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                                      Appellate Court                         Date: 2016.12.05
                                                                              14:52:10 -06'00'




           Atchley v. University of Chicago Medical Center, 2016 IL App (1st) 152481



Appellate Court          STEVEN R. ATCHLEY, Individually and as Special Administrator of
Caption                  the Estate of Linda Atchley, Deceased, Plaintiff-Appellant, v.
                         UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendant and
                         Third-Party Plaintiff-Appellee (Home Juice Corporation, Third-Party
                         Defendant).



District & No.           First District, Third Division
                         Docket No. 1-15-2481



Filed                    September 28, 2016
Rehearing denied         October 27, 2016



Decision Under           Appeal from the Circuit Court of Cook County, No. 10-L-10545; the
Review                   Hon. Lynn M. Egan, Judge, presiding.



Judgment                 Reversed and remanded.



Counsel on               Richard L. Pullano and Matthew Siporin, both of Law Offices of
Appeal                   Richard L. Pullano, of Chicago, and Andrew J. Kriegel and Paul W.
                         Grauer, both of Paul W. Grauer & Associates, of Schaumburg, for
                         appellants.

                         Matthew L. Johnson and Garrett L. Boehm, Jr., both of Johnson &
                         Bell, Ltd., of Chicago, for appellee.
     Panel                           JUSTICE LAVIN delivered the judgment of the court, with opinion.
                                     Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in
                                     the judgment and opinion.



                                                           OPINION

¶1         Steven Atchley, a delivery employee of Home Juice Corp. (HJC), went to the University of
       Chicago Medical Center (UCMC) to deliver two pallets of beverages. After backing his
       delivery truck into a dock space, he discovered that the dock leveler, which would raise the
       dock to the height of the truck bed and create a ramp, was inoperable. Unbeknownst to Steven,
       the leveler had been broken and inoperable for over six months. Because no other docks with
       levelers were then available, Steven used his truck’s air suspension system to lower the truck
       bed as much as possible, but a small gap remained. He proceeded to use a motorized pallet jack
       to unload his truck, but the jack became stuck in the gap. While using a steel dolly in an attempt
       to free the jack, Steven fell and fractured his ankle.
¶2         Steven and his wife, Linda Atchley, then filed this ordinary negligence and premises
       liability action against UCMC, which in turn raised contributory negligence as an affirmative
       defense.1 The circuit court granted summary judgment in favor of UCMC, finding that the
       danger was open and obvious, that UCMC had no duty as a result and that the inoperable
       leveler was not a proximate cause of Steven’s injuries. Steven now appeals. We reverse and
       remand for further proceedings.
¶3         As a threshold matter, we observe that Steven’s fact section fails to support facts with
       citations to the record, provides incorrect citations to the record, provides incorrect facts and
       omits certain pertinent facts. See Ill. S. Ct. R. 341(h)(6) (eff. Jan. 1, 2016). His argument
       section repeats those defects but additionally presents inaccurate citations to case law. See Ill.
       S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). This court is not a depository into which appellants may
       dump the burden of research. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151,
       ¶ 13. We strongly encourage counsel to exercise greater diligence with respect to any future
       briefs filed in this court.

¶4                                          I. BACKGROUND
¶5         On August 11, 2010, Steven was assigned to deliver beverages to UCMC. Although Steven
       had made at least 25 deliveries there over two or three years, he did not routinely go there;
       rather, he was filling in for fellow HJC driver Ronald Rosario. Steven had also made that
       delivery for Rosario two days before this incident.
¶6         UCMC’s docks opened for deliveries at 5 a.m. Steven testified in his deposition that while
       HJC did not require him to make the delivery by a specific time, the hospital was accustomed
       to early delivery and he tried to do what Rosario did. Rosario testified that hospitals preferred
       early morning deliveries. Similarly, James Cahill, HJC’s former supervisor, testified that
       hospital deliveries were generally made early in the morning. Steven further testified that


