{ "id": 3627624, "name": "WEDGE C. LAZENBY et al., Appellants, v. MARK'S CONSTRUCTION, INC., et al., Appellees", "name_abbreviation": "Lazenby v. Mark's Construction, Inc.", "decision_date": "2010-01-22", "docket_number": "No. 107192", "first_page": "83", "last_page": "102", "citations": [ { "type": "official", "cite": "236 Ill. 2d 83" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "223 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604700 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "334" }, { "page": "330-32" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0318-01" ] }, { "cite": "83 Ill. 2d 344", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473189 ], "year": 1980, "pin_cites": [ { "page": "349", "parenthetical": "an appellant must present his contentions with specificity in a post-trial motion to preserve them for review" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0344-01" ] }, { "cite": "222 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602359 ], "year": 2006, "pin_cites": [ { "page": "430-31", "parenthetical": "issues raised for the first time on appeal are forfeited" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0422-01" ] }, { "cite": "227 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706009 ], "year": 2008, "pin_cites": [ { "page": "320-21", "parenthetical": "failure to raise an issue in a petition for leave to appeal forfeits the issue on the merits" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/227/0302-01" ] }, { "cite": "216 Ill. 2d 653", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828469 ], "year": 2005, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0653-01" ] }, { "cite": "511 U.S. 244", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147362 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "280" }, { "page": "262" }, { "page": "1505" } ], "opinion_index": 0, "case_paths": [ "/us/511/0244-01" ] }, { "cite": "196 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351247 ], "weight": 8, "year": 2001, "pin_cites": [ { "page": "37-39" }, { "page": "38" }, { "page": "44-45" }, { "page": "39" }, { "page": "47" }, { "page": "48" }, { "page": "48-49" }, { "page": "48-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0027-01" ] }, { "cite": "234 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623781 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "405" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0393-01" ] }, { "cite": "186 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243891 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "404" }, { "page": "404" }, { "page": "404-05" }, { "page": "405" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0381-01" ] }, { "cite": "171 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57335 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "291" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0282-01" ] }, { "cite": "95 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111261 ], "year": 1983, "pin_cites": [ { "page": "241-42", "parenthetical": "Ryan, C.J., concurring, joined by Underwood and Moran, JJ." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0223-01" ] }, { "cite": "346 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833049 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "423" }, { "page": "426-27" }, { "page": "430" }, { "page": "430" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0414-01" ] }, { "cite": "165 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483553 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "527", "parenthetical": "\"[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'" }, { "page": "530" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0523-01" ] }, { "cite": "283 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182716 ], "year": 1996, "pin_cites": [ { "page": "256-57", "parenthetical": "applying a vested rights analysis where the vested right was established from the common law and later taken away by a statute" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0254-01" ] }, { "cite": "281 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150241 ], "year": 1996, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0329-01" ] }, { "cite": "72 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443949 ], "year": 1978, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0141-01" ] }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "166 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198922 ], "year": 1995, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0337-01" ] }, { "cite": "222 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602061 ], "year": 2006, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0147-01" ] }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "452-53" }, { "page": "454" }, { "page": "454" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "64 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429143 ], "year": 1976, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0303-01" ] }, { "cite": "239 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5148023 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "307" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0304-01" ] }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "492" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "118 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188627 ], "year": 1987, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0321-01" ] }, { "cite": "359 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5596501 ], "year": 2005, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0471-01" ] }, { "cite": "365 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264501 ], "year": 2006, "pin_cites": [ { "page": "904", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0895-01" ] } ], "analysis": { "cardinality": 1341, "char_count": 33529, "ocr_confidence": 0.821, "pagerank": { "raw": 1.6896972638417256e-07, "percentile": 0.6990067760707285 }, "sha256": "9280c58341e3a8c05332bf2b121e0dfe63997afbc2ac9ad474594ddf3c6eaaa7", "simhash": "1:ebb79c9e9e0de4ed", "word_count": 5525 }, "last_updated": "2023-07-14T17:48:59.065132+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WEDGE C. LAZENBY et al., Appellants, v. MARK\u2019S CONSTRUCTION, INC., et al., Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.