Court affirmed. Id. In affirming the Circuit Court, the Appellate Court stated:
"The occurrence of an accident does not support an inference of negligence, and absent positive and affirmative proof of causation, plaintiff cannot sustain the burden of establishing the existence of a genuine issue of material fact."
Id. at 892.
It was the plaintiff's position that the evidence showed that the decedent fell while standing in the shower basin. However, there was no evidence as to the cause of the fall. The plaintiff stated that the medical testimony established that the decedent had fallen forward with accelerating speed and that the injuries received were consistent with slipping and falling in a shower stall. The Court addressed this point stating:
"Unfortunately, this does not address the issue of what had caused the decedent to slip and fall. The possibility that the alleged unreasonably dangerous shower stall and basis had caused the decedent to slip and fall is insufficient to establish a causal relationship between defendant's alleged negligence and decedent's injuries."
Id. at 892.
Given the nature of the evidence in the Kellman case, the Court concluded that several factors may have caused the decedent's fall. "The circumstantial evidence, i.e., the condition of the showers stall, the position of decedent's body after the fall, and the medical testimony, does not establish with reasonable certainty that decedent's injury was the proximate result of defendant's negligence." Id. at 893.
Just as in the Kellman case, in this matter there is insufficient evidence to establish with reasonable certainty that an unreasonably dangerous condition proximately caused Hudson's injury. To avoid confusing reasonable inference with mere conjecture and speculation (i.e., assumptions of ultimate fact based upon circumstances) the plaintiff must show that defendants' fault proximately cause the injury with reasonable certainty. Wilson v. Bell Fuels, Inc., 214 Ill. App. 3d 868, 574 N.E.2d 200, 158 Ill. Dec. 406 (1st Dist. 1991). To be sure, plaintiff's accident reconstruction expert presents evidence that, in her opinion, the area where Robert fell was in an unreasonably dangerous condition. However, she does not offer any evidence that this condition was the cause of the Robert's injury. In fact, the deficiency of evidence is demonstrated by the plaintiff's identification of alternative inconsistent causes of Robert's injury. While several of the allegations are concerned with the staircase, e.g., lights, handrails, maintenance; other allegations, as well as plaintiff's testimony, identify the tile floor upon which Robert was discovered as the cause. Also, the plaintiff testified in her deposition that she observed that the tile floor at the base of the stairs was conducive to slipping and might have cause the fall.
Further, there are theories that are not listed in the complaint which are also possibilities. For example, Robert Hudson could have been mugged or pushed. "The circumstances must justify an inference of probability rather than mere possibility." See Snell v. Village of University Park, 185 Ill.App.3d 973, 542 N.E.2d 49, 134 Ill. Dec. 49 (1987) (appellate court affirmed granting of summary judgment where plaintiff's evidence failed to support an inference of probability, rather than possibility). As it was in the Salinas case, it would be improper here to submit the question of the defendants' negligence to the jury because liability would have to be based on impermissible inferences and speculation. 515 N.E.2d at 514-15.
In addition, the plaintiff offers evidence that the area was maintained in a manner that violated some of the requirements of the Chicago Building Code asserting that violation of a statute or ordinance is prima facie evidence of negligence. However, a plaintiff may only recover where he shows that the statutory violations was the proximate cause of the injury. Pharr v. Chicago Transit Authority, 123 Ill.App.3d 205, 462 N.E.2d 753, 78 Ill. Dec. 634 (1984); Ding v. Kraemer, 59 Ill.App.3d 1042, 376 N.E.2d 266, 17 Ill. Dec. 267 (1978).
The plaintiff has the burden of affirmatively and positively showing that the defendants' negligence was the proximate case of the plaintiff's injury. McInturff, supra at 662. There is no presumption of negligence because of the mere happening of an accident. Id. at 243. Towards this end, it is incumbent upon the plaintiff to marshall the evidence and present it in a way to support her theory of recovery. The plaintiff cannot and has not produced any evidence that would meet this test. This lack of evidence connecting the defendants to the plaintiff's injury would render any verdict for the plaintiff a product of mere speculation, a conclusion deduced by surmise and guess work. Under these circumstances, the Court should grant the joint motion for summary judgment on behalf of all defendants.
Given, then, that summary judgment is proper for both defendants under the joint motion for summary judgment, the Court need not address the issue raised in the Bank's additional summary judgment motion.
The defendants joint motion for summary judgment is granted. Under these circumstances, the Court need not address the additional separate motion for summary judgment brought by the defendant First National Bank of Chicago.
IT IS SO ORDERED.
DATED: February 26, 1992
JAMES B. PARSONS
United States District Court Judge