             1
                 Linda died after this action was filed.

                                                             -2-
       HJC’s motto was, “take care of the customer,” which he understood to mean that he should
       make deliveries in a timely manner.
¶7          According to an affidavit submitted by Steven, when he arrived at UCMC at about 5 a.m.,
       a security guard let him in the gate but did not assign him to a particular dock or ask if he
       needed a leveler. Steven also testified that he had never been aware that dock 5’s leveler was
       broken. While certain deposition testimony from UCMC employees suggested that drivers
       would be assigned to a particular dock, Sheila Stevens, the security guard monitoring the gate
       at the time in question, ultimately indicated that she only told drivers which dock to use if they
       asked. Sheila further testified that she had been unaware of any problem with dock 5.
       Moreover, Sheila and Rosario testified that no one from UCMC supervised the loading and
       unloading of trucks, corroborating Steven’s testimony that he saw no security guards in the
       loading area.
¶8          Steven, who had never made a delivery without a leveler, parked his truck in a dock that
       had one but then moved his truck to dock 5 in order to accommodate another driver. No signs
       indicated that dock 5 was out of service, but when he pulled the chain to operate the leveler,
       nothing happened. Consequently, his truck bed was higher than the dock. Steven stated that he
       did not report this malfunction to any UCMC employee, however, because none were around.
       Similarly, no drivers were around. Steven further testified that no other docks with levelers
       were available and he could not wait for one because UCMC was used to early deliveries.
       Steven’s affidavit added that it was common for drivers to do what was necessary to make a
       timely delivery, that there was no place for his truck to wait for another dock and that if another
       dock became available, an incoming driver would take it. Moreover, Steven had never been
       instructed to wait for another dock if experiencing difficulty.
¶9          Steven used his truck’s air suspension system to lower the truck bed. After doing so, the
       bed of the truck was about two or three inches higher than the dock. Steven stated in his
       affidavit that he had received no training regarding what height differential would be
       significant to safety. Additionally, Steven testified both that no lateral distance existed
       between the truck and the dock, and that a distance of less than a foot existed. He also noticed
       that two wooden wedges had been positioned on the sides of the dock.
¶ 10        Having lowered the truck, Steven used a motorized pallet jack, which has forks that lift
       pallets, to successfully remove the first pallet from the truck. Steven’s affidavit stated, “I
       believe it was a reasonable and safe method based on my experience; especially since pallet #1
       came off the truck safely.” After leaving that 1500-pound pallet by the elevator, he went to
       retrieve the second pallet. He was trying to make the delivery as quickly as possible, as he did
       not want to take the elevator down to the delivery tunnels twice.2
¶ 11        After removing the first pallet, the truck bed rose to three or four inches above the dock. As
       he attempted to return the pallet jack to the truck to retrieve the second pallet, the jack became
       stuck in the gap, a problem he had never encountered before. Specifically, the pallet jack’s
       forks were already in the truck when the jack “flipped,” leaving two feet of the jack hanging off
       the truck. The jack’s wheels were not touching the dock floor.
¶ 12        Steven testified that he did not seek assistance because no one was around. He did not go
       look for anyone either. According to Sheila, drivers never brought problems to her attention.
           2
           The record suggests that after taking the elevator downstairs to the tunnels, Steven would have to
       walk approximately 1570 steps to make his deliveries and return to his truck.

                                                     -3-
       Steven added in his affidavit that calling HJC would not have helped because it was 25 miles
       away. Additionally, Steven testified that he discovered a steel dolly on the dock, which he
       assumed belonged to UCMC. He positioned the dolly under the pallet jack and attempted to
       pry it loose. As he was doing so, the dolly slipped and he fell backward, breaking his ankle.
       Eventually, someone emptying the trash found Steven and got help. Meanwhile, Steven used
       his cell phone to call Cahill and 911. Steven ultimately underwent surgery and returned to light
       duty.
¶ 13       Ramon Mariscal, a UCMC security guard, initially testified that he only learned of a
       problem with dock 5 a day or two before this incident. At a later deposition, however, Mariscal
       acknowledged that he first observed the leveler was broken on January 25, 2010. The record
       shows that between that date and this occurrence, Mariscal stated in 95 daily condition reports
       that dock 5 was broken. Mariscal testified that at some point, without telling anyone, he put
       wooden shims in the leveler to keep the inoperable plate down. Although the dock could not be
       used with a pallet jack, it could still be used by handing out boxes or using carts. Moreover,
       Mariscal was not at work when the incident occurred. Dock 5 remained in use until it was
       repaired two days after the incident, in less than two hours, for $1022.90.
¶ 14       Anthony Harvard, UCMC’s dock supervisor, testified that he was responsible for only the
       inside of the dock area. Security guards occasionally reported problems to him, which he
       would relay to the proper department, but he was not responsible for taking care of broken
       levelers and was not always informed of problems. In addition, Harvard first learned there was
       a problem with dock 5 after this incident. When he reported this incident to his supervisor, he
       became responsible for investigating it. Mariscal told Harvard that drivers were not being
       permitted to park at dock 5 and that wooden wedges were placed in the dock to prevent the
       leveler from moving. Furthermore, the plant department directed Harvard to a vendor who
       fixed levelers and he subsequently authorized the repairs.
¶ 15       Rosario testified that UCMC’s docks were often broken and he had previously complained
       to a dock facility manager named Al. In addition, UCMC no longer provided a portable dock
       and it was not always possible to switch docks if the others were occupied. With that said, he
       would wait for another dock to become available. Furthermore, drivers sometimes used a
       board to hold up a defective leveler when encountering a different type of malfunction. Rosario
       would not have known what to do, however, if a pallet jack became stuck.
¶ 16       Mark Okoniewski, a fellow HJC driver, testified that he sometimes had difficulty with
       UCMC’s dock levelers: if the leveler did not work, a driver would use “whatever else is
       available—you know, there’s tools down there to use.” Okoniewski further testified as
       follows:
                “[Steven] told me he tried to pull the pallet off with the mule, the electric jack, and it
                got—he said the wheels got stuck between the truck and the dock. And I said, ‘where
                was the ramp? He said, it didn’t work. And I says, why would you pull—try to pull a
                pallet off without a ramp with an electric mule? It ain’t going to work. It’s going to get
                stuck.
                    And from earlier what you said, he pulled one off without a plate. My personal
                opinion, he was lucky doing it the first one… To try to do that without a ramp, personal
                opinion, again, nuts.”3

