# Lazenby v. Mark's Construction

> Illinois Supreme Court · January 22, 2010

URL: https://www.frixlaw.com/law-library/cases/3135637

## Case

- **Court:** Illinois Supreme Court
- **Decided:** January 22, 2010
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3135637

## How later opinions describe it (automated extraction)

- applying a vested rights analysis where the vested right was established from the common law and later taken away by a statute

## Opinion text

Docket No. 107192.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

WEDGE C. LAZENBY et al., Appellants, v. MARK’S
CONSTRUCTION, INC., et al., Appellees.

Opinion filed January 22, 2010.

JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.

OPINION

In the early morning hours of August 30, 2001, a fire broke out in
the basement of a Park Ridge, Illinois, residence which was under
construction. Firefighters Wedge C. Lazenby (Lazenby) and Derek R.
Decker (Decker) (collectively hereinafter referred to as plaintiffs)
responded to the fire. While attempting to locate the source of the
fire, Lazenby fell through an unprotected floor opening to the cement
basement below and was severely injured. Decker was injured when
he fell from a ladder while attempting to rescue Lazenby. Plaintiffs
filed suit in the circuit court of Cook County against Mark’s
Construction, Inc. (Mark’s Construction), the general contractor
working on the home.
The trial court entered summary judgment against Decker, finding
that Mark’s Construction had no duty to prevent Decker’s injuries.
Following a trial on Lazenby’s claims, the trial court entered judgment
on the jury’s general verdict for Mark’s Construction. Both plaintiffs
appealed, and the appellate court affirmed the trial court’s judgment.
No. 1–06–2969 (unpublished order under Supreme Court Rule 23).
The issues presented in this appeal are: (1) whether section 9f of
the Fire Investigation Act (Act) (425 ILCS 25/9f (West 2004))
applied retroactively to Decker’s claims; and (2) whether the trial
court erred in failing to enter a judgment notwithstanding the verdict
(judgment n.o.v.) or order a new trial for Lazenby. For the reasons
that follow, we affirm the appellate court.

BACKGROUND
On December 28, 2001, plaintiffs filed a complaint based on
negligence against Mark’s Builders, Inc., and Marek Kolbiarz,
individually and doing business as Mark’s Builders, Inc. (later
corrected to Mark’s Construction, Inc., hereinafter referred to as
Mark’s Construction). On August 29, 2003, plaintiffs filed their first
amended complaint, alleging construction negligence and premises
liability and adding Michael Izrael, the owner of the house, as a
defendant.1
In response, Mark’s Construction filed motions for summary
judgment, alleging that plaintiffs’ claims were barred by the common
law “fireman’s rule” because their injuries resulted from risks normally
associated with firefighting duties, and that plaintiffs’ injuries were
unforeseeable.

1
Prior to trial, the trial court entered summary judgment for Izrael and
against Lazenby on the basis that Mark’s Construction assumed sole
responsibility for the safety of the job site. The trial court later severed from
this case all claims against Izrael and State Farm Mutual Automobile
Insurance Company (State Farm), which represented Izrael during the
proceedings. Izrael thus is not a party to this appeal. Kolbiarz was
voluntarily dismissed as an individual defendant prior to trial.

-2-
On April 26, 2004, plaintiffs filed their second amended complaint,
the complaint at issue in this appeal. Plaintiffs alleged 12 counts based
on theories of construction negligence (counts I and II); premises
liability (counts III and IV); violation of statutory duty (counts V and
VI); willful and wanton construction (counts VII and VIII); willful
and wanton premises liability (counts IX and X); and willful and
wanton violation of statutory duty (counts XI and XII).2
On July 28, 2004, the trial court granted summary judgment for
Mark’s Construction as to Decker’s claims in counts II, IV, and VI,
finding that under the fireman’s rule, Mark’s Construction had no duty
to Decker for his injuries. The court rejected Decker’s argument that
section 9f of the Act retroactively imposed a duty on Mark’s
Construction. 425 ILCS 25/9f (West 2004) (landowner or occupier
has a duty of reasonable care to a firefighter who is injured due to the
lack of maintenance of the premises in the course of responding to a
fire). All of Decker’s claims were thus dismissed or disposed of by
summary judgment prior to trial. The summary judgment motion
directed at Lazenby was denied because the court held that the
fireman’s rule did not apply to Lazenby’s injuries.
Lazenby and Mark’s Construction proceeded to a jury trial on
December 2, 2005. Kolbiarz testified as an adverse witness for the
plaintiff and also on his own behalf. He testified that, on the evening
of August 29, 2001, he left the residence at approximately 6:30 p.m.
after the other workers had left. The stairway to the basement was not
yet installed, leaving an open hole in the floor measuring
approximately 16 feet by 4 feet. Kolbiarz estimated that the basement
floor was about 10 feet below the opening. He admitted that the
unprotected hole was a safety hazard. Although a guardrail previously
had been installed around the hole, the guardrail was removed that day
to permit drywall work and Kolbiarz decided to wait until the next
morning to replace the guardrail because the house was locked and he
did not expect anyone else to enter the house during the night. When
asked on cross-examination why he did not buy a piece of plywood at

