                                                                              SECOND DIVISION
                                                                                   April 27, 2010




No. 1-09-1759



ROBERT F. KEATING, JR.,                                       )      Appeal from
                                                              )      the Circuit Court
                Plaintiff-Appellant,                          )       of Cook County.
                                                              )
       v.                                                     )
                                                              )
68TH AND PAXTON, L.L.C., an Illinois L.L.C.,                  )
and DAVID L. OGLESBY and BOBBIE OGLESBY,                      )
jointly d/b/a OGLESBY MANAGEMENT                              )
COMPANY, an Unincorporated Entity,                            )      No. 07 L 002863
                                                              )
                Defendants-Appellees                          )
                                                              )
(Gonzon Construction Co., Inc., an Illinois Corporation       )
and Victor Gonzon, Individually, d/b/a Gonzon                 )
Construction,                                                 )      Honorable
                                                              )      Thomas Quinn,
                Defendants).                                  )      Judge Presiding.


       JUSTICE THEIS delivered the opinion of the court:

       This case arises out of injuries sustained by plaintiff Robert Keating while repairing a

porch at an apartment building owned by defendant 68th & Paxton, L.L.C., and managed by

defendant Oglesby Management Company (OMC) (collectively, defendants). Plaintiff filed

premises liability claims against defendants in circuit court. In his fourth amended complaint,

plaintiff added allegations that defendants knowingly failed to provide him with workers’

compensation insurance as required by section 4(d) of the Workers’ Compensation Act (Act)

(820 ILCS 305/4(d) (West 2006)); therefore, defendants were presumed liable for his injuries.
1-09-1759


On defendants’ motion, the circuit court struck the allegations pertaining to the Act for lack of

subject matter jurisdiction. The court then granted summary judgment for defendants on

plaintiff’s premises liability claims. Plaintiff now appeals from the circuit courts’ orders. For

the following reasons, we affirm.

       68th & Paxton owns a three-floor residential apartment building at 6755 S. Paxton Street.

OMC manages the building through David and Bobbie Oglesby. OMC sought to replace the

wooden porches at the building. It hired Gonzon Construction, Inc. (GCI), owned by Victor

Gonzon, to perform the demolition and reconstruction of the porches. GCI in turn hired plaintiff

to perform the demolition. On March 1, 2007, plaintiff fell from the third-floor porch at the

apartment building and landed on a fence below, suffering severe injuries.

       Plaintiff sued for damages in the circuit court. In counts I and II of his third amended

complaint, plaintiff asserted negligence claims against GCI and Gonzon, respectively. In counts

III and V, plaintiff asserted premises liability claims against 68th & Paxton and OMC,

respectively. In count IV, plaintiff asserted a negligence claim against David Oglesby

individually, which he later voluntarily dismissed.

       Following the discovery period, defendants filed a motion for summary judgment,

arguing that plaintiff failed to establish that any alleged breach of duty by defendants was the

proximate cause of his injuries.1 In support of their motion, defendants relied in part upon

plaintiff’s deposition. Plaintiff testified that he had been working for Victor Gonzon for about



            1
            GCI and Gonzon unsuccessfully moved for summary judgment on the claims
   against them. They are not parties to the instant appeal.

                                                 -2-
1-09-1759


18 months demolishing porches, including the one at defendants’ apartment building. He

testified that he was not a foreman, but that he had the most experience of the workers. Plaintiff

testified that he demolished the wooden rails and pickets that surround the perimeter of a porch.

Based on the photographic exhibits, the porches have two rails, oriented horizontally, that are

attached at both ends to a support post. There are also many pickets, oriented vertically and

several inches apart, that are attached to the top and bottom rails.

       According to plaintiff, the pickets are usually attached to the rails on the outside of the

porch. Plaintiff described his general technique in demolishing a porch as follows:

               “There’s a top rail and a bottom rail. *** I usually hit the bottom with the

       hammer. *** I hit the picket off the bottom rail first. And I hit – then I hit the

       top rail, the picket off the top, put my hand on it and give it a whack. And then I

       throw the picket[s] down one at a time. If they’re real sturdy, then what will

       happen, when I hit the picket at the top, the top rail might come loose. Then I

       will have to take it off from the section. But most of the time I just take a picket

       and knock them. Knock them at the bottom, knock them at the top, put them in a

       pile. *** Take the top rail off, take the bottom rail off, go onto the next section.

       *** [T]he picket is on the outside [of the porch]. *** [T]he bottom rail is on the

       inside [of the porch].”

       However, plaintiff stated that the pickets on the porch at defendants’ apartment building

were attached to the rails on the inside of the porch. He stated that he would take the porch apart

differently under these circumstances. Specifically:


                                                -3-
1-09-1759


               “[I]n a case like this I wouldn’t take the pickets out. *** I would take it

       and I would remove the top rail first. *** And pull the thing down so it’s on the

       deck. *** And then remove the bottom rail. *** And then pull the whole thing

       off in one piece, and then knock the pickets off.

               Q. Okay. And then after you would do that, would there be nothing?

               A. There would be nothing there.”

He later reiterated that he would not strike the pickets while they were attached to the rails on the

inside of the porch because in that case, he would have to “lean over the rail to get to them. And

that’s a lot of work. *** [I]f you just knock them – knock it down and lean it up against the wall,

you can smack the pickets out.”

       He also testified that the rails on the porch at defendants’ apartment building were

“screwed together,” rather than nailed, which meant that he had to “whack it harder.” He

testified that the rails may have been screwed together because the wood was “bad.” In fact, he

indicated in a photograph that the wooden posts were rotten and that may have been the reason

that the rails and posts were screwed together. He described the porch at defendants’ building as

being in “bad shape.” He recognized that it had been “patched” in places where the porch had

been previously repaired. Nevertheless, he acknowledged that “when I go out to a job site ***

the guy is buying a new porch, it is not because the old one is good.”