          3
              The record uses the terms “leveler” and “plate” interchangeably.

                                                       -4-
       Okoniewski acknowledged that he lacked personal knowledge of the incident but believed that
       Steven acted in an unsafe manner. We note that Steven alleged in his affidavit that he was
       highly medicated while in the hospital and did not remember talking to Okoniewski.
¶ 17       HJC driver Jeff Chevale Williams testified that he was never instructed to use a mechanical
       jack without a dock leveler or another device to connect the end of the trailer to the dock itself.
       He also believed it would be unsafe to do so. If a dock leveler was not working, he would
       inform whoever was in the area. With that said, he did not witness the accident, did not know
       how Steven was injured and did not hold himself out as an expert in dock levelers or motorized
       pallet jacks.
¶ 18       Cahill testified that Steven was never the subject of any safety concerns. Additionally, HJC
       never trained Steven how to use a pallet jack and did not instruct drivers to use a dolly in the
       specific manner that Steven had used it. Cahill testified that, in hindsight, Steven’s method of
       attempting to free the pallet jack was not safe because he was injured.
¶ 19       Steven also presented the opinions of three experts. According to engineer Michael Bracki,
       a dock leveler’s purpose is to match dock height to variations in truck height through an
       adjustable height ramp. UCMC’s leveler was in a state of disrepair, however, and Mariscal
       made it completely inoperable by driving wood shims between the leveler and the frame. In
       addition, security staff was not controlling the flow of traffic when Steven moved his truck at
       another driver’s request. Furthermore, a driver facing an inoperable leveler had several issues
       to overcome but “the more insidious would be a dock height that was off by only a small
       amount initially. *** [T]he height difference would vary as the loaded weight on the delivery
       vehicle chassis changed.” Bracki believed that when Steven removed the first pallet, the truck
       bed rose, exacerbating the height discrepancy and leading the pallet jack to become immobile.
¶ 20       Bracki opined that UCMC’s failure to repair the leveler for 198 days, remove the dock
       from service or control dock traffic made it not only foreseeable but likely that this accident
       would occur. Bracki also stated, “[t]o claim that a driver getting stuck between the dock and
       truck because of a height disparity is unforeseeable or unpredictable is illogical given [that] the
       dock leveler is designed to prevent that very situation from existing.” Additionally, Bracki
       found it was foreseeable that equipment would get stuck as a result of the broken leveler,
       although the specific method of injury in attempting to dislodge the equipment may not have
       been foreseeable. In like circumstances, Bracki “would have tried to find another forklift, but I
       think [Steven] said he couldn’t find one and he wound up getting into this corner where he did
       something that obviously caused his injury.” That being said, nothing prevented Steven from
       waiting for another dock. Bracki described Steven’s conduct as “contributory.”
¶ 21       Similarly, architect John Van Ostrand testified that Steven’s conduct was a cause of his
       injuries. Had he waited for help and not attempted to unload his truck with a pallet jack, he
       would not have been injured. Van Ostrand also testified, however, that Steven “was doing the
       best he could under the circumstances, apparently.” Van Ostrand found it was reasonably
       foreseeable that a driver, with knowledge of a gap, would nonetheless attempt to unload his
       truck, apparently even with a pallet jack. Additionally, UCMC experienced a breakdown in
       management and communications regarding the dock and UCMC should have taken dock 5
       out of service until it was repaired.
¶ 22       Suzanne Alton-Glowiak, a mechanical engineer, added that UCMC failed to comply with
       voluntary regulations of the American National Standards Institute (ANSI) and mandatory
       regulations of the Occupational Safety and Health Administration (OSHA). Alton-Glowiak