2
Counts V and XI, asserted by Lazenby, and counts VIII, X, and XII,
asserted by Decker, were dismissed with prejudice pursuant to section 2–615
of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2004)) and are not
at issue in this appeal.

-3-
a lumber store to cover the hole, he replied that the store was closed.
Kolbiarz further testified that an orange construction fence surrounded
the outside of the residence.
Lazenby testified on his own behalf. He stated that he and his
partner, firefighter Karen Carrillo, arrived at the scene in a fire
department vehicle. He stated that he received a radio order from his
acting battalion chief, Alvin Portell, to “force entry” into the
residence. Accordingly, he forced the door open with an axe and
entered the residence with Carrillo. Members of the engine crew
followed them inside with a hose. The house was filled with smoke,
limiting visibility to approximately six to nine inches. According to
Lazenby, Lieutenant Plach said that he was going upstairs to look for
the fire and Lazenby responded that he would look for the fire in the
basement. While crawling on the floor with a flashlight to search for
the seat of the fire, Lazenby felt an object with his hand which he
thought was the tread and riser of a stair. The object gave way, and he
fell head first through an opening in the floor. He heard a loud metallic
crash, which he assumed was caused by the object hitting the floor. A
folding ladder came down through the hole but was pulled back
because it was too small. Decker then fell through the hole, on top of
Lazenby. Both firefighters used a second ladder to escape from the
hole.
Lazenby testified that the “two-in, two-out” policy is a fire
department guideline that is not always followed to the letter. It states
that for every two firefighters who enter a building, two firefighters
stand at the ready to go in if something happens to them. Lazenby
admitted that because he and Carrillo were in the first vehicle on the
scene, ordinarily they would stay outside the building and man the
backup line as the “two-out” company. When asked if he violated any
principles of the two-in, two-out guideline, Lazenby answered that he
did not. He testified that the only order he received was to force entry.
Lazenby further acknowledged that he was trained to sound the floor
for hazards by using a tool such as an axe or a pipe pole, but that he
had neither of these tools with him at the time of the accident.
Plaintiff’s safety expert, Dennis Puchalski, testified that the
protection of open holes in floors is an important safety concern on a
construction site. In this instance, the unprotected floor opening
violated construction safety customs and practice and violated

-4-
guidelines issued by the Occupational Safety and Health
Administration (OSHA) and by various construction industry
associations. After being removed, the guardrails should have been
reinstalled to ensure proper site safety. Puchalski testified that “[t]here
is never a time-out as far as the protection*** at all points in time you
protect the opening.” He stated that if proper protective devices had
been used, Lazenby’s fall and injury would not have occurred.
At the close of plaintiff’s case in chief, Lazenby moved for a
directed finding on the issue of Mark’s Construction’s negligence in
failing to cover or protect the floor opening and on the issue of
proximate cause. The trial court denied the motion.
Firefighter Carrillo testified on behalf of the defense that she did
not hear any orders to “force entry” into the residence or to search for
the seat of the fire. Carrillo followed Lazenby inside the residence,
followed by the line crew with the hose. As Lazenby was entering the
house, he was yelling, “Let’s go, let’s go.” Carrillo heard the acting
lieutenant yell, “Wait for the hose.” Carrillo yelled to Lazenby,
“Wedge, wait. Wedge, wait.” Lazenby then fell through the hole.
Carrillo did not hear Lazenby say anything about trying to find the
basement.
Fire Lieutenant Alvin Portell also testified for the defense. Portell
was the shift commander and the highest ranking officer at the fire
scene. He stated that he never gave Lazenby an order to enter the
residence or to search for the seat of the fire, nor did any other officer
order Lazenby to enter the building. Portell stated that an order to
“force entry” is to force open a door, but not necessarily to enter a
building. Lazenby engaged in “freelancing” and violated the chain of
command by entering the building without receiving orders to do so.
Portell explained that “freelancing” is a term of art which means that
a firefighter does things on his own without an order and without
communication with others, putting themselves and other firefighters
in danger. Both Portell and Carrillo further testified that when they
arrived at the scene they noticed that the house was obviously under
construction.
Defense expert witness John Agosti testified that Lazenby would
have been in violation of the “buddy system” by proceeding to find the
seat of the fire without voice contact or physical contact with Carrillo.
Agosti stated that proceeding into a building with only a flashlight

