

¶ 40 As previously discussed, in determining whether a duty exists, four factors are typically

considered: "(1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude

of the burden of guarding against injury; and (4) the consequences of placing that burden on the

21 1-12-1845

defendant." Wilfong, 401 Ill. App. 3d at 1051-52. In order for a duty to be imposed, the accident

at issue must have been reasonably foreseeable as the creation of a legal duty requires more than a

mere possibility of an occurrence. Cunis v. Brennan, 56 Ill. 2d 372, 375-76 (1974). In determining

the foreseeability of an incident, the court considers what was apparent to the defendant at the time

of his conduct, not what may become apparent through hindsight. Id. at 376.

¶ 41 Generally, proximate cause is an issue of material fact to be determined by the jury. Abrams

v. City of Chicago, 211 Ill. 2d 251, 257 (2004). However, proximate cause may be determined as

a matter of law where the facts show that the plaintiff would never be entitled to recover. Id. at 257-

58. Proximate cause consists of two requirements: cause in fact and legal cause. Id. "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." Id. at 258. If the plaintiff's injury would not have

occurred absent the defendant's conduct, then the conduct is a material element and substantial factor

in bringing the injury. Id. On the other hand, " 'legal cause' " is based largely on foreseeability and

the court must consider whether the injury is of the type that a reasonable person would see as a

likely result of his conduct. Id. If a defendant's conduct does nothing other than furnish a condition

by which the injury is made possible, and the condition causes an injury by the subsequent,

independent act of a third person, the creation of the condition is not the proximate cause of the

injury. Id. at 259. Moreover, proximate cause "need not be the only, last or nearest cause; it is

sufficient if it occurs with some other cause acting at the same time, which in combination with it,

causes injury." Leone v. City of Chicago, 235 Ill. App. 3d 595, 603 (1992). Thus, if there is more

than one proximate cause of an injury, one guilty of negligence cannot avoid liability simply because

22 1-12-1845

another person was also guilty of negligence contributing to the same injury, even if the injury would

not have occurred but for the latter person's negligence. Id. at 603-04.

¶ 42 We agree with Garest's arguments. Regarding the foreseeability issue, Garest has shown that

her accident was reasonably foreseeable to Brigham. Garest alleged that Brigham was negligent in

its construction of the Booth building. It is undisputed that Brigham failed to follow the approved

plans for the building and failed to comply with the BOCA codes and local zoning ordinance.

Specifically, Brigham failed to install normal and emergency lighting above the stairwell and failed

to install down-lighting in the northwest corner of the building. There was unrebutted expert

testimony that such lighting would have prevented the accident. Thus, it follows that it is reasonably

foreseeable that a person may fall down the stairwell of the building in the absence of such lighting.

We are unpersuaded by Brigham's argument that Garest's accident was not foreseeable because it

installed a stairwell light that it could not be expected to maintain. As Garest points out, Van

Ostrand's unrebutted testimony was that the stairwell light was inadequate because the standard

requires that exit lighting must stay on at all times and should not be controlled by a switch. Thus,

even though Brigham installed a light in the stairwell, it did not function as it was required to, nor

was it consistent with the approved plan. It is foreseeable that a person could fall down a stairwell

in the dark if the stairwell was unlit. A light that is not designed to stay on continuously will likely

leave the stairwell without light at times. It can be inferred that prevention of just this type of

accident is the reason for the lighting requirement in a building of this type. Therefore, Garest's

accident was reasonably foreseeable to Brigham.