                                                    -5-
       opined that the defective leveler caused Steven’s injuries, but she had no opinion as to whether
       Steven’s conduct caused his injuries.
¶ 23       UCMC’s expert, architect Robert Plichta, opined that UCMC employees did not act
       improperly regarding the management and maintenance of the loading dock and it was
       reasonable for them to be unaware that the leveler was inoperable for over six months. In
       addition, using dock 5 in a fixed position posed no risk of harm. Plichta also disagreed with
       Alton-Glowiak’s application and assessment of ANSI and OSHA regulations. With that said,
       Plichta acknowledged that someone backing into dock 5 would not see the wedges or notice
       that the leveler was inoperable unless something was placed in the driveway. Plichta also
       acknowledged nothing indicated that UCMC made a conscious decision not to repair the
       leveler.
¶ 24       Plichta believed that after discovering that the leveler was not functioning, the dangers of
       using a motorized pallet jack would be very apparent. A reasonable delivery person would not
       even attempt to use a pallet jack without a leveler. Additionally, Plichta found it was
       unforeseeable that a driver would use dock 5 to unload cargo with a pallet jack in an untypical
       and unsafe manner, particularly because three other docks with levelers were available. A
       driver needing a leveler must use what is available or wait for another dock. Furthermore,
       Steven also could have moved the merchandise from the pallets onto a dolly, requiring several
       smaller loads, but Plichta acknowledged that time was a consideration. Furthermore, Plichta
       acknowledged that Steven had more experience than Plichta with respect to docks, levelers,
       and pallet jacks. Notwithstanding that acknowledgment, Plichta found that the leveler did not
       play a role in Steven’s injury, even though the pallet jack would not have become stuck and
       Steven would not have used a dolly to dislodge it if the leveler had been working. When the
       pallet jack became stuck, Steven should not have used a dolly to try to move it. Instead, he
       could have called security. Plichta found it was unforeseeable that someone using dock 5
       “would be injured unless they were using it the way that it was done here.”
¶ 25       George Karosas, an engineering expert, testified that keeping dock 5 in service without the
       leveler posed no risk different from a permanent immovable dock. He did not know whether
       any drivers who parked at dock 5 prior to Steven’s accident used pallet jacks without a leveler,
       but Karosas thought it was improbable, having never heard of anyone doing that before.
       Additionally, Steven should have waited for another dock. Karosas believed Steven caused the
       accident by “misusing the dolly in a fashion and trying to lift, you know, and maneuver
       something that weighs hundreds of pounds.”
¶ 26       Following discovery, UCMC moved for summary judgment, arguing that it owed Steven
       no duty because the nonfunctional leveler constituted an open and obvious condition. UCMC
       also argued that the nonfunctional leveler did not cause Steven’s injury. In response, Steven
       argued that the gap was not obviously dangerous and, alternatively, the deliberate-encounter
       exception applied. Steven further argued that UCMC’s negligence was a proximate cause of
       his injuries and that the lay opinions of his coworkers, who did not witness the incident, were
       inadmissible.
¶ 27       The circuit court granted summary judgment in favor of UCMC, finding that a reasonable
       person would have determined that the leveler was inoperable and that a gap remained. Thus,
       the condition and risk were open and obvious. The court also found the deliberate-encounter
       exception to the open and obvious doctrine did not apply. Furthermore, UCMC did not owe a


                                                  -6-
       duty to Steven or proximately cause his injury.