-5-
would have been a violation of standard practice and training for a
firefighter. He further testified that Lazenby’s injuries were the direct
result of his unauthorized entry into the building and that, had
Lazenby not been freelancing, he would not have fallen into the hole.
At the trial’s conclusion, the trial court instructed the jury on the
affirmative defense of comparative negligence. The jury returned a
general verdict on Verdict Form C in favor of Mark’s Construction
and against Lazenby, and the court entered judgment on the verdict.
Plaintiffs filed a posttrial motion, with Lazenby seeking a judgment
n.o.v. or, in the alternative, a new trial, and Decker seeking a trial. The
trial court denied plaintiffs’ posttrial motion in full and stated that
“there is no just reason to delay enforcement or appeal of this order.”
210 Ill. 2d R. 304(a).
On appeal, the appellate court upheld the trial court’s entry of
summary judgment against Decker. The court held that, while the
legislature intended for section 9f of the Act to apply retroactively,
due process concerns under the Illinois Constitution prohibit the
retroactive application of section 9f to this case. The appellate court
upheld the trial court’s refusal to direct a verdict, enter a judgment
n.o.v., or grant a new trial to Lazenby. No. 1–06–2969 (unpublished
order under Supreme Court Rule 23). Accordingly, the appellate court
affirmed the trial court’s judgment. We allowed plaintiffs’ petition for
leave to appeal (210 Ill. 2d R. 315).

ANALYSIS
I. Retroactive Application of Section 9f
At the outset, we note that several issues raised by the plaintiffs in
their brief before this court have been forfeited because plaintiffs failed
to raise them in the circuit court, appellate court, or in their petition
for leave to appeal. These include Lazenby’s argument that the trial
court erred in failing to direct a verdict on the issue of proximate
cause; Decker’s argument that the fireman’s rule does not apply to his
willful and wanton conduct claims; and Decker’s argument that the
fireman’s rule does not apply because his injuries resulted from the
narrow stairwell opening or a cardboard box rather than from the fire
itself. See 155 Ill. 2d R. 366(b)(2)(iii) (“A party may not urge as error
on review of the ruling on the party’s post-trial motion any point,

-6-
ground, or relief not specified in the motion”); Brown v. Decatur
Memorial Hospital, 83 Ill. 2d 344, 349 (1980) (an appellant must
present his contentions with specificity in a posttrial motion to
preserve them for review); Marshall v. Burger King Corp., 222 Ill. 2d
422, 430-31 (2006) (issues raised for the first time on appeal are
forfeited); Buenz v. Frontline Transportation Co., 227 Ill. 2d 302,
320-21 (2008) (failure to raise an issue in a petition for leave to appeal
forfeits the issue on the merits). Finding those issues forfeited, we will
not address them on their merits.
Turning to the issue properly raised by Decker, we must decide
whether section 9f of the Act applied retroactively to impose a duty
on Mark’s Construction. Decker contends that the legislature
expressly intended section 9f to apply to causes currently pending in
the courts. Since his claims were pending in the trial court at the time
of the statute’s enactment, Decker asks this court to apply the statute
to this case and to reverse the trial court’s entry of summary judgment
against him. The appellate court in the case at bar rejected Decker’s
argument and held that applying section 9f retroactively would
“impose a new duty on defendants that did not exist two years prior
to section 9f’s enactment at the time of Decker’s injuries,” thereby
violating defendant’s due process rights. No. 1–06–2969 (unpublished
order under Supreme Court Rule 23).
This matter comes before us in the context of a motion for
summary judgment. Summary judgment is proper if, when viewed in
the light most favorable to the nonmoving party, the pleadings,
depositions, admissions, and affidavits on file demonstrate that there
is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c)
(West 2004). Our review of the circuit court’s grant of summary
judgment is de novo. Illinois State Chamber of Commerce v. Filan,
216 Ill. 2d 653, 661 (2005). We also review de novo the
constitutionality of a statute and whether a party’s constitutional
rights have been violated. Allegis Realty Investors v. Novak, 223 Ill.
2d 318, 334 (2006).
Section 9f of the Act became effective on July 22, 2003. It states:
“The owner or occupier of the premises and his or her
agents owe fire fighters who are on the premises in the
performance of their official duties conducting fire

