Court of Appeals of Illinois, First District, Third Division
STEVEN R. ATCHLEY, Individually and as Special Administrator of the Estate of LINDA ATCHLEY, Deceased, Plaintiffs-Appellants,
UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendant and Third-Party Plaintiff-Appellee,
HOME JUICE CORP., Third-Party Defendant.
from the Circuit Court of Cook County, No. 10 L 10545,
Honorable Lynn M. Egan Judge Presiding.
Presiding Justice Fitzgerald Smith and Justice Pucinski
concurred in the judgment and opinion.
Steven Atchley, a delivery employee of Home Juice Corp.
(HJC), went to the University of Chicago Medic0al Center
(UCMC) to deliver two pallets of beverages. After backing his
delivery truck into a dock space, he discovered that the dock
leveler, which would raise the dock to the height of the
truck bed and create a ramp, was inoperable. Unbeknownst to
Steven, the leveler had been broken and inoperable for over
six months. Because no other docks with levelers were then
available, Steven used his truck's air suspension system
to lower the truck bed as much as possible but a small gap
remained. He proceeded to use a motorized pallet jack to
unload his truck but the jack became stuck in the gap. While
using a steel dolly in an attempt to free the jack, Steven
fell and fractured his ankle.
Steven and his wife Linda Atchley then filed this ordinary
negligence and premises liability action against UCMC, which
in turn raised contributory negligence as an affirmative
defense. The circuit court granted summary judgment
in favor of UCMC, finding that the danger was open and
obvious, that UCMC had no duty as a result and that the
inoperable leveler was not a proximate cause of Steven's
injuries. Steven now appeals. We reverse and remand for
As a threshold matter, we observe that Steven's fact
section fails to support facts with citations to the record,
provides incorrect citations to the record, provides
incorrect facts and omits certain pertinent facts. See Ill.
S.Ct. R. 341(h) (6) (eff. Jan. 1, 2016). His argument section
repeats those defects but additionally presents inaccurate
citations to case law. See Ill. S.Ct. R. 341(h) (7) (eff.
Jan. 1, 2016). This court is not a depository into which
appellants may dump the burden of research. Hall v. Naper
Gold Hospitality, LLC, 2012 IL App (2d) 111151,
¶13. We strongly encourage counsel to exercise greater
diligence with respect to any future briefs filed in this
On August 11, 2010, Steven was assigned to deliver beverages
to UCMC. Although Steven had made at least 25 deliveries
there over two or three years, he did not routinely go there;
rather, he was filling in for fellow HJC driver Ronald
Rosario. Steven had also made that delivery for Rosario two
days before this incident.
UCMC's docks opened for deliveries at 5 a.m. Steven
testified in his deposition that while HJC did not require
him to make the delivery by a specific time, the hospital was
accustomed to early delivery and he tried to do what Rosario
did. Rosario testified that hospitals preferred early morning
deliveries. Similarly, James Cahill, HJC's former
supervisor, testified that hospital deliveries were generally
made early in the morning. Steven further testified that
HJC's motto was, "take care of the customer, "
which he understood to mean that he should make deliveries in
a timely manner.
According to an affidavit submitted by Steven, when he
arrived at UCMC at about 5 a.m., a security guard let him in
the gate but did not assign him to a particular dock or ask
if he needed a leveler. Steven also testified that he had
never been aware that dock 5's leveler was broken. While
certain deposition testimony from UCMC employees suggested
that drivers would be assigned to a particular dock, Sheila
Stevens, the security guard monitoring the gate at the time
in question, ultimately indicated that she only told drivers
which dock to use if they asked. Sheila further testified
that she had been unaware of any problem with dock 5.
Moreover, Sheila and Rosario testified that no one from UCMC
supervised the loading and unloading of trucks, corroborating
Steven's testimony that he saw no security guards in the
Steven, who had never made a delivery without a leveler,
parked his truck in a dock that had one but then moved his
truck to dock 5 in order to accommodate another driver. No
signs indicated that dock 5 was out of service but when he
pulled the chain to operate the leveler, nothing happened.
