IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

WESTERN DIVISION 

NICK GEORGEFF, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 3:20-cv-50313 

 ) 

DON BORNEKE CONSTRUCTION, INC., ) 

 ) 

 Defendant. ) 

DEFENDANT’S AFFIRMATIVE DEFENSES 

Defendant, Don Borneke Construction, Inc. (“Borneke”), by and through its attorneys, 

Swanson, Martin & Bell, LLP, for its affirmative defenses, states as follows: 

I. Contributory Negligence 

 1. This incident arises from a slip and fall on ice on a windfarm construction project 

known as Mendota Hills in Lee County, Illinois. (Am. Compl., ¶ 13). 

 2. On or about November 15, 2018, Plaintiff slipped on ice that was allegedly 

unnaturally accumulated while walking on the windfarm turbine erection area of site T-11. (Am. 

Compl., ¶ 13). 

 3. At the time and place of the incident, Plaintiff had a duty to exercise ordinary care 

and caution for his own safety and well-being. 

4. In violation of the aforementioned duty, Plaintiff was negligent in one or more of 

the following ways: 

a. Failed to keep a proper look out while walking during a snow event at the 

site of T-11 on the Mendota Hills Windfarm site on or about November 15, 

2018; 

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b. Failed to utilize personal protective equipment, such as ice cleats, which 

were available for his use; 

c. Failed to maintain proper control of his body and objects on his person; 

d. Was otherwise careless and negligent. 

5. The injuries sustained by Plaintiff, if any, were proximately caused by the aforesaid 

negligent acts or omissions on the part of Plaintiff, Nick Georgeff. 

6. In the event that this Court renders judgment in favor of Plaintiff, Defendant is 

entitled to a reduction of damages pursuant to 735 ILCS 5/2-1116, based upon the percentage of 

fault attributable to Plaintiff, and if that percent of fault is determined to be more than fifty percent 

(50%), then Defendant is entitled to judgment in its favor. 

II. Open and Obvious 

1. Plaintiff seeks damages for injuries allegedly caused by Defendant, Borneke 

Construction. 

2. At all relevant times, Plaintiff had a duty to exercise ordinary care, perception, 

intelligence and judgement to avoid open and obvious risks that a reasonable person would have 

taken in light of the open and obvious nature of the condition, said condition being ice and snow 

during a snow event. 

3. Notwithstanding Plaintiff’s duty as aforesaid, at all times relevant hereto the 

Plaintiff was guilty of failing to take the necessary precautions that a reasonable person exercising 

ordinary perception and intelligence would have taken to avoid an open and obvious risk that could 

have been avoided without incident. 

4. Borneke is entitled to a reduction in any damages awarded to Plaintiff based on 

Plaintiff’s failure to avoid open and obvious risk. 

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5. Plaintiff is obligated to avoid open and obvious risk, and thus, these claims should 

be barred, or in the alternative, reduced if Plaintiff failed to avoid these open and obvious risks. 

III. Third Party Conduct 

 1. The Plaintiff’s alleged injuries were proximately caused by third parties over 

whom Borneke has no control, namely Mortenson Construction. 

 2. Therefore, Plaintiff cannot recover from Borneke, as alleged. 

IV. Lack of Notice 

 1. Despite the exercise of reasonable diligence, Borneke did not have actual or 

constructive notice of the alleged condition, which caused Plaintiff’s injuries. 

 2. Therefore, Plaintiff cannot establish that Borneke’s conduct caused the hazardous 

condition alleged, or that Borneke had legally sufficient notice of the alleged condition such that 

liability can be established. 

V. Natural Accumulation of Ice 

1. The allegations of liability against Borneke in this matter arise from the 

occurrence of a natural accumulation of ice. 

2. Plaintiff’s injuries, occurred as a result of the natural accumulation of ice at the 

site T-11 of the Mendota hills Windfarm Project of the at the time and place at issue. 

3. Therefore, as a matter of law, Borneke had no duty to warn of such condition 

caused by the natural accumulation of ice and is not liable for any alleged injuries. 

Wherefore, Defendant, Don Borneke Construction, Inc., prays for judgment in its favor 

and against Plaintiff, as Plaintiff’s own negligence, or the negligence of third party, Mortenson 

Construction, was the sole proximate cause and/or greater than fifty percent (50%) of the 

proximate cause of his alleged injuries. In the alternative, Defendant prays that this Court reduce 

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the jury’s verdict, if any, by Plaintiff’s proportionate share of negligence that proximately caused 

his alleged injuries, plus costs and any further relief deemed just and equitable by the Court. 

 Respectfully submitted,

 SWANSON, MARTIN & BELL, LLP 

 By: /s/ Christian A. Sullivan 

 One of its Attorneys 

Christian A. Sullivan 

SWANSON, MARTIN & BELL, LLP

2525 Cabot Drive, Suite 204 

Lisle, IL 60532 

(630) 799-6970 

Attorney No. 6278557 

csulliva@smbtrials.com 

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