APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
525 N.E.2d 584, 171 Ill. App. 3d 355, 121 Ill. Dec. 526 1988.IL.1007
Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Plaintiff, Michael J. Deliberto, appeals from a summary judgment entered in favor of defendants, Leland Stahelin and Eagle Lawn Sprinkler Systems (Eagle). Plaintiff contends that the trial court erred in granting summary judgment because genuine issues of material fact raised by the parties had not been resolved. We reverse.
At about 11:30 on the evening of September 13, 1984, plaintiff was a passenger in the front seat of a car driven by Robert Cunningham, and Scott Smykowski was a passenger in the backseat. The weather was clear and the roads were dry. Cunningham drove west on Du Page Boulevard in the Village of Glen Ellyn just before it turns sharply to the south and becomes Nicoll Way. As Cunningham drove around the curve the car began to skid, went out of control, and rolled over onto its roof. Plaintiff sustained serious injury to his hand.
Plaintiff brought this action against, among others, Stahelin and Eagle. Stahelin is the owner of the office building located on the southeast corner of the intersection of Du Page Boulevard and Nicoll Way. The landscaped areas of Stahelin's property, which abut both the south side of Du Page Boulevard and the east side of Nicoll Way, are irrigated by an automatic, in-ground sprinkler system which was installed by Eagle. In his second amended complaint plaintiff alleged that he was injured when Cunningham's car slid, skidded, and overturned due to water which, as a result of defendants' negligence, had been sprayed onto the roadway by the sprinkler system on Stahelin's property.
Both defendants filed motions for summary judgment. Stahelin based his motion on the ground that there was no evidence that any of his acts constituted a proximate cause of plaintiff's injury. He asserted that plaintiff had offered nothing more than speculation or conjecture that water from the sprinkler system caused the accident. Defendant Eagle claimed that plaintiff failed to show that any act by Eagle caused or contributed to the presence of water on the roadway. After a hearing the trial court granted both defendants' motions on the ground that there were no genuine issues of material fact as to either defendant.
Plaintiff argues that the factual issue of whether the water from the sprinkler system proximately caused his injury was sufficiently raised by his complaint and the deposition testimony offered to the trial court to defeat defendants' motions for summary judgment. Defendants respond with essentially the same arguments they made in support of their motions in the trial court. After reviewing the record we agree with plaintiff that his evidence was adequate to defeat defendants' motions.
Summary judgment is to be granted if the pleadings, depositions, and admissions which have been filed, along with any affidavits in support of the motion, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Miklos v. Caliendo (1987), 161 Ill. App. 3d 132, 137.) However, summary judgment is a drastic measure and should not be granted unless the evidence, when construed most strongly against the moving party, establishes that the movant clearly and without doubt has a right to such relief. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 983.) Where the facts could lead a fair-minded person to draw more than one Conclusion or inference, summary judgment must be denied. (Burns v. Grezeka (1987), 155 Ill. App. 3d 294, 297.) In the case at bar the pleadings and the evidence presented in support of and in opposition to the defendants' motions could lead to more than one Conclusion and thus raise a genuine issue of material fact barring summary judgment.
In his complaint plaintiff alleged that Stahelin was negligent because he operated the sprinkler system in such a way that the road became wet and dangerous and because he failed to warn motorists of the dangerous condition. With regard to defendant Eagle, plaintiff alleged that Eagle negligently designed, assembled, and installed the system, thus causing a wet roadway, and failed to give adequate warnings as to the dangers of the system. Eagle's motion for summary judgment challenged the complaint on the basis of deposition testimony which purported to show that the sprinkler system had worked properly and safely when installed, had not malfunctioned prior to the time of the accident, and, in any event, had not been Eagle's responsibility since long before the accident. William King, the owner of Eagle, testified that he had planned and adjusted the system to water the grass, not the roadways; that the system had worked properly when inspected and tested after its installation in 1979; and that Stahelin's maintenance personnel had been instructed in the correct operation of the system. King also indicated that, although Eagle had done maintenance and repair on the system after it was installed, the company had not been called for such work since 1981 or 1982.
Leland Stahelin's testimony confirmed much of King's testimony and added that a Stahelin maintenance worker tested the system weekly and adjusted the sprinkler heads when necessary. Stahelin's secretary also confirmed that Eagle had not performed any maintenance work on the sprinkler system since September 1983. Both Stahelin and his secretary indicated that they had neither seen water from the sprinkler system spray onto Du Page Boulevard or Nicoll Way nor received complaints about such spraying. As far as they knew, no changes had been made to the sprinkler heads after the accident.
Stating that he agreed with Eagle's claim that there was no evidence any water caused plaintiff's accident, defendant Stahelin joined in Eagle's motion for summary judgment "as said Motion speaks to the issue of proximate cause." Defendant characterized as mere speculation deposition testimony, described ...