Gehrman v. Zajac

• Decision Date: 14 November 1975
• Docket Number: No. 61805,61805
• Citation: 34 Ill.App.3d 164,340 N.E.2d 184
• Parties: Robert P. GEHRMAN, Plaintiff-Appellant, v. Max ZAJAC and Tessie Zajac, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 184

340 N.E.2d 184

34 Ill.App.3d 164

Robert P. GEHRMAN, Plaintiff-Appellant, v. Max ZAJAC and Tessie Zajac, Defendants-Appellees.

No. 61805.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 14, 1975.

Heller & Morris, Torshen, Fortes & Eigher, Ltd., Chicago, for plaintiff-appellant; Jerome H. Torshen, Maria A. Skirnick, Chicago, of counsel.

Taylor, Miller, Magner, Sprowl & Hutchings, Chicago, for defendants-appellees; James J. Hoffnagle, Philip G. Heitz, Chicago, of counsel.

LORENZ, Justice.

Plaintiff appeals from the entry of a summary judgment in defendants' favor in a suit for peronal injuries arising from his fall on a piece of ice at defendants' apartment building. On appeal, he contends: (1) that the trial court erred when it found that there was no genuine issue of material fact presented by his complaint and deposition, and (2) that a lessor should be required to keep the common areas free from natural accumulations of ice and snow.

Plaintiff's complaint alleged that: defendants owned a certain apartment building; he was a tenant thereof; there was a common entrance way to the building; defendant had a duty to keep it in a safe condition; on Juanary 30, 1970, plaintiff slipped and fell on the step at the entrance way despite his due care and caution; defendants negligently allowed ice to accumulate on the step or negligently failed to remove it; and he was injured as a direct result of the fall.

Defendants' answer denied, Inter alia, that they had the stated duty under Illinois law and that they were in any way guilty of the stated acts or omissions.

On November 15, 1974, defendants filed their motion for summary judgment based upon plaintiff's complaint and deposition.

Plaintiff's deposition, in pertinent part, stated that he was returning home from work after stopping at a pool hall where he had consumed approximately three beers. He arrived at defendants' building at about 1:30 A.M. It was neither snowing, misting, nor sleeting at the time, and the sidewalk was clear of ice and snow. The step at the outside door of the building was approximately eight to twelve inches high and appeared to be free of ice and snow. As he placed his right foot on the step, the foot slipped on a piece of ice. He grabbed for the door and came down on his left ankle. From ground level, he could see 'a partial piece of ice' on the step. There were no witnesses. No drain pipes drained on the step. When asked if anything else could have accounted for the piece of ice, plaintiff suggested the possibility of the freezing of mud or snow dripping from the boots of people entering the building.

The trial court granted defendants' motion for summary judgment on January 31, 1975 and this appeal followed.

OPINION

Plaintiff first contends that the trial court erred when it found that there was no genuine issue of material fact presented by his complaint and deposition. Section 57(3) of the Civil Practice Act provides that summary judgment is appropriate '* * * 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 * * *.' (Ill.Rev.Stat.1973, ch. 110, par. 57(3).) While plaintiff is not required to prove his case at this preliminary stage, he is under a duty to present some factual basis that would arguably entitle him to a judgment under the applicable law. Plaintiff had the duty to affirmatively show that the origin of the ice was unnatural or caused by defendants. (See, Riccitelli v. Sternfeld, 1...