Chmielewski v. Kahlfeldt

• Decision Date: 09 December 1992
• Docket Number: No. 2-91-1013,2-91-1013
• Citation: 179 Ill.Dec. 809,606 N.E.2d 641,237 Ill.App.3d 129
• Parties: , 179 Ill.Dec. 809 Michael CHMIELEWSKI, Plaintiff-Appellant, v. George KAHLFELDT, Defendant (Oliver Steinhaus et al., Defendants-Appellees and Third-Party Plaintiffs; Joseph Gudlin et al., Third-Party Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 641

606 N.E.2d 641

237 Ill.App.3d 129, 179 Ill.Dec. 809

Michael CHMIELEWSKI, Plaintiff-Appellant, v. George KAHLFELDT, Defendant (Oliver Steinhaus et al Defendants-Appellees and Third-Party Plaintiffs Joseph Gudlin et al., Third-Party Defendants-Appellees).

No. 2-91-1013.

Appellate Court of Illinois Second District.

Dec. 9, 1992.

Paul B. Episcope, Thomas D. Fazioli, Chicago, for Michael chmielewski.

Jon Yambert, Lindner, Speers & Reuland, P.C., Aurora, Rooks, Pitts & Poust, Wheaton, Alfred S. Vano, Leahy, Eisenberg & Fraenkel, Ltd., Chicago, for George Kahlfeldt and Joseph Gudlin.

Paul O. Watkiss, Leahy, Eisenberg and Fraenkel, Ltd., Chicago.

Justice NICKELS delivered the opinion of the court:

Plaintiff, Michael Chmielewski, appeals from an order of the circuit court of Du Page County which granted summary judgment for defendants, Oliver and Bertha Steinhaus, and third-party defendants, Joseph and Marjorie Gudlin, on plaintiff's complaint for personal injury. Plaintiff's affidavit was also ordered stricken. On appeal, plaintiff claims the trial court improperly struck his affidavit and that a question of fact exists as to whether the alleged defective condition of the stairs was a contributing proximate cause of plaintiff's injuries.

Facts gleaned from the depositions and exhibits show that plaintiff and his mother, Margaret Chmielewski, attended a picnic at the home of Oliver and Bertha Steinhaus on July 4, 1985. The Steinhauses lived at 9020 Lemont Road in Downers Grove, Illinois. While being chased by a German shepherd dog, later determined to be owned by the Gudlins, plaintiff fell on the Steinhauses' concrete steps and injured his knee. Plaintiff is a mentally challenged adult who completed educable mentally handicapped (EMH) classes. When he completed his education, he was at about the third-grade level. Plaintiff has never been declared legally incompetent.

On November 19, 1986, plaintiff filed a complaint against George Kahlfeldt and Oliver and Bertha Steinhaus. In count I plaintiff alleged certain violations of the Animal Control Act (Ill.Rev.Stat.1983, ch. 8, pars. 365, 366) by Kahlfeldt as the owner of a German shepherd dog alleged to have attacked and injured plaintiff on July 4, 1985. The second count directed against the Steinhauses alleged that they negligently allowed the dog to roam unescorted and without control on their property. Subsequently, Steinhauses filed a third-party complaint against Joseph and Marjorie Gudlin alleging that the Gudlins owned the dog and seeking contribution.

Kahlfeldt filed a motion for summary judgment on September 26, 1989, on the basis that his dog was not the animal involved in the incident. The motions included the depositions of plaintiff taken on December 14, 1988, and plaintiff's mother, Margaret Chmielewski, taken on April 4, 1989. Steinhauses filed a motion for summary judgment on October 11, 1989.

Plaintiff was allowed to file an amended complaint on December 18, 1989. Count I again alleged violations of the Animal Control Act by Kahlfeldt. Count II now alleged violations of that act by the Steinhauses. Count III sounded in negligence against the Steinhauses in that they failed to maintain adequately the stairs by allowing loose concrete to remain on them and failed to provide handrails by the stairs.

Since the motions for summary judgment were only filed on counts I and II, the trial court granted summary judgment for Kahlfeldt and Steinhauses on those counts. Plaintiff appealed. In a Rule 23 order (Chmielewski v. Kahlfeldt (2d Dist.1991), No. 2-90-0150 (unpublished order under Supreme Court Rule 23)), this court affirmed the order granting summary judgment for Kahlfeldt and Steinhauses on counts I and II.

Steinhauses filed a third amended third-party complaint against the Gudlins. Count I alleged negligence by Gudlins in allowing their dog to injure plaintiff. Count II alleged violations of the Animal Control Act. Pursuant to Gudlins' motion to dismiss, the court dismissed count II. Count I was allowed to stand, and Gudlins filed an answer on July 12, 1990, admitting ownership of the dog.

On July 1, 1991, Gudlins filed a motion for summary judgment. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005.) Gudlins sought summary judgment based on the depositions of plaintiff and Margaret Chmielewski and argued that the Steinhauses owed no duty to plaintiff and that the stairs were not the proximate cause of plaintiff's injuries but merely a condition. Steinhauses were allowed to join in this motion for summary judgment on July 3, 1991.