       About an hour after starting work, plaintiff fell from the porch and impaled himself on a

wrought iron fence post below. He testified that he did not know how he had fallen. He stated:




                                                -4-
1-09-1759


               “I remember having the hammer in my hand. *** I remember hitting one

       picket, and that’s all I remember for the whole rest of the day. The next thing I

       remember is two days later I woke up in the hospital. *** I can’t really tell you

       how I fell.”

When shown a photograph of the accident site, he could not identify from where he had fallen.

He also could not remember what direction his body was facing when he fell, or whether his feet

had come out from under him before he fell. Although other workers were present on the day of

the accident, plaintiff did not know whether anyone had witnessed his fall.

       Plaintiff did not know if he was holding onto the railing or whether his body was in

contact with the railing in any way at the time of the accident. He also did not recall leaning

over the railing to remove the pickets. He acknowledged that he may have told some people in

the course of conversation that he was leaning over the railing when it collapsed, but admitted

that he was only guessing.

       Plaintiff also testified that it was raining while he was working and that he had gotten

slightly wet. He acknowledged that the wooden porch floor became slippery when wet.

However, he did not recall slipping or sliding. Nevertheless, he stated that he had to be more

careful than usual to avoid slipping and falling. When asked whether the rain may have

contributed to his fall, he replied, “I couldn’t tell you. *** I don’t remember anything. The only

thing I remember is I went there, I had the hammer in my hand, I gave it a whack, and then I was

in the hospital.” When asked what he took a “whack” at, he replied:




                                                -5-
1-09-1759


                 “A. The rail, but I don’t remember if it was the top rail, the bottom rail or

        the picket, I just –

                Q. Just some parts of the railing?

                A. Yeah.”

        Chester and Joseph Drapinski also were working at the apartment building on the day of

the accident. However, neither of them saw plaintiff fall from the balcony. They had their backs

toward plaintiff as they worked.

        In response to the summary judgment motion, plaintiff admitted that there was no direct

evidence of the cause of his injury. However, he argued that there was circumstantial evidence

to support his contention that regardless of whether he was leaning on the rail or slipped and fell

into the rail, the rail itself failed to protect him from falling off of the porch because it was

improperly attached to the support post. To support his contention, he relies on three pieces of

evidence: (1) a 2004 building inspection report; (2) the affidavit of a construction administration

expert; and (3) an excerpt from Gonzon’s deposition. The building inspection report, prepared

for David Oglesby in 2004, stated in relevant part that “numerous structural members of the

wood rear porch were improperly/inadequately fastened and were not properly bolted together.”

        Plaintiff’s expert, Christopher Chwedyk, asserted in his affidavit that city building code

required a wooden porch rail to be able to withstand 200 pounds of thrust force. Although

plaintiff only weighed 175 to 180 pounds, Chwedyk concluded that it was “more likely than not

that the reason that the railing detached from the post in the area where plaintiff fell is because it

was not adequately or properly attached to support plaintiff’s weight coming in contact with it.”



                                                  -6-
1-09-1759


Chwedyk did not inspect the accident site, but reviewed photographs of it, as well as the building

inspection report and the depositions taken in this case. He was not deposed.

        During his examination by plaintiff’s attorney, Gonzon testified that he was not on site at

the time of plaintiff’s accident. He stated that at some time after the accident, he went to the area

of the porch from where plaintiff was believed to have fallen. He testified that the top rail was

missing and that it had landed on the first floor. He was not asked how he knew it was the same

rail that had been on the third-floor porch. He also testified that he did not believe that the rail

had broken but, rather, that the screws holding the rail “gave way.” He stated that that occurred

because the rail was “screwed into rotten wood and [plaintiff] was leaning – [plaintiff’s] weight

was on the [top] rail.” However, he testified that he and plaintiff never discussed the cause of

his accident and he was not asked how he knew that plaintiff had leaned

against the rail.

        While defendants’ summary judgment motion was pending, plaintiff filed a fourth

amended complaint. He did not add new counts but, rather, he added several paragraphs to the

existing negligence claims. The new paragraphs alleged that defendants were “employers”

under sections 1 and 3 of the Act (820 ILCS 305/1, 3 (West 2006)) and were obligated to

provide plaintiff with workers’ compensation insurance. He further alleged that defendants

knowingly failed to provide him with insurance. As a result, he alleged that section 4(d) of the

Act permitted him to sue defendants in circuit court, where proof of his injuries constituted a

rebuttable presumption of liability against defendants.




                                                 -7-
1-09-1759


       Defendants then filed a motion to strike those newly added paragraphs pursuant to

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)).

Defendants argued that those allegations were legally insufficient to invoke section 4(d) of the

Act because plaintiff failed to allege that the Workers’ Compensation Commission made the

requisite findings that defendants were statutory employers and that they knowingly failed to

provide him with insurance.

       Following a hearing, the court granted both of defendants’ motions. On the motion to

strike, the court found that the Commission had exclusive jurisdiction to determine whether

defendants were statutory employers under the Act and whether they knowingly failed to provide

plaintiff with insurance. The court also granted defendants’ motion for summary judgment on

the basis that defendants had no duty to warn plaintiff of the dangerous condition of the porch he

was hired to repair because the risk of injury was open and obvious. Plaintiff then appealed

from the court’s orders.

