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                               Appellate Court                           Date: 2019.04.16
                                                                         08:09:11 -05'00'



                  Barclay v. Yoakum, 2019 IL App (2d) 170962



Appellate Court    RODNEY BARCLAY, Individually and as Independent
Caption            Administrator of the Estate of Joel Barclay, Deceased, Plaintiff-
                   Appellant, v. LORAN YOAKUM; MARY SIEBERT; GREATBANC
                   TRUST COMPANY, as Trustee Under Trust Agreement Dated
                   March 17, 1981, and Known as Trust No. 5106; and NORTH STAR
                   TRUST COMPANY, as Successor Trustee Under Trust Agreement
                   Dated March 17, 1981, and Known as Trust No. 5106, Defendants
                   (Loran Yoakum and Mary Siebert, Defendants-Appellees).



District & No.     Second District
                   Docket No. 2-17-0962



Filed              January 24, 2019



Decision Under     Appeal from the Circuit Court of Kane County, No. 14-L-189; the
Review             Hon. Susan Clancy Boles, Judge, presiding.



Judgment           Affirmed.


Counsel on         Joseph G. Howard, of Law Offices of Joseph G. Howard, P.C., of
Appeal             Chicago, for appellant.

                   John B. Higgins and Brittany A. Coyle, of Higgins & Burke, P.C., of
                   St. Charles, for appellees.
     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Birkett and Justice Spence concurred in the
                              judgment and opinion.


                                               OPINION

¶1         After the decedent, Joel Barclay, fell from the second-story walkway of an apartment
       building owned by defendants, Loran Yoakum and Mary Siebert, plaintiff, Rodney Barclay,
       individually and as independent administrator of Joel Barclay’s estate, brought this action for
       negligence (wrongful death and survival). The circuit court of Kane County entered summary
       judgment in favor of defendants. On appeal, plaintiff argues that a question of fact as to
       whether the height of the walkway railing proximately caused the decedent’s fall precluded
       summary judgment. For the reasons that follow, we affirm.

¶2                                            I. BACKGROUND
¶3          Around midnight on June 2, 2012, tenants of a second-story apartment observed the
       decedent, apparently intoxicated, walking on the apartment building’s second-story walkway.
       The tenants went inside their apartment, closing only the screen door. After 5 or 10 minutes
       had passed, one of the tenants heard what sounded like something hitting the ground. Upon
       investigating, the tenant saw the decedent lying on the ground below the walkway with blood
       on his head. Emergency services arrived rapidly on the scene and transported the decedent to a
       hospital, where he was pronounced brain-dead the next day.
¶4          Law enforcement’s investigation determined that no one else was present when the
       decedent fell and that no crime had been committed. The coroner’s report indicated that the
       decedent had a blood-ethanol level of 0.293 near the time of his death.
¶5          On August 27, 2014, plaintiff filed a first amended complaint against defendants and their
       trust companies. The complaint stated causes of action for negligence (wrongful death and
       survival), alleging, inter alia, that defendants “permitted an inadequate handrail to be in place
       on the second floor walkway” of the premises. In support, plaintiff submitted the reports of two
       experts, one of whom was also deposed. One expert opined that the walkway railing was 8
       inches below the 42-inch height the building code required at the time of the fall and 2 inches
       below the 36-inch height the building code required when the building was built. The other
       expert opined that the decedent, whose center of body mass was higher than the 34-inch
       railing, staggered into the railing and pitched over it. In the expert’s opinion, had the railing
       been 42 inches high, it would have served its intended purpose and prevented the decedent
       from falling off the walkway.
¶6          Defendants moved for summary judgment on the ground that plaintiff had failed to
       establish that the decedent’s fall and resulting death were proximately caused by the alleged
       unsafe condition of defendants’ premises. The motion was granted, and plaintiff’s motion for
       reconsideration was denied. Plaintiff voluntarily dismissed the two trust-company defendants
       and filed this appeal.



