2016 IL App (1st) 152481 THIRD DIVISION September 28, 2016
No. 1-15-2481
_____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
STEVEN R. ATCHLEY, Individually and ) Appeal from the as Special Administrator of the Estate of ) Circuit Court of LINDA ATCHLEY, Deceased, ) Cook County. ) Plaintiffs-Appellants, ) ) v. ) No. 10 L 10545 ) UNIVERSITY OF CHICAGO MEDICAL CENTER ) ) Defendant and Third-Party ) Plaintiff-Appellee, ) ) v. ) ) ) HOME JUICE CORP., ) Honorable ) Lynn M. Egan Third-Party Defendant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 Steven Atchley, a delivery employee of Home Juice Corp. (HJC), went to the University
of Chicago Medic0al Center (UCMC) to deliver two pallets of beverages. After backing his
delivery truck into a dock space, he discovered that the dock leveler, which would raise the dock No. 1-15-2481
to the height of the truck bed and create a ramp, was inoperable. Unbeknownst to Steven, the
leveler had been broken and inoperable for over six months. Because no other docks with
levelers were then available, Steven used his truck's air suspension system to lower the truck bed
as much as possible but a small gap remained. He proceeded to use a motorized pallet jack to
unload his truck but the jack became stuck in the gap. While using a steel dolly in an attempt to
free the jack, Steven fell and fractured his ankle.
¶2 Steven and his wife Linda Atchley then filed this ordinary negligence and premises
liability action against UCMC, which in turn raised contributory negligence as an affirmative
defense. 1 The circuit court granted summary judgment in favor of UCMC, finding that the
danger was open and obvious, that UCMC had no duty as a result and that the inoperable leveler
was not a proximate cause of Steven's injuries. Steven now appeals. We reverse and remand for
further proceedings.
¶3 As a threshold matter, we observe that Steven’s fact section fails to support facts with
citations to the record, provides incorrect citations to the record, provides incorrect facts and
omits certain pertinent facts. See Ill. S. Ct. R. 341(h) (6) (eff. Jan. 1, 2016). His argument section
repeats those defects but additionally presents inaccurate citations to case law. See Ill. S. Ct. R.
341(h) (7) (eff. Jan. 1, 2016). This court is not a depository into which appellants may dump the
burden of research. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 13. We
strongly encourage counsel to exercise greater diligence with respect to any future briefs filed in
this court.
¶4 I. BACKGROUND
1 Linda died after this action was filed. 2 No. 1-15-2481
¶5 On August 11, 2010, Steven was assigned to deliver beverages to UCMC. Although
Steven had made at least 25 deliveries there over two or three years, he did not routinely go
there; rather, he was filling in for fellow HJC driver Ronald Rosario. Steven had also made that
delivery for Rosario two days before this incident.
¶6 UCMC's docks opened for deliveries at 5 a.m. Steven testified in his deposition that
while HJC did not require him to make the delivery by a specific time, the hospital was
accustomed to early delivery and he tried to do what Rosario did. Rosario testified that hospitals
preferred early morning deliveries. Similarly, James Cahill, HJC's former supervisor, testified
that hospital deliveries were generally made early in the morning. Steven further testified that
HJC's motto was, "take care of the customer," which he understood to mean that he should make
deliveries in a timely manner.
¶7 According to an affidavit submitted by Steven, when he arrived at UCMC at about 5
a.m., a security guard let him in the gate but did not assign him to a particular dock or ask if he
needed a leveler. Steven also testified that he had never been aware that dock 5's leveler was
broken. While certain deposition testimony from UCMC employees suggested that drivers would
be assigned to a particular dock, Sheila Stevens, the security guard monitoring the gate at the
time in question, ultimately indicated that she only told drivers which dock to use if they asked.
Sheila further testified that she had been unaware of any problem with dock 5. Moreover, Sheila
and Rosario testified that no one from UCMC supervised the loading and unloading of trucks,
corroborating Steven's testimony that he saw no security guards in the loading area.
¶8 Steven, who had never made a delivery without a leveler, parked his truck in a dock that
had one but then moved his truck to dock 5 in order to accommodate another driver. No signs
indicated that dock 5 was out of service but when he pulled the chain to operate the leveler,
3 No. 1-15-2481
nothing happened. Consequently, his truck bed was higher than the dock. Steven stated that he
did not report this malfunction to any UCMC employee, however, because none were around.
