Ruby v. Wayman

• Decision Date: 25 September 1968
• Docket Number: Gen. No. 68--32
• Citation: 99 Ill.App.2d 146,240 N.E.2d 699
• Parties: Ruth L. RUBY, Appellant, v. Willard F. WAYMAN, d/b/a Wayman's Ace Hardware, Appellee.
• Court: United States Appellate Court of Illinois

Page 699

240 N.E.2d 699

99 Ill.App.2d 146

Ruth L. RUBY, Appellant, v. Willard F. WAYMAN, d/b/a Wayman's Ace Hardware, Appellee.

Gen. No. 68--32.

Appellate Court of Illinois, Second District.

Sept. 25, 1968.

Roger W. Hayes, DeKalb, for appellant.

Popejoy, Bowman, Unverzagt & Nelson, Wheaton, for appellee.

DAVIS, Justice.

The plaintiff, Ruth L. Ruby, brought suit against the defendant, Willard F. Wayman, d/b/a Wayman's Ace Hardware, to recover for injuries she sustained while an invitee in his store. The trial court granted the defendant's motion for summary judgment, and the plaintiff appealed.

The plaintiff entered the defendant's store to pay her utility bill and to purchase some wire. While following the defendant to the rear of the store to get the wire, she fell over a laundry cart or basket, which the defendant had placed in the aisle, and was thereby injured. Both the plaintiff and the defendant agree that the question before this court is whether it was proper to determine under a motion for summary judgment that the plaintiff was guilty of contributory negligence as a matter of law. They also agree that the trial court entered summary judgment on the ground that the plaintiff was guilty of contributory negligence as a matter of law, and that the defendant's negligence and its causal connection to the accident is not an issue in this appeal.

The trial court, in passing upon the motion for summary judgment, had before it the pleadings, the plaintiff's deposition, the affidavit of the defendant's attorney and the plaintiff's counteraffidavit. The affidavit of the defendant's attorney consisted primarily of excerpts of those portions of the plaintiff's deposition which the defendant believed significant to support his motion.

The plaintiff testified in her deposition that she noticed the cart ahead of her in the aisle as she was proceeding to the back of the store. It was on the right-hand side of the aisle, which was about four feet wide. As she approached the laundry cart, she walked toward her left to go around it, but her right foot tripped over a protruding cart leg. She described the laundry cart as a folding unit with an aluminum frame and legs and which would crisscross when open. It was about thirty inches high and two feet square. She had not noticed any other carts in the aisle and did not know why this cart had been placed there. On previous occasions when in the store, she had not noticed, or was not aware, that any carts were in the aisle.

In her counteraffidavit, the plaintiff stated that she was intent upon following the defendant to the rear of the store at the time of the accident (he was walking slightly ahead of her in another aisle); and that she did not notice that the legs of the cart protruded as far as they did. In her deposition she described the details of the laundry cart with reference to what she saw as she was lying on the floor after the accident, and not from her observations of the cart as she approached it; and stated that all that she noticed prior to the accident was 'some object' in the aisle, which she swerved to avoid.

The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill.Rev.Stat.1967, ch. 110, par. 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to pre-empt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Solone v. Reck, 32 Ill.App.2d 308, 310, 311, 177 N.E.2d 879 (1961); Tezak v. Cooper, 24 Ill.App.2d 356, 362, 363, 164 N.E.2d 493 (1960).

Section 57 provides that a summary judgment should be rendered 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 and that the moving party is entitled to a judgment or decree as a matter of law.'

Courts have construed this section to mean that in determining if there is a genuine issue, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts, then a triable issue exists. Peirce v. Conant, 47 Ill.App.2d 294, 300, 198 N.E.2d 555 (1964).

In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra 32 Ill.App.2d 311, 177 N.E.2d 879. A summary judgment should then be granted where the moving party's right thereto is clear and free from doubt. Palier v. Dreis & Krump Mfg. Co., 47 Ill.App.2d 334, 338, 198 N.E.2d 521 (1964); Solone v. Reck, supra 32 Ill.App.2d 310, 177 N.E.2d 879.

Applying these principles, we believe that the trial court should not have granted a summary judgment in favor of the defendant. The only function of the court, when presented with a motion for...