¶ 28                                          II. ANALYSIS
¶ 29       On appeal, Steven first asserts that the circuit court improperly granted summary judgment
       in favor of UCMC, which failed to demonstrate that it had no duty as a matter of law. We
       review the circuit court’s ruling on a summary judgment motion de novo. Willie Pearl Burrell
       Trust v. City of Kankakee, 2016 IL App (3d) 150398, ¶ 10.
¶ 30       Summary judgment is appropriate only where the pleadings, admissions, depositions, and
       affidavits show that no genuine issues of material fact exist so that the movant is entitled to
       judgment as a matter of law. Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. Conversely,
       summary judgment is inappropriate where material facts are in dispute, reasonable persons
       could draw different inferences from undisputed facts, or reasonable persons could assign
       different weight to factors relevant to the legal standard at issue. Seymour v. Collins, 2015 IL
       118432, ¶ 42. Summary judgment is a drastic measure and, consequently, should only be
       granted where the movant’s right to judgment is clear. Mashal, 2012 IL 112341, ¶ 49.
       Furthermore, we must strictly construe the record against the movant and liberally in favor of
       the nonmovant. Seymour, 2015 IL 118432, ¶ 42. In order to demonstrate negligence, Steven
       must ultimately show that UCMC owed him a duty, that UCMC breached that duty and that
       such breach proximately caused Steven’s injury. See Friedman v. City of Chicago, 333 Ill.
       App. 3d 1070, 1073 (2002).

¶ 31                                              A. Duty
¶ 32       In determining whether a duty exists, courts must consider whether the plaintiff and the
       defendant stood in a relationship such that the law obligates the defendant to conduct itself
       reasonably for the plaintiff’s benefit, considering four factors: (1) the reasonable foreseeability
       of the claimant’s injury; (2) the likelihood of injury; (3) the magnitude of the defendant’s
       burden of guarding against that injury; and (4) the consequences of placing the burden on the
       defendant. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225-26 (2010). The weight to
       be assigned to each factor depends on the circumstances of the case. Simpkins v. CXS
       Transportation, Inc., 2012 IL 110662, ¶ 18. Additionally, a defendant’s duty is not defined by
       the plaintiff’s own negligence. Ward v. K mart Corp., 136 Ill. 2d 132, 148 (1990).
       Furthermore, the open and obvious doctrine pertains to the element of duty in a negligence
       action. Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶ 20.4
¶ 33       Pursuant to that doctrine, a party that owns or controls land is not required to foresee or
       protect against injury where the potentially dangerous condition is open and obvious. Bruns v.
       City of Centralia, 2014 IL 116998, ¶ 16. An open and obvious danger does not automatically
       eliminate a legal duty on the defendant’s part, however. Bucheleres v. Chicago Park District,

           4
            Where a landowner’s conduct creating a dangerous condition precedes the claimant’s injury, the
       claimant may pursue a negligence theory, a premises liability theory or both. Smart v. City of Chicago,
       2013 IL App (1st) 120901, ¶ 54. Although Steven contends that the open and obvious doctrine does not
       apply to ordinary negligence, he has failed to cite any case stating as such. See Ill. S. Ct. R. 341(h)(7)
       (Jan. 1, 2016) (requiring that arguments be supported by legal authority). We further observe that both
       Steven’s premises liability claim and his ordinary negligence claim pertain to a condition on UCMC’s
       premises.

                                                       -7-
       171 Ill. 2d 435, 449 (1996). Instead, the existence of an open and obvious dangerous condition
       affects the first two factors relevant to assessing duty: the reasonable foreseeability and
       likelihood of the injury. Bruns, 2014 IL 116998, ¶ 19. Specifically, the open and obvious
       condition renders the impact of those factors slight, weighing against a determination that the
       defendant had a duty. Id. Even where the open and obvious rule applies, courts must consider
       all four factors relevant to duty. Bucheleres, 171 Ill. 2d at 456; but see Ballog, 2012 IL App
       (1st) 112429, ¶¶ 35, 40 (declining to apply the four factors after finding an open and obvious
       condition).
¶ 34        Obviousness requires that a reasonable person in the visitor’s position, exercising ordinary
       intelligence, perception, and judgment, would recognize both the condition and the risk. Bruns,
       2014 IL 116998, ¶ 16. Whether a condition constitutes an open and obvious danger generally
       presents a question of fact. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 888 (2009). Where the
       parties do not dispute the condition’s physical nature, however, the question is a legal one.
       Ballog, 2012 IL App (1st) 112429, ¶ 29.
¶ 35        Moreover, the open and obvious doctrine is subject to a deliberate-encounter exception.
       Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 258 (2010). That exception
       applies where the possessor of land had reason to anticipate that the invitee would proceed to
       encounter an open and obvious danger because a reasonable person in the invitee’s position
       would find the advantages of the encounter outweigh the apparent risk. Id. “The
       deliberate-encounter exception recognizes that individuals will make deliberate choices to
       encounter hazards when faced with employment concerns and that those encounters are
       reasonably foreseeable by possessors of a property.” Id. Similarly, the deliberate-encounter
       exception usually involves a plaintiff who is forced to choose between facing danger and
       neglecting his duties. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 42. With that said,
       courts applying this exception must focus on what a landowner should anticipate. Kleiber, 406
       Ill. App. 3d at 258; see also Restatement (Second) of Torts § 343A (1965). Where the
       exception applies, duty analysis is reversed as to the first two factors. Bruns, 2014 IL 116998,
       ¶ 20.
¶ 36        Here, we question UCMC’s contention that the open and obvious doctrine applies. A
       reasonable person in Steven’s position would recognize that, due to the broken leveler, his
       truck remained higher than the dock. It does not immediately follow, however, that a
       reasonable person would recognize the risk involved. It is undisputed that the height
       differential was but a matter of inches. Steven’s belief that a few inches would not pose a
       problem to unloading goods with a pallet jack is not inherently unreasonable. Additionally, it
       was not clearly unreasonable for Steven to expect that once off the truck, he would have no
       problem bringing the pallet jack back on the truck. Similarly, Bracki described the increase in a
       truck’s height after removing cargo as insidious. Even with that increase, the height differential
       was just a few inches. We cannot say as a matter of law that a reasonable driver in Steven’s
       position would recognize that a slight height differential, resulting from a broken leveler,
       would lead a pallet jack to get stuck and ultimately lead the driver to injure himself while
       attempting to free it. We note that the circuit court found Steven acknowledged he needed a
       leveler to unload his goods. While Steven may have understood that his efforts with the pallet
       jack might prove unsuccessful without a leveler, it does not follow that he understood that any
       lack of success would result in injury.