Similarly, no drivers were around. Steven further testified that no other docks with levelers were
available and he could not wait for one because UCMC was used to early deliveries. Steven's
affidavit added that it was common for drivers to do what was necessary to make a timely
delivery, that there was no place for his truck to wait for another dock and that if another dock
became available, an incoming driver would take it. Moreover, Steven had never been instructed
to wait for another dock if experiencing difficulty.
¶9 Steven used his truck's air suspension system to lower the truck bed. After doing so, the
bed of the truck was about two or three inches higher than the dock. Steven stated in his affidavit
that he had received no training regarding what height differential would be significant to safety.
Additionally, Steven testified both that no lateral distance existed between the truck and the
dock, and that a distance of less than a foot existed. He also noticed that two wooden wedges had
been positioned on the sides of the dock.
¶ 10 Having lowered the truck, Steven used a motorized pallet jack, which has forks that lift
pallets, to successfully remove the first pallet from the truck. Steven's affidavit stated, "I believe
it was a reasonable and safe method based on my experience; especially since pallet #1 came off
the truck safely." After leaving that 1,500-pound pallet by the elevator, he went to retrieve the
second pallet. He was trying to make the delivery as quickly as possible, as he did not want to
take the elevator down to the delivery tunnels twice. 2
¶ 11 After removing the first pallet, the truck bed rose to three or four inches above the dock.
As he attempted to return the pallet jack to the truck to retrieve the second pallet, the jack
2 The record suggests that after taking the elevator downstairs to the tunnels, Steven would have to walk approximately 1,570 steps to make his deliveries and return to his truck. 4 No. 1-15-2481
became stuck in the gap, a problem he had never encountered before. Specifically, the pallet
jack's forks were already in the truck when the jack "flipped," leaving two feet of the jack
hanging off the truck. The jack's wheels were not touching the dock floor.
¶ 12 Steven testified that he did not seek assistance because no one was around. He did not go
look for anyone either. According to Sheila, drivers never brought problems to her attention.
Steven added in his affidavit that calling HJC would not have helped because it was 25 miles
away. Additionally, Steven testified that he discovered a steel dolly on the dock, which he
assumed belonged to UCMC. He positioned the dolly under the pallet jack and attempted to pry
it loose. As he was doing so, the dolly slipped and he fell backward, breaking his ankle.
Eventually, someone emptying the trash found Steven and got help. Meanwhile, Steven used his
cell phone to call Cahill and 911. Steven ultimately underwent surgery and returned to light duty.
¶ 13 Ramon Mariscal, a UCMC security guard, initially testified that he only learned of a
problem with dock 5 a day or two before this incident. At a later deposition, however, Mariscal
acknowledged that he first observed the leveler was broken on January 25, 2010. The record
shows that between that date and this occurrence, Mariscal stated in 95 daily condition reports
that dock 5 was broken. Mariscal testified that at some point, without telling anyone, he put
wooden shims in the leveler to keep the inoperable plate down. Although the dock could not be
used with a pallet jack, it could still be used by handing out boxes or using carts. Moreover,
Mariscal was not at work when the incident occurred. Dock 5 remained in use until it was
repaired two days after the incident, in less than two hours, for $1,022.90.
¶ 14 Anthony Harvard, UCMC's dock supervisor, testified that he was responsible for only the
inside of the dock area. Security guards occasionally reported problems to him, which he would
relay to the proper department, but he was not responsible for taking care of broken levelers and
5 No. 1-15-2481
was not always informed of problems. In addition, Harvard first learned there was a problem
with dock 5 after this incident. When he reported this incident to his supervisor, he became
responsible for investigating it. Mariscal told Harvard that drivers were not being permitted to
park at dock 5 and that wooden wedges were placed in the dock to prevent the leveler from
moving. Furthermore, the plant department directed Harvard to a vendor who fixed levelers and
he subsequently authorized the repairs.
¶ 15 Rosario testified that UCMC's docks were often broken and he had previously
complained to a dock facility manager named Al. In addition, UCMC no longer provided a
portable dock and it was not always possible to switch docks if the others were occupied. With
that said, he would wait for another dock to become available. Furthermore, drivers sometimes
used a board to hold up a defective leveler when encountering a different type of malfunction.
Rosario would not have known what to do, however, if a pallet jack became stuck.
