2023 IL App (1st) 221636-U
SIXTH DIVISION November 17, 2023
No. 1-22-1636
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
ALICIA GRAY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 2020 L 006917 ) CARLTON MIDWAY CORPORATION, ) The Honorable ) Kathy M. Flanagan, Defendant-Appellee. ) Judge, presiding.
JUSTICE TAILOR delivered the judgment of the court. Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court is affirmed. The trial court properly granted summary judgment to Carlton Midway Corporation (Carlton) based on the doctrine of collateral estoppel. Alternatively, the trial court did not abuse its discretion when it found that Gray’s expert witness was not qualified to testify and that his opinions lacked foundation.
¶2 I. BACKGROUND
¶3 On February 20, 2015, Alicia Gray was injured after she slipped and fell on snow and ice
on a parking lot owned and maintained by Carlton, which was located near the Carlton Inn Midway
hotel near Midway Airport in Chicago. Gray brought a negligence claim against Carlton and the No. 1-22-1636
snow removal company it contracted with, Beverly Snow and Ice, Inc. (Beverly). In 2016, Beverly
moved for summary judgment, and the court granted its motion. On appeal, we affirmed the trial
court’s order, concluding that Gray “did not prove the source of ice accumulation on which she
fell was caused by Beverly.” Gray v. Lewis Properties, Inc., 2019 IL App (1st) 180590-U, ¶ 33.
We further held that the undisputed facts established that the condition “was open and obvious.”
Id. ¶ 36. Specifically, we opined that it was “clear that [Gray] recognized both the condition and
the risk posed by the ice patch” because she testified that “she was aware of the ice throughout the
parking lot” and “recognized the risk,” and “even testified to altering her behavior and walking in
a certain way to account for the danger presented by the ice.” Id. We remanded to the trial court
so that Gray could proceed with her claims against Carlton, but Gray dismissed the case instead.
¶4 On June 29, 2020, Gray refiled her suit against Carlton. On December 30, 2020, Carlton
moved for summary judgment, arguing that Gray “had no evidence to show the accumulation she
claimed to have slipped on was unnatural and [Carlton] had no duty to [Gray] given that the
allegedly hazardous condition was open and obvious.” Carlton argued that because this court had
already decided that the condition was open and obvious, “the law of case the doctrine” barred
relitigation.
¶5 Gray argued in response that the law of the case doctrine did not apply, and that genuine
issues of material fact existed as to whether (1) the ice patch she slipped on was unnatural; (2) the
ice patch was open and obvious; and (3) Carlton’s alleged negligence proximately caused her
injuries. She disclosed a Supreme Court Rule 213(f) expert witness, William Keefe, and submitted
Keefe’s interrogatory answers and affidavit along with her response. Keefe averred in his affidavit
that Carlton’s negligent maintenance of its property created the unnaturally accumulated ice that
Gray slipped on, and that its failure to maintain its premises in a reasonably safe condition was the
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proximate cause of Gray’s slip and fall. He also stated that the ice patch would not have been open
and obvious to Gray. In its reply, Carlton argued that Keefe’s opinions were “conclusory in nature
and not the result of any special expertise by the witness[.]” It stated that Keefe’s experience
“contains nothing by way of knowledge, skill, experience, training, or education on the issues of
significance in this present matter” and argued that “[h]is entire CV [curriculum vitae] contains
nothing that could lead a court to conclude that he has some specialized knowledge in the analysis
of snow removal, water drainage or duties of a hotel to offer to a jury or this Court that will aid the
analysis of the relevant issues.” More specifically, Carlton stated that Keefe’s affidavit “offers
nothing by way of analysis as to why any particular pile of snow was natural or unnatural” and
“nothing by way of analysis to show that any particular bit of snow or ice was formed as a result
of drainage from a natural or unnatural accumulation,” and that the opinions he offered are
“conclusory and offer no specificity of how [he] reached them.” It argued that “[a]bsent a basis
being offered for his opinions, they are no more expert than those opinions which might be offered
by a random person walking down the street,” and that they should be disregarded.