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¶7                                              II. ANALYSIS
¶8          A motion for summary judgment should be granted when the pleadings, depositions, and
       affidavits reveal that there is no genuine issue as to any material fact and that the moving party
       is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Balla v.
       Gambro, Inc., 145 Ill. 2d 492, 508 (1991). To avoid summary judgment, the nonmovant must
       present some factual basis that could arguably entitle him to judgment. Harris Bank Hinsdale,
       N.A. v. Caliendo, 235 Ill. App. 3d 1013, 1024 (1992). The nonmovant has the burden of
       providing a factual basis on which to assert each element of a cause of action in negligence,
       including proximate cause. Glass v. Morgan Guaranty Trust Co., 238 Ill. App. 3d 355, 357
       (1992).
¶9          Although proximate cause is generally an issue of material fact, to be determined by the
       trier of fact, proximate cause may be determined as a matter of law where the facts show that
       the plaintiff would never be entitled to recover. Abrams v. City of Chicago, 211 Ill. 2d 251,
       257-58 (2004). Proximate cause need not be proved with direct evidence. Canzoneri v. Village
       of Franklin Park, 161 Ill. App. 3d 33, 41 (1987). Rather, causation may be established by facts
       and circumstances that, in light of ordinary experience, reasonably suggest that the defendant’s
       negligence produced the plaintiff’s injury. Id. That said, proximate cause cannot be predicated
       on surmise or conjecture, and therefore, causation will lie only when there exists a reasonable
       certainty that the defendant’s acts caused the injury. Wiegman v. Hitch-Inn Post of Libertyville,
       Inc., 308 Ill. App. 3d 789, 795 (1999). If the plaintiff cannot identify the cause of his injury or
       can only guess as to the cause, a court cannot find the defendant liable for negligence.
       Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817 (1981).
¶ 10        Plaintiff argues that he presented sufficient circumstantial and expert evidence to create an
       issue of material fact as to causation. Specifically, plaintiff relies on the eyewitnesses’
       testimony that the decedent was apparently intoxicated and walking on the walkway and, 5 or
       10 minutes later, was on the ground with blood on his head. Plaintiff also relies on the reports
       and deposition testimony of his experts, who opined that the walkway railing was 8 inches
       below the 42-inch height the building code required at the time of the fall and 2 inches below
       the 36-inch height the building code required when the building was built; that the decedent,
       whose center of body mass was higher than the 34-inch railing, staggered into the railing and
       pitched over it; and that the railing, if it had been 42 inches high, would have served its
       intended purpose and prevented the decedent from falling off the walkway.
¶ 11        Plaintiff’s evidence is insufficient to preclude summary judgment on the issue of whether
       defendants’ negligence caused the decedent’s fall. Plaintiff identified no eyewitness to the fall.
       The eyewitnesses’ testimony about circumstances before and after the fall sheds no light on
       what caused the fall. See Strutz v. Vicere, 389 Ill. App. 3d 676, 681 (2009) (where “none of the
       testimony and affidavits addresse[d] the issue of what caused [the decedent’s] fall,” summary
       judgment was properly entered for the defendants).
¶ 12        An expert purported to address the cause of the decedent’s fall, opining that the
       substandard height of the walkway railing “caused” the fall because the decedent “pitched”
       over it when he staggered into it. This opinion, however, presents only a possibility of what
       occurred before the decedent was discovered on the ground beneath the walkway; it is,
       therefore, insufficient to establish proximate cause. See Strutz, 389 Ill. App. 3d at 681 (“The
       possibility that the allegedly unreasonably dangerous staircase had caused [the decedent] to
       slip and fall is insufficient to establish the necessary causal relationship between [the