-7-
investigations or inspections or responding to fire alarms or
actual fires on the premises a duty of reasonable care in the
maintenance of the premises according to applicable fire safety
codes, regulations, ordinances, and generally applicable safety
standards, including any decisions by the Illinois courts. The
owner or occupier of the premises and his or her agents are
not relieved of the duty of reasonable care if the fire fighter is
injured due to the lack of maintenance of the premises in the
course of responding to a fire, false alarm, or his or her
inspection or investigation of the premises.
***
This Section applies to all causes of action that have
accrued, will accrue, or are currently pending before a court
of competent jurisdiction, including courts of review.”
(Emphasis added.) 425 ILCS 25/9f (West 2004).
In assessing whether a statute should be applied retroactively, this
court has adopted the approach set forth by the United States
Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 128
L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Allegis Realty Investors v.
Novak, 223 Ill. 2d 318, 330-32 (2006), citing Commonwealth Edison
Co. v. Will County Collector, 196 Ill. 2d 27, 37-39 (2001). This court
recently summarized the Landgraf test as follows:
“The threshold inquiry is whether the legislature has expressly
prescribed the temporal reach of a statute. If it has, the
expression of legislative intent must be given effect absent a
constitutional prohibition. If, however, the statute contains no
express provision regarding its temporal reach, the court must
determine whether the new statute would have retroactive
effect, keeping in mind the general principle that prospectivity
is the appropriate default rule. In making this determination,
a court will consider whether retroactive application of the
new statute will impair rights a party possessed when acting,
increases a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If
retrospective application of the new law has inequitable
consequences, a court will presume that the statute does not
govern absent clear legislative intent favoring such a result.”
(Emphasis added.) John Doe A. v. Diocese of Dallas, 234 Ill.

-8-
2d 393, 405 (2009), citing Allegis, 223 Ill. 2d at 330-31
(citing Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 262, 114
S. Ct. at 1505, and Commonwealth Edison, 196 Ill. 2d at 38).
In the statute at issue, the legislature clearly expressed its intent
that the statute be given retroactive effect. Section 9f states that
“[t]his Section applies to all causes of action that have accrued, will
accrue, or are currently pending before a court of competent
jurisdiction, including courts of review.” 425 ILCS 25/9f (West 2004).
At the time of the statute’s enactment, this case was before the circuit
court. Accordingly, pursuant to Landgraf, we must follow the
legislature’s intention to apply the statute to this case unless the
constitution prohibits us from doing so. Allegis, 223 Ill. 2d at 332.
Two decisions from this court are instructive on the constitutional
implications of the retroactive application of a statute. In Henrich v.
Libertyville High School, 186 Ill. 2d 381 (1998), an amendment to
section 3–108 of the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/3–108 (West 1994))
allowing claims of willful and wanton misconduct against local public
entities and employees took effect almost four years after the
plaintiff’s cause of action accrued. This court refused to apply the
amendment retroactively because the defendant school district had a
“vested right” to the total immunity provided by the unamended
statute. Henrich, 186 Ill. 2d at 404. We defined a vested right as “ ‘a
complete and unconditional demand or exemption that may be
equated with a property interest,’ ” protected from legislative
interference by the due process clause of the Illinois Constitution.
Henrich, 186 Ill. 2d at 404, quoting First of America Trust Co. v.
Armstead, 171 Ill. 2d 282, 291 (1996). A “ ‘vested ground of defense
is as fully protected from being cut off or destroyed by an act of the
legislature as is a vested cause of action.’ ” Henrich, 186 Ill. 2d at
404-05, quoting 16A C.J.S. Constitutional Law §260(b), at 91
(1984). The school district’s unconditional immunity under the
unamended statute did not depend on the entry of a judgment.
Therefore, “[t]he amended section 3–108 [could] not reach back and
take that vested right away, impose a new duty on the school district,
and breathe life into this previously barred claim.” Henrich, 186 Ill. 2d
at 405.