       Plaintiff first argues that the court erred in striking the paragraphs of his complaint

related to section 4(d) of the Act. He contends that section 4(d) did not require the Commission

to hold a preliminary hearing to determine whether defendants knowingly failed to provide him

with insurance before he could file his claim in the circuit court.

       Before we address the substance of plaintiff’s first argument, we must comment on a

procedural aspect of this case. We acknowledge that ordinarily, a challenge to the circuit court’s

subject matter jurisdiction should be brought as a motion to dismiss pursuant to section 2-619 of

the Code (735 ILCS 5/2-619(a)(1) (West 2006)). Scott Wetzel Services v. Regard, 271 Ill. App.



                                                 -8-
1-09-1759


3d 478, 481 (1995). However, given the unique procedural posture of this case, we think that

defendants’ motion to strike under section 2-615 (735 ILCS 5/2-615 (West 2006)) was proper.

       Section 2-615 provides that a pleading or portion thereof may be stricken because it is

substantially insufficient in law. 735 ILCS 5/2-615 (West 2006). That is, a motion filed under

section 2-615 tests the legal sufficiency of the pleading. Cohen v. McDonald’s Corp., 347 Ill.

App. 3d 627, 632 (2004). In such a case, the court accepts as true all well-pleaded facts and

reasonable inferences to be drawn from those facts and determines whether the allegations are

sufficient to state a cause upon which relief may be granted. Cohen, 347 Ill. App. 3d at 632.

       On the other hand, a motion to dismiss pursuant to section 2-619 admits the legal

sufficiency of the pleading and raises defects, defenses, or other affirmative matters that act to

defeat the claim. Cohen, 347 Ill. App. 3d at 632. Thus, the issue is whether, after reviewing the

pleadings, depositions, and affidavits, there is a genuine issue of material fact that precludes

dismissal, or whether dismissal is proper as a matter of law. Cohen, 347 Ill. App. 3d at 632.

       Here, defendants challenged plaintiff’s ability to invoke section 4(d) of the Act in the

circuit court. They did not concede the legal sufficiency of the complaint in its entirety but,

rather, argued that certain paragraphs of counts III and V were insufficient to transform an

ordinary premises liability claim into a violation under the Act. Additionally, defendants only

sought to strike the offending paragraphs from the complaint as a remedy, rather than seeking to

dismiss the complaint entirely. For these reasons, defendants correctly sought relief under

section 2-615 in this case.




                                                 -9-
1-09-1759


        As to the substance of plaintiff’s argument, we note that this is a case of first impression

in Illinois that requires us to interpret section 4(d) of the Act. Because this is a matter of

statutory construction, we apply a de novo standard of review. Cassens Transport Co. v.

Industrial Comm’n, 218 Ill. 2d 519, 524 (2006). Our primary goal in interpreting the Act is to

ascertain and give effect to the intent of the legislature. Cassens, 218 Ill. 2d at 524. In order to

make that determination, we must read the statute as a whole and consider all relevant parts of

the statute. Cassens, 218 Ill. 2d at 524. Additionally, we must give effect to each word, clause,

and sentence of the statute and render no part of it superfluous, meaningless, or void. Cassens,

218 Ill. 2d at 524.

        The purpose of the Act is to provide financial protection for injured workers covered by

the Act. Cassens, 218 Ill. 2d at 524. The Act was designed to provide prompt and equitable

recovery without proof of fault for accidental injuries that occur in the workplace, while also

protecting employers from the uncertain exposure of lawsuits brought by employees in civil

court. Luchesi v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 333 Ill. App. 3d

543, 551 (2002), citing Mitsuuchi v. City of Chicago, 125 Ill. 2d 489, 494 (1988), quoting

Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 180-81 (1978). However, an employer-employee

relationship is a prerequisite for an award of benefits under the Act. Roberson v. Industrial

Comm’n, 225 Ill. 2d 159, 174 (2007).

        Under section 5(a) of the Act, there is no common law or statutory right to recover

damages from an employer for injuries sustained by the employee while engaged in the line of

duty as an employee. 820 ILCS 305/5(a) (West 2006). Accordingly, the Act provides the



                                                 - 10 -
1-09-1759


exclusive remedy for employees to recover from their employers following accidental workplace

injuries. 820 ILCS 305/5(a) (West 2006); Boelkes v. Harlem Consolidated School District No.

122, 363 Ill. App. 3d 551, 554-55 (2006). To that end, the legislature has determined that “[a]ll

questions arising under this Act *** shall, except as otherwise provided, be determined by the

[Workers’ Compensation] Commission.” 820 ILCS 305/18 (West 2006); Cassens, 218 Ill. 2d at

524. Specifically, the Commission has the authority to resolve “[a]ny disputed questions of law

or fact” arising under the Act. 820 ILCS 305/19 (West 2006); Roberson, 225 Ill. 2d at 173 (“In

workers’ compensation cases the Industrial Commission is the ultimate decisionmaker”).2

       With these larger principles in mind, we now turn to the language of section 4 of the Act.

Section 4 contains regulations to ensure that employers maintain adequate workers’

compensation insurance and pay compensation claims to their employees. 820 ILCS 305/4

(West 2006). In particular, section 4(d) gives the Commission authority to enforce those

regulations. It provides in relevant part:

                “[1.] Whenever a panel of 3 Commissioners ***, with due process and

       after a hearing, determines an employer has knowingly failed to provide coverage

       as required by paragraph (a) of this Section, the failure shall be deemed an

       immediate serious danger to public health, safety, and welfare sufficient to justify

       service by the Commission of a work-stop order on such employer, requiring the


            2
              Effective January 1, 2005, the name of the Industrial Commission was changed
   to the Illinois Workers’ Compensation Commission. Pub. Act 93-0721, eff. January 1,
   2005. Accordingly, “[r]eferences in any law *** to the Industrial Commission are
   deemed, in appropriate contexts, to be references to the Illinois Workers’ Compensation
   Commission for all purposes.” 820 ILCS 305/13 (West 2006).