¶ 16 Mark Okoniewski, a fellow HJC driver, testified that he sometimes had difficulty with
UCMC's dock levelers: if the leveler did not work, a driver would use "whatever else is available
- - you know, there's tools down there to use." Okoniewski further testified as follows:
"[Steven] told me he tried to pull the pallet off with the mule, the electric jack,
and it got – he said the wheels got stuck between the truck and the dock. And I said,
'where was the ramp? He said, it didn't work. And I says, why would you pull – try to
pull a pallet off without a ramp with an electric mule? It ain't going to work. It's going to
get stuck.
6 No. 1-15-2481
And from earlier what you said, he pulled one off without a plate. My personal
opinion, he was lucky doing it the first one… To try to do that without a ramp, personal
opinion, again, nuts." 3
Okoniewski acknowledged that he lacked personal knowledge of the incident but believed that
Steven acted in an unsafe manner. We note that Steven alleged in his affidavit that he was highly
medicated while in the hospital and did not remember talking to Okoniewski.
¶ 17 HJC driver Jeff Chevale Williams testified that he was never instructed to use a
mechanical jack without a dock leveler or another device to connect the end of the trailer to the
dock itself. He also believed it would be unsafe to do so. If a dock leveler was not working, he
would inform whoever was in the area. With that said, he did not witness the accident, did not
know how Steven was injured and did not hold himself out as an expert in dock levelers or
motorized pallet jacks.
¶ 18 Cahill testified that Steven was never the subject of any safety concerns. Additionally,
HJC never trained Steven how to use a pallet jack and did not instruct drivers to use a dolly in
the specific manner that Steven had used it. Cahill testified that, in hindsight, Steven's method of
attempting to free the pallet jack was not safe because he was injured.
¶ 19 Steven also presented the opinions of three experts. According to engineer Michael
Bracki, a dock leveler's purpose is to match dock height to variations in truck height through an
adjustable height ramp. UCMC's leveler was in a state of disrepair, however, and Mariscal made
it completely inoperable by driving wood shims between the leveler and the frame. In addition,
security staff was not controlling the flow of traffic when Steven moved his truck at another
driver's request. Furthermore, a driver facing an inoperable leveler had several issues to
3 The record uses the terms “leveler” and “plate” interchangeably. 7 No. 1-15-2481
overcome but "the more insidious would be a dock height that was off by only a small amount
initially. *** [T]he height difference would vary as the loaded weight on the delivery vehicle
chassis changed." Bracki believed that when Steven removed the first pallet, the truck bed rose,
exacerbating the height discrepancy and leading the pallet jack to become immobile.
¶ 20 Bracki opined that UCMC's failure to repair the leveler for 198 days, remove the dock
from service or control dock traffic made it not only foreseeable, but likely that this accident
would occur. Bracki also stated, "[t]o claim that a driver getting stuck between the dock and
truck because of a height disparity is unforeseeable or unpredictable is illogical given [that] the
dock leveler is designed to prevent that very situation from existing." Additionally, Bracki found
it was foreseeable that equipment would get stuck as a result of the broken leveler, although the
specific method of injury in attempting to dislodge the equipment may not have been
foreseeable. In like circumstances, Bracki "would have tried to find another forklift, but I think
[Steven] said he couldn't find one and he wound up getting into this corner where he did
something that obviously caused his injury." That being said, nothing prevented Steven from
waiting for another dock. Bracki described Steven’s conduct as “contributory.”
¶ 21 Similarly, architect John Van Ostrand testified that Steven's conduct was a cause of his
injuries. Had he waited for help and not attempted to unload his truck with a pallet jack, he
would not have been injured. Van Ostrand also testified, however, that Steven "was doing the
best he could under the circumstances, apparently." Van Ostrand found it was reasonably
foreseeable that a driver, with knowledge of a gap, would nonetheless attempt to unload his
truck, apparently even with a pallet jack. Additionally, UCMC experienced a breakdown in
management and communications regarding the dock and UCMC should have taken dock 5 out
of service until it was repaired.
8 No. 1-15-2481
¶ 22 Suzanne Alton-Glowiak, a mechanical engineer, added that UCMC failed to comply with
voluntary regulations of the American National Standards Institute (ANSI) and mandatory
regulations of the Occupational Safety and Health Administration (OSHA). Alton-Glowiak
opined that the defective leveler caused Steven's injuries but she had no opinion as to whether
Steven's conduct caused his injuries.