\nOPINION\nIn 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\u2019s Construction, Inc. (Mark\u2019s Construction), the general contractor working on the home.\nThe trial court entered summary judgment against Decker, finding that Mark\u2019s Construction had no duty to prevent Decker\u2019s injuries. Following a trial on Lazenby\u2019s claims, the trial court entered judgment on the jury\u2019s general verdict for Mark\u2019s Construction. Both plaintiffs appealed, and the appellate court affirmed the trial court\u2019s judgment. No. 1 \u2014 06\u20142969 (unpublished order under Supreme Court Rule 23).\nThe 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\u2019s 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.\nBACKGROUND\nOn December 28, 2001, plaintiffs filed a complaint based on negligence against Mark\u2019s Builders, Inc., and Marek Kolbiarz, individually and doing business as Mark\u2019s Builders, Inc. (later corrected to Mark\u2019s Construction, Inc., hereinafter referred to as Mark\u2019s 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.\nIn response, Mark\u2019s Construction filed motions for summary judgment, alleging that plaintiffs\u2019 claims were barred by the common law \u201cfireman\u2019s rule\u201d because their injuries resulted from risks normally associated with firefighting duties, and that plaintiffs\u2019 injuries were unforeseeable.\nOn 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).\nOn July 28, 2004, the trial court granted summary judgment for Mark\u2019s Construction as to Decker\u2019s claims in counts II, iy and VI, finding that under the fireman\u2019s rule, Mark\u2019s Construction had no duty to Decker for his injuries. The court rejected Decker\u2019s argument that section 9f of the Act retroactively imposed a duty on Mark\u2019s 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\u2019s 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\u2019s rule did not apply to Lazenby\u2019s injuries.\nLazenby and Mark\u2019s 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 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.\nLazenby 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 \u201cforce entry\u201d 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.\nLazenby testified that the \u201ctwo-in, two-out\u201d 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 \u201ctwo-out\u201d 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.\nPlaintiff\u2019s 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 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 \u201c[t]here is never a time-out as far as the protection *** at all points in time you protect the opening.\u201d He stated that if proper protective devices had been used, Lazenby\u2019s fall and injury would not have occurred.\nAt the close of plaintiff\u2019s case in chief, Lazenby moved for a directed finding on the issue of Mark\u2019s Construction\u2019s negligence in failing to cover or protect the floor opening and on the issue of proximate cause. The trial court denied the motion.\nFirefighter Carrillo testified on behalf of the defense that she did not hear any orders to \u201cforce entry\u201d 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, \u201cLet\u2019s go, let\u2019s go.\u201d Carrillo heard the acting lieutenant yell, \u201cWait for the hose.\u201d Carrillo yelled to Lazenby, \u201cWedge, wait. Wedge, wait.\u201d Lazenby then fell through the hole. Carrillo did not hear Lazenby say anything about trying to find the basement.\nFire 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 \u201cforce entry\u201d is to force open a door, but not necessarily to enter a building. Lazenby engaged in \u201cfreelancing\u201d and violated the chain of command by entering the building without receiving orders to do so. Portell explained that \u201cfreelancing\u201d 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.\nDefense expert witness John Agosti testified that Lazenby would have been in violation of the \u201cbuddy system\u201d 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 would have been a violation of standard practice and training for a firefighter. He further testified that Lazenby\u2019s 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.\nAt the trial\u2019s 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\u2019s 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\u2019 posttrial motion in full and stated that \u201cthere is no just reason to delay enforcement or appeal of this order.\u201d 210 Ill. 2d R. 304(a).\nOn appeal, the appellate court upheld the trial court\u2019s 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\u2019s refusal to direct a verdict, enter a judgment n.o.v., or grant a new trial to Lazenby. No. 1 \u2014 06\u2014 2969 (unpublished order under Supreme Court Rule 23). Accordingly, the appellate court affirmed the trial court\u2019s judgment. We allowed plaintiffs\u2019 petition for leave to appeal (210 Ill. 2d R. 315).\nANALYSIS\nI. 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\u2019s argument that the trial court erred in failing to direct a verdict on the issue of proximate cause; Decker\u2019s argument that the fireman\u2019s rule does not apply to his willful and wanton conduct claims; and Decker\u2019s argument that the fireman\u2019s 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) (\u201cA party may not urge as error on review of the ruling on the party\u2019s post-trial motion any point, ground, or relief not specified in the motion\u201d); Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 349 (1980) (an appellant must present his contentions with specificity in a post-trial 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.\nTurning to the issue properly raised by Decker, we must decide whether section 9f of the Act applied retroactively to impose a duty on Mark\u2019s 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\u2019s enactment, Decker asks this court to apply the statute to this case and to reverse the trial court\u2019s entry of summary judgment against him. The appellate court in the case at bar rejected Decker\u2019s argument and held that applying section 9f retroactively would \u201cimpose a new duty on defendants that did not exist two years prior to section 9f s enactment at the time of Decker\u2019s injuries,\u201d thereby violating defendant\u2019s due process rights. No. 1 \u2014 06\u20142969 (unpublished order under Supreme Court Rule 23).