                                               - 11 -
1-09-1759


      cessation of all business operations of such employer at the place of employment

      or job site. ***

              [2.] Any individual employer *** who knowingly fails to provide

      coverage as required by paragraph (a) of this Section is guilty of a Class 4 felony.

      *** The State’s Attorney of the county in which the violation occurred, or the

      Attorney General, *** may, in addition to other remedies provided in this

      Section, bring an action for an injunction to restrain the violation or to enjoin the

      operation of any such employer.

              [3.] Any individual employer *** who negligently fails to provide

      coverage as required by paragraph (a) of this Section is guilty of a Class A

      misdemeanor. ***

              ***

              [5.] Employers who are subject to and who knowingly fail to comply with

      this Section shall not be entitled to the benefits of this Act during the period of

      noncompliance, but shall be liable in an action under any other applicable law of

      this State. *** In the action, proof of the injury shall constitute prima facie

      evidence of negligence on the part of such employer and the burden shall be on

      such employer to show freedom of negligence resulting in the injury. ***

                                               ***

              [8.] Upon a finding by the Commission, after reasonable notice and

      hearing, of the knowing and wilful failure or refusal of an employer to comply



                                               - 12 -
1-09-1759


        with any of the provisions of paragraph (a) of this Section ***, the Commission

        may assess a civil penalty of up to $500 per day for each day of such failure ***.”

        820 ILCS 305/4(d) (West 2006).

        The original text of the excerpt of section 4(d) above does not contain numbered

paragraphs. We included paragraph numbers here for ease of discussion. However, it is worth

noting that the absence of numbered paragraphs is some indication that the legislature intended

for section 4(d) to be read as a whole. See County of Du Page v. Illinois Labor Relations Board,

231 Ill. 2d 593, 604 (2008) (noting that words and phrases of a statute should not be construed in

isolation).

        When we read section 4(d) as a whole, together with the Commission’s broad grant of

authority under sections 18 and 19, we find that the legislature intended for the Commission to

determine whether employers subject to the Act have failed to comply with its regulations and, if

so, what penalties apply. The opening paragraph of section 4(d) makes clear that its provisions

apply only after a panel of commissioners conducts a hearing in accordance with due process

principles and determines that the employer failed to provide the requisite insurance. 820 ILCS

305/4(d) (West 2006).

        Then, if the employer is deemed noncompliant, the Commission still must determine

whether its noncompliance was knowing or negligent for purposes of imposing the appropriate

penalty. 820 ILCS 305/4(d) (West 2006). Under paragraph 3, if the employer is merely

negligent, it is subject to prosecution for a Class A misdemeanor. 820 ILCS 305/4(d) (West

2006). However, if the Commission determines that the employer knowingly failed to provide



                                               - 13 -
1-09-1759


insurance as required, then the employer may be prosecuted for a Class 4 felony as described in

paragraph 2: the Commission is permitted to enlist the assistance of the State’s Attorney or the

Attorney General to effect such prosecutions or seek injunctions. 820 ILCS 305/4(d) (West

2006).

         In addition to a felony prosecution, an employer who knowingly fails to provide the

requisite insurance is subject to other consequences. In particular, paragraph 5 states that

employers who knowingly fail to provide adequate insurance are no longer entitled to the

benefits and protections of the Act and may be sued in civil court. 820 ILCS 305/4(d) (West

2006). In such an action, proof of injury creates a rebuttable presumption of the employer’s

liability. 820 ILCS 305/4(d) (West 2006). Although the employer may attempt to disprove its

liability, it may not rely on the defense of assumption of the risk, negligence, or that the injury

was caused by a fellow employee in doing so. 820 ILCS 305/4(d) (West 2006). Employers also

are not entitled to the limitations on damages provided by the Act. See 820 ILCS 305/7, 8, 10,

11 (West 2006). Paragraph 8 also empowers the Commission to assess civil penalties for

employers who knowingly and wilfully fail or refuse to comply with section 4(d). 820 ILCS

305/4(d) (West 2006). Nevertheless, these penalties apply only after the Commission first

determines that the employer knowingly failed to comply with its requirement to provide

adequate insurance. 820 ILCS 305/4(d) (West 2006). Thus, we conclude that claims of an

employer’s failure to provide workers’ compensation insurance must be presented to the

Commission for a hearing before an action may be filed in the circuit court under section 4(d) of

the Act.



                                                 - 14 -
1-09-1759


       We are not persuaded by plaintiff’s argument that the Commission is only required to

hold a hearing to make a determination of an employer’s noncompliance for the purpose of

effectuating the terms of paragraph 1. He claims that because there is no hearing requirement

prefacing each paragraph of section 4(d), then the legislature must have intended for the hearing

to take place only to obtain the work-stop order provided for in paragraph 1. 820 ILCS 305/4(d)

(West 2006). Such an interpretation ignores the basic principles of statutory construction, which

require us to consider all relevant parts of the statute as a whole. Cassens, 218 Ill. 2d at 524.

