Shoemaker v. Rush-Presbyterian-St. Luke's Medical Center

• Decision Date: 29 August 1989
• Docket Number: RUSH-PRESBYTERIAN-ST,No. 1-88-2919,1-88-2919
• Citation: 187 Ill.App.3d 1040,135 Ill.Dec. 446,543 N.E.2d 1014
• Parties: , 135 Ill.Dec. 446 Sharon SHOEMAKER, Plaintiff-Appellant, v.LUKE'S MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1014

543 N.E.2d 1014

187 Ill.App.3d 1040, 135 Ill.Dec. 446

Sharon SHOEMAKER, Plaintiff-Appellant, v. RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant-Appellee.

No. 1-88-2919.

Appellate Court of Illinois First District, Second Division.

Aug. 29, 1989.

Emory Andrew Tate & Assoc., Ltd., Chicago (Robert L. Schroeder, of counsel), for plaintiff-appellant.

Davis, Barnhill & Galland, Chicago (George F. Galland, Jr. and Paul Strauss, of counsel), for defendant-appellee.

Justice DiVITO delivered the opinion of the court:

Plaintiff-appellant, Sharon Shoemaker, appeals from an order of the circuit court granting defendant-appellee, Rush-Presbyterian-St. Luke's Medical Center ("Rush"), summary judgment in a personal injury action. She contends that the circuit court erred in: (1) not affording her sufficient time to answer the motion for summary judgment; (2) granting summary judgment where a genuine issue of fact existed; and (3) granting summary judgment despite Rush's duty to prevent injury caused even by natural accumulations of water in its building.

Plaintiff's left leg had been amputated just below the knee in June 1984. In August 1984, she had been fitted for a prosthesis. In September 1984, she was a graduate nursing student at Rush.

On September 29, 1984, at about noon, plaintiff entered one of Rush's buildings, the Professional Building. On that day, she was not wearing her prosthesis, but was walking with the aid of crutches. She took the elevator to the fourth floor of the Professional Building. As she exited the elevator, she put her crutches on the floor inside the elevator and her foot on the floor outside the elevator. When she put her crutches down the next time on the floor outside the elevator, the left crutch went out from under her and she fell and struck her stump causing the injury which gave rise to this lawsuit.

Plaintiff was deposed on November 6, 1987. She stated that it had been raining on the day of the accident from the time she left her home in the morning. She had fallen four hours earlier, in another location, due to the accumulation of water. She noticed that the sidewalks were wet, that people were tracking water into Rush's building, and that they were shaking off their coats and umbrellas inside the building. Plaintiff recalled that the floor of the elevator was wet. She described the floor where she fell as either "linoleum or polished concrete or something." She stated that there was a small lobby in front of the elevators which was wet. She described the water on which she fell as "little puddles, sprinkles, anywhere from half an inch wide to two inches wide." She stated that if there was a handrail outside the elevator, she would not have used it.

A motion for summary judgment, pursuant to Section 2-1005 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1005), was filed by Rush on March 30, 1988. Copies of pertinent portions of plaintiff's deposition, the complaint, and an affidavit of the building operator for the Professional Building were attached to the motion. The building operator stated that no nursing classes occurred in the building; that no rehabilitation facilities were located within the premises, such that it would be likely that a person would walk in on crutches or use prosthetic devices; and that there were handrails along the hallways.

On August 25, 1988, the circuit court considered the briefs and evidentiary material which had been filed and heard argument on the motion. The court then granted Rush's motion for summary judgment. In rendering its decision, the trial court found that the facts were not in dispute and that "no duty was owed to this plaintiff by this defendant to remove the natural accumulations of water upon which she slipped."

It is from this order that on August 26, 1988, plaintiff appealed to this court.

I

Arguing that the motion was insufficient as a matter of law, plaintiff initially filed a motion to strike the motion for summary judgment. Plaintiff argues that after the trial court denied her motion to strike, it should have then allowed her an opportunity to answer the motion. Rush maintains the trial court gave plaintiff more than ample opportunity to contest the motion for summary judgment.

The record shows that plaintiff was afforded sufficient opportunity to respond to the motion for summary judgment. Rush filed its motion for summary judgment on March 30, 1988. Plaintiff filed her motion to strike based on legal insufficiency, on June 2, 1988. On June 20, 1988, the court denied plaintiff's motion to strike. On the same day, the record shows that the court explained that if plaintiff's basis for opposing the summary judgment was due to its legal insufficiency and if she were relying upon facts not in the record, then she was to file counter-evidentiary material under Section 2-1005 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-1005.) Pursuant to plaintiff's request for leave to file a supplemental answer, the court granted her, in accordance with Section 2-1005, any time up until August 25, 1988, the date the court set for arguments concerning the motion for summary judgment. The record indicates that no supplemental material was filed by plaintiff.

