                                Illinois Official Reports

                                        Appellate Court



                    Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768



Appellate Court           MATTHEW MACK, Plaintiff-Appellant, v. VIKING SKI SHOP,
Caption                   INC., an Illinois Corporation, Defendant-Appellee (SALOMON
                          NORTH AMERICA, INC., a Delaware Corporation, Defendant).



District & No.            First District, Third Division
                          Docket No. 1-13-0768


Filed                     September 24, 2014


Held                       On appeal from the entry of summary judgment for defendant ski shop
(Note: This syllabus in an action alleging that defendant’s negligence in setting the binding
constitutes no part of the on plaintiff’s skis too high for his ability level led to his knee injury,
opinion of the court but the appellate court affirmed the trial court’s decision, since the
has been prepared by the testimony of the orthopedic surgeon who operated on plaintiff’s knee,
Reporter of Decisions who also had a degree in biomechanical engineering, did not establish
for the convenience of a causal link between plaintiff’s injury and the failure of his bindings
the reader.)               to release to any degree of medical certainty, especially when he
                           testified that he was not an expert on causation with respect to injuries
                           related to ski bindings, and plaintiff did not rebut the testimony of
                           defendant’s expert that a lower setting on the bindings would not have
                           prevented the injury; therefore, no genuine issue of material fact was
                           presented.




Decision Under            Appeal from the Circuit Court of Cook County, No. 06-L-11817; the
Review                    Hon. Lynn M. Egan, Judge, presiding.



Judgment                  Affirmed.
     Counsel on                James J. Morici, Jr., and Michael G. Miller, both of Morici, Figlioli &
     Appeal                    Associates, of Chicago, for appellant.

                               Robert Marc Chemers, Edward H. Nielsen, Scott L. Howie, and Belle
                               L. Katubig, all of Pretzel & Stouffer, Chtrd., of Chicago, and Peter W.
                               Rietz and Brian A. Birenbach, both of Rietz Law Firm, of Dillon,
                               Colorado, for appellee.

     Panel                     JUSTICE LAVIN delivered the judgment of the court, with opinion.
                               Justices Fitzgerald Smith and Epstein concurred in the judgment and
                               opinion.

                                                 OPINION

¶1         This interlocutory appeal arises from the trial court’s order granting summary judgment in
       a negligence action to defendant Viking Ski Shop, Inc. On appeal, plaintiff Matthew Mack
       contends that the trial court erroneously granted defendant’s motion for summary judgment as
       to plaintiff’s negligence claim because a genuine issue of material fact existed regarding the
       element of proximate cause. Specifically, plaintiff contends that defendant set plaintiff’s ski
       bindings too high for his ability level, and as a result, his bindings failed to release, causing his
       knee injury. We affirm.

¶2                                             BACKGROUND
¶3         This case arises from injuries sustained in a ski accident in Steamboat Springs, Colorado.
       Plaintiff fell approximately halfway down an intermediate ski run and sustained a severe knee
       fracture of his left tibial plateau. Plaintiff purchased the skis and ski bindings used at the time
       of injury from defendant. Plaintiff commenced this action in November 2006, alleging
       negligence against defendant and third-party Salomon North America (Salomon). Plaintiff
       alleged, in pertinent part, that defendant failed to make a reasonable inspection before selling
       the ski equipment to plaintiff. In addition, defendant failed to properly adjust the ski
       equipment, specifically the bindings, to plaintiff’s height, weight, and ski type. Generally, in
       the ski industry, skiers are classified as type I (beginner), type II (intermediate), or type III
       (advanced).
¶4         Several depositions were taken during discovery. Plaintiff testified that in November 2004,
       he purchased new skis, boots, and bindings from defendant based on his size and ability. He
       told defendant’s sales representative that he was an intermediate to advanced skier. On March
       10, 2010, plaintiff traveled to Steamboat Springs, Colorado, where he had skied numerous
       times. On the day of the incident, he had one or two beers at lunch, and then resumed skiing.
       Approximately halfway down the Vagabond ski run, plaintiff was initiating a left turn when his
       right ski crossed over his left ski, causing him to fall on his back. He did not recall if any ski
       released from the binding. Believing his leg was broken, he radioed his ski companion Jody to
       call the ski patrol. Glenn Jones, a ski patroller, splinted plaintiff’s injured leg and used a
       toboggan to transport him off the mountain. The ski patrol immediately transferred plaintiff to
       the Yampa Valley Medical Center, where Henry F. Fabian, M.D., an orthopedic surgeon,

