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February 26, 1992

SHIRLEY HUDSON, individually and as Conservator of the Estate of ROBERT C. HUDSON, Conservatee, Plaintiffs,
TWENTY-THREE EAST ADAMS STREET CORPORATION, an Illinois Corporation, JAY-N-VEE, INC., an Illinois Corporation, JAMES GALLIOS, K. GALLIOS, PETER C. GALLIOS, and FIRST NATIONAL BANK OF CHICAGO, as Trustee under Trust Nos. 3540, 3541, 3542, 3543, 3544 and 3545, Defendants.


The opinion of the court was delivered by: JAMES B. PARSONS


On February 17, 1987, Robert Hudson traveled from California to Chicago to pursue business interests and to reunite with old friends and colleagues of his in the railroad business. The following day, Robert joined his brother, Ralph Hudson, who resides in Lisle, Illinois, as well as several other acquaintances at around 6:30 p.m. at a cocktail reception at the Continental Club located on the corner of Van Buren Street and Wabash Street. This business reception was a testimonial reception for a former colleague and business associate of Ralph. Cocktails and hors d'oeuvres were served at this reception which ended at about 8:30 p.m.

 Ralph and Robert then left the reception and proceeded to the Wabash Inn with a group of people that had also attended the reception. They arrived at the Wabash Inn at about 9:00 p.m.

 At approximately 10:30 p.m., Robert was in the lounge of the Wabash Inn with his brother and these several business acquaintances when he excused himself from his companions to use the restroom. He was directed to an enclosed staircase which led down a flight of stairs to the men's restroom. He walked toward the staircase.

 Approximately five minutes later, Jerry Rooney, one of the other members of the group who had accompanied Ralph and Robert Hudson to the Wabash Inn, also excused himself from the group to use the restroom. He proceeded to descend the stairway which led to the restroom and immediately came back up to tell Ralph that "something is wrong. Your brother is lying down there."

 Ralph and a few others from the group then immediately ran down the stairs and found Robert laying on the floor at the bottom of the stairs and breathing very heavily. He was lying unconscious on his back. His feet were at the bottom of the stairs or with one or more of his feet on the bottom step. *fn1" At the time, there was no visible sign of injury, but once Ralph lifted Roberts head a small trickle of blood came from his nostril.

 Robert, later taken to Northwestern Memorial Hospital and now back in California where he remains in a nursing home, has no memory of how he was injured. As a result of his memory lapse, he is unable to testify on his own behalf. In addition, there were no witnesses to the incident in question.

 Robert's wife Shirley Hudson, filed the instant lawsuit against the owner and manager of the Wabash Inn, Jay-N-Vee Inc. ("Jay-N-Vee") as well as the owners of the building, the First National Bank of Chicago ("Bank"). She contends that Robert's injuries were the result of the defendants' negligence with respect to either the tile floor upon which Robert was found, or the staircase which lead from the restroom floor to the lounge level floor. She alleges that the tile floor was unreasonably slippery and inadequately maintained, while the stairway had inadequate handrails, improper lighting and was also inadequately maintained.

 The defendant, Jay-N-Vee filed a motion for summary judgment in which the Bank joined. The defendants assert that even if Mrs. Hudson could establish the inadequacy of the floor and stair conditions, she would be unable to prove her case because there is no eye witness or direct physical evidence linking the cause of the injury to any of these conditions.

 In addition, the Bank filed a separate motion for summary judgment asserting that the lease signed between it and Jay-N-Vee puts Jay-N-Vee in charge of maintaining the property in a safe condition. As the mere owner of the property, the Bank asserts that it did not owe a duty to Robert and thus could not be held liable for his injury.

 Thus in the instant memorandum opinion and order, the Court must determine whether there is sufficient evidence of causation between the condition of the staircase and floor and the plaintiff's injury. If the Court answers the first inquiry in the affirmative, then the Court must determine whether the Bank may also be held liable for the plaintiff's injury.


 Under Rule 56(c) of the Federal Rules of Civil procedure, summary judgement is appropriate when it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991).

 To overcome a motion for summary judgment, the party here opposing the motion may not rest on the mere allegations of the pleadings, but must set forth specific facts required to demonstrate that there is a genuine issue for trial. Holmes v. Sheahan, 930 F.2d 1196 (7th Cir. 1991); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970).

 As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit at trial will properly preclude the entry of summary judgment.

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1985).

 The moving party may or may not support the motion with affidavits or declarations. Whether or not declarations are submitted, Rule 56(c) mandates entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett.2

 There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a [finder of fact] to return a verdict for that party.

 Id. at 249. To establish a genuine triable issue as to an element on which the non-moving party will bear the burden of proof at trial, the plaintiffs here must come forward with affirmative evidence sufficient for a jury to return a verdict in their favor.


 In a diversity action, Federal District Courts sitting in Illinois look to Illinois law to resolve a conflict of law issue Klaxon Company v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020, 49 U.S.P.Q. (BNA) 515 (1941). Illinois courts have adopted the Second Restatement Choice of Law approach. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). The Second Restatement, or "most significant relationship" test considers place of injury in tort cases as being of presumptive importance. DP Service, Inc., v. AM International, et al., 508 F.Supp. 162 (N.D.Ill. 1981). Because the place of injury in this case is Chicago, Illinois, and plaintiffs' rights are based in tort law, this case must be governed by the substantive law of Illinois. See Kirk v. Home Indem., 431 F.2d 554, 559 (7th Cir. 1970); 1 A Part 2 Moore's Federal Practice P0.305[3] (2d ed. 1990).