¶ 23 UCMC's expert, architect Robert Plichta, opined that UCMC employees did not act
improperly regarding the management and maintenance of the loading dock and it was
reasonable for them to be unaware that the leveler was inoperable for over six months. In
addition, using dock 5 in a fixed position posed no risk of harm. Plichta also disagreed with
Alton-Glowiak's application and assessment of ANSI and OSHA regulations. With that said,
Plichta acknowledged that someone backing into dock 5 would not see the wedges or notice that
the leveler was inoperable unless something was placed in the driveway. Plichta also
acknowledged nothing indicated that UCMC made a conscious decision not to repair the leveler.
¶ 24 Plichta believed that after discovering that the leveler was not functioning, the dangers of
using a motorized pallet jack would be very apparent. A reasonable delivery person would not
even attempt to use a pallet jack without a leveler. Additionally, Plichta found it was
unforeseeable that a driver would use dock 5 to unload cargo with a pallet jack in an untypical
and unsafe manner, particularly because three other docks with levelers were available. A driver
needing a leveler must use what is available or wait for another dock. Furthermore, Steven also
could have moved the merchandise from the pallets onto a dolly, requiring several smaller loads,
but Plichta acknowledged that time was a consideration. Furthermore, Plichta acknowledged that
Steven had more experience than Plichta with respect to docks, levelers and pallet jacks.
Notwithstanding that acknowledgment, Plichta found that the leveler did not play a role in
9 No. 1-15-2481
Steven's injury, even though the pallet jack would not have become stuck and Steven would not
have used a dolly to dislodge it if the leveler had been working. When the pallet jack became
stuck, Steven should not have used a dolly to try to move it. Instead, he could have called
security. Plichta found it was unforeseeable that someone using dock 5 "would be injured unless
they were using it the way that it was done here."
¶ 25 George Karosas, an engineering expert, testified that keeping dock 5 in service without
the leveler posed no risk different from a permanent immovable dock. He did not know whether
any drivers who parked at dock 5 prior to Steven's accident used pallet jacks without a leveler
but Karosas thought it was improbable, having never heard of anyone doing that before.
Additionally, Steven should have waited for another dock. Karosas believed Steven caused the
accident by "misusing the dolly in a fashion and trying to lift, you know, and maneuver
something that weighs hundreds of pounds."
¶ 26 Following discovery, UCMC moved for summary judgment, arguing that it owed Steven
no duty because the non-functional leveler constituted an open and obvious condition. UCMC
also argued that the non-functional leveler did not cause Steven's injury. In response, Steven
argued that the gap was not obviously dangerous and, alternatively, the deliberate-encounter
exception applied. Steven further argued that UCMC's negligence was a proximate cause of his
injuries and that the lay opinions of his coworkers, who did not witness the incident, were
inadmissible.
¶ 27 The circuit court granted summary judgment in favor of UCMC, finding that a reasonable
person would have determined that the leveler was inoperable and that a gap remained. Thus, the
condition and risk were open and obvious. The court also found the deliberate-encounter
10 No. 1-15-2481
exception to the open and obvious doctrine did not apply. Furthermore, UCMC did not owe a
duty to Steven or proximately cause his injury.
¶ 28 II. ANALYSIS
¶ 29 On appeal, Steven first asserts that the circuit court improperly granted summary
judgment in favor of UCMC, which failed to demonstrate that it had no duty as a matter of law.
We review the circuit court's ruling on a summary judgment motion de novo. Willie Pearl Burl
Trust v. City of Kankakee, 2016 IL App (3d) 150398, ¶ 10.
¶ 30 Summary judgment is appropriate only where the pleadings, admissions, depositions and
affidavits show that no genuine issues of material fact exist so that the movant is entitled to
judgment as a matter of law. Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. Conversely,
summary judgment is inappropriate where material facts are in dispute, reasonable persons could
draw different inferences from undisputed facts or reasonable persons could assign different
weight to factors relevant to the legal standard at issue. Seymour v. Collins, 2015 IL 118432,
¶ 42. Summary judgment is a drastic measure and, consequently, should only be granted where
the movant's right to judgment is clear. Mashal, 2012 IL 112341, ¶ 49. Furthermore, we must
strictly construe the record against the movant and liberally in favor of the nonmovant. Seymour,
2015 IL 118432, ¶ 42. In order to demonstrate negligence, Steven must ultimately show that
UCMC owed him a duty, that UCMC breached that duty and that such breach proximately
caused Steven’s injury. See Friedman v. City of Chicago, 333 Ill. App. 3d 1070, 1073 (2002).
