McCullough v. Gallaher & Speck

CourtUnited States Appellate Court of Illinois
Citation254 Ill.App.3d 941,627 N.E.2d 202,194 Ill.Dec. 86
Decision Date29 September 1993
Docket NumberNo. 1-92-2258,1-92-2258
Parties, 194 Ill.Dec. 86 Fate McCULLOUGH, Plaintiff-Appellant, v. GALLAHER & SPECK, Defendant-Appellee.

Joseph P. Sorce of Goldberg, Weisman & Cairo, Ltd., Chicago, for plaintiff-appellant.

Karen E. Lundgren, James J. DesVeaux, Law Offices of James J. DesVeaux, Chicago, for defendant-appellee.

Justice GREIMAN delivered the opinion of the court:

In this personal injury action arising from an accident on a manlift at a parking garage, plaintiff Fate McCullough appeals the trial court's order granting summary judgment to defendant Gallaher & Speck.

On appeal, plaintiff asserts that (1) numerous issues of material fact remain regarding the operation of a switch on the manlift so as to preclude the entry of summary judgment in favor of defendant; (2) the trial court erred in considering an issue which was not raised in defendant's summary judgment motion; and (3) the trial court improperly applied the directed verdict standard rather than the summary judgment standard.

We find that genuine issues of material fact exist so that summary judgment should have been denied. Thus we reverse in part on the issues preserved on appeal and affirm in part the trial court's order granting summary judgment in favor of defendant.

Plaintiff was employed at a multi-level parking garage known as Tremont Auto Park at Lake and Dearborn Streets in Chicago. A manlift was used by the parking garage employees referred to as hikers to retrieve parked cars. A manlift is a vertical conveyor belt that operates continuously to transport car hikers to and from the various levels of the parking garage. To board the manlift, a hiker grabs onto a handle located on the manlift and steps onto a protruding step. When the manlift arrives at the desired floor, the hiker steps off the manlift which continues to move.

The split rail switch, also known as the step switch, is a safety device which operates to shut off the manlift when a rider is still standing on the manlift step after it has risen above the top floor. The split rail switch is only activated when weight bears on the manlift step at the designated location. A split rail switch is located on the manlift just above the top floor of the parking garage. If weight is exerted on the manlift as it passes this switch, the switch should automatically cause the manlift to stop.

On the night of January 4, 1985, plaintiff stepped off the manlift and his jacket then caught on something causing him to be carried over the top of the manlift. Upon release from the manlift, plaintiff landed on the opposite side of the platform and sustained injuries. No one witnessed this accident so there are no other accounts of the incident.

Plaintiff filed an eight-count first amended complaint against several defendants. Following various rulings by the trial court, the sole remaining defendant is Gallaher & Speck, the present defendant on appeal.

At all relevant times, defendant was in the business of installing, servicing, inspecting and repairing manlifts. Defendant installed the manlift at the parking garage about November of 1960 or in 1961 and at all times thereafter maintained it pursuant to a service contract with Tremont Auto Park.

Plaintiff alleged in his first amended complaint that defendant had failed to inspect the manlift, allowed the emergency stop cord to remain in a non-functional state, failed to provide a grab bar or safety net, permitted the treads to wear on the steps and failed to warn plaintiff of the dangerous condition of the manlift or to provide plaintiff with adequate supervision and instructions. Additionally, plaintiff alleged that defendant "failed to properly operate and maintain the upper split rail switch safety device in functional working order."

Although some of these issues were raised initially on appeal, plaintiff, in his appellate brief, only advances arguments regarding the split rail switch. Accordingly, he has waived consideration of any other allegations or issues under Supreme Court Rule 341(e)(7). (134 Ill.2d R. 341(e)(7).) Rule 341(e)(7) provides that

"(7) * * * Points not argued [in appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."

In addition to the parties' pleadings, the record includes the depositions of plaintiff, Jerry Hill (the former day manager of the parking garage), Morton Siet (the former general manager of the parking garage), Leonard Tamras (an elevator maintenance man for defendant), and Robert Zemar (a maintenance supervisor for defendant). The record also contains a nine-page excerpt from the deposition of plaintiff's expert, Ronald Lobodzinski, but this court's use or consideration of these excerpts is disputed.