Consequently, his truck bed was higher than the dock. Steven
stated that he did not report this malfunction to any UCMC
employee, however, because none were around. Similarly, no
drivers were around. Steven further testified that no other
docks with levelers were available and he could not wait for
one because UCMC was used to early deliveries. Steven's
affidavit added that it was common for drivers to do what was
necessary to make a timely delivery, that there was no place
for his truck to wait for another dock and that if another
dock became available, an incoming driver would take it.
Moreover, Steven had never been instructed to wait for
another dock if experiencing difficulty.
Steven used his truck's air suspension system to lower
the truck bed. After doing so, the bed of the truck was about
two or three inches higher than the dock. Steven stated in
his affidavit that he had received no training regarding what
height differential would be significant to safety.
Additionally, Steven testified both that no lateral distance
existed between the truck and the dock, and that a distance
of less than a foot existed. He also noticed that two wooden
wedges had been positioned on the sides of the dock.
Having lowered the truck, Steven used a motorized pallet
jack, which has forks that lift pallets, to successfully
remove the first pallet from the truck. Steven's
affidavit stated, "I believe it was a reasonable and
safe method based on my experience; especially since pallet
#1 came off the truck safely." After leaving that 1,
500-pound pallet by the elevator, he went to retrieve the
second pallet. He was trying to make the delivery as quickly
as possible, as he did not want to take the elevator down to
the delivery tunnels twice.
After removing the first pallet, the truck bed rose to three
or four inches above the dock. As he attempted to return the
pallet jack to the truck to retrieve the second pallet, the
jack became stuck in the gap, a problem he had never
encountered before. Specifically, the pallet jack's forks
were already in the truck when the jack "flipped, "
leaving two feet of the jack hanging off the truck. The
jack's wheels were not touching the dock floor.
Steven testified that he did not seek assistance because no
one was around. He did not go look for anyone either.
According to Sheila, drivers never brought problems to her
attention. Steven added in his affidavit that calling HJC
would not have helped because it was 25 miles away.
Additionally, Steven testified that he discovered a steel
dolly on the dock, which he assumed belonged to UCMC. He
positioned the dolly under the pallet jack and attempted to
pry it loose. As he was doing so, the dolly slipped and he
fell backward, breaking his ankle. Eventually, someone
emptying the trash found Steven and got help. Meanwhile,
Steven used his cell phone to call Cahill and 911. Steven
ultimately underwent surgery and returned to light duty.
Ramon Mariscal, a UCMC security guard, initially testified
that he only learned of a problem with dock 5 a day or two
before this incident. At a later deposition, however,
Mariscal acknowledged that he first observed the leveler was
broken on January 25, 2010. The record shows that between
that date and this occurrence, Mariscal stated in 95 daily
condition reports that dock 5 was broken. Mariscal testified
that at some point, without telling anyone, he put wooden
shims in the leveler to keep the inoperable plate down.
Although the dock could not be used with a pallet jack, it
could still be used by handing out boxes or using carts.
Moreover, Mariscal was not at work when the incident
occurred. Dock 5 remained in use until it was repaired two
days after the incident, in less than two hours, for $1,
Anthony Harvard, UCMC's dock supervisor, testified that
he was responsible for only the inside of the dock area.
Security guards occasionally reported problems to him, which
he would relay to the proper department, but he was not
responsible for taking care of broken levelers and was not
always informed of problems. In addition, Harvard first
learned there was a problem with dock 5 after this incident.
When he reported this incident to his supervisor, he became
responsible for investigating it. Mariscal told Harvard that
drivers were not being permitted to park at dock 5 and that
wooden wedges were placed in the dock to prevent the leveler
from moving. Furthermore, the plant department directed
Harvard to a vendor who fixed levelers and he subsequently
authorized the repairs.
Rosario testified that UCMC's docks were often broken and
he had previously complained to a dock facility manager named
Al. In addition, UCMC no longer provided a portable dock and
it was not always possible to switch docks if the others were
occupied. With that said, he would wait for another dock to
become available. Furthermore, drivers sometimes used a board
to hold up a defective leveler when encountering a different
type of malfunction. Rosario would not have known what to do,
however, if a pallet jack became stuck.
Mark Okoniewski, a fellow HJC driver, testified that he
sometimes had difficulty with UCMC's dock levelers: if
the leveler did not work, a driver would use "whatever
else is available - - you know, there's tools ...