¶ 43 Based on this analysis, we cannot say that the burden of guarding against Garest's accident

23 1-12-1845

was too high for Brigham thereby obviating a duty of care. Brigham incorrectly states that the trial

court imposed a duty on it to maintain the stairwell light and ensure that it remained lit at the time

of the accident. In actuality, Garest alleged that Brigham was negligent in constructing the Booth

building in that it failed to adequately light the sidewalk and stairwell by omitting the lighting that

was part of the approved plans in violation of the BOCA codes; and failing to reasonably inspect the

premises after construction to ensure that the required lighting was in place. The rational inference

is that Brigham would have had another opportunity to install the lighting if it had inspected the

premises after construction. Garest did not make any allegations regarding Brigham's duty to

maintain or control the stairwell light. Garest alleges that Brigham's burden was to show that he had

followed the approved plans for the Booth building and installed the proper lighting as mandated by

the plans. Such a burden would not have required Brigham to do any more than it was hired to do.

It certainly did not require Brigham to exert any control over the building or perform any

maintenance. Van Ostrand testified that according to the BOCA codes, the lighting on the sidewalk

leading to the stairwell at the time of Garest's fall was inadequate, and the stairwell light itself was

also inadequate. Therefore, Brigham had a duty of care to follow the approved plans and install

adequate lighting during construction of the building. Brigham provided no rebuttal to Van

Ostrand's opinion on this pivotal point.

¶ 44 The issue of proximate cause is generally a question of fact for the jury. Brigham argues that

its conduct was not the cause in fact of Garest's accident because it installed a light in the stairwell

and Van Ostrand testified that the accident would not have happened if the area had been lit.

However, as we have noted, Van Ostrand also testified that the stairwell light was inadequate

24 1-12-1845

because the safety codes and approved plans required that the light was to stay on at all times, as

opposed to being operated by a switch. Moreover, Van Ostrand's unrebutted testimony established

Brigham's failure to install the corner lights and the lights above the stairwell as mandated by the

approved plans was clearly the reason that Garest did not see the stairs and therefore, the cause in

fact of her injuries. Also, Brigham's conduct is the legal cause of Garest's injuries. Garest falling

down the stairwell is exactly the type of accident a reasonable person would see as a likely result of

lack of proper lighting in and around the stairwell. Brigham was responsible for that omission. Just

because Booth may also have been negligent in failing to turn on the one light that was present does

not mean that Brigham can avoid liability. Indeed, if Brigham had correctly installed all of the lights

in the approved plans including the stairwell light so that it remained turned on at all times, as

mandated by the BOCA codes, then Garest's accident could have been avoided regardless of Booth's

actions. Additionally, the theory of liability leveled against Brigham would not be applicable under

such a scenario. Therefore, Garest has met her burden of proof regarding the proximate cause

element of her claim as related to Brigham. Accordingly, we hold that the trial court did not err in

denying Brigham's motion for a directed verdict, and motion for judgment notwithstanding the

¶ 45 We next determine whether Brigham is entitled to a new trial based on errors committed by

the trial court.

¶ 46 Brigham argues that the trial court committed numerous errors that individually or

cumulatively prejudiced Brigham to such an extent that it is entitled to a new trial. Specifically,

Brigham argues that the trial court erred by: declining to give Brigham's special interrogatories;

25 1-12-1845

preventing Brigham from arguing that Garest was a trespasser; allowing the Will County letter

regarding the lighting requirements to be introduced into evidence; allowing testimony and a jury

instruction that Garest's wrist injury was permanent; and providing improper jury instructions. Also,

Brigham argues that the jury's verdict was against the manifest weight of the evidence.

¶ 47 A few of Brigham's arguments regarding his entitlement to a new trial are predicated on

premises liability theories and the duty of care as an owner or occupier of land. Brigham argues that

he is entitled to a new trial because the trial court erred in declining to give his special

interrogatories. As the trial court noted in its May 23, 2012 order denying the defendants' posttrial

motions, the special interrogatories in question were based on premises liability theories.

Additionally, Brigham also argues that it is entitled to a new trial because the trial court erred in

instructing Brigham that it could not argue that Garest was a trespasser. Garest's status as a

trespasser would only be relevant if Brigham was considered to be an owner or occupier. As

previously discussed, we find that Brigham cannot be considered an owner or occupier of the Booth

building under these facts, and cannot be held to the same standards as an owner or occupier.