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       operated on plaintiff. He remained hospitalized for 12 days and then resumed postoperative
       care in Chicago. Since the incident, plaintiff has endured five or six hospitalizations, due to
       infection, as well as extensive physical therapy.
¶5         Peter R. Leffe, plaintiff’s mechanical engineering expert, testified that in his opinion,
       plaintiff was a type II or intermediate skier. Leffe also inspected plaintiff’s ski equipment using
       the standard industry Salomon manual and found that plaintiff’s bindings were set too high for
       a type II skier. Thus, Leffe concluded that defendant’s fitting of plaintiff’s ski equipment fell
       below the standard of care for a ski shop. Leffe noted that he had no intention to testify about
       the causal relationship between the subject injury and the binding functions because he did not
       hold himself out to be a biomechanical engineer.
¶6         Defendant also submitted an affidavit of its engineering expert Jasper Shealy, who
       inspected and tested plaintiff’s ski equipment. He attested that over the course of his career he
       studied and conducted research on the relation between ski binding function and knee injuries.
       Based on defendant’s records, plaintiff selected a type III skier preference and his bindings
       were adjusted accordingly. Plaintiff, however, contends that he selected a type II skier
       preference. Despite this discrepancy, Shealy concluded that a lower ski type setting would not
       have prevented plaintiff’s injury because plaintiff’s bindings were not designed to protect
       against tibial plateau fractures. He stated with a reasonable degree of engineering certainty that
       the valgus/varus bending forces that cause tibial plateau fractures were not sufficient to cause a
       binding to release at any setting. Therefore, a lower setting of plaintiff’s bindings would not
       have prevented his knee injury.
¶7         In April 2010, defendant filed a motion for summary judgment arguing that plaintiff failed
       to establish that his ski bindings’ setting was the proximate cause of his knee injury. In
       plaintiff’s response, he attached an affidavit by Leffe addressing the issue of causation, even
       though plaintiff failed to make this disclosure in Leffe’s Rule 213(f) (Ill. S. Ct. R. 213(f) (eff.
       Jan. 1, 2007)) interrogatories or discovery deposition. After further briefing, the trial court
       granted defendant’s motion, finding that plaintiff’s claims were conclusory and speculative.
¶8         Following this ruling, two more discovery depositions were taken. Jones, a part-time ski
       patroller for 23 years in Steamboat Springs, Colorado, testified that when he arrived on the
       scene, he physically released plaintiff’s left ski binding from his injured leg. Jones then aligned
       the injured leg and splinted it before placing plaintiff on a toboggan. The incident report
       indicated that plaintiff was an advanced skier, who caught his left ski tip in a slush pile.
¶9         In addition, Dr. Fabian testified that beyond being an orthopedic surgeon, he held a
       biomechanical engineering degree and was a team doctor for the United States ski team.
       Plaintiff sustained a severe knee injury, specifically a grade six comminuted fracture of the
       tibial plateau. Dr. Fabian recalled the injury being one of the worst fractures he had ever seen.
       He noted that generally ski bindings did not prevent knee injuries because, from an engineering
       standpoint, the forces that were at the knee would not do anything to release the toe or heel of
       the binding until a certain force was reached. Although based on plaintiff’s fracture pattern, the
       supposed speed, and location on the mountain, “it would be very likely that bindings set too
       high were consistent with [plaintiff’s] injury.”
¶ 10       Thus, in October 2010, plaintiff filed a motion to reconsider the court’s summary judgment
       ruling, and in February 2011, the trial court granted the motion. The court concluded that,
       based upon the new deposition testimony of Jones and Dr. Fabian, there was a genuine issue of


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       material fact as to whether the left ski binding did or did not release and, therefore, whether the
       alleged negligence on the part of defendant was the proximate cause of plaintiff’s injury.
¶ 11        In March 2011, defendant filed a motion to bar plaintiff’s expert Leffe from testifying at
       trial on issues of causation. The court granted the motion, noting that plaintiff failed to disclose
       this line of testimony in his Rule 213 disclosures. In addition, during Leffe’s discovery
       deposition, he testified that he did not intend to be an expert in the causal relationship between
       plaintiff’s injury and the binding function. Therefore, the court concluded Leffe’s new
       opinions would be prejudicial to defendant and were barred pursuant to Rule 213. See Ill. S. Ct.
       R. 213(g) (eff. Jan. 1, 2007).
¶ 12        In January 2012, defendant then filed a renewed motion for summary judgment including a
       motion in limine to bar Leffe’s testimony at trial on issues of causation. Defendant also
       attached a subsequent evidence deposition of Dr. Fabian, who testified that plaintiff’s injury
       “could be and also could not be” consistent with a ski binding that did not release. Dr. Fabian
       noted that if plaintiff’s binding was set too high and did not release, “it could contribute” to the
       fracture, but he also observed that this type of fracture could be obtained with an “optimally
       functioning binding.” Thus, Dr. Fabian could not say with any degree of medical certainty
       whether plaintiff’s injuries were caused or not caused by the ski bindings. Further, he testified
       that he was not an expert on issues of causation with respect to knee injuries and ski bindings.
¶ 13        In October 2012, the trial court granted defendant’s motion for summary judgment,
       concluding that “the record before us [was] devoid of any affirmative and positive evidence
       that would create a question of fact regarding proximate cause.” The court also observed that in
       regards to Leffe’s barred testimony, plaintiff’s response brief failed to provide any substantive
       argument in support of a generic request to “vacate all previous orders regarding evidentiary
       matters.” Accordingly, it constituted waiver of this contention. Plaintiff now appeals.