 Under Illinois law, liability cannot be predicated upon surmise of conjecture as to the cause of injury; proximate cause can only be proven by evidence which establishes to a reasonable certainty that defendants' acts caused the injury. Kellman v. Twin Orchard Country Club, 202 Ill.App.3d 968, 560 N.E.2d 888, 148 Ill. Dec. 291 (1990); Branson v. R & L Investments, Inc., 196 Ill.App.3d 1088, 554 N.E.2d 624, 629, 143 Ill. Dec. 689 (1990); Salinas v. Chicago Park District, 189 Ill.App.3d 55, 545 N.E.2d 184, 186, 136 Ill. Dec. 660 (1989); Kimbrough v. Jewel Companies Inc., 92 Ill.App.3d 813, 416 N.E.2d 328, 331, 48 Ill. Dec. 297 (1981); Collins v. American Optometric Associations, 693 F.2d 636 (7th Cir. 1982). In Collins, the plaintiff sued certain optometrists for negligence. The Seventh Circuit Court of Appeals, guided by the standard to be applied in the instant case, state:

 "A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the possibilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant."

 693 F.2d at 640 (citing W. Prosser, The Law of Torts 241 (4th ed. 1971)). *fn3"

 Illinois Appellate Courts reverse judgments if there is an absence of proof of a causal relationship between the condition of the stairs and the plaintiff's injury. McInturff v. Chicago Title and Trust Company, 102 Ill.App.2d 39, 243 N.E.2d 657 (1968). The facts in McInturff are almost identical to the facts of the instant case. There, the plaintiff's decedent was the janitor of a building who had fallen down a stairway in the building to his death. The plaintiff's complaint alleged that as a proximate result of the defendant's negligence premised upon building code violations and poor maintenance, the decedent fell on the stairway. Plaintiff contended that the defendant's maintained the stairway without handrails, in violation of municipal ordinances, and that the stairway was unreasonably and dangerously steep and worn. As in this case, there were no witnesses to the accident nor was there any proof that the condition of the stairway caused the injury suffered by the plaintiff.

 In reversing the trial court's judgment for the plaintiff, the McInturff court stated:

 "The fragmentary evidence on the issue of the Defendants' negligence did not establish any relationship between the alleged negligence and the proximate cause of the decedent's fall and injury. There was no direct evidence relative to what took place prior to and at the time of the decedent's injury. There was no proof that the condition of the stairway, or the alleged failure to comply with the handrail ordinances, caused the injury or damage suffered by the Plaintiff. The burden was on the Plaintiff to establish by a preponderance of the evidence the cause or relation between the alleged negligence and the injury sustained by the decedent. Absent proof of a cause or relationship between the condition of the stairs and the decedent's death, the Plaintiff was not entitled to recover. Damages cannot be assessed on mere surmise or conjecture as to what probably happened to cause his injury and death.

 243 N.E. at 662 (citations omitted).

 When the Plaintiff in McInturff petitioned for a rehearing, the Court denied the petition stating:

 In the case at bar, there is more than one possible explanation for the decedent's death. The plaintiff's evidence including facts and circumstances and the inferences to be drawn therefrom need not negate all other causes of the decedent's death in order to make out a prima facie case, but the Plaintiff must introduce evidence, which with its legal intendments more strongly supports here theory of recovery than it supports inferences to the contrary. The Plaintiff's evidence did not meet this test.

 Id. at 664 (emphasis added).

 As the facts in the instant case indicate, similar to the McInturff case, there is no direct physical evidence linking the staircase to the injury nor were there any witnesses to the accident. In addition, there is no evidence linking the floor at the bottom of the staircase to Robert's injury. There could be any number of possible explanations for his injury. Thus, the plaintiff cannot meet her burden to affirmatively and positively show that the defendants' negligence was the proximate cause of the plaintiff's injury. Id. at 662.

 In Kellman v. Twin Orchard Country Club, 202 Ill.App.3d 968, 560 N.E.2d 888, 148 Ill. Dec. 291 (1990), the Court held that the circumstantial evidence in the case was insufficient to raise an inference that the patron's injuries and subsequent death were caused by the Country Club's negligence in maintaining a shower stall and basin in an unreasonably dangerous condition. There, the decedent was at his Country Club for "Family Day." Another member saw the decedent walking to the showers when suddenly the other member heard a thud. He called out to the decedent and there was no answer. He then went to check on the decedent and found him lying on his stomach, face down, with his arms next to his sides, his legs on the curb that separates the shower basin from the changing area, and his feet pointing down in the shower basin. The decedent had sustained a fracture of his cervical spine and quadriplegia. He later died.

 The widow of the decedent brought a wrongful death action against the Country Club under the Wrongful Death Act and the Survival Act. The Circuit Court granted summary judgment for the Country club and the Appellate 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.


 DATED: February 26, 1992


 United States District Court Judge

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