¶6 On October 3, 2022, the trial court granted Carlton’s motion for summary judgment. It
rejected Carlton’s law of the case argument (see Long v. Elborno, 397 Ill. App. 3d 982, 990 (2010)
(“we hold that the law of the case doctrine is inapplicable in the instant case because the refiling
of the complaint was not a continuation of the old action, but the commencement of an entirely
new action[]”)) but found that summary judgment was warranted because the “open and obvious”
issue must be resolved against Gray under the doctrine of collateral estoppel. It reasoned that
because this court had already decided this issue in the prior appeal, no liability could be imposed
on Carlton in the instant case. The trial court noted that the “specific allegations against Carlton
are failure to properly maintain the surface of the lot, failure to properly illuminate the parking lot,
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failure to repair the defects in the surface of the parking lot (although it knew or had constructive
knowledge of these defects), [and] failure to properly remove snow or ice or salt the parking lot,
although it had undertaken a duty to do so for the benefit of its patrons and guest[s].” The court
reviewed the additional materials submitted by Gray, but found “absolutely no evidence submitted
with regard to improper illumination of the parking lot” and “no evidence of any specific defect in
the surface of the parking lot.” It also found “nothing in [Keefe’s] CV or his affidavit which give
him the qualifications to render opinions on issues” involved in this case. Gray timely appealed
the court’s decision.
¶7 II. ANALYSIS
¶8 The Trial Court Properly Granted Summary Judgment to Carlton Based on the Doctrine of
Collateral Estoppel
¶9 We review the trial court’s order granting summary judgment de novo. Reed v. Galaxy
Holdings, Inc., 394 Ill. App. 3d 39, 41 (2009). A grant of summary judgment is proper “if the
pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” 735 ILCS 5/2-1005(c) (West 2022). “Construing the evidence in a light most
favorable to the nonmoving party, a trial court may only grant summary judgment if the record
shows that the movant’s right to relief is clear and free from doubt.” Reed, 394 Ill. App. 3d at 42.
“Mere speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce v.
Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). Instead, the plaintiff must present a
factual basis which would arguably entitle her to judgment in her favor. Winnetka Bank v. Mandas,
202 Ill. App. 3d 373, 387-88 (1990).
¶ 10 The elements of a negligence claim are that the defendant owed a duty to the plaintiff, that
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the defendant breached that duty, and that the breach proximately caused the plaintiff’s injury.
Hornacek v. 5th Avenue Property Management, 2011 IL App (1st) 103502, ¶ 27. “In the absence
of a showing from which the court could infer the existence of a duty, no recovery by the plaintiff
is possible as a matter of law and summary judgment in favor of the defendant is proper.” Vesey
v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991).
¶ 11 While a party that owns or controls property has a general duty to maintain its property in
a reasonably safe condition, the property owner is under no obligation to guard against injury from
open and obvious risks. Ward v. K Mart Corporation, 136 Il. 2d 132, 141-42 (1990). “Open and
obvious” risks are those which are “apparent and would be recognized by a reasonable person
exercising ordinary perception, intelligence and judgment in visiting an area.” Sandoval v. City of
Chicago, 357 Ill. App. 3d 1023, 1028 (2005).
¶ 12 Here, the trial court determined that summary judgment was warranted based on the
doctrine of collateral estoppel. It found “no doubt that the ‘open and obvious’ issue was determined
by this Court within the parameters of the motion for summary judgment of Beverly Snow and
Ice, Inc.[,]” and that it was “identical” to the issue being presented in the instant lawsuit. The trial
court stated,
“There is no doubt that a court of competent jurisdiction rendered a final
judgment on the merits in the prior action.
There is no doubt that [Gray], against whom the doctrine is being asserted in the
instant case, was a party to the prior action.
There is no doubt that the factual issue against which the doctrine is interposed
has actually and necessarily been litigated and determined in the prior action.
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Therefore, on the basis of the application of the doctrine of collateral estoppel, the
condition is determined to be open and obvious, and cannot impose any liability on
[Carlton] in the instant case.”
¶ 13 Collateral estoppel is an equitable doctrine that is applied to “promote[] fairness and
judicial economy by preventing the relitigation of issues that have already been resolved in earlier
actions.” Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77
(2001). As the trial court explained, collateral estoppel applies when (1) the issue decided in the
prior adjudication is identical with the one in the current action, (2) there was a final judgment on
the merits, and (3) the party against whom estoppel is asserted was a party to, or in privity to, the
prior adjudication. Id. However, “[e]ven where the threshold elements of the doctrine are satisfied,
collateral estoppel must not be applied to preclude parties from presenting their claims or defenses
unless it is clear that no unfairness results to the party being estopped.” Nowak v. St. Rita High
School, 197 Ill. 2d 381, 391 (2001). The court “must balance the harm of giving a previously
unsuccessful party a second bite at the apple and the need for judicial economy against the right to
a fair adversary proceeding in which both parties have the opportunity to fully present their cases.”