       If we nevertheless adopted plaintiff’s interpretation, and read each paragraph of section

4(d) as a separate directive to the Commission, several paragraphs of section 4(d) would be

rendered meaningless. That result would contravene our duty to give effect to each word, clause,

and sentence of the statute and render no part of it superfluous, meaningless, or void. Cassens,

218 Ill. 2d at 524. For example, paragraph 11 provides for the disposition of all fines and

penalties collected pursuant to “this paragraph (d)”; it would be meaningless if we did not read it

together with paragraph 8, which provides the circumstances under which those fines and

penalties may be imposed. Additionally, paragraph 4 discusses “criminal penalties in this

subsection (d)”; it would be meaningless if we did not read it together with paragraphs 2 and 3,

which describe the circumstances under which an employer becomes subject to criminal

prosecutions.

       Most importantly, if we adopted plaintiff’s interpretation of section 4(d), permitting

employees to bypass the Commission to file their claims against employers directly in the circuit

court, we would defy the stated purpose of the Act. The Act reflects a legislative balancing of



                                                - 15 -
1-09-1759


rights, remedies, and procedures that govern the disposition of employees’ workplace injuries.

Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 44 (1994). Employees cannot be

permitted to make their own determinations regarding the threshold questions underlying the

provisions of section 4(d) – namely, whether there was an employment relationship such that the

Act applied under the circumstances; whether the purported employer was required to provide

workers’ compensation insurance; whether the employer failed to provide insurance; and

whether the employer was negligent or deliberate in failing to provide insurance – in order to

confer a presumption of liability in their favor and subject employers to uncertain exposure in

the circuit court without a hearing by the Commission charged with making those predicate

factual determinations in accordance with due process principles. See 820 ILCS 305/18, 19

(West 2006); see also Roberson, 225 Ill. 2d at 173-75 (the Commission determines the threshold

question of whether an employment relationship exists under a fact-intensive analysis);

Hollywood Trucking, Inc. v. Watters, 385 Ill. App. 3d 237, 245 (2008) (the Commission

determines questions related to an employer’s potential defenses); Cropmate Co. v. Industrial

Comm’n, 313 Ill. App. 3d 290, 294 (2000) (the Commission decides whether one is a “statutory

employer” under section 3 of the Act).

       Plaintiff also contends that the principles set forth in Employers Mutual Cos. v. Skilling,

163 Ill. 2d 284 (1994), and People v. NL Industries, 152 Ill. 2d 82 (1992), vest the circuit court

with jurisdiction superior to that of the Commission. We disagree.

       In Skilling, the supreme court was asked to determine the scope of the Commission’s and

the circuit court’s jurisdiction over the interpretation of a workers’ compensation insurance

policy. Skilling, 163 Ill. 2d at 286. It determined that the circuit court has original jurisdiction

                                                - 16 -
1-09-1759


over all justiciable issues under the Illinois Constitution. Skilling, 163 Ill. 2d at 287, citing Ill.

Const. 1970, art. VI, §9. However, in enacting the Act, the legislature also vested original

jurisdiction over workers’ compensation matters with the Commission, giving both forums

concurrent jurisdiction. Skilling, 163 Ill. 2d at 287; 820 ILCS 305/18 (West 1992). The court

then explained that in order for the Commission to have primary jurisdiction, the legislature must

divest the circuit court of its jurisdiction, or the Commission must be able to provide a

specialized or technical expertise that would help resolve the controversy. Skilling, 163 Ill. 2d at

288. After analyzing the language of the Act, the court determined that by itself, section 18 of

the Act, which grants the Commission the power to determine “ ‘[a]ll questions arising under

this Act,’ ” did not sufficiently divest the circuit court of its original jurisdiction over the

interpretation of an insurance contract presented in a declaratory judgment action. Skilling, 163

Ill. 2d at 287, quoting 820 ILCS 305/18 (West 1992); NL Industries, 152 Ill. 2d at 96-97.

Additionally, the interpretation of an insurance contract, whatever its subject matter, did not

require the expertise of an administrative agency for a proper interpretation; thus, the circuit

court retained primary jurisdiction. Skilling, 163 Ill. 2d at 289.

        On the other hand, the present case involves questions that are uniquely suited to the

expertise of the Commission. As stated above, the Commission is charged with deciding

whether an employment relationship existed between the plaintiff and the defendant, whether the

defendant was required to provide workers’ compensation insurance, and whether the employer

knowingly or negligently failed to do so. The Commission must first make those factual

determinations in order to decide whether the enforcement provisions of section 4 apply, and if

so, which penalties are appropriate. Thus, the legislature demonstrated its clear intent to vest the

                                                  - 17 -
1-09-1759

Commission with primary jurisdiction superior to that of the circuit court with respect to section

4 of the Act. Therefore, Skilling is distinguishable.

        Nor does NL Industries control here. That case also examined the question of whether

the legislature sufficiently divested the circuit court of its original jurisdiction to enforce the

provisions of the Illinois Environmental Protection Act and bestowed it primarily upon the

Pollution Control Board. NL Industries, 152 Ill. 2d at 89-90. The specific language of the

statutory provisions at issue in NL Industries alternately indicated that jurisdiction was vested in

the Pollution Control Board or the circuit court or both. NL Industries, 152 Ill. 2d at 99. The

court concluded that both bodies shared concurrent jurisdiction. However, because the express

language of the statute granted jurisdiction in both forums, the legislature did not demonstrate a

clear intent to deprive the circuit courts of jurisdiction. NL Industries, 152 Ill. 2d at 99. In

addition, the court noted that the Pollution Control Board lacked the power to enforce any of the

remedies and, therefore, the legislature could not have intended for jurisdiction to lie with the

Board as opposed to the circuit court. NL Industries, 152 Ill. 2d at 100. Thus, the statute’s

reference to the Pollution Control Board’s jurisdiction was merely “an oversight” by the

legislature and primary jurisdiction remained with the circuit court. NL Industries, 152 Ill. 2d at

99.