¶ 14                                               ANALYSIS
¶ 15        Plaintiff contends that the trial court erroneously granted defendant’s motion for summary
       judgment with regard to plaintiff’s negligence claim because a genuine issue of material fact
       existed regarding the element of proximate cause. Summary judgment is proper where the
       pleadings, admissions, depositions and affidavits demonstrate there is no genuine issue as to
       any material fact so that the movant is entitled to judgment as a matter of law. Ioerger v.
       Halverson Construction Co., 232 Ill. 2d 196, 201 (2008); 735 ILCS 5/2-1005 (West 2010). In
       determining whether a genuine issue of material fact exists, the court must consider such items
       strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228
       Ill. 2d 404, 417 (2008). We review the trial court’s order granting summary judgment de novo.
       Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).
¶ 16        In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must
       prove (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached the duty;
       and (3) that the breach was the proximate cause of the plaintiff’s injuries. Perfetti v. Marion
       County, 2013 IL App (5th) 110489, ¶ 16.
¶ 17        Plaintiff first contends that the trial court erred by barring Leffe’s testimony on proximate
       cause. Initially, we note that plaintiff fails to cite to any relevant authority or develop his
       argument on this matter in violation of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6,
       2013). See First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 208 (2007). This
       court is entitled to clearly defined issues, cohesive legal arguments and citations to relevant

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       authority. Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241,
       254-55 (2009). Accordingly, plaintiff has forfeited his contention on appeal. See TruServ
       Corp. v. Ernst & Young LLP, 376 Ill. App. 3d 218, 227 (2007).
¶ 18        Setting forfeiture aside, the purpose of discovery rules, governing the timely disclosure of
       expert witnesses, “is to avoid surprise and to discourage strategic gamesmanship” amongst the
       parties. (Internal quotation marks omitted.) Steele v. Provena Hospitals, 2013 IL App (3d)
       110374, ¶ 92. As a result, Rule 213(g) states as follows:
                “The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery
                deposition, limits the testimony that can be given by a witness on direct examination at
                trial. Information disclosed in a discovery deposition need not be later specifically
                identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the
                proponent of the witness to prove the information was provided in a Rule 213(f) answer
                or in the discovery deposition. Except upon a showing of good cause, information in an
                evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or
                in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct.
                R. 213(g) (eff. Jan. 1, 2007).
       Pursuant to the rule, the decision of whether to admit or exclude evidence, including whether to
       allow an expert to present certain opinions, rests solely within the discretion of the trial court
       and will not be disturbed absent a demonstrated abuse of discretion. Cetera v. DiFilippo, 404
       Ill. App. 3d 20, 36-37 (2010). Such an abuse of discretion occurs only if no reasonable person
       would take the view adopted by the trial court. Foley v. Fletcher, 361 Ill. App. 3d 39, 46
       (2005).
¶ 19        Here, plaintiff did not disclose Leffe’s intention to testify regarding proximate cause in his
       Rule 213(f) interrogatory. In addition, in Leffe’s discovery deposition, he testified that he had
       no intention to testify about the causal relationship between the subject injury and the binding
       functions because he did not hold himself out to be a biomechanical engineer. Moreover,
       plaintiff provided no explanation or showing of good cause below or on appeal for his failure
       to disclose Leffe’s opinions on causation. In granting the motion, the trial court specifically
       noted its concern of unfair prejudice to defendant because defense counsel was unable to
       question Leffe regarding his “opinions” on the matter, “qualification to offer such opinions,”
       or “the factual, scientific, or technical basis for his opinions.” Therefore, we cannot say that the
       trial court abused its discretion in this matter.
¶ 20        We now turn to whether a genuine issue of material fact exists regarding the element of
       proximate cause. In order to establish proximate cause, a plaintiff must establish both “cause in
       fact” and “legal cause.” Rivera v. Garcia, 401 Ill. App. 3d 602, 610 (2010). Cause in fact is
       established if the occurrence would not have happened “but for” the conduct of the defendant.
       Bourgonje v. Machev, 362 Ill. App. 3d 984, 1007 (2005). Legal cause, by contrast, is largely a
       question of foreseeability, and the relevant inquiry is whether the injury is of a type that a
       reasonable person would see as a likely result of his or her conduct. Feliciano v. Geneva
       Terrace Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶ 37. Furthermore, proximate
       cause must be established to a reasonable certainty and may not be based upon mere
       speculation, guess, surmise or conjecture. Bourgonje, 362 Ill. App. 3d at 1007. Because this
       case hinges on cause in fact, we need not consider legal cause. See Salinas v. Werton, 161 Ill.
       App. 3d 510, 515 (1987).