Richter v. Village of Oak Brook, 2011 IL App (2d) 100114, ¶ 25. The doctrine of collateral estoppel
may not apply if (1) the party could not have obtained review of the judgment in the first suit; (2)
the issue is a legal one and the two actions involve substantially unrelated claims or a new
determination is warranted due to an intervening change in law; (3) different procedures apply in
the new suit; (4) the burden of persuasion has changed; (4) issue preclusion might adversely affect
the public interest or other parties; (5) the party would not have foreseen the issue arising in the
current suit; or (6) the party lacked an adequate opportunity to litigate the issue in the first suit.
Restatement (Second) of Judgments § 28 (1982); see e.g., Pepper Construction Co. v. Palmolive
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Tower Condominiums, LLC, 2016 IL App (1st )142754, ¶ 77-79 (finding that collateral estoppel
did not apply to bar a subcontractor’s claims against a general contractor even though the essential
elements were met because the parties “were not true adversaries” in the initial suit, the arbitration
award “did not resolve disputes” between the parties and the subcontractor “did not have the
capacity to control its claims [in the first action] such that it would be unfair to preclude them in
the circuit court”). We review whether the doctrine of collateral estoppel is applicable in a
particular case under the de novo standard of review. Pedersen v. Village of Hoffman Estates, 2014
IL App (1st) 123402, ¶ 42.
¶ 14 In her brief, Gray seemingly concedes that the threshold elements of collateral estoppel are
met but argues that it was unfair to apply the doctrine because she was never allowed to “fully
present her case” against Carlton and will be “unable to advance her claims against [Carlton]” if
we affirm the trial court’s decision. However, Gray’s case against Carlton depended on her ability
to show that the condition of the parking lot was not open and obvious, which was the very same
burden Gray faced in responding to Beverly’s motion for summary judgment. Therefore, properly
framed by the doctrine of collateral estoppel, the issue is not whether Gray offered evidence that
the condition was not open and obvious on remand, but rather whether Gray did so when Beverly
moved for summary judgment. Because Gray failed to offer any evidence to show that the
condition of the parking lot was not open and obvious when Beverly moved for summary
judgment, she is foreclosed from taking the proverbial second bite at the “open and obvious” apple
in this case.
¶ 15 The single case Gray cites to support her argument that it would be unfair to apply the
doctrine of collateral estoppel against her, Nowak v. St. Rita High School, 197 Ill. 2d 381 (2001),
is inapposite. There, the court found that defendant’s collateral estoppel argument failed because
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the issues presented were not “identical, as required for application of that doctrine.” Id. at 394
(emphasis in original). Here, by contrast, Gray does not dispute that the essential elements of
collateral estoppel have been satisfied, nor can she. The “open and obvious” issue decided in the
prior adjudication is identical with the one in the current action, there was a final judgment on the
merits, and Gray was a party to the prior adjudication. Moreover, we see no potential unfairness
or any reason why the doctrine should not apply. Gray already received a full and fair opportunity
to litigate the open and obvious issue; the law, burden of persuasion and procedures involved
remain the same; and the determination will have no adverse impact on the public interest or others.
Accordingly, we find that the trial court properly applied the doctrine of collateral estoppel here,
and that its grant of summary judgment to Carlton was proper.
¶ 16 The Trial Court Did Not Abuse its Discretion When it Found That Gray’s Expert Lacked
the Requisite Qualifications to Render Opinions and That his Opinions Lacked Foundation
¶ 17 Even if Gray was not collaterally estopped from disputing that the condition was open and
obvious, either because Carlton failed to establish the elements of the doctrine or it would be unfair
to apply the doctrine, her claim against Carlton would still fail because the trial court properly
concluded that her expert witness was not qualified and that her expert witness’s opinions lacked
foundation.
¶ 18 We review a trial court’s decision to admit or exclude expert testimony for an abuse of
discretion. Davis v. Kraff, 405 Ill. App. 3d 20, 28 (2010). We will reverse only if “no reasonable
person would agree with the position adopted by the trial court.” Schwartz v. Cortelloni, 177 Ill.
2d 166, 176 (1997).
¶ 19 Gray argues that the trial court reversibly erred when it found that there was “nothing in
[Keefe’s] CV or his affidavit which gave him the qualifications to render opinions on issues” in
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her lawsuit, and that Keefe’s CV “makes clear that he has the education, training, and expertise to
render opinions on the property that is at-issue in this litigation.”