\nThis 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 \u2014 1005(c) (West 2004). Our review of the circuit court\u2019s 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\u2019s constitutional rights have been violated. Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 334 (2006).\nSection 9f of the Act became effective on July 22, 2003. It states:\n\u201cThe 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 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.\n***\nThis 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.\u201d (Emphasis added.) 425 ILCS 25/9f (West 2004).\nIn 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:\n\u201cThe 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, increase a party\u2019s 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.\u201d (Emphasis added.) John Doe A. v. Diocese of Dal las, 234 Ill. 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).\nIn the statute at issue, the legislature clearly expressed its intent that the statute be given retroactive effect. Section 9f states that \u201c[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.\u201d 425 ILCS 25/9f (West 2004). At the time of the statute\u2019s enactment, this case was before the circuit court. Accordingly, pursuant to Landgraf, we must follow the legislature\u2019s intention to apply the statute to this case unless the constitution prohibits us from doing so. Allegis, 223 Ill. 2d at 332.\nTwo 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 \u2014 108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3 \u2014 108 (West 1994)) allowing claims of willful and wanton misconduct against local public entities and employees took effect almost four years after the plaintiff\u2019s cause of action accrued. This court refused to apply the amendment retroactively because the defendant school district had a \u201cvested right\u201d to the total immunity provided by the unamended statute. Henrich, 186 Ill. 2d at 404. We defined a vested right as \u201c \u2018a complete and unconditional demand or exemption that may be equated with a property interest,\u2019 \u201d 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 \u201c \u2018vested 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.\u2019 \u201d Henrich, 186 Ill. 2d at 404-05, quoting 16A C.J.S. Constitutional Law \u00a7260(b), at 91 (1984). The school district\u2019s unconditional immunity under the unamended statute did not depend on the entry of a judgment. Therefore, \u201c[t]he amended section 3 \u2014 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.\u201d Henrich, 186 Ill. 2d at 405.\nIn 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\u2019s due process rights under the Illinois Constitution (Ill. Const. 1970, art. I, \u00a72). Commonwealth Edison, 196 Ill. 2d at 44-45. In our analysis of the retroactivity issue, we held that the Landgraf approach is \u201cthe appropriate means of determining when new legislation should be applied to existing controversies.\u201d Commonwealth Edison, 196 Ill. 2d at 39.\nAlthough we \u201cswitched the focus of the first step of the retroactivity analysis from \u2018vested rights\u2019 to legislative intent\u201d (John Doe A., 234 Ill. 2d at 411), we nevertheless held that Henrich \u201cremains relevant *** insofar as it defines those interests that are protected from legislative interference by the due process clause of the Illinois Constitution.\u201d Commonwealth Edison, 196 Ill. 2d at 47. We said that our holding in Henrich, that the school district\u2019s tort immunity defense had \u201cvested,\u201d and thus was protected from judicial interference, was \u201csimply a specific example of the general maxim that \u2018settled expectations honestly arrived at with respect to substantial interests ought not to be defeated.\u2019 \u201d 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.).\nWe 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\u2019s 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 \u201cresurrecting a claim that had previously been barred in its entirety.\u201d 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.\nThe 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\u2019 claims. In Randich, the plaintiff was an emergency medical technician (EMT) who was injured in an explosion when he responded to the scene of a leaking gas main. The appellate court found that the fireman\u2019s rule prevented the plaintiff\u2019s 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) (\u201c[The fireman\u2019s] 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\u2019).\nThe 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\u2019 due process rights would be violated by retroactively applying section 9f to the plaintiffs 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 \u201cvested right to total immunity from the prosecution of plaintiffs negligence claim.\u201d 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.\nWe agree with the reasoning of the Randich court and hold that section 9f may not be constitutionally applied to Decker\u2019s claims. A retroactive change in the law that imposes a new duty is \u201cprohibited 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.\u201d 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 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\u2019s Construction\u2019s \u201csettled expectations\u201d and impose a duty that did not previously exist.\nThe immunity provided by the fireman\u2019s rule is similar to the immunity found to be a \u201cvested right\u201d in Henrich. The fireman\u2019s rule \u201cgoes 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.\u201d Vroegh, 165 Ill. 2d at 530, citing Court v. Grzelinski, 72 Ill. 2d 141, 148 (1978). \u201c[Tjhere is no point at which a defendant subject to the \u2018fireman\u2019s rule\u2019 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.