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¶ 21       In the case sub judice, the inference plaintiff seeks to establish is that defendant’s failure to
       properly set his ski bindings to plaintiff’s weight, height, and intermediate ability level
       prevented his ski bindings from properly releasing which directly caused his knee injury. This
       inference, while facially appealing, finds no support in the record. Dr. Fabian’s testimony as a
       whole fails to definitively establish, to any degree of medical certainty, a causal link between
       plaintiff’s bindings’ failure to release and his knee injury. In fact, Dr. Fabian testified that he
       was not an expert on the issues of causation with respect to injuries relating to ski bindings, and
       at best, the failure of plaintiff’s bindings to release “could be and also could not be” the
       proximate cause of plaintiff’s injury. Accordingly, Dr. Fabian’s testimony is speculative and
       not enough to withstand dismissal on summary judgment. See Johnson v. Ingalls Memorial
       Hospital, 402 Ill. App. 3d 830, 843 (2010) (an expert’s opinion was only as valid as the basis
       for the opinion and conclusory opinions based on sheer, unsubstantiated speculation were not
       enough to survive the summary judgment stage); Wiedenbeck v. Searle, 385 Ill. App. 3d 289,
       299 (2008) (at the summary judgment stage, the plaintiff must present affirmative evidence
       that the defendant’s negligence was a proximate cause of the plaintiff’s injuries, and the mere
       possibility of a causal connection was not sufficient to sustain the burden of proof).
¶ 22       In addition, even if we take Leffe’s testimony as true that defendant incorrectly set
       plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial
       evidence that if his bindings were at a lower setting his injury would not have occurred.
       Plaintiff and ski patroller Jones did not testify regarding the element of proximate cause, and
       Dr. Fabian’s testimony was demonstrably equivocal. See Salinas, 161 Ill. App. 3d at 515
       (although a plaintiff may rely on reasonable inferences that may be drawn from the facts
       considered on a motion for summary judgment, the circumstances must justify an inference of
       probability as distinguished from mere possibility). Furthermore, plaintiff has presented no
       additional evidence to rebut defense expert Shealy, who concluded, with a reasonable degree
       of engineering certainty, that a lower binding setting would not have prevented plaintiff’s knee
       injury because plaintiff’s bindings were not designed to protect against tibial plateau fractures.
       Consequently, plaintiff fails to establish that but for defendant’s negligence in setting his ski
       bindings too high, plaintiff’s injury would not have occurred. See Abrams v. City of Chicago,
       211 Ill. 2d 251, 258 (2004) (a defendant’s conduct was only a material element and substantial
       factor in bringing about the injury if, absent that conduct, the injury would not have occurred).
¶ 23       Moreover, plaintiff’s reliance on cases addressing the admissibility of expert testimony is
       misplaced, as defendant does not dispute that Dr. Fabian’s expert opinion regarding causation
       would be admissible at trial. See Torres v. Midwest Development Co., 383 Ill. App. 3d 20
       (2008); Wojcik v. City of Chicago, 299 Ill. App. 3d 964 (1998); Geers v. Brichta, 248 Ill. App.
       3d 398 (1993); Mesick v. Johnson, 141 Ill. App. 3d 195 (1986). Here, no reasonable inferences
       can be drawn to establish that but for defendant’s negligence the incident would not have
       occurred. See McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996). Because the record
       presents no genuine issue of material fact, defendant was entitled to summary judgment as a
       matter of law.

¶ 24                                       CONCLUSION
¶ 25       Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 26       Affirmed.

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