The deposition testimony reveals that the step switch sometimes was rendered inoperable either by icing problems or by manually overriding the function of the switch. Ice sometimes accumulated on the step switch, causing the switch to become inoperable, and then the parking garage employees would use a large heater to melt the ice to re-activate the step switch.

In his deposition, plaintiff stated that he was employed as a hiker and cashier by the parking garage for at least two years before the accident. In recounting the events of the accident, plaintiff testified that, while alone, he stepped onto the manlift to ride to another floor and when he arrived at the desired floor, stepped off the manlift with both feet on the floor. The front right side of his jacket then caught onto something that pulled him up. Plaintiff stated that his feet were not on the step of the manlift. Plaintiff went over the top of the machine and then fell to the same floor he had sought to step off, landing on both legs approximately one inch from the manlift. The manlift continued to run. Plaintiff cannot precisely describe what snared his jacket and cannot state if it was the manlift itself or something else.

Defendant filed a motion for summary judgment asserting in relevant part that the proximate cause of plaintiff's injuries was not the alleged malfunctioning of the split rail switch or the alleged negligence on the part of defendant in inspecting the manlift. Defendant argued that no evidence was presented that the weight of plaintiff was on the manlift step so any malfunction of the split rail switch could not have been proved to be the proximate cause of plaintiff's injuries. In addition, defendant maintained that no circumstantial evidence sufficient to show that the step caught the plaintiff's jacket was provided. Thus, defendant contended that the evidentiary conclusion that the alleged defect in the split rail switch caused plaintiff's injuries would require pure speculation, surmise and conjecture.

In his response to defendant's motion for summary judgment, plaintiff argued that the evidence does not merely infer possibilities but strongly suggests that the only part of the manlift that could have snared, lifted and carried plaintiff was the step platform. Plaintiff attached his affidavit in which he attested that when he stepped off the manlift on the top floor landing, he was about six inches from the steps of the manlift when his jacket hooked onto something and he was carried up and over the top of the manlift by his jacket. Although he could not see exactly what snared his jacket, plaintiff stated that the edges of the manlift steps were at least 15 inches closer to him than any other moving part of the manlift and his "jacket was not stuck or otherwise caught in the belts or gears of the manlift." The manlift steps are double-tiered metal platforms with sharp, squared edges and are at least 15 inches in depth. Plaintiff then declared that "the only moving part that could have snared my jacket was the upward moving step of the manlift."

Plaintiff suggests that his affidavit and the circumstances surrounding the accident created an issue of material fact as to whether defendant maintained the split rail switch in working order because weight on the manlift step is designed to trigger the split rail switch to shut off the manlift.

In its reply to plaintiff's response to its motion for summary judgment, defendant asked the trial court to strike plaintiff's affidavit as directly contradictory to his prior deposition testimony. The trial court, however, never ruled on this issue.

Defendant also contended that plaintiff failed to meet his burden of making a prima facie case of negligence because he failed to show that the split rail switch was the proximate cause of plaintiff's injuries. Defendant argued that absent plaintiff's affidavit, plaintiff failed to provide any evidence that he was carried over the manlift by one of the steps. Alternatively, if plaintiff's affidavit was considered, the evidence relating to the proximity of plaintiff to the alleged defect is not sufficient and too ambiguous upon which to predicate proximate cause.

On April 21, 1992, the trial court granted summary judgment for defendant finding that defendant had no duty to provide the manlift with a grab bar, safety net or other such device, to warn plaintiff, or to provide plaintiff with adequate supervision, instructions or directions. The trial court also found that the allegations regarding the non-slip treads and the emergency stop cord had no basis in fact and plaintiff failed to raise any issue of fact as to such allegations. Lastly the trial court found:

"that no triable issue of fact exists as to the maintenance of the step switch and any argument or inferences regarding such step switch are too remote, speculative and conjectural to allow submission to the trier of fact."

Thereafter the trial court denied plaintiff's motion to reconsider and plaintiff filed this appeal.

On appeal, plaintiff relies on his deposition testimony, his...

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  • In re Dann
    • United States
    • United States Appellate Court of Illinois
    • 20 Julio 2012
    ...for consideration in deciding the initial summary judgment motion or the motion to reconsider. See McCullough v. Gallaher & Speck, 254 Ill.App.3d 941, 947, 194 Ill.Dec. 86, 627 N.E.2d 202 (1993). Barsella's January 6, 2009, deposition was not attached to any of the parties' submissions at t......
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