Appeal from the Circuit Court of Cook County. No. 08 L 000699 The HonorableMarcia Maras,Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lampkin
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Gordon and Reyes*fn1 concurred in the judgment and opinion.
¶ 1 Plaintiff, Therese Wells, appeals the trial court's order granting summary judgment in favor of defendants, Colonial Heights Recreation Center, Inc. (CHRC), and Erickson Condominium Management Company (Erickson). Plaintiff contends the trial court erred in granting summary judgment where there were genuine issues of material fact regarding defendants' negligence. Based on the following, we reverse and remand for further proceedings.
¶ 3 Plaintiff sustained injuries while climbing out of a swimming pool maintained and managed by defendants. On July 4, 2006, in an attempt to exit the deep end of the pool located in her condominium complex, plaintiff placed her left foot on the bottom rung of an affixed ladder and, as she tried to place her right foot on the ladder, her right foot slipped and her leg became wedged between the ladder and the pool wall. Plaintiff reported the incident to Erickson, the company retained by CHRC to provide day-to-day management services of the pool grounds and common areas of the condominium complex.
¶ 4 On July 1, 2008, plaintiff filed an amended complaint against defendants claiming that, despite the duty owed to plaintiff as a condominium owner and user of the pool, they: (1) "failed to provide a good, safe, and proper place for the Plaintiff to use, occupy, and exit the swimming pool"; (2) "negligently failed to repair the broken pool ladder"; (3) "failed to post a warning to inform pool users of the broken ladder"; (4) "failed to have a continuous and uninterrupted means of egress from the pool"; (5) "failed to maintain the pool ladder in a safe condition"; and (6) "failed to cordon off the broken ladder to prevent pool users from climbing the ladder in a broken and dangerous condition." Plaintiff's amended complaint further alleged that "as a direct and proximate result of one or more of these negligent acts and/or omissions" plaintiff fell and was injured, resulting in damages. In her pleadings, plaintiff identified the defect to be "the slipperiness and instability of the ladder." Defendants filed answers and affirmative defenses.
¶ 5 On October 14, 2008, plaintiff filed answers to interrogatories in which she stated, in relevant part, that she learned after the accident that the pool ladder was broken and not properly affixed and that the "grit" on the ladder steps had been worn down, making the steps smooth. Plaintiff additionally stated that, after the accident, she learned from Ruth Grotzke, the president of the condominium association, that the ladder had been in its condition for two years and that the association had been trying to replace the ladder for two years.
¶ 6 On May 14, 2010, plaintiff filed amended answers to Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007) interrogatories, in which she listed, inter alia, Amanda Wells, Emily Gunter, and Mary Gunter as Rule 213(f)(1) witnesses, and Alan R. Caskey, Ph.D., as a Rule 213(f)(3) expert. Plaintiff provided that Amanda, Emily, and Mary would testify as witnesses to the accident, their observations of the pool and ladder, and their observations of plaintiff's resulting injury. In addition, plaintiff provided that Caskey was expected to testify that defendants were negligent in failing to provide ladder steps or rungs with sufficient slip-resistance and in failing to sufficiently support or "fix in place" the ladder so as to restrict its "give," and that those negligent acts proximately caused plaintiff's injuries.
¶ 7 Plaintiff testified at her deposition regarding the details of the incident, including that, while holding the ladder handrails, she placed her second foot on the ladder and felt the ladder "jerk to the left," causing her right foot to slip, her leg to twist, and her leg to become pinned behind the ladder. Plaintiff additionally testified that, at the time in question, she was a member of the condominium association board and, prior to the incident, she had never complained or heard any other owners complain about the safety of the pool ladder.
¶ 8 Lynn Schubbe testified at her deposition that she worked for defendant Erickson and was responsible for generating plaintiff's incident report approximately one week after the accident took place. Schubbe testified that Erickson had never received any complaints about the ladder prior to plaintiff's incident. According to Schubbe, a company named Aqua-Guard opened and closed the pool and otherwise maintained the pool at the complex by keeping it "safe" and "chemically balanced."
¶ 9 Adam Norman, vice-president of Aqua-Guard, testified at his deposition that his company opened the subject pool for the 2006 season on Memorial Day weekend. While opening the pool, it was Aqua-Guard's job to install equipment such as handrails and ladders. According to Norman, Aqua-Guard also performed weekly maintenance on the pool every Monday, Wednesday, and Friday, from May 27, 2006, through July 15, 2006. Norman said that Aqua-Guard performed a checklist of maintenance work during its visits, including cleaning the pool, cleaning the deck area, testing the pool water and balancing the chemicals, checking for safety violations, and seeking out other potential hazards. According to Norman, Eric Webber was the employee responsible for maintaining the subject pool at the time in question; however, Webber was no longer an Aqua-Guard employee. Norman stated that Webber "should" have visually checked the "snugness" of the ladder handrails every once in awhile, but inspecting for loose handrails was not on the checklist. Norman said Webber had been advised or trained to visually observe potential hazards and report them despite not expressly appearing on the checklist. Norman added that Aqua-Guard never observed any problems with the ladder in question. Norman said that during the reinstallation of the ladder, any broken or loose rungs, bent or twisted rails, or "anything along those lines" would have been documented. In addition, Aqua-Guard performed maintenance on the subject pool on June 30, 2006, and did not discover any problems.
¶ 10 Gina Jordan, health inspector with the Cook County bureau of public health, testified at her deposition that she conducted inspections of the subject pool. During those inspections, Jordan never noted any violations related to the pool ladder. According to Jordan, she conducted a surprise inspection on May 30, 2006, during which she tugged on the ladder in question with her hands to ensure it was securely fastened to the pool deck. Jordan agreed that she did not enter the pool to observe whether the steps to the ladder were slip resistant. Jordan was satisfied with her inspection on that visit.
¶ 11 Grotzke testified at her deposition that CHRC was responsible for managing the pool, grounds, and common areas of the condominium complex. According to Grotzke, no incidents involving the subject pool or complaints about the ladder had been reported prior to the one in question to the condominium association or CHRC during her tenure as a board member. Grotzke added that she ...