¶ 31 A. Duty
¶ 32 In determining whether a duty exists, courts must consider whether the plaintiff and the
defendant stood in a relationship such that the law obligates the defendant to conduct itself
reasonably for the plaintiff's benefit, considering four factors: (1) the reasonable foreseeability of
11 No. 1-15-2481
the claimant's injury; (2) the likelihood of injury; (3) the magnitude of the defendant's burden of
guarding against that injury; and (4) the consequences of placing the burden on the defendant.
Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225-26 (2010). The weight to be assigned
to each factor depends on the circumstances of the case. Simpkins v. CXS Transportation, Inc.,
2012 IL 110662, ¶ 18. Additionally, a defendant’s duty is not defined by the plaintiff’s own
negligence. Ward v. K Mart Corp., 136 Ill. 2d 132, 148 (1990). Furthermore, the open and
obvious doctrine pertains to the element of duty in a negligence action. Ballog v. City of
Chicago, 2012 IL App (1st) 112429, ¶ 20. 4
¶ 33 Pursuant to that doctrine, a party which owns or controls land is not required to foresee or
protect against injury where the potentially dangerous condition is open and obvious. Bruns v.
City of Centralia, 2014 IL 116998, ¶ 16. An open and obvious danger does not automatically
eliminate a legal duty on the defendant's part, however. Bucheleres v. Chicago Park District, 171
Ill. 2d 435, 449 (1996). Instead, the existence of an open and obvious dangerous condition
affects the first two factors relevant to assessing duty: the reasonable foreseeability and
likelihood of the injury. Bruns, 2014 IL 116998, ¶ 19. Specifically, the open and obvious
condition renders the impact of those factors slight, weighing against a determination that the
defendant had a duty. Id. Even where the open and obvious rule applies, courts must consider all
four factors relevant to duty. Bucheleres, 171 Ill. 2d at 456; but see Ballog, 2012 IL App (1st)
4 Where a landowner's conduct creating a dangerous condition precedes the claimant's injury, the claimant may pursue a negligence theory, a premises liability theory or both. Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 54. Although Steven contends that the open and obvious doctrine does not apply to ordinary negligence, he has failed to cite any case stating as such. See Ill. S. Ct. R. 341(h) (7) (Jan. 1, 2016) (requiring that arguments be supported by legal authority). We further observe that both Steven’s premises liability claim and his ordinary negligence claim pertain to a condition on UCMC’s premises. 12 No. 1-15-2481
112429, ¶¶ 35, 40 (declining to apply the four factors after finding an open and obvious
condition).
¶ 34 Obviousness requires that a reasonable person in the visitor's position, exercising
ordinary intelligence, perception and judgment, would recognize both the condition and the risk.
Bruns, 2014 IL 116998, ¶ 16. Whether a condition constitutes an open and obvious danger
generally presents a question of fact. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 888 (2009). Where
the parties do not dispute the condition's physical nature, however, the question is a legal one.
Ballog, 2012 IL App (1st) 112429, ¶ 29.
¶ 35 Moreover, the open and obvious doctrine is subject to a deliberate-encounter exception.
Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 258 (2010). That exception applies
where the possessor of land had reason to anticipate that the invitee would proceed to encounter
an open and obvious danger because a reasonable person in the invitee's position would find the
advantages of the encounter outweigh the apparent risk. Id. "The deliberate-encounter exception
recognizes that individuals will make deliberate choices to encounter hazards when faced with
employment concerns and that those encounters are reasonably foreseeable by possessors of a
property." Id. Similarly, the deliberate-encounter exception usually involves a plaintiff who is
forced to choose between facing danger and neglecting his duties. Lucasey v. Plattner, 2015 IL
App (4th) 140512, ¶ 42. With that said, courts applying this exception must focus on what a
landowner should anticipate. Kleiber, 406 Ill. App. 3d at 258; see also Restatement (Second) of
Torts § 343A (1965). Where the exception applies, duty analysis is reversed as to the first two
factors. Bruns, 2014 IL 116998, ¶ 20.
