An Illinois Appellate Court opinion was recently released that is very good for defendant property owners/managers but it also contains a very sad set of facts as the plaintiff was severely injured in accidental fall. What happened to the plaintiff is terrible, but these are the types of cases that keep defense attorneys and their clients up at night and it is very gratifying to see the courts properly analyze and apply the law, without letting sympathy into its decision.

In Berke v. Lewis Manilow, 2016 IL App (1st) 150397, the plaintiff fell in an apartment vestibule where he was staying with friends.  There were no witnesses to the fall and the fall resulted in spinal injuries, rendering the plaintiff a quadriplegic.  The plaintiff had no memory of the incident so he could not testify as to the cause of his fall.

The plaintiff sued the building owner and management company, alleging the vestibule area, stairs and doorway were improperly designed and maintained, and the cause of the fall. The plaintiff specifically alleged the height and depth of the threshold and landing violated code and industry standards and constituted a tripping hazard.  The plaintiff also claimed the way the door opened violated building codes.

The defendants moved for and were granted summary judgment. The basis of the motion was that the plaintiff had not shown the defendants breached their duty of care or that their conduct was the proximate cause of the plaintiff’s injuries.  The motion judge, Judge Brewer, also struck parts of three expert affidavits submitted by the plaintiff in response to the motion for summary judgment.

The plaintiff’s accident reconstruction expert opined the doorway was an unreasonably dangerous condition and it was more likely than not the cause of the fall. The plaintiff’s architect expert opined the unreasonably dangerous threshold and door closure system were more likely than not the cause of the plaintiff’s fall.  A medical expert opined the plaintiff had no medical condition which caused him to fall so he likely fell forward as a result of tripping.  The lower court struck the experts’ causation opinions because they were based on conjecture and speculative evidence.

The plaintiff appealed both rulings and both rulings were affirmed unanimously by the appellate court.

Striking Expert Causation Opinions

The appellate court first evaluated the lower court’s decision to strike sections of all three expert affidavits regarding the causation opinions. Under Illinois Supreme Court Rule 191, an affidavit offered in support of or in opposition to a motion for summary judgment must:  (1) be made on the personal knowledge of the affiants, (2) set forth with particularity the facts on which the claim is based, (3) attach sworn or certified copies of documents the affiant relied on, and (4) consist of facts admissible in evidence, not conclusions.   An affidavit submitted during the summary judgment stage is viewed as a substitution for trial testimony so it may not be considered if it would be inadmissible at trial.  See, Safeway Insurance Co. v. Hister, 304 Ill. App. 3d 687, 691, (1999).

Expert opinions relying on speculation, conjecture, or guess as to what the witness believed might have happened are inadmissible. Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879, 886 (1999).  The court is to reject and strike an expert’s opinion as mere speculation and conjecture if the experts:  (i) fail to take into consideration a party’s actions, (ii) base their opinions on facts not in evidence, (iii) base their opinions on what might have happened, and (iv) ignore significant factors, the court will reject the experts’ opinions as mere speculation and conjecture.  Damron v. Micor Distributing, Ltd., 276 Ill. App. 3d 901, 909 (1995).

In this case, the appellate court agreed all three experts’ affidavits were speculative, so the striking of their opinions was proper and upheld.   The experts’ opinions regarding the cause of the fall were all based on nothing but conjecture, as they consistently stated what was “likely” or “typical.”  The plaintiff did not know the cause of his fall so there was nothing for the experts to rely on that was not conjecture.

Granting Of Summary Judgment

The appellate court’s analysis focused on whether the plaintiff’s injury was proximately caused by a breach of the defendants’ duty.   The court, rather than a jury, can determine proximate cause where the facts alleged indicate a party would never be entitled to recover and the plaintiff has not met his burden of making a prima facie case. Mann v. Producer’s Chemical Co., 356 Ill. App. 3d 967, 972 (2005).

The following rulings were the crux of the court’s decision:

• To establish proximate cause, the plaintiff bears the burden of “ ‘affirmatively and positively show[ing]’ ” that the defendant’s alleged negligence caused the injuries for which the plaintiff seeks to recover. Bermudez v. Martinez Trucking, 343 Ill. App. 3d 25, 29 (2003).
• Liability against a defendant cannot be predicated on speculation, surmise, or conjecture. Mann, 356 Ill. App. 3d at 974.
• The plaintiff must establish with “reasonable certainty” that the defendant’s acts or omissions caused injury. Mann, 356 Ill. App. 3d at 974.
• The plaintiff may establish proximate cause through circumstantial evidence – meaning causation may be established by facts and circumstances that, in the light of ordinary experience, reasonably suggest that the defendant’s negligence operated to produce the injury. Mann, 356 Ill. App. 3d at 974.
• A fact cannot be established through circumstantial evidence unless the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 796 (1999).
• Where the proven facts demonstrate that the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion is a matter of speculation, conjecture, and guess and the trier of fact cannot be permitted to make that inference. Mann, 356 Ill. App. 3d at 974.

In this case, the plaintiff claimed he tripped over the threshold because it was unreasonably high and violated numerous building codes and industry standards and the basis of that claim was the expert affidavits. In response, the defendants argued reasonable jurors could not base a verdict on one identifiable cause over another without guessing as to whether the condition of the threshold and door caused the plaintiff to fall and the appellate court agreed.

The appellate court noted the plaintiff did not “affirmatively and positively” show with “reasonable certainty” that the plaintiff fell because he tripped over the threshold or was propelled forward by a door that closed too quickly.   There was no direct evidence as to the cause of the fall and the plaintiff could not establish causation through circumstantial evidence.

Two cases with similar fact patterns and rulings that the appellate court found instructive in this case were Strutz v. Vicere, 389 Ill. App. 3d 676 (2009), and Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968 (1990). In Strutz, the plaintiff fell down stairs but there were no witnesses to the fall and he died a few weeks later. The plaintiff alleged the stairs violated the building code and caused the fall, citing to an expert affidavit. The appellate court held the violations by themselves did not establish proximate cause, absent any evidence that the safety violations caused the injury.

In Kellman, the plaintiff fell in a shower, fracturing his spine and his fall was not witnessed. The plaintiff relied on expert opinions regarding the cause of the fall but the court ruled the plaintiff could not prove causation. The court noted that none of the testimony addressed the issue of what caused the plaintiff’s fall and concluded that the mere possibility an unreasonably dangerous condition in the stall caused the fall was not enough to establish a causal relationship between the defendant’s alleged negligence and the plaintiff’s injuries.

Following the reasoning in Strutz and Kellman, the appellate court upheld summary judgment for the defendants because there was no evidence to support the cause of the plaintiff’s fall.

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