        In the present case, unlike NL Industries, there is no inconsistency in the Act with respect

to the Commission’s jurisdiction and the court’s. In fact, the legislature demonstrated a clear

intent to vest primary jurisdiction with the Commission because of its specialized knowledge and

expertise in deciding the fact-intensive questions of who employers are under the Act, whether

an employer-employee relationship existed, whether an employer knowingly or negligently

                                                  - 18 -
1-09-1759

failed to comply with section 4(d) and, if so, what penalties should apply under the Act. With

that said, in certain instances, the legislature specifically reserved to the circuit court jurisdiction

over criminal prosecutions and injunctions to be instituted by the state’s attorney or the attorney

general, and actions to recover amounts owed under the Act to be filed by the Commission itself,

where the expertise of the Commission is not required for the enforcement of those particular

penalties. 820 ILCS 305/4(d) (West 2006). But see Skilling, 163 Ill. 2d at 289.

        Finally, we must address Eisenberg v. Industrial Comm’n, 337 Ill. App. 3d 373 (2003),

which is the only case to have addressed the substance of section 4(d). The plaintiffs in

Eisenberg were employers who had been fined by the Commission for failing to provide

insurance to their employees. They brought a declaratory judgment action in the circuit court

against the Commission alleging inter alia that the Commission lacked the power to impose the

fine against them because it did not first hold a hearing to determine that they were “employers”

under the statute. Eisenberg, 337 Ill. App. 3d at 377. We rejected the plaintiffs’ argument

because the Commission had in fact determined that the plaintiffs were employers during the

course of a separate investigation involving violations of the Act. Eisenberg, 337 Ill. App. 3d at

376, 383. We ultimately held that under the unique circumstances of that case, the Commission

was not required to conduct a formal hearing to determine the plaintiffs’ status as employers.

Eisenberg, 337 Ill. App. 3d at 383.

        Nevertheless, we concluded that “under section 4(d), the Commission has authority, after

notice and a hearing, to determine whether the charged party is an ‘employer’ and to impose

civil penalties upon an ‘employer.’ ” Eisenberg, 337 Ill. App. 3d at 382-83. We reaffirm that

conclusion here and, as discussed above, hold that the Commission’s jurisdiction in making

                                                  - 19 -
1-09-1759

those determinations is superior to the circuit court’s. See Skilling, 163 Ill. 2d at 288. In this

case, plaintiff’s attempt to file his claim in the circuit court circumvented the procedural process

prescribed by the legislature.

       Accordingly, the Commission, and not the circuit court, had jurisdiction to determine

whether plaintiff could seek relief under section 4(d) of the Act. Plaintiff did not allege that the

Commission made the requisite determinations about the applicability of the Act and defendants’

compliance with it that would permit plaintiff to pursue relief in the circuit court under section

4(d). Thus, even taking the factual allegations contained in plaintiff’s complaint as true for

purposes of evaluating the sufficiency of the complaint, the circuit court lacked the power to

evaluate them. Therefore, by themselves, those paragraphs of the complaint were legally

insufficient and were properly stricken.

       Plaintiff also appeals from the circuit court’s order granting summary judgment for

defendants on the premises liability claim. Summary judgment is appropriate only where all of

the evidence, viewed in the light most favorable to the nonmoving party, reveals that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

law. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d

294, 305 (2005). Although the plaintiff need not prove his case at the summary judgment stage,

he must present sufficient evidence to create a genuine issue of material fact. Wiedenbeck v.

Searle, 385 Ill. App. 3d 289, 292 (2008). We review an order granting summary judgment de

novo. Wiedenbeck, 385 Ill. App. 3d at 292.

       To establish a premises liability negligence claim, the plaintiff must present sufficient

factual evidence to establish the existence of a duty of care owed by the defendant to the

                                                - 20 -
1-09-1759

plaintiff, a breach of that duty, and an injury proximately caused by that breach. Marshall v.

Burger King Corp., 222 Ill. 2d 422, 430 (2006). Whether a duty exists in a particular case is a

question of law for the court to decide. Marshall, 222 Ill. 2d at 430. However, whether a

defendant breached that duty and whether the breach was the proximate cause of the plaintiff's

injuries are factual matters. Marshall, 222 Ill. 2d at 430. Nevertheless, if the plaintiff fails to

present sufficient evidence to establish proximate cause, then summary judgment is appropriate.

Rogers v. Matanda, Inc., 393 Ill. App. 3d 521, 526 (2009).

        In this case, although defendants argued in the court below that plaintiff had failed to

present any evidence on the element of proximate cause, the circuit court granted summary

judgment based on the absence of a duty owed by defendants because of the open and obvious

nature of the risk of harm. Here, summary judgment was proper on both elements.

        First, plaintiff failed to establish that defendants owed him a duty to warn him of the

allegedly dangerous condition on the property. Whether a duty exists is a question of law, but it

is also a question of public policy because it requires us to determine whether a plaintiff and a

defendant stand in such a relationship to each other that the law imposes on the defendant an

obligation of reasonable conduct for the plaintiff’s benefit. LaFever v. Kemlite Co., 185 Ill. 2d

380, 388-89 (1998). To make such a determination, we must balance the following four factors:

(1) the reasonable foreseeability of the injury; (2) the likelihood of injury; (3) the magnitude of

the burden on the defendant to guard against the injury; and (4) the consequences of placing the

burden on the defendant. LaFever, 185 Ill. 2d at 389. However, it is axiomatic that no legal duty

arises unless the harm is reasonably foreseeable. Clifford v. Wharton Business Group, L.L.C.,

353 Ill. App. 3d 34, 42 (2004).

                                                 - 21 -
1-09-1759

       We analyze the foreseeability of the injury under section 342 of the Restatement

(Second) of Torts, which states in relevant part:

               “ ‘A possessor of land is subject to liability for physical harm caused to

       his invitees by a condition on the land if, but only if, he

               (a) knows or by the reasonable exercise of care would discover the

       condition, and should realize that it involves an unreasonable risk of harm to such

       invitees, and

               (b) should expect that they will not discover or realize the danger, or will

       fail to protect themselves against it, and

               (c) fails to exercise reasonable care to protect them against the danger.’ ”

       LaFever, 185 Ill. 2d at 389-90, quoting Restatement (Second) of Torts §343, at

       215-16 (1965).

