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Murphy v. Ambassador East

OPINION FILED NOVEMBER 18, 1977.

TERRENCE J. MURPHY, PLAINTIFF-APPELLANT,

v.

AMBASSADOR EAST ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Terrence J. Murphy, brought this action against defendants for injury allegedly sustained when plaintiff caught his finger in an elevator door. Pursuant to motions supported by affidavit and deposition, summary judgment was entered in favor of defendants. Plaintiff appeals. The sole issue on review is whether the trial court erred in granting summary judgment in favor of defendants. We affirm. The pertinent facts follow.

Plaintiff, a Chicago police officer, was called to the premises of defendant, Ambassador East, to remove a body from one of the hotel's rooms. Defendant's manager requested that the body be removed by transporting it on a freight elevator owned by co-defendants and located on contiguous premises. The manager directed plaintiff and his partner to the freight elevator which was standing with its doors open at the level of the loading dock.

The manager attempted to operate the elevator without success. He then left plaintiff on the dock and went upstairs to determine if an open door prevented operation. He indicated he would bring the elevator upstairs and then return for the officers.

After waiting a few minutes, plaintiff concluded that in order for the elevator to move the doors would have to be closed. The elevator doors operated vertically in the opening to close midway between the top and bottom. When plaintiff attempted to shut the doors, he caught his hand between them and was injured.

Plaintiff filed suit charging defendants with negligence in the operation, maintenance and control of the freight elevator in question. Defendants answered, and later filed motions for summary judgment supported by affidavit, with a copy of plaintiff's deposition attached thereto. The pertinent portions of his deposition are hereinafter set forth in the opinion.

No responding documents were filed by plaintiff. The trial court granted summary judgment in favor of all defendants, and this appeal follows.

OPINION

• 1 Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57(3)) provides that summary judgment is appropriate

"* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."

In reaching a determination with regard to the absence or existence of a genuine issue of fact, the court should consider only evidentiary facts and not conclusions of law. (Ohio Oil Co. v. Yacktman (1976), 36 Ill. App.3d 255, 343 N.E.2d 544.) In addition, the trial court, in ruling on a motion for summary judgment, must construe the pleadings, depositions and affidavits included therein most strictly against the moving party and most liberally in favor of the opponent. (Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App.3d 892, 365 N.E.2d 446.) However, if the moving party supplies facts which, if not contradicted, would entitle him to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of fact. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.) As stated by our supreme court in Fooden v. Board of Governors (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497, 500-01, cert. denied, 408 U.S. 943, 33 L.Ed.2d 766, 92 S.Ct. 2847 (1972):

It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. [Citations.] More specifically, it has been held that an affidavit in support of a motion for summary judgment is actually a substitute for testimony taken in open court and should contain as much pertinent information as the affiant could competently testify to if he were sworn as a witness, [citation] and where such well alleged facts are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party's pleadings which merely purport to establish bona fide issues of fact."

Application of the foregoing principles in the instant case mandates that the trial court's grant of summary judgment in favor of defendants be affirmed. Defendants' motions for summary judgment were supported by affidavit which made reference to certain portions of plaintiff's deposition. In addition, a copy of the deposition was attached to the motions. Plaintiff did not respond to said motions with any counteraffidavits and contends on appeal that such were unnecessary because the deposition and affidavit submitted did not reach the central issues in the case. We disagree.

It is fundamental that there can be no recovery in tort for negligence unless defendants breached a duty owed to plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39.) The uncontroverted facts contained in plaintiff's deposition, considered as the only evidence in ...


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