Therefore, we decline to address Brigham's arguments as to its special interrogatories and Garest's

status as a trespasser as it relates to Brigham.

¶ 48 Notwithstanding Brigham's numerous allegations of error by the trial court, a party is not

entitled to a perfect trial, only to a fair trial free of substantial prejudice. Cetera v. DiFilippo, 404

Ill. App. 3d 20, 47 (2010). "A new trial is necessary when the cumulative effect of trial errors so

deprives a party of a fair trial that the verdict might have been affected." Id. As to Brigham's

remaining arguments, none of the errors it alleges amount to prejudicial error individually or

26 1-12-1845

cumulatively. We find that the trial court's rulings at issue were not made in error. None of

Brigham's claims, individually or cumulatively, would have affected the outcome of the trial as it

relates to Brigham. Likewise, we find that the jury's verdict as to Brigham was not against the

manifest weight of the evidence. Therefore, we hold that Brigham is not entitled to a new trial.

¶ 49 Turning to Booth's arguments on appeal, we determine whether the trial court erred in

denying Booth's motion for a new trial.

¶ 50 First, Booth argues that the trial court erred in denying his motion for a new trial based on

the jury's answers to the special interrogatories. He is not asserting that the giving of the special

interrogatories was improper. Rather, Booth argues that the jury's answers to the special

interrogatories were fundamentally incorrect. Booth points out that based on the answers to the

special interrogatories, the jury decided that Garest was an invitee on Booth's premises and was not

a trespasser. Booth contends that as a matter of law, Garest could not have been an invitee on his

premises at the time of her accident. He asserts that Garest was not an express invitee because it is

undisputed that no express invitation was given to her. Likewise, Booth argues that Garest was not

an implied invitee because she did not enter his premises for a reason connected with his business

and he received no benefit from her entry. In support of his argument, Booth highlights the

following undisputed facts: Garest walked onto his premises in the mistaken belief that she was

entering Modell Funeral Home; she had never been to Booth Orthodontics and did not have any

relationship with Booth prior to the accident; she was not aware of any invitation to enter Booth's

premises and did not see the sign for Booth Orthodontics; and she entered Booth's premises at night

and after business hours. He contends that those facts show that Garest could not have been an

27 1-12-1845

invitee, and thus she was a trespasser. Booth argues that because Garest was a trespasser and not an

invitee as a matter of law, the jury's answers to the special interrogatories show that its verdict was

against the manifest weight of the evidence.

¶ 51 Additionally, Booth argues that the instructions given to the jury were improper and

prejudicial. Specifically, Booth challenges Illinois Pattern Jury Instructions, Civil, No. 120.06

(2011) (hereinafter IPI Civil (2011) No. 120.06) because it instructed the jury as to the specific duty

that a landowner owes to an invitee on his property. Also, Booth challenges an additional instruction

given by the trial court which defined the term "implied invitation." Booth argues that those jury

instructions were improper because the evidence adduced at trial shows that the only possible

conclusion was that Garest was not an implied invitee on Booth's premises. Thus, Booth asserts that

Garest was a trespasser and the evidence in no way supports the instructions that were given to the

jury. Booth contends that the jury instructions were misleading, and the jury was left with an

impression that was not supported by the evidence. Accordingly, Booth argues that he was

prejudiced by the jury instructions. Based on the trial court's error in tendering improper jury

instructions, and the jury's answers to the special interrogatories, Booth argues that he is entitled to

a new trial.

¶ 52 In response, Garest argues that the jury instructions were not improper because there was

some evidence to support the jury's finding that she was an invitee on Booth's premises. She asserts

that even where there is only slight evidence to support a theory, the jury can be properly instructed

on the theory. Garest claims that there was a factual dispute as to her status on Booth's premises, and

the court correctly submitted the issue to the jury for resolution. Specifically, Garest points out the

28 1-12-1845

following facts: she parked in the parking lot which was shared by the Booth building and Modell

Funeral Home; there were no signs restricting patrons of either business from parking anywhere in

the shared lot; Booth was aware that his customers parked in the common parking lot on occasion;

Garest accessed the sidewalk of the Booth building because she was attracted by the sidewalk light;

and Booth kept the building's outside lights turned on because he wanted the building to be seen.

