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June 2, 1994


Appeal from the Circuit Court of De Kalb County. No. 89-L-94. Honorable John W. Countryman, Judge, Presiding.

Released for Publication July 6, 1994.

Colwell, Quetsch, PECCARELLI

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Esther Barker, appeals the order of the circuit court of De Kalb County granting summary judgment to defendant, Eagle Food Centers, Inc. The issue on appeal is whether plaintiff presented sufficient evidence to establish that defendant's actions were the proximate cause of her slip-and-fall injuries. We affirm.

Plaintiff filed a complaint alleging that she slipped and fell in the produce department of one of defendant's stores "due to the fact that [the floor] was wet." Plaintiff alleged that the wet and slippery condition of the floor constituted a breach of defendant's duty to maintain a safe shopping area.

A motion by defendant to strike certain portions of plaintiff's brief was ordered taken with the case. Plaintiff was deposed by her counsel, and parts of her testimony were used by both parties in the summary judgment proceedings. The complete transcript of this deposition was attached as appendix A to plaintiff's brief. Defendant argues that only the title page and pages 20 through 26 of the transcript were introduced before the trial court and appear in the record; therefore, the remainder of the deposition and several references to it in plaintiff's statement of facts must be stricken.

We agree. Attachments to briefs not included in the appellate record are not properly before the reviewing court and cannot be used to supplement the record. ( Zimmer v. Melendez (1991), 222 Ill. App. 3d 390, 395, 164 Ill. Dec. 836, 583 N.E.2d 1158.) Plaintiff's motion to strike is granted, and the court will not rely on the disputed material in appendix A or the references to that material in plaintiff's brief.

In her deposition, plaintiff stated that her "foot went out from under [her] on the wet floor" of the produce department when she stepped off the carpet that was placed around a vegetable bin. She stated that sprinkling the vegetables makes the floor wet and she often saw water on the floor of defendant's store. She further testified that she did not notice water on the floor before or after she fell. She did not observe the floor at all and did not notice whether her clothes were wet after she fell. She noticed nothing on the floor other than the carpet, which was lying flat on the floor at the time of her fall. She assumed the floor was wet, "otherwise, I wouldn't have slipped."

Michael Kevin Boyd and Dean Richardson, both of the City of De Kalb fire department, were deposed by plaintiff's counsel and cross-examined. Boyd, a paramedic at the time of the incident, and Richardson, an emergency medical technician, were called to the scene of the accident. Both men signed a Mobile Intensive Care Record (Care Record) that was prepared by Boyd. The Care Record, which was marked as a deposition exhibit, stated in pertinent part that the fire fighters had been called to assist a woman "who had slipped on a wet floor."

Both fire fighters testified that it was department policy to prepare a Care Record the day of the incident and to fill out the form as accurately as possible. Both also testified that they had no independent recollection of the incident and that the Care Record did not refresh their recollections. Neither fire fighter recalled whether the floor was wet or dry, and neither knew whether the statement "who had slipped on a wet floor" was based on personal observation or was information conveyed to them by someone else.

Defendant submitted the affidavit of Norma Chilton, who was shopping in the produce department when plaintiff fell. Chilton's affidavit stated that she heard something like an exclamation and turned to see plaintiff on the floor. The affidavit also stated that there was no foreign substance on the floor in the area where plaintiff fell, other than a rug that was lying flat. There was also no produce on the floor. Chilton stated that she specifically recalled this because "I am very careful in that area myself."

A motion for summary judgment should be granted only when the pleadings, depositions, and affidavits reveal there is no genuine issue of material fact (735 ILCS 5/2-1005(c) (West 1992)) and the right of the moving party to judgment is free from doubt ( Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271, 166 Ill. Dec. 882, 586 N.E.2d 1211). The court may draw reasonable inferences from the undisputed facts, but where reasonable persons could draw divergent inferences from the undisputed facts, the issue should be decided by a trier of fact, and the motion denied. ( Loyola Academy, 146 Ill. 2d at 271-72.) While a plaintiff need not prove her case during summary judgment, she must present some evidentiary facts to support the elements of her cause of action. ( Bellerive v. Hilton Hotels Corp. (1993), 245 Ill. App. 3d 933, 936, 186 Ill. Dec. 54, 615 N.E.2d 858.) "If what is contained in the papers on file would constitute all of the evidence before a court and would be insufficient to go to a jury but would require a court to direct a verdict, summary judgment should be entered." Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 135 Ill. Dec. 557, 543 N.E.2d 1304.

To state adequately a cause of action for negligence, plaintiff's allegations must establish a duty of care owed by defendant, a breach of that duty, and an injury proximately resulting from the breach. ( Miklos v. Caliendo (1987), 161 Ill. App. 3d 132, 138, 112 Ill. Dec. 639, 514 N.E.2d 35.) Proximate cause can only be established when there is a reasonable certainty that defendant's acts caused the ...

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