Bickerman v. Wosik

• Decision Date: 28 May 1993
• Docket Number: No. 3-92-0780,3-92-0780
• Citation: 245 Ill.App.3d 436,614 N.E.2d 551,185 Ill.Dec. 417
• Parties: , 185 Ill.Dec. 417 Carrie BICKERMAN, Administrator of the Estate of Lawrence E. Bickerman, Deceased, Plaintiff-Appellant, v. John J. WOSIK, Pat Dobbs and Jon, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 551

614 N.E.2d 551

245 Ill.App.3d 436, 185 Ill.Dec. 417

Carrie BICKERMAN, Administrator of the Estate of Lawrence E Bickerman, Deceased, Plaintiff-Appellant, v. John J. WOSIK, Pat Dobbs and Jon, Inc., Defendants-Appellees.

No. 3-92-0780.

Appellate Court of Illinois Third District.

May 28, 1993.

Kevin M. Miller (argued), Law Office of Jay N. Janssen, Peoria, for Carrie Bickerman.

T. Donald Henson (argued), Herbolsheimer, Lannon, Henson, Duncan & Reagan P.C., LaSalle, for John J. Wosik, Pat Dobbs and Jon, Inc.

Justice STOUDER delivered the opinion of the court:

Lawrence Bickerman, the decedent, filed a complaint against the defendants, John Wosik, Pat Dobbs, and Jon, Inc., alleging negligence. The complaint contained the following allegations. On February 10, 1989, Bickerman went to the law office of John Wosik. Wosik had placed a sign on the front door directing patrons to use the rear door. Bickerman entered through the rear door and fell down the basement stairs, incurring injuries. The complaint further alleged that the defendants' premises were in violation of various statutory provisions: section 9 of "An Act relating to the investigation and prevention of fire" (Ill.Rev.Stat.1989, ch. 127 1/2, par. 9), the Code for Safety to Life from Fire in Buildings and Structures, and the BOCA Basic/National Building Code. The complaint alleged, in conclusional fashion, that one or more of those violations directly and proximately caused Bickerman's injuries. Count I of the complaint was directed at John Wosik in his capacity as owner and/or possessor of the premises, Count II was directed against Pat Dobbs as owner of the premises, and Count III was direct against Jon, Inc., alleging it had a possessory interest in the property.

On May 1, 1992, the defendants moved for summary judgment against Bickerman. In their motion, they pointed out that the complaint pled legal conclusions with respect to causation, without a factual predicate supporting those conclusions. They claimed that the discovery depositions of Lawrence and Carrie Bickerman and John Wosik indicated that there were neither eyewitnesses to the fall nor any circumstantial evidence as to what caused the fall.

On May 3, 1992, Bickerman died and his wife, Carrie Bickerman, was substituted as plaintiff. The complaint was amended to add a wrongful death count.

On September 30, 1992, the court granted summary judgment in favor of the defendants. This appeal followed.

The plaintiff argues on appeal that summary judgment for the defendants was improper because the questions of whether the defendants violated certain building codes and whether those violations proximately caused Bickerman's injuries were questions of fact to be decided by the jury. The defendants respond that, even if they did violate certain building codes, summary judgment was nevertheless proper because there was no evidence that those violations proximately caused Bickerman's injuries.

By statute, summary judgment is to be granted when "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 a judgment as a matter of law." (735 ILCS 5/2--1005(c) (West 1992).) Where the evidence before the court in a motion for summary judgment shows that at trial a verdict would have to be directed, summary judgment is proper. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill.2d 580, 272 N.E.2d 497.) The non-movant need not prove his case at the summary judgment stage; he must, however, show a factual basis to support the elements of his claim. (Ralston v. Casanova (1984), 129 Ill.App.3d 1050, 85 Ill.Dec. 76, 473 N.E.2d 444.) Facts, not conclusions, must be presented. (Wilson v. Bell Fuels, Inc. (1991), 214 Ill.App.3d 868, 158 Ill.Dec. 406, 574 N.E.2d 200.) The appropriate standard of review regarding summary judgment is to determine if the trial court properly decided there were no material issues of fact and that the judgment was correct as a matter of law. Johnston v. Tri-City Blacktop, Inc. (1991), 217 Ill.App.3d 388, 160 Ill.Dec. 399, 577 N.E.2d 529.

For the purposes of this appeal, we will address the issue as framed by the defendants: assuming for argument's sake that the defendants did violate certain building codes, was summary judgment nevertheless proper? The plaintiff argues that the building code violations were prima facie evidence of negligence, that the issue then became one of proximate cause, that the issue of proximate cause was for the jury to decide, and that a two-part test for proximate cause was satisfied. The defendants respond that summary judgment was proper because there was no evidence that the alleged building code violations caused Bickerman's injuries. The plaintiff bases almost her entire case on the following statement made by the First District Appellate Court in Shehy v. Bober (1979), 78 Ill.App.3d 1061, 1067, 34 Ill.Dec. 405, 410, 398 N.E.2d 80, 85:

"in personal injury cases where liability is grounded in a statutory or ordinance violation, questions of whether a plaintiff comes within the class of persons intended to be protected by the statute or ordinance and whether the...