¶ 36 Here, we question UCMC's contention that the open and obvious doctrine applies. A
reasonable person in Steven’s position would recognize that, due to the broken leveler, his truck
13 No. 1-15-2481
remained higher than the dock. It does not immediately follow, however, that a reasonable
person would recognize the risk involved. It is undisputed that the height differential was but a
matter of inches. Steven’s belief that a few inches would not pose a problem to unloading goods
with a pallet jack is not inherently unreasonable. Additionally, it was not clearly unreasonable for
Steven to expect that once off the truck, he would have no problem bringing the pallet jack back
on the truck. Similarly, Bracki described the increase in a truck's height after removing cargo as
insidious. Even with that increase, the height differential was just a few inches. We cannot say as
a matter of law that a reasonable driver in Steven’s position would recognize that a slight height
differential, resulting from a broken leveler, would lead a pallet jack to get stuck and ultimately
lead the driver to injure himself while attempting to free it. We note that the circuit court found
Steven acknowledged he needed a leveler to unload his goods. While Steven may have
understood that his efforts with the pallet jack might prove unsuccessful without a leveler, it does
not follow that he understood that any lack of success would result in injury.
¶ 37 Moving on in our analysis, even if the condition and risk were deemed open and obvious,
the deliberate-encounter exception would apply. Ample testimony showed that the hospital
generally expected early deliveries, notwithstanding that no specific delivery time was set.
Additionally, UCMC should expect that professional delivery drivers would make multiple
deliveries in any given day. As Cahill indicated, a delay with respect to one delivery could create
problems for later deliveries. Moreover, Van Ostrand testified it was foreseeable that a driver
would choose to encounter a small gap. We further note that Rosario and Okoniewski indicated
that drivers sometimes worked around mechanical difficulties. See also Cihon v. Cargill, Inc.,
293 Ill. App. 3d 1055, 1064 (1997) (finding a jury could conclude that the defendant had reason
to expect that the plaintiff would walk on a plank to access a storage tank farm rather than walk
14 No. 1-15-2481
80 feet and step over a short wall to access the farm); LaFever v. Kemlite Co., 185 Ill. 2d 380,
393 (1998) (rejecting the defendant’s assertion that a deliberate encounter cannot give rise to
liability unless no reasonable alternative to encountering the danger exists and unless the
worker’s continued employment is threatened by not encountering the risk). Thus, UCMC had
reason to anticipate that a delivery driver trying to fulfill his employment duties by making quick
deliveries would choose to encounter a small gap rather than disrupt his delivery schedule or
deviate from HJC’s general practice of delivering early. Cf. Kleiber, 406 Ill. App. 3d at 258-60
(where the parties did not dispute the danger at issue was open and obvious, the reviewing court
found the deliberate-encounter exception did not apply because the plaintiff had no economic
reason, such as a job, to choose to encounter the danger and could have asked a store employee
for assistance); Ballog, 2012 IL App (1st) 112429, ¶¶ 40-41 (Where there was "no contention
that the plaintiff was compelled to encounter the open and obvious condition" and the evidence
showed she previously avoided the condition, rather than deliberately encountering it, the
deliberate-encounter exception did not apply.).
¶ 38 UCMC nonetheless argues it did not have reason to expect that a driver would decline to
wait for another dock to become available. In doing so, UCMC distorts Steven's testimony by
stating he conceded that nothing prevented him from moving to another dock. While Steven
initially suggested as such, he immediately corrected himself, stating that he could not move to
another dock because no other docks with levelers were available. Furthermore, while UCMC
contends that the lay opinions of other HJC drivers support UCMC's position, Steven maintains
that those individuals did not witness the incident and, thus, their opinions are inadmissible.
Contrary to UCMC's assertion, Steven preserved this contention below.
15 No. 1-15-2481
¶ 39 Courts may not consider inadmissible evidence in support of, or in opposition to, a
motion for summary judgment. Lacey v. Perrin, 2016 IL App (2d) 141114, ¶ 52. In addition,
Steven correctly observes that a lay witness can offer his opinion only if it is based on his
personal observations, is one that people generally can make and is helpful to the trier of fact.
Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 44. "If the witness is not testifying
as an expert, the witness' testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness, and (b)
helpful to a clear understanding of the witness' testimony or the determination of a fact in issue,
and (c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702." Ill. R. Evid. 701 (eff. Jan. 1, 2011). Here, no one witnessed the incident. Accordingly,
to the extent the other HJC drivers purported to opine on the reasonableness of Steven’s actions,
their testimony is inadmissible. Moreover, their general opinions based on specialized
knowledge specific to dock equipment would also be inadmissible unless those witnesses were
certified as experts. Notwithstanding these rules pertaining to the admissibility of evidence,
UCMC contends that the opinions of HJC drivers were properly before the court as evidence of
the general practices and knowledge of personnel that may encounter the condition at issue,
relying on Sepesy v. Archer Daniels Midland Co., 97 Ill. App. 3d 868, 870 (1981) and Ballog,
2012 IL App (1st) 112429, ¶¶ 7-8. Neither case, however, involved a challenge to the
admissibility of evidence.
¶ 40 Even assuming that lay witnesses can testify regarding the general knowledge among
professionals, UCMC has not shown that a different result is required. First, Okoniewski,
without personal knowledge, opined on the reasonableness of Steven's specific actions, not the
general practice of delivery drivers. In addition, he specified that he was offering his personal
16 No. 1-15-2481
opinion. While Rosario testified it would be appropriate for a driver encountering a
nonfunctioning leveler to wait for another dock, he did not testify that it would be inappropriate
to act otherwise. At best, Steven’s other fellow drivers testified regarding what they personally
would have done, not what drivers generally would do or generally know about levelers,
motorized pallet jacks, height differentials or steel dollies. Moreover, UCMC ignores that one
experienced driver, Steven, found no inherent danger in navigating a small gap. Van Ostrand
specifically testified it was foreseeable that a driver would attempt to unload his truck despite the
gap.
¶ 41 Accordingly, the record supports Steven’s assertion that UCMC had a duty. It was
reasonably foreseeable that, in the course of his employment, a driver such as Steven would
attempt to make a delivery at dock 5 despite the broken leveler. Additionally, it is foreseeable
that a driver who had never faced a broken leveler would be unaware that even a small gap could
create a problem and that an insidious increase in height differential would occur after goods
were removed. Furthermore, injury was likely given that the leveler was broken for months, that
the record shows not all security guards knew to direct drivers needing levelers away from dock
5, and that no UCMC employees were in the vicinity of the unloading area. We also note that
UCMC categorically ignores undisputed testimony that no employees were around, as well as
Harvard’s testimony that he was not responsible for the unloading area. Thus, it is not at all clear
that seeking help presented a viable option.
¶ 42 While UCMC states “it was not likely that he would then slip while using the hand dolly
and brake [sic] his ankle,” it was sufficiently likely that some driver, trying to make an
expeditious delivery, would injure himself in some manner as a result of the broken leveler.
Contrary to UCMC’s contention, Van Ostrand did not testify that Steven should have waited for
17 No. 1-15-2481
help instead of using the dolly. Although Van Ostrand testified Steven would not have been
injured if he “just sat around and waited for help,” Van Ostrand also testified, “[e]ven the
security person is not there. So he does the best thing he can. He gets this [dolly].” In Bracki’s
affidavit, he similarly disagreed with UCMC’s belief that Steven's attempt to free the motorized
pallet jack was unforeseeable.
¶ 43 Moreover, UCMC has not identified any onerous burden in requiring the hospital to
remedy the broken leveler, whether by warning drivers, blocking off the area or having the
leveler repaired. A $1,022.90 bill to repair a busy deliver dock is inconsequential. Furthermore,
UCMC has identified no consequences of placing this burden on the hospital. As a result, the
circuit court erroneously entered summary judgment on the basis of duty.
¶ 44 B. Proximate Cause
¶ 45 We also agree with Steven’s assertion that a genuine issue of material fact exists as to
proximate cause. Proximate cause is defined as a cause that, in the ordinary course of events
produced the plaintiff's injury, but a cause need not be the only or last cause; rather, the
combination of multiple causes may result in the injury. Richter v. Village of Oakbrook, 2011 IL
App (2d) 100114, ¶ 21. In addition, proximate cause includes cause in fact and legal cause.
Krywin, 238 Ill. 2d at 225-26. Cause in fact exists where a reasonable certainty exists that the
defendant's acts caused the injury. Id. at 226. Specifically, courts consider whether the
defendant's conduct was a material and substantial factor in bringing about the claimant's injury.
Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). Conduct constitutes a material and
substantial factor if the injury would not have occurred absent the defendant's conduct. Id. With
respect to legal cause, the inquiry is whether the injury sustained is one that a reasonable person
would consider to be a likely consequence of his conduct. Young v. Bryco Arms, 213 Ill. 2d 433,
18 No. 1-15-2481
446-47 (2004). With that said, a reasonable person need not be able to foresee the exact way that
the injury would occur or the extent of the injury. Hooper v. County of Cook, 366 Ill. App. 3d 1,
7 (2006). Furthermore, proximate cause constitutes a question for the trier of fact to decide.
Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011).
¶ 46 Here, the record would permit a trier of fact to find that UCMC's conduct was a material
and substantial factor in bringing about Steven's injury, as Steven would not have been injured
but for the leveler being broken. Specifically, the motorized pallet jack would not have become
stuck, Steven would not have attempted to use another device to free it and he would not have
hurt himself while doing so. Thus, the broken leveler constitutes cause in fact. Additionally,
ample evidence would permit a trier of fact to find it foreseeable that a broken leveler could
result in a broken ankle.
¶ 47 The purpose of the leveler was to eliminate any height differential. Without a leveler, a
differential of some kind was likely to exist. As stated, it is common knowledge that drivers, not
just HJC drivers, make multiple deliveries in a day. Even if not adhering to a precise schedule,
delivery drivers are likely to be in a hurry. Thus, a trier of fact could find it foreseeable that an
expeditious driver would choose to navigate a gap of only a few inches where no other levelers
were available, rather than wait for some unknown amount of time for a leveler to become
available. Additionally, a trier of fact could find it foreseeable that a driver would not appreciate
that the slight change in height after removing cargo would make it difficult to get the pallet jack
back on the truck. Moreover, a trier of fact could find it foreseeable that, in the absence of any
UCMC employees, a driver would find another device to dislodge the pallet jack, injuring
himself in the process.
19 No. 1-15-2481
¶ 48 In reaching this determination, we reject UCMC's contention that the broken leveler
constitutes a mere condition, rather than a cause of Steven's injury. If a defendant's breach of
duty provides a condition which makes an injury possible, and an independent third person then
causes an injury, the defendant's creation of the condition does not constitute a proximate cause
of the injury. Trigsted v. Chicago Transit Authority, 2013 IL App (1st) 122468, ¶ 53. That being
said, the test is always whether the first wrongdoer might reasonably have anticipated the
intervening efficient cause as a probable and natural result of his own negligence. First
Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257 (1999).
¶ 49 Steven would not have been injured but for the broken leveler and no independent third
party was involved. Additionally, UCMC arguably should have anticipated that absent any
warnings or the removal of the dock from service a driver would be injured due to the broken
leveler at some point during the multiple months that it was broken. Cf. First Springfield Bank &
Trust, 188 Ill. 2d at 261 (finding after trial that it was not reasonably foreseeable that violating a
no parking sign would result in a pedestrian (1) jaywalking, (2) attempting to cross a truck route
despite a compromised view of traffic, and (3) being hit by another vehicle). Thus, the record
does not compel a determination that the broken leveler was a mere condition.
¶ 50 Finally, UCMC’s allegations of contributory negligence do not change the result at this
juncture. Contributory negligence results from a lack of due care for one's safety and is measured
by the objective standard of a reasonable person. McCarthy v. Kunicki, 355 Ill. App. 3d 957, 972
(2005). While UCMC argues that HJC drivers were not instructed to use a steel dolly to free a
pallet jack, it does not follow that HJC drivers were explicitly told not to use a steel dolly in that
manner. Additionally, Cahill admittedly used hindsight when he testified that Steven's manner of
using the dolly was unsafe. More importantly, we review UCMC's motion for summary
20 No. 1-15-2481
judgment in the light most favorable to Steven, not UCMC, and contributory negligence
generally constitutes a question for the trier of fact (Graham v. Northwestern Memorial Hospital,
2012 Ill App (1st) 102609, ¶ 19). Accordingly, Steven is entitled to a trial on his claims.
¶ 51 III. CONCLUSION
¶ 52 Here, UCMC failed to demonstrate that it was entitled to judgment as a matter of law
with respect to duty and proximate cause. Consequently, the circuit court improperly granted
summary judgment in UCMC's favor and we reverse and remand for further proceedings. In light
of our determination, we need not consider Steven’s remaining contentions.
¶ 53 Reversed and remanded.