                                                   -8-
¶ 37        Moving on in our analysis, even if the condition and risk were deemed open and obvious,
       the deliberate-encounter exception would apply. Ample testimony showed that the hospital
       generally expected early deliveries, notwithstanding that no specific delivery time was set.
       Additionally, UCMC should expect that professional delivery drivers would make multiple
       deliveries in any given day. As Cahill indicated, a delay with respect to one delivery could
       create problems for later deliveries. Moreover, Van Ostrand testified it was foreseeable that a
       driver would choose to encounter a small gap. We further note that Rosario and Okoniewski
       indicated that drivers sometimes worked around mechanical difficulties. See also Cihon v.
       Cargill, Inc., 293 Ill. App. 3d 1055, 1064 (1997) (finding a jury could conclude that the
       defendant had reason to expect that the plaintiff would walk on a plank to access a storage tank
       farm rather than walk 80 feet and step over a short wall to access the farm); LaFever v. Kemlite
       Co., 185 Ill. 2d 380, 393 (1998) (rejecting the defendant’s assertion that a deliberate encounter
       cannot give rise to liability unless no reasonable alternative to encountering the danger exists
       and unless the worker’s continued employment is threatened by not encountering the risk).
       Thus, UCMC had reason to anticipate that a delivery driver trying to fulfill his employment
       duties by making quick deliveries would choose to encounter a small gap rather than disrupt
       his delivery schedule or deviate from HJC’s general practice of delivering early. Cf. Kleiber,
       406 Ill. App. 3d at 258-60 (where the parties did not dispute the danger at issue was open and
       obvious, the reviewing court found the deliberate-encounter exception did not apply because
       the plaintiff had no economic reason, such as a job, to choose to encounter the danger and
       could have asked a store employee for assistance); Ballog, 2012 IL App (1st) 112429, ¶¶ 40-41
       (where there was “no contention that the plaintiff was compelled to encounter the open and
       obvious condition” and the evidence showed she previously avoided the condition, rather than
       deliberately encountering it, the deliberate-encounter exception did not apply).
¶ 38        UCMC nonetheless argues it did not have reason to expect that a driver would decline to
       wait for another dock to become available. In doing so, UCMC distorts Steven’s testimony by
       stating he conceded that nothing prevented him from moving to another dock. While Steven
       initially suggested as such, he immediately corrected himself, stating that he could not move to
       another dock because no other docks with levelers were available. Furthermore, while UCMC
       contends that the lay opinions of other HJC drivers support UCMC’s position, Steven
       maintains that those individuals did not witness the incident and, thus, their opinions are
       inadmissible. Contrary to UCMC’s assertion, Steven preserved this contention below.
¶ 39        Courts may not consider inadmissible evidence in support of, or in opposition to, a motion
       for summary judgment. Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 52. In addition, Steven
       correctly observes that a lay witness can offer his opinion only if it is based on his personal
       observations, is one that people generally can make and is helpful to the trier of fact.
       Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 44. “If the witness is not
       testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to
       those opinions or inferences which are (a) rationally based on the perception of the witness,
       and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact
       in issue, and (c) not based on scientific, technical, or other specialized knowledge within the
       scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). Here, no one witnessed the incident.
       Accordingly, to the extent the other HJC drivers purported to opine on the reasonableness of
       Steven’s actions, their testimony is inadmissible. Moreover, their general opinions based on
       specialized knowledge specific to dock equipment would also be inadmissible unless those


