                                   2016 IL App (1st) 152481
                                                                           THIRD DIVISION
                                                                           September 28, 2016


                                         No. 1-15-2481

_____________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
_____________________________________________________________________________

STEVEN R. ATCHLEY, Individually and             )           Appeal from the
as Special Administrator of the Estate of       )           Circuit Court of
LINDA ATCHLEY, Deceased,                        )           Cook County.
                                                )
                  Plaintiffs-Appellants,        )
                                                )
            v.                                  )           No. 10 L 10545
                                                )
UNIVERSITY OF CHICAGO MEDICAL CENTER            )
                                                )
                  Defendant and Third-Party     )
                  Plaintiff-Appellee,           )
                                                )
            v.                                  )
                                                )
                                                )
HOME JUICE CORP.,                               )           Honorable
                                                )           Lynn M. Egan
                  Third-Party Defendant.        )           Judge Presiding.
_____________________________________________________________________________

       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 Medic0al 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
No. 1-15-2481


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




1
    Linda died after this action was filed.
                                                   2
No. 1-15-2481


¶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

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,



                                                  3
No. 1-15-2481


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 1,500-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

2
  The record suggests that after taking the elevator downstairs to the tunnels, Steven would have
to walk approximately 1,570 steps to make his deliveries and return to his truck.
                                                   4
No. 1-15-2481


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.

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 $1,022.90.

¶ 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



                                                 5
No. 1-15-2481


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.




                                                   6
No. 1-15-2481


                 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

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



3
    The record uses the terms “leveler” and “plate” interchangeably.
                                                  7
No. 1-15-2481


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.



                                                  8
No. 1-15-2481


¶ 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

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



                                                 9
No. 1-15-2481


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 non-functional leveler constituted an open and obvious condition. UCMC

also argued that the non-functional 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




                                                10
No. 1-15-2481


exception to the open and obvious doctrine did not apply. Furthermore, UCMC did not owe a

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 Burl

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



                                                  11
No. 1-15-2481


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 which 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, 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)




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.
                                                 12
No. 1-15-2481


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



                                                 13
No. 1-15-2481


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.

¶ 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



                                                 14
No. 1-15-2481


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.




                                                  15
No. 1-15-2481


¶ 39   Courts may not consider inadmissible evidence in support of, or in opposition to, a

motion for summary judgment. Lacey v. Perrin, 2016 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 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



                                                 16
No. 1-15-2481


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



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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 $1,022.90 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.

¶ 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 Oakbrook, 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,



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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.




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¶ 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

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



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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 Ill 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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