-9-
In our subsequent decision in Commonwealth Edison, we held that
applying certain tax rate amendments to tax levies that were adopted
by Will County shortly before the effective date of the amendments
did not violate the taxpayer’s due process rights under the Illinois
Constitution (Ill. Const. 1970, art. I, §2). Commonwealth Edison, 196
Ill. 2d at 44-45. In our analysis of the retroactivity issue, we held that
the Landgraf approach is “the appropriate means of determining when
new legislation should be applied to existing controversies.”
Commonwealth Edison, 196 Ill. 2d at 39.
Although we “switched the focus of the first step of the
retroactivity analysis from ‘vested rights’ to legislative intent” (John
Doe A., 234 Ill. 2d at 411), we nevertheless held that Henrich
“remains relevant *** insofar as it defines those interests that are
protected from legislative interference by the due process clause of the
Illinois Constitution.” Commonwealth Edison, 196 Ill. 2d at 47. We
said that our holding in Henrich, that the school district’s tort
immunity defense had “vested,” and thus was protected from judicial
interference, was “simply a specific example of the general maxim that
‘settled expectations honestly arrived at with respect to substantial
interests ought not to be defeated.’ ” Commonwealth Edison, 196 Ill.
2d at 48, quoting Moore v. Jackson Park Hospital, 95 Ill. 2d 223,
241-42 (1983) (Ryan, C.J., concurring, joined by Underwood and
Moran, JJ.).
We distinguished the facts in Henrich from those in
Commonwealth Edison in two important respects. First, the statutory
amendment in Henrich became effective almost four years after the
plaintiff’s cause of action arose, while the period of retroactivity in
Commonwealth Edison was only six weeks. Second, applying the
amended statute to the claim in Henrich would have meant
“resurrecting a claim that had previously been barred in its entirety.”
In contrast, the taxpayer was aware of the tax itself prior to the tax
rate amendment and did not have a vested right in the rate of taxation.
Commonwealth Edison, 196 Ill. 2d at 48-49.
The appellate court in the instant case and in Randich v. Pirtano
Construction Co., 346 Ill. App. 3d 414 (2004), relied on
Commonwealth Edison to find that section 9f could not
constitutionally be applied to the plaintiffs’ claims. In Randich, the
plaintiff was an emergency medical technician (EMT) who was injured

-10-
in an explosion when he responded to the scene of a leaking gas main.
The appellate court found that the fireman’s rule prevented the
plaintiff’s recovery for injuries he incurred while responding to the
situation giving rise to the emergency. Randich, 346 Ill. App. 3d at
423; see also Vroegh v. J&M Forklift, 165 Ill. 2d 523, 527 (1995)
(“[The fireman’s] rule provides that an owner or occupier of land
must exercise reasonable care to prevent injury to firemen that might
result from a cause independent of the fire, but has no duty to prevent
injury resulting from the fire itself”).
The plaintiff filed a petition for rehearing asserting that the newly
enacted section 9f applied retroactively to his claims because the
statute expressly states that it applies to pending causes of action.
Randich, 346 Ill. App. 3d at 426-27. In a supplemental opinion, the
Randich court concluded that section 9f could not be applied
retroactively to the defendants to impose a duty upon them that did
not previously exist. The court held that the defendants’ due process
rights would be violated by retroactively applying section 9f to the
plaintiff’s claim. Randich, 346 Ill. App. 3d at 430, citing
Commonwealth Edison, 196 Ill. 2d at 48-49. The court held that the
defendants had a “vested right to total immunity from the prosecution
of plaintiff’s negligence claim.” Randich, 346 Ill. App. 3d at 430,
citing Henrich, 186 Ill. 2d at 404; see also Harraz v. Snyder, 283 Ill.
App. 3d 254, 256-57 (1996) (applying a vested rights analysis where
the vested right was established from the common law and later taken
away by a statute). The court further held that imposing a new duty
on the defendants more than four years after the accident occurred
would unfairly resurrect a claim that was once barred. Randich, 346
Ill. App. 3d at 430.
We agree with the reasoning of the Randich court and hold that
section 9f may not be constitutionally applied to Decker’s claims. A
retroactive change in the law that imposes a new duty is “prohibited
as a violation of the due process clause of the Illinois Constitution,
and the legislature is without authority to enact such a law even if that
is its express intention.” Valdez v. Zollar, 281 Ill. App. 3d 329, 333
(1996), citing Armstead, 171 Ill. 2d at 290. The statute at issue
imposes a duty of reasonable care on landowners and occupiers to
firefighters who are injured due to the lack of maintenance of the
premises in the course of responding to fires. The parties agree that

