Housh v. Swanson

• Decision Date: 25 September 1990
• Docket Number: No. 2-90-0124,2-90-0124
• Citation: 561 N.E.2d 321,149 Ill.Dec. 43,203 Ill.App.3d 377
• Parties: , 149 Ill.Dec. 43 Zona HOUSH, Plaintiff-Appellant, v. Karen SWANSON, Defendant-Appellee (Wesley Keown, Defendant).
• Court: United States Appellate Court of Illinois

Page 321

561 N.E.2d 321

203 Ill.App.3d 377, 149 Ill.Dec. 43

Zona HOUSH, Plaintiff-Appellant, v. Karen SWANSON, Defendant-Appellee (Wesley Keown, Defendant).

No. 2-90-0124.

Appellate Court of Illinois,

Second District.

Sept. 25, 1990.

John Munday, Lane & Munday, Frank Leonard LaPort, Frank Leonard LaPort & Assoc. Ltd., Chicago, for Zona Housh.

Craig S. Mielke, Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, H. Case Ellis, Ellis & McNerney, Crystal Lake, for Karen Swanson.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Zona Housh, appeals from an order of the circuit court of Kane County granting the motion of defendant, Karen Swanson, for summary judgment. We note here that another defendant, Wesley Keown, is not a party to this appeal. Plaintiff raises two issues on appeal: (1) whether defendant established that the alleged defect in the leased premises was not the proximate cause of plaintiff's injury; and (2) whether defendant established that the alleged defect was not a latent defect.

Plaintiff filed a two-count second amended complaint alleging that plaintiff suffered permanent injuries when she fell from a balcony on September 27, 1986. Count I of the complaint alleged that the fall resulted from the negligence of Wesley Keown, the lessee of the premises. Count II of the complaint was directed at defendant and alleged that she was the owner of the premises and had a duty to exercise ordinary care and caution in the management, maintenance and control of the premises.

Plaintiff further alleged that defendant was negligent in that she failed to install guardrails along the balcony; failed to warn plaintiff of the dangerous condition of the balcony; placed an antenna wire on the floor of the balcony; failed to remove the loose antenna wire; failed to warn plaintiff of the loose antenna wire; and failed to inspect the premises. Plaintiff alleged that the defective condition of the balcony, caused in part by the existence of the loose antenna wire, was a latent defect unknown to plaintiff and Keown which defendant knew or should have known existed.

Defendant filed a motion for summary judgment and incorporated therein the transcripts of the depositions of both plaintiff and Keown. The depositions established the following facts. Keown leased the premises in 1983. The leased premises consist of a single-family house, and Keown rented the entire building. Plaintiff moved in with Keown approximately one year prior to the accident. Defendant took care of the major repair work to the house and inspected the house at least once every year.

The house has a deck area off a second-story bedroom. The door to the deck area had been sawed in half, and Keown nailed the bottom half of the door shut. The deck area is made of some kind of black substance, probably roofing material, and is not a wood deck. There is no railing around the deck area. Keown and plaintiff used the deck area to lie in the sun and to sit out and listen to the radio. Both Keown and plaintiff were aware that there was no railing. Under normal conditions, they were never close to the edge. Plaintiff stated that she had probably been out on the deck more than 50 times. Neither Keown nor plaintiff had ever complained to defendant about the lack of a railing, and defendant never promised to put a railing around the deck area. Plaintiff did not know if defendant knew that they used the deck area for sitting out. Keown performed any maintenance work on the deck, including sweeping off acorns and leaves.

There were also two antennae wires right above that area. One wire went to one side of the house and one wire was just free, hanging. To Keown's knowledge, the wire had never been attached to anything. It was not in use because they have cable television. The wind would sometimes catch the wire and blow it around. Keown stated that the piece of wire had been there since he moved into the house and that he never gave it much thought. Keown and plaintiff never complained to defendant about the antenna wire, and defendant never promised to do anything about the wire.

