Atchley v. University of Chicago Medical Center

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Appellate Court Date: 2016.12.05
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Atchley v. University of Chicago Medical Center, 2016 IL App (1st) 152481

Appellate Court STEVEN R. ATCHLEY, Individually and as Special Administrator of
Caption the Estate of Linda Atchley, Deceased, Plaintiff-Appellant, v.
UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendant and
Third-Party Plaintiff-Appellee (Home Juice Corporation, Third-Party
Defendant).

District & No. First District, Third Division
Docket No. 1-15-2481

Filed September 28, 2016
Rehearing denied October 27, 2016

Decision Under Appeal from the Circuit Court of Cook County, No. 10-L-10545; the
Review Hon. Lynn M. Egan, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Richard L. Pullano and Matthew Siporin, both of Law Offices of
Appeal Richard L. Pullano, of Chicago, and Andrew J. Kriegel and Paul W.
Grauer, both of Paul W. Grauer & Associates, of Schaumburg, for
appellants.

Matthew L. Johnson and Garrett L. Boehm, Jr., both of Johnson &
Bell, Ltd., of Chicago, for appellee.
 Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in
the judgment and opinion.

OPINION

¶1 Steven Atchley, a delivery employee of Home Juice Corp. (HJC), went to the University of
Chicago Medical 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.
¶2 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.1 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 further proceedings.
¶3 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 court.

¶4 I. BACKGROUND
¶5 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.
¶6 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

1
Linda died after this action was filed.

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 HJC’s motto was, “take care of the customer,” which he understood to mean that he should
make deliveries in a timely manner.
¶7 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
loading area.
¶8 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.
¶9 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.
¶ 10 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 1500-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.2
¶ 11 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.
¶ 12 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.
2
The record suggests that after taking the elevator downstairs to the tunnels, Steven would have to
walk approximately 1570 steps to make his deliveries and return to his truck.

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 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.
¶ 13 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 $1022.90.
¶ 14 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.
¶ 15 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.
¶ 16 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 down there to use.” Okoniewski further testified as
follows:
“[Steven] told me he tried to pull the pallet off with the mule, the electric jack, and it
got—he said the wheels got stuck between the truck and the dock. And I said, ‘where
was the ramp? He said, it didn’t work. And I says, why would you pull—try to pull a
pallet off without a ramp with an electric mule? It ain’t going to work. It’s going to get
stuck.
And from earlier what you said, he pulled one off without a plate. My personal
opinion, he was lucky doing it the first one… To try to do that without a ramp, personal
opinion, again, nuts.”3

3
The record uses the terms “leveler” and “plate” interchangeably.

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 Okoniewski acknowledged that he lacked personal knowledge of the incident but believed that
Steven acted in an unsafe manner. We note that Steven alleged in his affidavit that he was
highly medicated while in the hospital and did not remember talking to Okoniewski.
¶ 17 HJC driver Jeff Chevale Williams testified that he was never instructed to use a mechanical
jack without a dock leveler or another device to connect the end of the trailer to the dock itself.
He also believed it would be unsafe to do so. If a dock leveler was not working, he would
inform whoever was in the area. With that said, he did not witness the accident, did not know
how Steven was injured and did not hold himself out as an expert in dock levelers or motorized
pallet jacks.
¶ 18 Cahill testified that Steven was never the subject of any safety concerns. Additionally, HJC
never trained Steven how to use a pallet jack and did not instruct drivers to use a dolly in the
specific manner that Steven had used it. Cahill testified that, in hindsight, Steven’s method of
attempting to free the pallet jack was not safe because he was injured.
¶ 19 Steven also presented the opinions of three experts. According to engineer Michael Bracki,
a dock leveler’s purpose is to match dock height to variations in truck height through an
adjustable height ramp. UCMC’s leveler was in a state of disrepair, however, and Mariscal
made it completely inoperable by driving wood shims between the leveler and the frame. In
addition, security staff was not controlling the flow of traffic when Steven moved his truck at
another driver’s request. Furthermore, a driver facing an inoperable leveler had several issues
to overcome but “the more insidious would be a dock height that was off by only a small
amount initially. *** [T]he height difference would vary as the loaded weight on the delivery
vehicle chassis changed.” Bracki believed that when Steven removed the first pallet, the truck
bed rose, exacerbating the height discrepancy and leading the pallet jack to become immobile.
¶ 20 Bracki opined that UCMC’s failure to repair the leveler for 198 days, remove the dock
from service or control dock traffic made it not only foreseeable but likely that this accident
would occur. Bracki also stated, “[t]o claim that a driver getting stuck between the dock and
truck because of a height disparity is unforeseeable or unpredictable is illogical given [that] the
dock leveler is designed to prevent that very situation from existing.” Additionally, Bracki
found it was foreseeable that equipment would get stuck as a result of the broken leveler,
although the specific method of injury in attempting to dislodge the equipment may not have
been foreseeable. In like circumstances, Bracki “would have tried to find another forklift, but I
think [Steven] said he couldn’t find one and he wound up getting into this corner where he did
something that obviously caused his injury.” That being said, nothing prevented Steven from
waiting for another dock. Bracki described Steven’s conduct as “contributory.”
¶ 21 Similarly, architect John Van Ostrand testified that Steven’s conduct was a cause of his
injuries. Had he waited for help and not attempted to unload his truck with a pallet jack, he
would not have been injured. Van Ostrand also testified, however, that Steven “was doing the
best he could under the circumstances, apparently.” Van Ostrand found it was reasonably
foreseeable that a driver, with knowledge of a gap, would nonetheless attempt to unload his
truck, apparently even with a pallet jack. Additionally, UCMC experienced a breakdown in
management and communications regarding the dock and UCMC should have taken dock 5
out of service until it was repaired.
¶ 22 Suzanne Alton-Glowiak, a mechanical engineer, added that UCMC failed to comply with
voluntary regulations of the American National Standards Institute (ANSI) and mandatory
regulations of the Occupational Safety and Health Administration (OSHA). Alton-Glowiak