       Here, we cannot say that any injury to plaintiff caused by the condition of the property

was foreseeable under section 342. Plaintiff alleged that defendants should have warned him

that “numerous structural members of the wood rear porch were improperly/inadequately

fastened and were not properly bolted together,” as stated in the 2004 inspection report.

However, plaintiff, Gonzon, and Chester Drapinski testified that the porch was in poor condition,

that the posts and railings were attached with screws rather than nails, and that some of the

screws had been stripped. Additionally, plaintiff testified that the porch had been “patched” in

places, where the porch had been previously repaired. Plaintiff also acknowledged that

ordinarily, when he is hired to replace a porch, “it is not because the old one is good.” Thus,

plaintiff and his coworkers hired to replace the porch recognized the extent of the porch’s poor

                                                - 22 -
1-09-1759

condition and did in fact discover the allegedly dangerous condition that plaintiff now claims

was the cause of his injury. Consequently, we cannot say that defendants should have believed

that plaintiff, with his experience in porch demolition, would fail to discover that condition or

fail to protect himself against it. Accordingly, any injury caused by the condition of the porch

was not foreseeable. Therefore, defendants owed plaintiff no duty to warn him of an allegedly

dangerous condition in this case and summary judgment was proper. See Clifford, 353 Ill. App.

3d at 42.

        Summary judgment was also proper on the element of proximate cause. Assuming that

defendants had a duty to warn plaintiff of the allegedly dangerous condition of the porch,

plaintiff has not established that their failure to do so was a proximate cause of his injuries.

        Proximate cause is an essential element of a negligence claim. Bermudez v. Martinez

Trucking, 343 Ill. App. 3d 25, 29 (2003). Generally, proximate cause is a question of fact;

however, it becomes a question of law when the facts alleged indicate that a party would never

be entitled to recover. Bermudez, 343 Ill. App. 3d at 29-30. Accordingly, if the plaintiff fails to

establish the element of proximate cause, he has not sustained his burden of making a prima

facie case and summary judgment is proper. Mann v. Producer’s Chemical Co., 356 Ill. App. 3d

967, 972 (2005); cf. Bermudez, 343 Ill. App. 3d at 30 (directed verdict was appropriate where

the plaintiff failed to prove proximate cause in a negligence action).

        The party moving for summary judgment need not prove its case or disprove the

nonmovant’s case. Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968, 974 (1990),

quoting Waite v. Chicago Transit Authority, 157 Ill. App. 3d 616, 619 (1987). Rather, the

movant is entitled to summary judgment where it can demonstrate the absence of a genuine issue

                                                 - 23 -
1-09-1759

of material fact. Kellman, 202 Ill. App. 3d at 974, quoting Waite, 157 Ill. App. 3d at 619. The

non-moving party may defeat a claim for summary judgment by demonstrating that such a

question of material fact exists. Adames v. Sheahan, 233 Ill. 2d 276, 296 (2009). Although the

non-moving party also need not prove his case at the summary judgment stage, he must come

forth with some evidence that arguably would entitle him to recover at trial. Ross v. Dae Julie,

Inc., 341 Ill. App. 3d 1065, 1069 (2003).

       To establish proximate cause, the plaintiff bears the burden of “ ‘affirmatively and

positively show[ing]’ ” that the defendant’s alleged negligence caused the injuries for which the

plaintiff seeks to recover. Bermudez, 343 Ill. App. 3d at 29, quoting McInturff v. Chicago Title

& Trust Co., 102 Ill. App. 2d 39, 48 (1968). Liability against a defendant cannot be predicated

upon speculation, surmise, or conjecture. Mann, 356 Ill. App. 3d at 974, citing Wiegman v.

Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 795 (1999). Thus, the plaintiff must

establish with “reasonable certainty” that the defendant’s acts or omissions caused his injury.

Mann, 356 Ill. App. 3d at 974.

       The plaintiff may establish proximate cause through circumstantial evidence. Mann, 356

Ill. App. 3d at 974. That is, causation may be established by facts and circumstances which, in

the light of ordinary experience, reasonably suggest that the defendant’s negligence operated to

produce the injury. Mann, 356 Ill. App. 3d at 974. It is not necessary that only one conclusion

follow from the evidence. Mann, 356 Ill. App. 3d at 974. However, a fact cannot be established

through circumstantial evidence unless the circumstances are so related to each other that it is the

only probable, and not merely possible, conclusion that may be drawn. Wiegman, 308 Ill. App.

3d at 796. That is, where the proven facts demonstrate that the nonexistence of the fact to be

                                               - 24 -
1-09-1759

inferred appears to be just as probable as its existence, then the conclusion that exists is a matter

of speculation, surmise, and conjecture, and the trier of fact cannot be permitted to make that

inference. Mann, 356 Ill. App. 3d at 974.

