IL Appellate Courts Confirm Causation Cannot Be Based on Mere Speculation or Conjecture
June, 2009
by Edward M. Kay and Melinda S. Kollross
Recently, three decisions have been issued by the Illinois Appellate Court in premises liability cases all ruling in favor of the defendants on causation issues. Essentially, the court in each case held that causation cannot be based on speculation, and the plaintiffs in each case could offer no more than that as to why they (or their decedent) fell.
Strutz v. Vicere, 906 N.E.2d 1261 (Ill. App. 1st Dist.)
Decedent Russell Strutz, a 60 year-old recently retired paramedic, slipped and fell on the back staircase at his home, a two-flat owned by defendants. Russell had lived at the property for 8 ½ years. There were no eyewitnesses to his fall. Russell's wife, Henriette, found Russell sitting up against the wall at the bottom of the stairs. Russell told Henriette, "I fell down over the railing." The three responding paramedics each stated that Russell told them he fell down the stairs. One of the paramedics further stated that Russell told her he was taking out the garbage and was walking backwards when he slipped and fell. Russell, who was 6 feet 5 inches tall and 281 pounds, sustained multiple cervical spine fractures and died as a result of his injuries. Henriette sued the property owners alleging that the defendants failed to maintain the stairs and railing in a reasonably safe condition, and that the stairs/railing were in violation of the City of Chicago building code.
Plaintiff's retained liability expert, an architect, attested that the stairs were spiral in design, violated the City of Chicago building code, and were dangerous because of inadequate tread size, uneven height and width, inadequate lighting, a low and uneven handrail in the center and no handrail on the wall side. Henriette testified that the stairs were in good condition and that she had no knowledge of anything wrong with the stairs. The owner testified that he had never made any changes to the stairs and was unaware of any problems with the stairs. The record also contained evidence that Russell had circulatory problems with his legs and would sometimes walk backwards on the stairs.
Affirming the entry of summary judgment for defendants, the Illinois Appellate Court, First District, observed that none of this evidence addresses the issue of what caused Russell's fall. Violation of an ordinance, or failure to comply with a building code, alone -- without evidence that the violation(s) caused the injury -- does not establish proximate cause.
Majetich v. P.T. Ferro Constr. Co., 906 N.E.2d 713 (Ill. App. 3d Dist.)
Decedent Edith Majetich was an 89 year-old woman who had been diagnosed with tremors, early Alzheimers, and macular degeneration. She had a history of falls and had been told to use a cane while walking. In August 2004, Majetich drove through barricades marking off the parking lot of a strip mall, which was being resurfaced by defendant. After exiting her vehicle she walked across the gravel lot and fell while attempting to step up onto the curb/sidewalk near a print shop she intended to visit. There were no eyewitnesses to the fall, in which Majetich hit her head, bruised her face and broke her eyeglasses. Majetich subsequently told employees of the copy shop and a nearby tanning salon that the curb step looked too high, so she reached for a pole to help pull herself up and then fell.
The trial court granted summary judgment for defendant construction company and the Appellate Court affirmed. In Illinois, proper inferences cannot be based on mere conjecture or speculation as to what possibly happened to cause the injury. While circumstantial facts may be used to establish proximate cause, that evidence must be of such a nature and so related as to make the conclusion reached more probable as opposed to merely possible. Here, the court found "insufficient evidence to determine whether [Majetich] lost her balance due to one of her medical conditions, or to rule out that she tripped or slipped for any one of the other countless reasons that people fall." Because plaintiff could only present evidence "that decedent's injuries are possibly related to the alleged negligence of defendants," he failed to meet his burden on causation.
Rogers v. Matanda, Inc., 2009 WL 1531804 (Ill. App. 3d Dist.)
Plaintiff went to defendant's pub to celebrate his twenty-first birthday. Plaintiff entered the bar without incident and ingested approximately 18 mixed drinks while there. Plaintiff's "fellow celebrants" removed him from the bar through the rear exit after he became intoxicated. Plaintiff insisted on returning to continue drinking. When his friends blocked him from re-entering the bar through the rear door, he attempted to walk around the northeast corner of the building to the front entrance. The elevation of the ground at the rear of the bar and the building immediately north are different. Walking to the northeast from the rear of the bar, there is a drop in elevation of several feet. According to one of his friends, plaintiff stood on a retaining wall in the area of higher elevation, hung on to a pole, then let go of the pole and fell. Plaintiff does not recall leaving the bar or falling. The rear of the bar is lit only by beer signs hanging in its windows.
Plaintiff sued the bar owner alleging that defendant breached its duty to exercise reasonable care for the safety of invitees on its property because defendant failed to illuminate, barricade, or warn of a known dangerous condition on its property, i.e. the change in elevation of the ground combined with inadequate lighting to warn of the change in elevation.
The Appellate Court affirmed the entry of summary judgment for defendant, finding that plaintiff failed to allege sufficient facts to make a prima facie case regarding proximate cause. Plaintiff had no recollection of how or why he fell and his friends had no idea whether he knew of the change in elevation when he was standing on the retaining wall. Absent any evidence as to the mechanism of plaintiff's fall, allowing this case to go to the jury "would allow speculation as to whether it was the differentiation and height of the sidewalk, the lighting, simple inattention or plaintiff's intoxication that caused the fall.
Learning Point: Liability cannot be premised merely upon surmise or conjecture as to the cause of injury. Although Strutz, Majetich and Rogers are premises liability cases, the fundamental causation principles discussed therein can be applied to any causation issue in Illinois.
For more information contact Edward M. Kay at ekay@clausen.com or Melinda Kollross at mkollross@clausen.com
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