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the duty did not exist prior to enactment of the statute. Under the
fairness considerations of Commonwealth Edison, applying section 9f
retroactively would disturb Mark’s Construction’s “settled
expectations” and impose a duty that did not previously exist.
The immunity provided by the fireman’s rule is similar to the
immunity found to be a “vested right” in Henrich. The fireman’s rule
“goes to the threshold question of whether an owner or occupier of
land has any duty to fire fighters injured while fighting a fire on his
premises. Where the rule applies, it means that no duty is imposed by
the law.” Vroegh, 165 Ill. 2d at 530, citing Court v. Grzelinski, 72 Ill.
2d 141, 148 (1978). “[T]here is no point at which a defendant subject
to the ‘fireman’s rule’ can be said to have been even potentially liable
for the injury or wrongful death. There could never have been a
meritorious claim because there never was a duty that was breached.”
Vroegh, 165 Ill. 2d at 531. At the time of Decker’s injuries, Mark’s
Construction had a valid expectation under the law that no duty
existed to firefighters injured in the course of their ordinary
firefighting duties. The period of retroactivity in this case, although of
lesser importance, also weighs in favor of finding no retroactivity.
Section 9f was enacted almost two years after Decker was injured, a
much longer period of time than the six weeks in Commonwealth
Edison. Retroactively imposing liability on Mark’s Construction for
failing to fulfill a duty it did not have at the time of Decker’s injury is
contrary to notions of due process in the Illinois Constitution.
Accordingly, we affirm the entry of summary judgment against
Decker.

II. Motion for Judgment n.o.v. or New Trial
Lazenby contends that the trial court erred in failing to enter
judgment n.o.v. or order a new trial based on the court’s prejudicial
error in denying his motion for a directed finding on defendant’s
negligence. In support, Lazenby cites the evidence at trial that Mark’s
Construction failed to provide fall protection for the hole in violation
of safe standards and practices; Kolbiarz’s testimony that he left the
hole unprotected when he left work for the evening and that he knew
the hole was a safety hazard; and plaintiff’s expert’s testimony that
Mark’s Construction’s failure to provide fall protection violated