Garest contends that those facts support the inference that she was an implied invitee on Booth's

premises. Further, Garest asserts that the jury's answers to the special interrogatories were consistent

with its verdict and demonstrate that the verdict was not the product of any confusion. Therefore,

Garest argues that the jury instructions were not improper, and the jury's verdict was not against the

manifest weight of the evidence.

¶ 53 When the trial court rules on a motion for a new trial, the court weighs the evidence and

determines if the jury verdict is against the manifest weight of the evidence. Lawlor v. North

America Corp. of Illinois, 2012 IL 112530, ¶ 38. "A verdict is against the manifest weight of the

evidence only where the opposite result is clearly evident or where the jury's findings are

unreasonable, arbitrary, and not based upon any of the evidence." Id. On review, this court will not

reverse the trial court's ruling on a motion for a new trial unless the trial court abused its discretion.

Id. "In determining whether the trial court abused its discretion, the reviewing court should consider

whether the jury's verdict was supported by the evidence and whether the losing party was denied

a fair trial." Maple v. Gustafson, 151 Ill. 2d 445, 455-56 (1992). The plaintiff is entitled to have the

jury instructed on any theory supported by the evidence. Turner v. Williams, 326 Ill. App. 3d 541,

550 (2001). In order for an instruction to be justified, some evidence in the record must support the

29 1-12-1845

theory. Id. It is within the trial court's discretion to give or deny a jury instruction, and to determine

what issues are raised by the evidence. Id. Therefore, we apply the abuse of discretion standard in

determining whether the instructions given to the jury were proper, and whether the trial court erred

in denying Booth's motion for a new trial.

¶ 54 As previously discussed, a landowner owes a reasonable duty of care to all entrants upon his

property regarding the state of the premises. Benamon, 294 Ill. App. 3d at 89. However, as to

trespassers, no reasonable duty of care is owed except to refrain from willfully and wantonly injuring

the trespasser. Id. If a landowner knows or reasonably anticipates a trespasser to encounter a place

of danger when entering upon his land, the landowner is held to a duty of ordinary care to protect

and/or warn the trespasser. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 448-52 (1992).

Further, a person may be a business invitee of a landowner if: "(1) the person enters by express or

implied invitation; (2) the entry is connected with the owner's business or with an activity conducted

by the owner of the land; and (3) the owner receives a benefit." Sameer v. Butt, 343 Ill. App. 3d 78,

86 (2003).

¶ 55 Booth argues that the jury's answers to the special interrogatories, as well as the jury

instructions, were improper because as a matter of law Garest could not have been an invitee on

Booth's premises at the time of her accident. We agree. It is undisputed that Garest received no

express invitation to enter Booth's premises on the night of her accident. Accordingly, she could only

have been an invitee if she was an implied invitee. In order to be an implied invitee, Garest would

have had to enter Booth's premises for a reason that is connected with Booth's business, and Booth

would have had to receive a benefit from her entry. The evidence at trial shows that neither of those

30 1-12-1845

requirements were met. In this case, Garest walked onto Booth's premises at night after business

hours when Booth Orthodontics was closed. She had never been to Booth Orthodontics and was not

a patient of Booth's. In fact, she knew nothing about the Booth building and did not see the sign for

Booth Orthodontics. Rather, she mistakenly thought that the Booth building was Modell Funeral

Home, and she attempted to enter Booth's premises to attend a wake. Garest's presence on Booth's

premises had absolutely no connection with Booth's business or any activity that Booth conducts at

the Booth building. Moreover, Booth did not receive any benefit from Garest's presence on his

premises. She was not a current customer, and did not learn of Booth's business until after her

accident. Therefore, it is clear that the undisputed facts at trial show that Garest's presence on

Booth's premises failed to establish the two requirements of an implied invitation. Accordingly, as

a matter of law, Garest could not have been an invitee on Booth's premises at the time of her

accident. However, in answering the special interrogatories, the jury decided that Garest was an

invitee on Booth's premises and was not a trespasser.