Plaintiff filed a response to the motion for summary judgment. The response included an affidavit by plaintiff. The affidavit provided that, after the dog pushed plaintiff, he started to lose his balance, but plaintiff continued to run up the Steinhauses' stairs. When plaintiff's foot went onto a stair, he felt it slip on the loose gravel. As he continued to fall, plaintiff reached out for something to prevent him from falling onto the steps, but there was nothing there. In the last paragraph, plaintiff stated that he believed he hit his knee due to a combination of facts, i.e., running away from the dog; the dog pushing plaintiff making him begin to lose his balance; the loose gravel on the stair making his foot slip; and that plaintiff could not stop the fall by grabbing any handrails.

Gudlins filed a motion to strike the affidavit of plaintiff on the ground that it contradicted facts he had testified to in his deposition. A hearing was held on August 7, 1991, and the motion to strike plaintiff's affidavit was granted. Defendants' (Steinhauses) and third-party defendants' (Gudlins) motion for summary judgment was also granted. The third amended third-party complaint for contribution was found moot. Plaintiff filed a timely notice of appeal.

We first address plaintiff's contention that the trial court erred in striking his affidavit filed in response to defendants' and third-party defendants' motion for summary judgment. A party may not create a genuine issue of material fact by taking contradictory positions, nor may he remove a factual question from consideration just to raise it anew when convenient. (Van's Material Co. v. Department of Revenue (1989), 131 Ill.2d 196, 137 Ill.Dec. 42, 545 N.E.2d 695; Hansen v. Ruby Construction Co. (1987), 155 Ill.App.3d 475, 108 Ill.Dec. 140, 508 N.E.2d 301.) Admissions at pretrial depositions which are so deliberate, detailed and unequivocal, as to matters within the party's personal knowledge, will conclusively bind the party-deponent, and he will not be heard to contradict the admissions at trial. (Van's Material Co., 131 Ill.2d at 212-13, 137 Ill.Dec. 42, 545 N.E.2d 695; Young v. Pease (1983), 114 Ill.App.3d 120, 69 Ill.Dec. 868, 448 N.E.2d 586.) The judicial policy behind this rule, which is well accepted in summary judgment cases, is that once a party has given sworn testimony he should not be allowed to change his testimony to avoid the consequences of his prior testimony. Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill.App.3d 103, 109, 114 Ill.Dec. 360, 516 N.E.2d 515.

Plaintiff claims that defendants did not direct the trial court to an actual clear and unequivocal contradiction in plaintiff's deposition. In support of this statement, plaintiff points out that during the hearing on the motion to strike the affidavit defendants misstated some of the actual questions asked of plaintiff during his deposition. Plaintiff did not object during the hearing to defendants' representation of what the deposition contained, and, therefore, any issue he is attempting to raise thereto is waived. (Rexroat v. Devine (1987), 157 Ill.App.3d 284, 109 Ill.Dec. 624, 510 N.E.2d 492.) Furthermore, defendants' motion for summary judgment as well as plaintiff's response thereto contained pertinent excerpts from plaintiff's deposition so that the trial court was fully aware of the actual questions posed.

At the time plaintiff's deposition was taken, his complaint was based upon violations of the Animal Control Act by Kahlfeldt as owner of the dog alleged to have injured plaintiff and upon the Steinhauses' negligence with respect to Kahlfeldt's dog. Plaintiff correctly points out that he amended his complaint to add count III, premises liability, prior to the trial court's and appellate court's ruling on counts I and II. However, the amendment to the complaint was made after Kahlfeldt filed a motion for summary judgment based on the fact that his dog was not the dog that injured plaintiff. Plaintiff's deposition was taken by Kahlfeldt's attorney and Kahlfeldt is no longer a party to this action.

Defendants first respond that the trial court properly struck the affidavit because plaintiff did not sign it. While defendants acknowledge this issue was never raised before the trial court, the record copy shows the affidavit was not signed. Plaintiff's statement recites that "I, Michael Chmielewski, having been sworn upon oath state." Plaintiff's name appears as the person who took the oath and is an affidavit despite his lack of signature. Manuel v. McKissack (1978), 60 Ill.App.3d 654, 18 Ill.Dec. 66, 377 N.E.2d 219.

In determining whether plaintiff's statements were so unequivocal and deliberate to preclude explanation or contradiction by way of affidavit, we are required to consider his entire deposition, not just isolated portions of it. (Schmall v. Village of Addison (1988), 171 Ill.App.3d 344, 121 Ill.Dec. 452, 525 N.E.2d 258.) Plaintiff's statements must be given a meaning consistent with the context in which they are found. (Schmall, 171 Ill.App.3d at 348-49, 121 Ill.Dec. 452, 525 N.E.2d 258.) The question of equivocalness is a question of law when considering a motion for summary judgment. (Hansen, 155 Ill.App.3d at 480, 108 Ill.Dec. 140, 508 N.E.2d 301.) After reviewing plaintiff's entire deposition, we find that plaintiff's testimony was unequivocal...