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       defendant’s] alleged negligence and [the decedent’s] injuries.”); see also Kellman v. Twin
       Orchard Country Club, 202 Ill. App. 3d 968, 975 (1990) (“[t]he possibility that the alleged
       unreasonably dangerous shower stall and basin had caused decedent to slip and fall is
       insufficient to establish a causal relationship between the defendant’s alleged negligence and
       decedent’s injuries”).
¶ 13        Yoakum’s deposition testimony suggests another possibility regarding the cause of the fall,
       one that has nothing to do with the height of the railing. According to Yoakum, the decedent
       had been warned several times about his practice of sitting on the railing. It is possible that the
       decedent sat on the railing and fell. Significantly, there is no more evidence to support this
       possibility than there is to support the possibility that he staggered into the railing and
       “pitched” over it; both remain, therefore, mere speculation. See Strutz, 389 Ill. App. 3d at 679
       (“[l]iability cannot be predicated on conjecture; rather proximate cause is established when
       there is reasonable certainty that the defendant’s acts or omissions caused the injury”); accord
       Wiegman, 308 Ill. App. 3d at 795 (“where from the proven facts the nonexistence of the fact to
       be inferred appears to be just as probable as its existence, then the conclusion that it exists is a
       matter of speculation, surmise, and conjecture, and the trier of fact cannot be allowed to draw
       it”).
¶ 14        While circumstantial evidence need not exclude all other possible conclusions, “a fact
       cannot be established through circumstantial evidence unless the circumstances are so related
       to each other that it is the only probable, and not merely possible, conclusion that may be
       drawn.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 473 (2010). Viewing all of the
       evidence in the light most favorable to plaintiff, we hold that he failed to present any evidence
       on the issue of proximate cause. See id. at 474 (holding that, where the plaintiff’s suggested
       inference was speculative, there was no evidence of proximate cause).
¶ 15        Plaintiff’s reliance on the failure of the railing to comply with the current building-code
       height requirement of 42 inches is, without more, unhelpful in establishing proximate cause.
       First, plaintiff presents no authority that code height requirements are to be applied
       retroactively. Second, “[v]iolations of an ordinance or a failure to comply with the building
       code, by themselves without evidence that the violations caused the injury, do not establish
       proximate cause.” Strutz, 389 Ill. App. 3d at 681. As discussed above, plaintiff has presented
       insufficient evidence that the height of the railing caused the decedent’s fall and consequent
       death.
¶ 16        The cases on which plaintiff relies for examples of sufficient circumstantial evidence of
       proximate cause are distinguishable. See Mort v. Walter, 98 Ill. 2d 391 (1983) (directed verdict
       for the defendant driver reversed where there was no doubt that the defendant had hit a
       four-year-old child with her car, she testified she was looking at the child’s father on the other
       side of the road and not at the child standing in plain view, and a reasonable jury could
       conclude that her failure to maintain a proper lookout for a child on the road caused the child’s
       injuries); Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818 (testimony regarding a
       malfunctioning gate, inadequate lighting, and the absence of safety tape on the floor was
       sufficient circumstantial evidence to create fact question as to whether the drop-off in the
       defendant’s warehouse floor proximately caused the plaintiff’s fall); and Wright v. Stech, 7 Ill.
       App. 3d 1068 (1972) (sufficient circumstantial evidence linked the defendant’s unlit and
       littered stairway to the decedent’s fall where a witness testified to events immediately before
       and after the fall—that she heard the decedent on the stairs and then a loud thump, she found

                                                    -4-
       the decedent on the landing, and the decedent told the witness that she had fallen down the
       stairs). In contrast to these cases, plaintiff failed to establish a prima facie negligence case,
       because his evidence allowed only a speculative inference on the element of proximate cause.
       See Keating, 401 Ill. App. 3d at 474 (holding that the plaintiff’s speculative inference could not
       serve as the predicate for liability); Jewish Hospital of St. Louis v. Boatmen’s National Bank of
       Belleville, 261 Ill. App. 3d 750, 755 (1994) (“[O]n a motion for summary judgment, a fact will
       not be considered in dispute if raised by circumstantial evidence alone unless the
       circumstances or events are so closely related to each other that the conclusions therefrom are
       probable, not merely possible.”).

¶ 17                                        III. CONCLUSION
¶ 18       In the absence of any evidence of the cause of the decedent’s fall, there is no genuine issue
       of material fact on the issue of proximate cause, and summary judgment in favor of defendants
       was proper. Accordingly, we affirm the trial court’s order granting summary judgment.

¶ 19      Affirmed.




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