Plaintiff failed to file anything which might show a triable issue. She was given adequate opportunity to do so. The trial court therefore did not err when it granted summary judgment for Rush when no counteraffidavits nor counter-evidentiary material were filed by plaintiff. The circuit court followed correct procedures in determining whether there was any genuine issue of material fact.

II

Plaintiff contends that the trial court erred when it entered summary judgment in favor of Rush when there was a genuine issue of fact concerning whether the accumulation of water upon which she fell was natural in origin. She argues that Rush's motion for summary judgment was insufficient as a matter of law because Rush failed to establish that the origin of the water was in fact a natural accumulation of water tracked in from outside. For the first time on appeal, plaintiff suggests that the accumulation of water described in her deposition may have been the result of some maintenance procedure, and not from the rain dripping off of persons' umbrellas, coats, and other articles.

In response, Rush contends that the trial court correctly based its decision about the source of the water from the evidentiary material before the court, especially plaintiff's own deposition in which she described the circumstances surrounding her fall. Rush asserts that the court properly concluded that the water was rainwater tracked in by pedestrians. Moreover, Rush argues that plaintiff has waived her current argument of "other causes" because she did not raise it in the trial court.

In order to recover as a consequence of a fall on ice, snow, or water, plaintiff must establish that the accumulation was unnatural in origin and was created directly or indirectly by Rush. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill.App.3d 533, 535, 116 Ill.Dec. 945, 519 N.E.2d 1160, citing Galivan v. Lincolnshire Inn (1986), 147 Ill.App.3d 228, 229, 101 Ill.Dec. 18, 497 N.E.2d 1331; See also, Lohan v. Walgreens Co. (1986), 140 Ill.App.3d 171, 94 Ill.Dec. 680, 488 N.E.2d 679; Gilberg v. Toys "R" Us Inc. (1984), 126 Ill.App.3d 554, 81 Ill.Dec. 825, 467 N.E.2d 947; McCann v. Bethesda Hospital (1980), 80 Ill.App.3d 544, 35 Ill.Dec. 879, 400 N.E.2d 16.) While plaintiff need not prove her case at the summary judgment stage, she is required to come forward with some evidentiary facts or material to show that the water upon which she slipped was of unnatural origin. (Bedeker v. School Dist. No. 40 (1981), 92 Ill.App.3d 618, 48 Ill.Dec. 173, 416 N.E.2d 68; Gehrman v. Zajac (1975), 34 Ill.App.3d 164, 340 N.E.2d 184; Byrne v. Catholic Bishop (1971), 131 Ill.App.2d 356, 266 N.E.2d 708.) In the absence of such a showing, summary judgment for defendant is appropriate since the court owes no duty to reason some remote factual possibility. Gilberg v. Toys "R" Us Inc., 126 Ill.App.3d 554, 558, 81 Ill.Dec. 825, 467 N.E.2d 947.

This court is bound to take cognizance of and consider only those issues which are supported by the record. (Rasky v. Dept. of Registration & Education (1980), 87 Ill.App.3d 580, 586, 43 Ill.Dec. 69, 410 N.E.2d 69, appeal dismissed (1981), 454 U.S. 806, 102 S.Ct. 78, 70 L.Ed.2d 75.) While plaintiff is correct in her assertion that summary judgment should not be granted if documents on file show that there is a genuine issue as to material fact (Burnley v. Moore (1963), 41 Ill.App.2d 156, 190 N.E.2d 141), there is no evidence in the record, including the memorandum that was filed in the trial court by plaintiff, that shows that "other maintenance procedures" possibly caused the water on the fourth floor.

The only evidentiary materials in the record are the depositions of plaintiff and the building operator. The trial court based its decision on plaintiff's own description of the circumstances surrounding the fall. There is no evidence in the record that would allow a factfinder to find that the water upon which plaintiff slipped was of unnatural origin. Therefore, there was no genuine triable issue of material fact. Summary judgment was correctly granted.

III

Plaintiff relies upon the factors set forth in Lance v. Senior (1967), 36 Ill.2d 516, 224 N.E.2d 231, in arguing that the circuit court should have held that Rush had a duty to remove even natural accumulations of water: (1) whether the occurrence or accident was foreseeable; (2) the likelihood of injury; (3) the magnitude of...