¶ 56 Because Garest was not an invitee as a matter of law, the jury's answers to the special

interrogatories, as well as the jury instructions, were improper. Based on the answers to the special

interrogatories, the jury clearly found that Garest was an invitee on Booth's premises, and that she

was not a trespasser. As previously discussed, those findings were factually and legally erroneous.

It follows that the jury's verdict was based on those erroneous findings. Likewise, the jury

instructions were improper. The trial court submitted IPI Civil (2011) No. 120.06, which read as

follows:

"Under Count II, it was the duty of defendant, Barry E. Booth

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as an owner of the property in question, to exercise ordinary care to

see that the property was reasonably safe for the use of those lawfully

on the property. That duty extends only to the portion of the premises

onto which the person has either expressly or impliedly been invited

to use or to that portion the owner might reasonably expect her to use

in connection with the invitation and only to that manner of use

which the owner might reasonably expect in connection with the

express or implied invitation.

However, if Sandra Garest, was on a portion of the premises

to which she was not expressly or impliedly invited or which the

owner would not reasonably expect her to use in connection with the

invitation or for which the owner might reasonably have expected her

to use the premises, then it was the duty of the defendant to refrain

from willful and wanton conduct which would endanger the safety of

the plaintiff."

Additionally, the trial court provided the jury with the following definition of "implied invitation":

"When I use the expression 'implied invitation' in these

instructions, I mean a situation where a person's entry is connected

with the owner's business or with an activity the owner conducts or

permits to be conducted on his land and there is a mutuality of benefit

or benefit to the owner. The status of an invitee does not depend on

32 1-12-1845

whether the invited person is to gain an advantage or benefit from her

entry. It is sufficient that she go on the land in furtherance of the

owner's business or an activity he conducts or permits on the

premises."

Both of those instructions misled and confused the jury and caused the jury to focus on allegations

that were not supported by the evidence. It is important to note that Garest's only allegations against

Booth at trial were negligence to a foreseeable trespasser and willful and wanton conduct. Garest's

fourth amended complaint did not allege that she was an invitee on Booth's premises. Nevertheless,

the trial court instructed the jury on the theory of implied invitation.

¶ 57 The effect of the jury's answers to the special interrogatories and improper jury instructions

was significant. As a result of the special interrogatories and jury instructions, the jury was never

able to reach the issues of whether Garest was a foreseeable trespasser or whether Booth's conduct

was willful and wanton. The jury's verdict was ultimately based on its finding that Garest was an

invitee on Booth's premises and not a trespasser. The special interrogatories and jury instructions

clearly affected the outcome of the trial, and were substantially prejudicial to Booth because the

jury's verdict was based on an improper theory. Thus, Booth was denied a fair trial. Accordingly,

we hold that the trial court abused its discretion in submitting the implied invitation instructions to

the jury. Likewise, we hold that the trial court abused its discretion in denying Booth's motion for

¶ 58 We note that the parties present arguments based on whether the trial court erred by denying

Booth's motion for a directed verdict. Specifically, the parties dispute whether, as a matter of law,

33 1-12-1845

Garest was a foreseeable trespasser and whether Booth's conduct was willful and wanton. We find

that those issues raise questions of material fact that should be determined by a jury. In light of our

holding that Booth is entitled to a new trial, we decline to address those issues.

¶ 59 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as

to Brigham and reversed as to Booth. The matter is remanded for a new trial as to Booth.

¶ 60 Affirmed in part and reversed in part; cause remanded with directions.