Trotter v. Anderson

• Decision Date: 03 November 1969
• Docket Number: No. 17414.,17414.
• Citation: 417 F.2d 1191
• Parties: Ray TROTTER, Plaintiff-Appellant, v. Alice ANDERSON, Mary Saviano, Charles Zak and Hilda Zak, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

417 F.2d 1191 (1969)

Ray TROTTER, Plaintiff-Appellant, v. Alice ANDERSON, Mary Saviano, Charles Zak and Hilda Zak, Defendants-Appellees.

No. 17414.

United States Court of Appeals Seventh Circuit.

November 3, 1969.

Alvin R. Becker, Alvin W. Block, Stephen Levy, Chicago, Ill., for Ray Trotter, plaintiff-appellant.

John J. O'Malley, John A. Hutchings, James J. Hoffnagle, Ronald A. Drumke, Chicago, Ill., for Alice Anderson, defendant-appellee.

Before CASTLE, Chief Judge, SWYGERT and CUMMINGS, Circuit Judges.

SWYGERT, Circuit Judge.

This diversity action was brought by Ray Trotter, an Alabama resident, against Alice Anderson, Mary Saviano, Charles Zak and Hilda Zak, all residents of Illinois. The complaint sought damages for injuries resulting to plaintiff when he fell down the basement stairs of a cooperative apartment building owned and maintained by the defendants. Only Alice Anderson and Charles Zak answered the complaint.

Subsequently Alice Anderson and Charles Zak filed a motion for summary judgment based upon the plaintiff's testimony at his discovery deposition as well as five photographic exhibits of the premises in question and supporting affidavits. The district court granted defendants' motion, holding plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appeals contending that summary judgment was improper in this case because of the existence of a genuine issue of material fact.

In 1965 the Trotter family spent the Christmas holiday with plaintiff's brother-in-law, James McCombs, a tenant in defendants' building located in Skokie, Illinois. At about midnight on December 25, Trotter began to load his station wagon for the journey back to Alabama the next morning. McCombs, who had helped unload the car, told plaintiff that he had placed Trotter's luggage cap (a cover used to protect luggage carried on top of plaintiff's station wagon) in the basement of the building. The plaintiff, who had never been in the basement before, was told by McCombs or another brother-in-law, Tommy Jennings, that the light switch controlling the basement was located at the bottom of the basement stairs.

The information given plaintiff concerning the location of the light switch was incorrect. Inside the front entrance of defendants' building was a foyer which led to McCombs' apartment as well as to the basement stairway. The accident occurred on the basement stairway which was illuminated by an overhead electric light controlled by two switches. One switch was at the bottom of the basement stairs and another was located at the top of the stairs in the foyer just to the left of the front door.

A light was on in the foyer as Trotter started toward the basement. Through the basement door, which was slightly ajar, plaintiff concluded that the basement light was off because "it was dark." Trotter did not look for a light switch in the foyer or immediately inside the basement door. After descending two or three steps plaintiff fell down the remaining stairs. Shortly thereafter McCombs came to Trotter's aid. All parties agree that plaintiff was not intoxicated at the time, that none of the stairs was broken, and that there was no water or foreign matter on the stairs.

In Illinois, the defendant in a tort action is entitled to judgment at trial if the plaintiff fails to prove his freedom from negligent conduct causally contributing to his injury. Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968). Summary judgment for a defendant is proper under Fed.R.Civ.P. 56(c) if the pleadings, depositions, and affidavits fail to disclose a genuine issue of material fact and if, on the uncontested facts, a plaintiff is guilty of contributory negligence as a matter of law. The issue of contributory negligence is ordinarily not susceptible to summary adjudication and generally should be resolved in the ordinary manner at trial. See 6 J. Moore, Federal Practice, ¶ 56.17 42 at 2583 (2d ed. 1968) and the cases cited at note 4 therein. The defendant is faced with a heavy burden in establishing the absence of a genuine factual dispute. In deciding whether there is an issue of material fact, all doubts must be resolved against the party asking for a summary judgment. Cox v. American Fidelity & Casualty Co., 249 F.2d 616, 619 (9th Cir. 1957). Although certainty that there are no unresolved factual issues is necessary to grant summary judgment, any uncertainty in that regard is sufficient to deny summary judgment. Greenebaum Mortgage Co. v. Town and Garden Associates, 385 F.2d 347, 349 (7th Cir. 1967). The defendants in this case have failed to satisfy the heavy burden placed upon them.

The defendants rely upon cases which hold that in certain factual situations proceeding in the dark in an unfamiliar area may constitute contributory negligence as a matter of law. Hart v. Sullivan, 324 Ill.App. 243, 58 N.E.2d 301 (1944); Westbrock v. Colby, Inc., 315 Ill.App. 494, 43 N.E.2d 405 (1942); Brett v. Century Petroleums, Inc., 302 Ill.App. 99, 23 N.E.2d 359 (1939). Several unresolved factual disputes make these cases inapplicable in the instant situation.

The cases cited by the defendants involve proceeding in...