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06/29/87 Charles F. Waite, v. Chicago Transit Authority

June 29, 1987





510 N.E.2d 1176, 157 Ill. App. 3d 616, 110 Ill. Dec. 145 1987.IL.911

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J.,concur.


This is an appeal from an order granting defendants' motions for summary judgment.

Plaintiff, Charles Waite, brought a personal injury action against various defendants, including the Chicago Transit Authority , the city of Chicago, Patent Scaffolding Company, a division of Harsco Corporation (Patent), and Metropolitan Life Insurance Company, Metropolitan Structures, Inc., a/k/a Metco Properties, Inc., Harvey Walken Partnership, and Murphy & Jahn, a corporation (collectively Metco). The CTA and the city of Chicago are not parties to this appeal.

On February 26, 1982, plaintiff followed his customary path to work, proceeding north along Wacker Drive under a sidewalk construction canopy which had been erected by defendant Patent pursuant to a subcontract agreement with co-defendant Metco. Approximately 15 to 20 feet south of the curb of Madison Street, plaintiff looked to his left, over the four-foot high protective barrier of the sidewalk canopy, to see whether any traffic was approaching. He testified that nothing obstructed his view as he looked to the left. Plaintiff testified that he saw no vehicles traveling east through the intersection of Wacker and Madison, that he saw no vehicles traveling north on Wacker Drive preparing to turn east onto Madison Street, and that he saw no vehicles traveling west on Madison Street. He also testified that at that moment the "walk signal" indicated that pedestrians crossing Madison Street had the right-of-way.

Plaintiff testified that he continued north for a few steps until he reached the southeast corner of Wacker and Madison. He then turned east under the portion of the sidewalk canopy covering the former curb lane of Madison Street and walked about five to six feet until he passed the second two four-inch canopy support posts. He testified that he had no recollection of turning to his left to move north across Madison Street or of any events that occurred thereafter. After turning north and stepping into Madison Street, plaintiff was struck by a CTA bus traveling east in the reverse flow bus lane of Madison Street.

Defendants Patent and Metco moved for summary judgment based upon the absence of evidence establishing any causal relationship between the scaffold constructed by Patent and plaintiff's injuries.

During oral argument on defendants' motions, plaintiff sought to introduce a videotape that purportedly demonstrated the manner in which one of the four-inch canopy support posts could have precluded plaintiff from seeing the oncoming bus if he had attempted to look to his left before stepping into the reverse flow bus lane. Defendant Patent objected to the videotape evidence, contending that it was speculative since no evidence indicated that plaintiff in fact looked to his left prior to stepping into the reverse flow bus lane. The trial court agreed and ruled that the videotape was inadmissible.

On July 8, 1986, the trial court granted summary judgment in favor of both Patent and Metco and this appeal followed.

A motion for summary judgment is properly granted where no triable issue of fact exists. (First State Bank v. Busse (1984), 126 Ill. App. 3d 577, 580, 467 N.E.2d 1061.) A party moving for summary judgment is not required to prove its case or to disprove the nonmoving party's case. (Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, 468 N.E.2d 477, appeal denied (1984), 101 Ill. 2d 582.) Rather, the movant meets its burden by establishing the absence of a genuine issue of material fact. As stated in Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847, "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." Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497.

In a negligence action, the plaintiff must establish a duty of reasonable care owed to him by the defendant, a breach of that duty, and an injury proximately resulting therefrom. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307.) To establish proximate cause, the plaintiff must demonstrate with reasonable certainty that a defendant's alleged acts or omissions caused the injury for which plaintiff seeks recovery. (McInturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 46, 243 N.E.2d 657, appeal denied (1969), 40 Ill. 2d 579.) The mere occurrence of an accident does not support an inference of negligence (Watts v. Bacon & Van Buskirk Glass Co. (1959), 18 Ill. 2d 226, 232, 163 N.E.2d 425.) Absent affirmative and ...

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