¶ 20 To challenge this court’s prior ruling that the condition Gray complained of was “open and
obvious[,]” Gray disclosed Keefe as an expert witness pursuant to Illinois Supreme Court Rule
213(f). Ill. S. Ct. R. 213(f) (West 2022). Keefe’s CV reflects that he is a licensed professional
engineer, board certified in Forensic Engineering by the National Academy of Forensic Engineers,
and that he provides “mechanical engineering design analysis, forensic engineering services and
safety analysis to product manufacturers, employers, attorneys and insurance companies.” Keefe
said he reviewed various materials related to Gray’s case, including depositions, photographs of
the scene, and climatological data for the month of February 2015 before forming the opinions
reflected in his affidavit. Keefe averred that it was his “professional opinion that that manner in
which the snow was cleared *** caused unnaturally accumulated snow piles to melt, trickle down
into the parking lot, form unnatural puddles and refreeze into hardened ice[.]” He also asserted
that the storm drain was “located in an area of the parking lot where runoff from the
aforementioned unnaturally accumulated snow piles would settle and harden into ice after
melting[,]” that the drain was located “where there is a great deal of foot traffic[,]” and that Carlton
was “negligent in allowing its property to be maintained in the aforementioned manner.” He added
that “the ice Plaintiff Gray slipped on would not have appeared as an open and obvious danger to
her” and that it was “reasonable that she did not see the ice before slipping.”
¶ 21 The trial court found that “the affidavit of Mr. Keefe is problematic and does not constitute
the amount of evidence which would be needed to create a genuine issue of material fact on the
‘unnatural’ designation of the snow and ice in the parking lot area.” After reviewing Keefe’s
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qualifications and experience, the court concluded that,
“[t]here is nothing in this CV or his affidavit which gives him the qualifications to render
opinions on issues concerning the allegedly improper piling of snow from plowing
activities, [or that] the manner in which the snow was cleared caused unnaturally
accumulated snow piles to melt, trickle down into the parking lot, form unnatural puddles
and refreeze into harden ice. These areas were located where pedestrians were expected to
walk. [Keefe] opines that the storm drain was located in an area where runoff from the
unnaturally accumulated snow piles would settle and harden into ice. In the answer to the
*** interrogatory, it is stated that Mr. Keefe would be testifying that based upon his review
of the record, ‘including but not limited to the pitch of the parking area,’ and the failed
steps taken by [Carlton] to clear ice on the premises that the cause of the plaintiff’s fall was
the unnatural accumulation of ice. The difficulty is there is no evidence of any
measurements taken of the exact pitch of the parking lot, there is no evidence of where the
storm drain should have been placed, there is no evidence as to how the snow piles were
accumulated incorrectly, there is no showing of any defect in the surface of the parking lot
which caused any unnatural accumulation of snow or ice, and there is no evidence to
support the failure to properly remove snow and ice or salt the parking lot.”
For these reasons, the court found that Keefe’s lack of qualifications and failure to offer a basis for
his opinions were another basis to grant summary judgment to Carlton.
¶ 22 Expert testimony is admissible if “the proffered expert is qualified as an expert by
knowledge, skill, experience, training or education and the testimony will assist the trier of fact in
understanding the evidence.” Biundo v. Bolton, 2020 IL App (1st) 191970, ¶ 26. This testimony is
admissible “only if the expert has specialized knowledge that will ‘assist the trier of fact’ in
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understanding the evidence or in determining a fact at issue.” Todd W. Musburger, Ltd. v. Meier,
394 Ill. App. 3d 781, 800 (2009). Testimony as to legal conclusions that will determine the
outcome of the case is inadmissible. Id.
¶ 23 Here, the trial court properly exercised its discretion when it determined that Keefe was
not qualified to render opinions on the issues in this case and that he failed to explain the bases of
his opinions. Nothing in Keefe’s background or experience indicates that he had experience or
expertise in the subject areas of storm drain placement, drainage issues, or snow and ice
accumulation. And his affidavit contained only conclusory opinions that were unsupported by any
specific facts. As Carlton pointed out, Keefe offered “no analysis” to explain why he believed
certain snow piles were unnatural, and no evidence to show that any of the snow or ice in the
parking lot was formed as a result of drainage issues. Keefe also failed to explain how the “manner
in which the snow was cleared” “caused unnaturally accumulated snow piles to melt, trickle down
into the parking lot, form unnatural puddles and refreeze into hardened ice.” Moreover, Keefe’s
conclusory statement—that the ice patch would not have been open and obvious to Gray—was
similarly unsupported by any facts or analysis. For these reasons, we find that the trial court
properly exercised its discretion when it disregarded Keefe’s opinions because Keefe lacked the
requisite qualifications to render opinions and because Keefe failed to offer any bases for his
opinions in this case.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 26 Affirmed.