                                                    -9-
       witnesses were certified as experts. Notwithstanding these rules pertaining to the admissibility
       of evidence, UCMC contends that the opinions of HJC drivers were properly before the court
       as evidence of the general practices and knowledge of personnel that may encounter the
       condition at issue, relying on Sepesy v. Archer Daniels Midland Co., 97 Ill. App. 3d 868, 870
       (1981), and Ballog, 2012 IL App (1st) 112429, ¶¶ 7-8. Neither case, however, involved a
       challenge to the admissibility of evidence.
¶ 40       Even assuming that lay witnesses can testify regarding the general knowledge among
       professionals, UCMC has not shown that a different result is required. First, Okoniewski,
       without personal knowledge, opined on the reasonableness of Steven’s specific actions, not the
       general practice of delivery drivers. In addition, he specified that he was offering his personal
       opinion. While Rosario testified it would be appropriate for a driver encountering a
       nonfunctioning leveler to wait for another dock, he did not testify that it would be
       inappropriate to act otherwise. At best, Steven’s other fellow drivers testified regarding what
       they personally would have done, not what drivers generally would do or generally know about
       levelers, motorized pallet jacks, height differentials, or steel dollies. Moreover, UCMC ignores
       that one experienced driver, Steven, found no inherent danger in navigating a small gap. Van
       Ostrand specifically testified it was foreseeable that a driver would attempt to unload his truck
       despite the gap.
¶ 41       Accordingly, the record supports Steven’s assertion that UCMC had a duty. It was
       reasonably foreseeable that, in the course of his employment, a driver such as Steven would
       attempt to make a delivery at dock 5 despite the broken leveler. Additionally, it is foreseeable
       that a driver who had never faced a broken leveler would be unaware that even a small gap
       could create a problem and that an insidious increase in height differential would occur after
       goods were removed. Furthermore, injury was likely given that the leveler was broken for
       months, that the record shows not all security guards knew to direct drivers needing levelers
       away from dock 5, and that no UCMC employees were in the vicinity of the unloading area.
       We also note that UCMC categorically ignores undisputed testimony that no employees were
       around, as well as Harvard’s testimony that he was not responsible for the unloading area.
       Thus, it is not at all clear that seeking help presented a viable option.
¶ 42       While UCMC states “it was not likely that he would then slip while using the hand dolly
       and brake [sic] his ankle,” it was sufficiently likely that some driver, trying to make an
       expeditious delivery, would injure himself in some manner as a result of the broken leveler.
       Contrary to UCMC’s contention, Van Ostrand did not testify that Steven should have waited
       for help instead of using the dolly. Although Van Ostrand testified Steven would not have been
       injured if he “just sat around and waited for help,” Van Ostrand also testified, “[e]ven the
       security person is not there. So he does the best thing he can. He gets this [dolly].” In Bracki’s
       affidavit, he similarly disagreed with UCMC’s belief that Steven’s attempt to free the
       motorized pallet jack was unforeseeable.
¶ 43       Moreover, UCMC has not identified any onerous burden in requiring the hospital to
       remedy the broken leveler, whether by warning drivers, blocking off the area or having the
       leveler repaired. A $1022.90 bill to repair a busy deliver dock is inconsequential. Furthermore,
       UCMC has identified no consequences of placing this burden on the hospital. As a result, the
       circuit court erroneously entered summary judgment on the basis of duty.