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construction safety customs and practices and violated OSHA and
other guidelines.
A directed verdict or judgment n.o.v. should be granted only when
“all of the evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors movant that no contrary verdict
based on that evidence could ever stand.” Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Judgment n.o.v. is
inappropriate if “reasonable minds might differ as to inferences or
conclusions to be drawn from the facts presented.” Pasquale v. Speed
Products Engineering, 166 Ill. 2d 337, 351 (1995). We review de
novo the trial court’s decision denying Lazenby’s motion for judgment
n.o.v. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.
2d 147, 178 (2006).
In this case, even before the defense presented its case in chief, the
jury heard evidence that both Lazenby and Mark’s Construction were
negligent. Although Lazenby disputed some of the evidence of his
negligence, a reviewing court “should not usurp the function of the
jury and substitute its judgment on questions of fact fairly submitted,
tried, and determined from the evidence which did not greatly
preponderate either way. [Citations.]” Maple v. Gustafson, 151 Ill. 2d
445, 452-53 (1992). Given the conflicting evidence at trial,
particularly the significant evidence of Lazenby’s negligence presented
by the defense, we cannot say that all of the evidence, viewed
favorably to Mark’s Construction, “so overwhelmingly favor[ed]
[Lazenby] that no contrary verdict based on that evidence could ever
stand.” Pedrick, 37 Ill. 2d at 510. Thus, we conclude that the trial
court did not err in refusing to grant a directed verdict or judgment
n.o.v.
The standard of review is different with regard to Lazenby’s
posttrial motion for a new trial. On a motion for a new trial, the court,
after weighing the evidence, will set aside the verdict and order a new
trial “ ‘if the verdict is contrary to the manifest weight of the
evidence.’ ” Maple, 151 Ill. 2d at 454, quoting Mizowek v.
De Franco, 64 Ill. 2d 303, 310 (1976). A verdict is against the
manifest weight of the evidence “ ‘where the opposite conclusion is
clearly evident or where the findings of the jury are unreasonable,
arbitrary and not based upon any of the evidence.’ [Citations.]”
Maple, 151 Ill. 2d at 454. We will not reverse a court’s ruling on a

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motion for new trial unless it is affirmatively shown that the trial court
clearly abused its discretion. Maple, 151 Ill. 2d at 455.
Lazenby has failed to meet his burden to establish his entitlement
to a new trial. The jury returned a general verdict for Mark’s
Construction and did not specify any findings of fact. Lazenby did not
submit a special interrogatory as to the basis of the jury’s finding. The
jury’s verdict, therefore, is silent as to the jury’s reasons for finding in
favor of the defendant. Guy v. Steurer, 239 Ill. App. 3d 304, 307
(1992). “ ‘When there is a general verdict and more than one theory
is presented, the verdict will be upheld if there was sufficient evidence
to sustain either theory, and the [moving party], having failed to
request special interrogatories, cannot complain.’ ” Dillon v. Evanston
Hospital, 199 Ill. 2d 483, 492 (2002), quoting Witherell v. Weimer,
118 Ill. 2d 321, 329 (1987). The requirement that a complaining party
request a special interrogatory applies both to a complaining plaintiff
and to a complaining defendant. Krklus v. Stanley, 359 Ill. App. 3d
471, 479 (2005). See also Strino v. Premier Healthcare Associates,
P.C., 365 Ill. App. 3d 895, 904 (2006) (where a defendant raises two
or more defenses, under the “two issue” rule, a general verdict creates
a presumption that the jury found in favor of the defendant on every
one of the defenses).
In this case, the jury was instructed to fill out Verdict Form C if
it found either (1) for the defendant and against the plaintiff, or (2)
“that plaintiff’s contributory negligence was more than 50% of the
total proximate cause of the injury or damage for which recovery is
sought.” The jury was further instructed that “if the plaintiff’s
contributory negligence is more than 50% of the total proximate cause
of the injury or damage for which recovery is sought, the defendant
shall be found not liable.” The jury returned a general verdict on
Verdict Form C for Mark’s Construction and against Lazenby.
The general verdict rendered by the jury creates a presumption
that the jury found in favor of Mark’s Construction on every defense
raised, including that Lazenby was greater than 50% negligent, and
thus barred from any recovery. See Dillon, 199 Ill. 2d at 492; Guy,
239 Ill. App. 3d at 307.
Based on our review of the record, we find there was clearly
sufficient evidence to sustain the verdict on the theory of comparative
negligence. The jury was presented with evidence that Lazenby

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violated the chain of command and the department’s policies by
entering the house without orders or authorization. The evidence
further showed that Lazenby continued into the house before a
charged hose line had arrived, ignored a direct order to wait, and
failed to use an axe or other tool to sound the floor in front of him.
Lazenby’s superior officer and the defense expert both testified that
Lazenby violated the department’s policies and breached the standard
of care by “freelancing” and that, had Lazenby not been freelancing,
he would not have been injured. The evidence was sufficient for the
jury to have concluded Lazenby was more than 50% negligent,
thereby barring any recovery. Because the jury’s verdict was not
against the manifest weight of the evidence, we conclude that the trial
court did not abuse its discretion in refusing to grant a new trial.

CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3135637. Public record. Not legal advice.