\u201d Vroegh, 165 Ill. 2d at 531. At the time of Decker\u2019s injuries, Mark\u2019s 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\u2019s Construction for failing to fulfill a duty it did not have at the time of Decker\u2019s injury is contrary to notions of due process in the Illinois Constitution. Accordingly, we affirm the entry of summary judgment against Decker.\nII. 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\u2019s prejudicial error in denying his motion for a directed finding on defendant\u2019s negligence. In support, Lazenby cites the evidence at trial that Mark\u2019s Construction failed to provide fall protection for the hole in violation of safe standards and practices; Kolbiarz\u2019s 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\u2019s expert\u2019s testimony that Mark\u2019s Construction\u2019s failure to provide fall protection violated construction safety customs and practices and violated OSHA and other guidelines.\nA directed verdict or judgment n.o.v. should be granted only when \u201call 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.\u201d Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Judgment n.o.v. is inappropriate if \u201creasonable minds might differ as to inferences or conclusions to be drawn from the facts presented.\u201d Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995). We review de novo the trial court\u2019s decision denying Lazenby\u2019s motion for judgment n.o.v. York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 178 (2006).\nIn this case, even before the defense presented its case in chief, the jury heard evidence that both Lazenby and Mark\u2019s Construction were negligent. Although Lazenby disputed some of the evidence of his negligence, a reviewing court \u201cshould 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.]\u201d Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992). Given the conflicting evidence at trial, particularly the significant evidence of Lazenby\u2019s negligence presented by the defense, we cannot say that all of the evidence, viewed favorably to Mark\u2019s Construction, \u201cso overwhelmingly favor[ed] [Lazenby] that no contrary verdict based on that evidence could ever stand.\u201d 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.\nThe standard of review is different with regard to Lazenby\u2019s 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 \u201c \u2018if the verdict is contrary to the manifest weight of the evidence.\u2019 \u201d 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 \u201c \u2018where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.\u2019 [Citations.]\u201d Maple, 151 Ill. 2d at 454. We will not reverse a court\u2019s ruling on a motion for new trial unless it is affirmatively shown that the trial court clearly abused its discretion. Maple, 151 Ill. 2d at 455.\nLazenby has failed to meet his burden to establish his entitlement to a new trial. The jury returned a general verdict for Mark\u2019s Construction and did not specify any findings of fact. Lazenby did not submit a special interrogatory as to the basis of the jury\u2019s finding. The jury\u2019s verdict, therefore, is silent as to the jury\u2019s reasons for finding in favor of the defendant. Guy v. Steurer, 239 Ill. App. 3d 304, 307 (1992). \u201c \u2018When 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.\u2019 \u201d 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 \u201ctwo issue\u201d rule, a general verdict creates a presumption that the jury found in favor of the defendant on every one of the defenses).\nIn 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) \u201cthat plaintiffs contributory negligence was more than 50% of the total proximate cause of the injury or damage for which recovery is sought.\u201d The jury was further instructed that \u201cif the plaintiff\u2019s 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.\u201d The jury returned a general verdict on Verdict Form C for Mark\u2019s Construction and against Lazenby.\nThe general verdict rendered by the jury creates a presumption that the jury found in favor of Mark\u2019s 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.\nBased 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 violated the chain of command and the department\u2019s 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\u2019s superior officer and the defense expert both testified that Lazenby violated the department\u2019s policies and breached the standard of care by \u201cfreelancing\u201d 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\u2019s 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.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the appellate court.\nAffirmed.\nPrior to trial, the trial court entered summary judgment for Izrael and against Lazenby on the basis that Mark\u2019s 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.\nCounts V and XI, asserted by Lazenby, and counts VIII, X, and XII, asserted by Decker, were dismissed with prejudice pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2004)) and are not at issue in this appeal.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "James J. Morici, Jr., of Morici, Figlioli & Associates, and David A. Novoselsky and Brian Albert Schroeder, all of Chicago, for appellants.", "James R. Branit, of Litchfield Cavo LLR of Chicago, for appellee Mark\u2019s Construction, Inc.", "Joseph A. Cancila, Jr., James E Gaughan and Matthew G. Sch\u00fctz, of Schiff Hardin HLP, of Chicago, for appellee Michael J. Izrael.", "John L. Nisivaco, of Dolan & Nisivaco, LLC, of Chicago, for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "(No. 107192.\nWEDGE C. LAZENBY et al., Appellants, v. MARK\u2019S CONSTRUCTION, INC., et al., Appellees.\nOpinion filed January 22, 2010.\nJames J. Morici, Jr., of Morici, Figlioli & Associates, and David A. Novoselsky and Brian Albert Schroeder, all of Chicago, for appellants.\nJames R. Branit, of Litchfield Cavo LLR of Chicago, for appellee Mark\u2019s Construction, Inc.\nJoseph A. Cancila, Jr., James E Gaughan and Matthew G. Sch\u00fctz, of Schiff Hardin HLP, of Chicago, for appellee Michael J. Izrael.\nJohn L. Nisivaco, of Dolan & Nisivaco, LLC, of Chicago, for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0083-01", "first_page_order": 99, "last_page_order": 118 }