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08/21/87 Michael C. Rush, v. Simon & Mazian

August 21, 1987

MICHAEL C. RUSH, PLAINTIFF-APPELLANT

v.

SIMON & MAZIAN, INC., DEFENDANT-APPELLEE (WORTH BANK AND TRUST COMPANY, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

513 N.E.2d 100, 159 Ill. App. 3d 1081, 111 Ill. Dec. 854 1987.IL.1214

Appeal from the Circuit Court of Cook County; the Hon. Thomas Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by plaintiff, Michael C. Rush, from a summary judgment order in a negligence action involving an allegedly defective sidewalk. Defendant, Simon & Mazian, Inc., is the managing agent of the apartment complex within which the sidewalk is located. The facts indicate that on January 1, 1982, plaintiff slipped and fell at the intersection of two perpendicular sidewalks within the complex, fracturing his right shoulder. The complaint alleged that defendant was negligent in failing to remove ice and snow from its property. Defendant answered and denied the allegations. In February 1983, plaintiff filed an amended complaint and, subsequently, filed two deposition notices -- one for the "manager" of the complex and one for Ronald S. Simon -- in May 1983 and August 1983. However, no depositions were ever taken of these persons. Defendant deposed plaintiff and two eyewitnesses, Dennis Carroll and Clarence Wallin, and thereafter, in January 1985, filed a motion for summary judgment supported by these depositions.

In plaintiff's deposition, he stated that as he and two friends, Carroll and Wallin, were walking from his mother's apartment in the same complex to his apartment, he slipped and fell on ice covered by a light layer of snow. The walks had been shovelled but were covered lightly with freshly fallen snow. The general scene was shown in exhibit 1 attached to plaintiff's deposition. Plaintiff said that he fell approximately an equal distance between his mother's building and his building. However, Wallin stated that plaintiff fell closer to his apartment building. All three deponents stated that plaintiff fell on ice on the sidewalk, although none of them noticed the ice until after the fall. Plaintiff, in describing the area stated:

"Q. How big an ice patch was it?

A. It's hard to say.

Q. Was it a patch, or did it cover the entire sidewalk

A. I believe it covered the whole intersection."

Wallin stated that the whole sidewalk between the two apartment buildings was ice-covered. Carroll did not know how large an area was ice-covered. In his deposition, plaintiff asserts that there was a dip in the sidewalk where he fell and that rainwater had collected in the dip before, on, and after the date of his fall.

Plaintiff filed a tardy response to defendant's summary judgment motion with no affidavits, but did attach a photograph of the area labelled exhibit B. In his response, plaintiff never requested a continuance to complete discovery nor did he complain of a lack of cooperation by defendants. However, during the hearing on the motion, he attempted to file a supplemental counteraffidavit attempting to authenticate the exhibit B photograph as an indication there was a depression in the sidewalk. In granting summary judgment for defendant, the trial court found that plaintiff did not show that the ice resulted from anything other than a natural accumulation. The court struck exhibit B as insufficient under Supreme Court Rule 191(a) (87 Ill. 2d R. 191(a)) and also denied plaintiff leave to file the supplemental counteraffidavit.

Thereafter, plaintiff filed a motion of reconsideration asking the trial court to vacate the summary judgment order and requested permission under Rule 191 to file plaintiff's supplemental counteraffidavit and another counteraffidavit, signed by plaintiff's attorney, seeking delay of the reconsideration hearing until Ronald Simon and his maintenance manager could be deposed, on the basis of their alleged hostility to plaintiff's cause. Plaintiff also claimed that questions of fact were raised as to the origin of the ice so as to preclude summary judgment. After briefings and oral argument, the trial court permitted plaintiff to file the supplemental counteraffidavit pursuant to Rule 191(a) but found that it laid an insufficient foundation to consider the photograph (exhibit B) as evidence of a defect in the sidewalk at the time of plaintiff's fall. Exhibit B was admitted into evidence for the limited purpose of showing the location of plaintiff's fall. Additionally, the ...


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