On the night of the accident, Keown thought he heard prowlers and, a little after 2 a.m., went out on the deck area to investigate. Plaintiff followed him onto the deck. Both Keown and plaintiff stated that there was no lighting on that side of the house. There was no moon that night. It was dark and the edge of the deck was not visible. Keown went up on the peaked part of the roof to get a better look. When he came down, plaintiff was not on the deck. Keown found her on the ground in back of the house. At the time he found her, she had part of the antenna wire wrapped around her legs.

Plaintiff stated that she did not recall ever noticing or seeing the antenna wire on the deck area. She does not remember falling the night of the accident and does not remember what caused her to fall.

The trial court granted defendant's motion for summary judgment stating, in a written order, that the alleged "latent defect" was, in fact, open and obvious and that, further, there was no proximate cause between the alleged defect and the injury. This appeal followed.

Plaintiff argues that defendant's motion for summary judgment should not have been granted because defendant did not establish that there was no proximate cause between the alleged defect in the leased premises and plaintiff's injury and because defendant did not establish that the alleged defect was not a latent defect.

Plaintiff contends that, even though she does not remember what caused her to fall, there was sufficient circumstantial evidence to raise a genuine issue of material fact as to the proximate cause of the fall. This is because Keown's deposition testimony established that plaintiff had part of the antenna wire wrapped around her legs when he found her on the ground. We agree.

Summary judgment should be granted only 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." (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill.2d 121, 130, 142 Ill.Dec. 192, 552 N.E.2d 783.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) In making this determination, a court must construe the pleadings, depositions, admissions, exhibits and affidavits on file "strictly against the movant and liberally in favor of the opponent" and enter a summary judgment "only when the right of the moving party is clear and free from doubt." Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

The facts in this case, which are established by the deposition transcripts attached to the motion for summary judgment, are not in dispute. The only dispute is in the inferences to be drawn from these facts.

Defendant argues, correctly, that liability cannot be predicated upon surmise or conjecture as to the cause of injury and that proximate cause can be established only when there is a reasonable certainty that the defendant's acts caused the injury. (Vance v. Lucky Stores, Inc. (1985), 134 Ill.App.3d 166, 168, 89 Ill.Dec. 281, 480 N.E.2d 167.) It is also true that the mere possibility of a causal connection is insufficient to raise the requisite inference of fact. (N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill.App.3d 1066, 1077, 143 Ill.Dec. 694, 554 N.E.2d 629.) Defendant contends that proximate cause cannot be established in this case because plaintiff has admitted that she does not know what caused her to fall.

Assuming, for purposes of this discussion, that the presence of the antenna wire can be attributable to negligence on the part of defendant, it is our conclusion that the antenna wire cannot be excluded as a proximate cause of plaintiff's injuries as a matter of law. "Negligence may be established by using either direct or circumstantial evidence." (Mort v. Walter (1983), 98 Ill.2d 391, 396, 75 Ill.Dec. 228, 457 N.E.2d 18.) Circumstantial evidence is the proof of facts and circumstances from which a jury may infer other connected facts which usually and reasonably follow, according to the common experience of mankind. (Pace v. McClow (1983), 119 Ill.App.3d 419, 423-24, 75 Ill.Dec. 836, 458 N.E.2d 4.) The "use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion." (Mort, 98 Ill.2d at 396, 75 Ill.Dec. 228, 457 N.E.2d 18.) "Instead circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom [citations], and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed." (Mort, 98 Ill.2d at 396-97, 75 Ill.Dec. 228, 457 N.E.2d 18.) The inquiry here then is whether plaintiff presented sufficient circumstantial evidence to raise a genuine issue of material fact as to whether the antenna wire caused her injuries.

A reasonable inference to be drawn from the uncontradicted fact that a part of the antenna wire was wrapped around plaintiff's legs when she was found on the ground after the fall is that plaintiff came in contact with the wire immediately before her fall. It is therefore reasonable to infer that the wire could have caused the fall. (Cf. Snell v. Village of University Park (1989), 185 Ill.App.3d 973, 977, 134 Ill.Dec. 49, 542 N.E.2d 49 (no evidence that decedent or her bicycle came into contact with allegedly defective curb).) The cases cited by defendant in support of her position are distinguishable. The cases all dealt with situations where there was no proof of contact between the plaintiff and the allegedly defective condition. (See Vance v. Lucky Stores,...