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¶ 44                                         B. Proximate Cause
¶ 45       We also agree with Steven’s assertion that a genuine issue of material fact exists as to
       proximate cause. Proximate cause is defined as a cause that, in the ordinary course of events
       produced the plaintiff’s injury, but a cause need not be the only or last cause; rather, the
       combination of multiple causes may result in the injury. Richter v. Village of Oak Brook, 2011
       IL App (2d) 100114, ¶ 21. In addition, proximate cause includes cause in fact and legal cause.
       Krywin, 238 Ill. 2d at 225-26. Cause in fact exists where a reasonable certainty exists that the
       defendant’s acts caused the injury. Id. at 226. Specifically, courts consider whether the
       defendant’s conduct was a material and substantial factor in bringing about the claimant’s
       injury. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). Conduct constitutes a material
       and substantial factor if the injury would not have occurred absent the defendant’s conduct. Id.
       With respect to legal cause, the inquiry is whether the injury sustained is one that a reasonable
       person would consider to be a likely consequence of his conduct. Young v. Bryco Arms, 213 Ill.
       2d 433, 446-47 (2004). With that said, a reasonable person need not be able to foresee the exact
       way that the injury would occur or the extent of the injury. Hooper v. County of Cook, 366 Ill.
       App. 3d 1, 7 (2006). Furthermore, proximate cause constitutes a question for the trier of fact to
       decide. Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011).
¶ 46       Here, the record would permit a trier of fact to find that UCMC’s conduct was a material
       and substantial factor in bringing about Steven’s injury, as Steven would not have been injured
       but for the leveler being broken. Specifically, the motorized pallet jack would not have become
       stuck, Steven would not have attempted to use another device to free it, and he would not have
       hurt himself while doing so. Thus, the broken leveler constitutes cause in fact. Additionally,
       ample evidence would permit a trier of fact to find it foreseeable that a broken leveler could
       result in a broken ankle.
¶ 47       The purpose of the leveler was to eliminate any height differential. Without a leveler, a
       differential of some kind was likely to exist. As stated, it is common knowledge that drivers,
       not just HJC drivers, make multiple deliveries in a day. Even if not adhering to a precise
       schedule, delivery drivers are likely to be in a hurry. Thus, a trier of fact could find it
       foreseeable that an expeditious driver would choose to navigate a gap of only a few inches
       where no other levelers were available, rather than wait for some unknown amount of time for
       a leveler to become available. Additionally, a trier of fact could find it foreseeable that a driver
       would not appreciate that the slight change in height after removing cargo would make it
       difficult to get the pallet jack back on the truck. Moreover, a trier of fact could find it
       foreseeable that, in the absence of any UCMC employees, a driver would find another device
       to dislodge the pallet jack, injuring himself in the process.
¶ 48       In reaching this determination, we reject UCMC’s contention that the broken leveler
       constitutes a mere condition, rather than a cause of Steven’s injury. If a defendant’s breach of
       duty provides a condition which makes an injury possible, and an independent third person
       then causes an injury, the defendant’s creation of the condition does not constitute a proximate
       cause of the injury. Trigsted v. Chicago Transit Authority, 2013 IL App (1st) 122468, ¶ 53.
       That being said, the test is always whether the first wrongdoer might reasonably have
       anticipated the intervening efficient cause as a probable and natural result of his own
       negligence. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257 (1999).
¶ 49       Steven would not have been injured but for the broken leveler and no independent third
       party was involved. Additionally, UCMC arguably should have anticipated that absent any

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       warnings or the removal of the dock from service a driver would be injured due to the broken
       leveler at some point during the multiple months that it was broken. Cf. First Springfield Bank
       & Trust, 188 Ill. 2d at 261 (finding after trial that it was not reasonably foreseeable that
       violating a no parking sign would result in a pedestrian (1) jaywalking, (2) attempting to cross
       a truck route despite a compromised view of traffic, and (3) being hit by another vehicle).
       Thus, the record does not compel a determination that the broken leveler was a mere condition.
¶ 50       Finally, UCMC’s allegations of contributory negligence do not change the result at this
       juncture. Contributory negligence results from a lack of due care for one’s safety and is
       measured by the objective standard of a reasonable person. McCarthy v. Kunicki, 355 Ill. App.
       3d 957, 972 (2005). While UCMC argues that HJC drivers were not instructed to use a steel
       dolly to free a pallet jack, it does not follow that HJC drivers were explicitly told not to use a
       steel dolly in that manner. Additionally, Cahill admittedly used hindsight when he testified that
       Steven’s manner of using the dolly was unsafe. More importantly, we review UCMC’s motion
       for summary judgment in the light most favorable to Steven, not UCMC, and contributory
       negligence generally constitutes a question for the trier of fact (Graham v. Northwestern
       Memorial Hospital, 2012 IL App (1st) 102609, ¶ 19). Accordingly, Steven is entitled to a trial
       on his claims.

¶ 51                                      III. CONCLUSION
¶ 52       Here, UCMC failed to demonstrate that it was entitled to judgment as a matter of law with
       respect to duty and proximate cause. Consequently, the circuit court improperly granted
       summary judgment in UCMC’s favor, and we reverse and remand for further proceedings. In
       light of our determination, we need not consider Steven’s remaining contentions.

¶ 53      Reversed and remanded.




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