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03/23/88 Mark Zonta, v. the Village of Bensenville

March 23, 1988

MARK ZONTA, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF BENSENVILLE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 274, 167 Ill. App. 3d 354, 118 Ill. Dec. 206 1988.IL.415

Appeal from the Circuit Court of Du Page County; the Hon. Robert D. McLaren, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Mark Zonta, appeals from a summary judgment entered in favor of defendant, Village of Bensenville, in an action in which plaintiff sought damages for personal injuries while in defendant's building. Plaintiff contends there were disputed questions of fact which could not be resolved by summary judgment and the trial court erred in finding defendant had no notice of the defective window which caused the injury.

Plaintiff entered defendant's village hall on June 4, 1984, to ask for directions to a store located in the village. While there, he stopped to tie his shoe, leaning his arm against a plate glass window next to the entrance doors. The window broke and plaintiff was injured. In his complaint, plaintiff alleged that the window was unsafe because it was too thin to prevent injuries caused by breaking glass and that defendant had knowledge of the defective condition.

Defendant moved for summary judgment supported by affidavits of the village president and its attorney, which stated that the window had not been replaced from the date of construction to the time of plaintiff's injury. In response, plaintiff filed an affidavit in which he stated that the window gave way and broke when he leaned on it. He was then taken to an area behind the counter which, plaintiff states, he could see was restricted for employees of the village and where several women were working. He heard a woman say, "This happened once before," which plaintiff took to mean that the woman was an employee of defendant and knew the window had broken before. Plaintiff further averred that if he could find out what employees were behind the counter that day, he could substantiate that the statement relating to knowledge of a prior breaking was in fact made.

Plaintiff requested and was granted a 21-day continuance to take depositions of village employees, but did not subsequently offer further evidence in opposition to defendant's summary judgment motion. The trial court granted defendant's motion, finding that plaintiff was a licensee on defendant's premises and defendant thus had a duty to refrain from wilful and wanton conduct, and that plaintiff failed to establish an issue of material fact relating to any defect in the window of which defendant had prior notice.

Plaintiff contends the trial court erred in finding he was a licensee on the premises at the time of the accident and that defendant had no notice of a defect in the window.

We agree with the parties that the correct standard of care in this case is imposed by section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 3-102(a)); however, this court may affirm the trial court on any basis justified by the record. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 146, 407 N.E.2d 1031.) Section 3-102 provides as follows:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition." (Ill. Rev. Stat. 1983, ch. 85, par. 3-102(a).)

Summary judgment should be granted only when the pleadings, depositions and affidavits on file clearly show that no issue exists as to any material fact. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) Summary judgment is a drastic remedy and should only be granted when the right of the moving party is clear and free from doubt. However, once such right is clearly established, summary judgment should be granted. (Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 1103, 495 N.E.2d 679.) In Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328, the reviewing court affirmed the granting of defendant's summary judgment motion where plaintiff stated in response only that unknown witnesses to the accident would testify on her behalf. In response to the question "What caused you to fall?" she stated that she wished to rely on the the allegations of her complaint. Kimbrough, 92 Ill. App. 3d at 815.

The facts of Kimbrough are quite similar to those of the present case, where plaintiff's complaint and responding affidavit merely established that he was injured by defendant's window; they do not establish any defect in the window which caused his injuries. Although the court granted plaintiff a continuance to take depositions, he stated at the subsequent hearing that he did not wish to take any depositions and would rely solely on his previous allegations. Plaintiff's affidavit in response to the motion contains a vague reference to an unknown ...


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