        Plaintiff argues that his injury occurred when the rail detached from the support post

because it was “improperly/inadequately fastened.” He acknowledges that there is no direct

evidence of proximate cause. However, he argues that the building inspection report,

Chwedyk’s affidavit, and Gonzon’s testimony permit the inference that, regardless of why

plaintiff placed any weight on the rail, he was injured because the improperly attached rail came

loose from the post and failed to prevent him from falling. Defendants argue that it is just as

likely that plaintiff removed the rail himself as it is that the rail detached from the post because it

was inadequately fastened.

        We agree with defendants. Plaintiff has not “affirmatively and positively shown” with

“reasonable certainty” that the rail detached from the post, thereby failing to protect plaintiff

from falling. It is undisputed that there is no direct evidence of the cause of plaintiff’s fall, and

here, plaintiff cannot establish causation through circumstantial evidence. Although a trier of

fact could infer from the building inspection report and Chwedyk’s affidavit that the rail

detached from the post because it did not meet building code standards,3 it is equally likely that a


            3
              Plaintiff cannot rely on Gonzon’s deposition testimony, in which he testified that
    the rail “gave way” and landed on the first-floor porch, to create a question of fact
    because that testimony lacks foundation and would be inadmissible. Wiszowaty v.
    Baumgard, 257 Ill. App. 3d 812, 819 (1994). Gonzon testified that he was not present at
    the time of the accident and did not discuss with plaintiff the cause of his accident. He
    also failed to supply any other basis for his assertion. People v. Nieves, 193 Ill. 2d 513,
    537-38 (2000) (testimony that lacks a proper foundation in the form of the witness’s
    personal knowledge of events amounts to no evidence at all). Nevertheless, for the

                                                 - 25 -
1-09-1759

trier of fact could conclude from plaintiff’s own testimony that he removed the rail himself and

that is why it did not prevent him from falling. Plaintiff testified that where the pickets were

attached to the rail inside the porch, as in this case, he would “remove the top rail first *** [a]nd

pull the thing down so it’s on the deck *** [a]nd then remove the bottom rail *** [a]nd then pull

the whole thing off in one piece, and then knock the pickets off.” After he did that, “there would

be nothing there” to prevent him from falling off the porch deck.

       Therefore, the nonexistence of the fact that the rail detached from the post because of its

faulty attachment was just as probable as its existence and the conclusion advocated by plaintiff

is merely speculation, surmise, and conjecture. See Mann, 356 Ill. App. 3d at 974; see also

Bakkan v. Vondran, 202 Ill. App. 3d 125, 131 (1990). A trier of fact cannot be permitted to

make such an inference. See Wiegman, 308 Ill. App. 3d at 795-96. The conclusion that the rail

detached rather than having been removed by plaintiff is merely a possible one, not a probable

one. See Wiegman, 308 Ill. App. 3d at 796. Absent this circumstantial evidence of proximate

cause, plaintiff has failed to make a prima facie case of negligence and summary judgment was

proper. See Mann, 356 Ill. App. 3d at 972 .

       To be clear, the existence of multiple inferences regarding causation does not create a

triable issue of fact in this case. The issue before us is the sufficiency of the evidence on the

element of proximate cause in establishing plaintiff’s prima facie case. Mann, 356 Ill. App. 3d

at 978. Plaintiff attempted to establish that element of his claim through circumstantial

evidence. However, the inference he attempted to create was speculative and could not be the


   reasons that follow, even if the testimony were admissible, that would not change the
   outcome here.

                                                 - 26 -
1-09-1759

predicate for liability against defendants. See Mann, 356 Ill. App. 3d at 974. Thus, we conclude

that plaintiff has come forth with no evidence on the element of causation and summary

judgment was appropriate. This is not a case in which the plaintiff and defendant both presented

evidence of proximate cause and a jury should be called upon to resolve the dispute. See Mann,

356 Ill. App. 3d at 974.

       For all of the foregoing reasons, we affirm the judgment of the circuit court.

       Affirmed.

       CUNNINGHAM, P.J., and HOFFMAN, J., concur.




                                              - 27 -
             REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
        _________________________________________________________________

             ROBERT F. KEATING, JR.,

                            Plaintiff-Appellant,

                    v.

             68TH AND PAXTON, L.L.C., an Illinois L.L.C.,
             and DAVID L. OGLESBY and BOBBIE
             OGLESBY, jointly d/b/a OGLESBY MANAGEMENT
             COMPANY, an Unincorporated Entity,

                            Defendants-Appellees

             (Gonzon Construction Co., Inc., an Illinois Corporation
             and Victor Gonzon, Individually, d/b/a Gonzon
             Construction,

                          Defendants).
          ________________________________________________________________

                                         No. 1-09-1759

                                   Appellate Court of Illinois
                                 First District, Second Division

                                  Filed: April 27, 2010
          _________________________________________________________________

                      JUSTICE TH EIS delivered the opinion of the court.

                        Cunningham, P.J., and Hoffman, J., concur.
          _________________________________________________________________

                       Appeal from the Circuit Court of Cook Co unty
                        Honorable Thomas Q uinn, Judge Presiding
          _________________________________________________________________

For PLAINTIFF-      Lawrence H. Hyman               For DEFENDAN TS-       Paul S. Festenstein
APPELLAN T:         Cynthia S. K isser              APPELLEES:             Guy M . Conti
                    Lawrence H. Hyma n & A ssoc.                           Condon & Cook, L.L.C.
                    11 1 W . Washington S t.,                              745 N . Dearborn St.
                    Suite 1025                                             Chicago, Illinois 60654
                    Chicago, Illinois 60602
