Berke v. Manilow
2016 IL App (1st) 150397
| Ill. App. Ct. | 2016Background
- Raymond and Carol Berke visited a Chicago co-op; Raymond fell in the building's west vestibule and became quadriplegic; no eyewitness saw the fall and Raymond has no memory of it.
- The west exit features a 7½-inch interior threshold, 2¼-inch exterior drop, a 10½-inch landing, and a three-step run-out; plaintiffs alleged these measurements and a fast-closing inward door violated codes and created an unexpected tripping hazard.
- Doorman Cooney escorted Raymond to the door, saw him walk through, heard a noise moments later and found Raymond on the steps; Cooney did not see the fall or hear the door hit Raymond.
- Plaintiffs submitted three expert affidavits (accident reconstructionist, architect, and ER physician) opining the threshold/door caused a trip and fall; defendants moved for summary judgment and moved to strike causation portions of the affidavits.
- Trial court struck the experts’ causation opinions as speculative under Illinois Supreme Court Rule 191 and granted summary judgment for defendants for lack of proximate cause.
- The appellate court affirmed, holding the experts’ causation opinions were speculative and plaintiffs failed to prove proximate cause by direct or sufficient circumstantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs produced admissible expert evidence linking the doorway/threshold to Raymond’s fall | Experts opined the threshold and fast-closing door more likely than not caused a forward trip; circumstantial facts (measurements, position found, abrasions, absence of other causes) support causation | Experts’ causation opinions are speculative, rest on assumed facts not in evidence, and should be stricken under Rule 191 | Court struck causation portions as speculative; experts’ opinions inadmissible for summary judgment purposes |
| Whether plaintiffs established proximate cause (cause in fact) by direct or circumstantial evidence | Circumstantial evidence and expert inferences make tripping the only probable explanation, so a jury question exists | No eyewitness or direct evidence of cause; circumstantial evidence is equally consistent with other explanations, so plaintiffs cannot show causation with reasonable certainty | Plaintiffs failed to affirmatively and positively show proximate cause; summary judgment proper |
| Whether building-code/standards violations alone suffice to establish causation | Violations show a hazardous condition that likely caused the trip | Code violations alone don’t establish that the violation caused the injury | Violations without evidence linking them to the fall do not establish proximate cause |
| Whether trial court abused its discretion in denying plaintiffs’ request to cite Stuhlmacher as supplemental authority | Stuhlmacher supports allowing expert causation testimony and jury resolution of competing theories | Stuhlmacher is distinguishable: there the plaintiff recalled the accident and evidence supported a jury question; here there is no evidence about what happened | Court did not abuse discretion; Stuhlmacher is factually distinguishable and not controlling |
Key Cases Cited
- Strutz v. Vicere, 389 Ill. App. 3d 676 (Ill. App. Ct.) (building-code violations alone do not establish causation where no one observed the fall)
- Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968 (Ill. App. Ct.) (possibility of an unsafe condition is insufficient to prove causation when no eyewitnesses exist)
- Mann v. Producer's Chemical Co., 356 Ill. App. 3d 967 (Ill. App. Ct.) (plaintiff must establish proximate cause with reasonable certainty; circumstantial proof must point to the only probable inference)
- Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405 (7th Cir.) (expert causation testimony admissible where factual record supports jury consideration; distinguishable when plaintiff testifies about accident)