Albright v. Parr
| Decision Date | 31 July 1984 |
| Docket Number | No. 83-28,83-28 |
| Citation | 467 N.E.2d 348,126 Ill.App.3d 464,81 Ill.Dec. 648 |
| Parties | , 81 Ill.Dec. 648 Michael K. ALBRIGHT, Plaintiff-Appellant, v. Ray PARR, Shell Oil Company, a foreign corporation, Smoot Oil Company, Inc., a foreign corporation, Allen D. James and Chuck Keller, d/b/a Keller Oil, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Paul Thomas Austin & Associates, Marion, for plaintiff-appellant.
Wm. Kent Brandon, Mitchell, Brandon & Schmidt, Carbondale, for Ray Parr.
James B. Bleyer, Marion, for Smoot Oil Co.
Brian P. McGary, Mitchell & Armstrong, Marion, for Shell Oil Co.
Michael Albright, plaintiff, appeals from summary judgments entered in the circuit court of Johnson County in favor of Ray Parr, Shell Oil Company, and Smoot Oil Company, Inc. on plaintiff's third amended complaint. Plaintiff does not appeal from the entry of summary judgment in favor of an additional defendant, Chuck Keller, d/b/a Keller Oil. For the reasons which follow, we affirm in part, reverse in part and remand.
Plaintiff's third amended complaint alleged that defendant Smoot Oil Company was the owner of certain land in Johnson County, that defendant Parr leased this land and operated a service station upon it, and that Shell Oil Company distributed its products through Smoot and Parr. It was further alleged that on July 17, 1980, plaintiff, while rising from a chair in the waiting area of the station, fell through a plate glass window and was injured, and that these injuries were caused by negligence on the part of the defendants, in that they (1) failed to provide a safe waiting area for customers; (2) placed the chair on which plaintiff sat in an area not large enough to hold the chair; (3) failed to warn plaintiff of the unsafe condition of the waiting area; (4) used a glass window on the premises which was unsafe in that it was constructed of single plate glass capable of shattering into fragments, and of insufficient strength for the purposes for which it was installed; (5) used a plate glass window without subjecting it to polariscopic examination in attempt to ascertain defects in the glass; (6) permitted chairs to be set against the plate glass window; (7) permitted use of chairs which were not safely constructed; and (8) failed to protect plaintiff from assault by a patron known to be "rowdy and making threatening gestures toward others."
During the discovery deposition of plaintiff, plaintiff testified, in essence, that Allen James, apparently not an employee of any of the defendants, caused the fall in question by pushing plaintiff:
"Q. You didn't feel any contact between you and Allen James?
A. He could have, yes.
Q. Where would the contact have been?
A. It would be right in here.
Q. You are pointing to the left side of your chest?
A. Yes.
Q. About where your pocket is right now, right?
A. Yes.
Q. Could you tell whether he had an open hand or a closed hand?
A. I would say it would have probably been open.
Q. He had never struck you before with a closed fist had he?
A. No sir.
Q. So as best you could tell it was an open hand?
A. Yes sir.
Q. How would you describe the force of that contact between his open hand and your left chest?
A. Well we were pretty close. See it was close you know.
Q. You made a gesture, just kind of a push type gesture?
A. Yes.
Q. Is that the way he did it?
A. Yes sir.
Q. Did he push you forcefully enough to move your body backwards?
A. Yes sir.
Q. To propel you backwards?
A. Yes sir.
Q. And when he did that did you hit some part of the chair?
A. I landed in the chair.
Q. You landed in the chair. So you were half way up as you described and the hand pushed you in the left chest and you went back into the chair, is that what happened?
A. Yes sir. And right on through the window.
Q. And then you just went on back through the window?
A. Yes. Q. Did you go on out of the chair when he pushed you backwards?
A. I was still in the chair when it hit the floor.
Q. When you went through the window you were still in the chair?
A. Still in the chair.
Q. And did his push cause you to lose your balance?
A. I would say so.
* * *
* * *
Q. Now if I understand your answers to the questions on [sic] Mr. Brandon, the chair itself did not give way or have anything to do with the actual accident in and of itself? In other words the chair didn't fail in any way did it?
A. It didn't collapse, no.
* * *
* * *
Q. Actually what caused you to fall was when Allen James pushed you, is that correct?
A. Yes.
Q. And you didn't fall off the ledge or you didn't tip off the ledge, you were getting up in a normal manner and would have gotten up as far as you know had he not pushed you back through the glass, is that correct?
A. That's about the way it goes.
Q. That is correct isn't it?
A. Yes."
After defendants filed motions for summary judgment, plaintiff filed an affidavit in which he stated that Allen James swung at plaintiff as if to hit him, "and may or may not have made actual physical contact with plaintiff" and that plaintiff then fell backwards due to "the narrow ledge the chair was sitting on, the wobbly chair and being startled or pushed by Allen D. James' actions." The court subsequently granted the motions for summary judgment.
In analyzing plaintiff's contentions that summary judgment in favor of defendants Parr, Shell and Smoot should not have been granted, we note initially our agreement with defendants' assertions that plaintiff's admissions in his deposition conclusively establish that neither the condition of the chair itself nor the existence of the ledge in any way contributed to the occurrence of the accident. When admissions in pretrial depositions are deliberate, detailed and unequivocal, they will conclusively bind the party-deponent (Haskell v. Siegmund (1960), 28 Ill.App.2d 1, 11, 170 N.E.2d 393), and we are compelled to conclude that plaintiff's admissions, as quoted above, unequivocally establish that neither the condition of the chair itself nor the fact of the existence of the ledge caused or contributed to his injuries. Moreover, plaintiff's subsequent affidavit did not operate to return to disputed status the facts removed from contention by plaintiff's admissions. Smith v. Ashley (1975), 29 Ill.App.3d 932, 935, 332 N.E.2d 32.
Notwithstanding these admissions on the part of plaintiff, we believe that the court erred in granting summary judgment for defendants. While it appears from plaintiff's deposition testimony that a push from Allen James caused him initially to fall, it does not follow, however, that plaintiff's admissions operated to remove from issue those allegations of negligence concerned with defendants' use of and failure to inspect the plate glass window through which plaintiff fell, or those allegations regarding placement of the chair near the window. Although James's push was certainly a proximate cause of plaintiff's injury, it may not have been the only such cause:
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