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 opined that the defective leveler caused Steven’s injuries, but she had no opinion as to whether
Steven’s conduct caused his injuries.
¶ 23 UCMC’s expert, architect Robert Plichta, opined that UCMC employees did not act
improperly regarding the management and maintenance of the loading dock and it was
reasonable for them to be unaware that the leveler was inoperable for over six months. In
addition, using dock 5 in a fixed position posed no risk of harm. Plichta also disagreed with
Alton-Glowiak’s application and assessment of ANSI and OSHA regulations. With that said,
Plichta acknowledged that someone backing into dock 5 would not see the wedges or notice
that the leveler was inoperable unless something was placed in the driveway. Plichta also
acknowledged nothing indicated that UCMC made a conscious decision not to repair the
leveler.
¶ 24 Plichta believed that after discovering that the leveler was not functioning, the dangers of
using a motorized pallet jack would be very apparent. A reasonable delivery person would not
even attempt to use a pallet jack without a leveler. Additionally, Plichta found it was
unforeseeable that a driver would use dock 5 to unload cargo with a pallet jack in an untypical
and unsafe manner, particularly because three other docks with levelers were available. A
driver needing a leveler must use what is available or wait for another dock. Furthermore,
Steven also could have moved the merchandise from the pallets onto a dolly, requiring several
smaller loads, but Plichta acknowledged that time was a consideration. Furthermore, Plichta
acknowledged that Steven had more experience than Plichta with respect to docks, levelers,
and pallet jacks. Notwithstanding that acknowledgment, Plichta found that the leveler did not
play a role in Steven’s injury, even though the pallet jack would not have become stuck and
Steven would not have used a dolly to dislodge it if the leveler had been working. When the
pallet jack became stuck, Steven should not have used a dolly to try to move it. Instead, he
could have called security. Plichta found it was unforeseeable that someone using dock 5
“would be injured unless they were using it the way that it was done here.”
¶ 25 George Karosas, an engineering expert, testified that keeping dock 5 in service without the
leveler posed no risk different from a permanent immovable dock. He did not know whether
any drivers who parked at dock 5 prior to Steven’s accident used pallet jacks without a leveler,
but Karosas thought it was improbable, having never heard of anyone doing that before.
Additionally, Steven should have waited for another dock. Karosas believed Steven caused the
accident by “misusing the dolly in a fashion and trying to lift, you know, and maneuver
something that weighs hundreds of pounds.”
¶ 26 Following discovery, UCMC moved for summary judgment, arguing that it owed Steven
no duty because the nonfunctional leveler constituted an open and obvious condition. UCMC
also argued that the nonfunctional leveler did not cause Steven’s injury. In response, Steven
argued that the gap was not obviously dangerous and, alternatively, the deliberate-encounter
exception applied. Steven further argued that UCMC’s negligence was a proximate cause of
his injuries and that the lay opinions of his coworkers, who did not witness the incident, were
inadmissible.
¶ 27 The circuit court granted summary judgment in favor of UCMC, finding that a reasonable
person would have determined that the leveler was inoperable and that a gap remained. Thus,
the condition and risk were open and obvious. The court also found the deliberate-encounter
exception to the open and obvious doctrine did not apply. Furthermore, UCMC did not owe a

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 duty to Steven or proximately cause his injury.

¶ 28 II. ANALYSIS
¶ 29 On appeal, Steven first asserts that the circuit court improperly granted summary judgment
in favor of UCMC, which failed to demonstrate that it had no duty as a matter of law. We
review the circuit court’s ruling on a summary judgment motion de novo. Willie Pearl Burrell
Trust v. City of Kankakee, 2016 IL App (3d) 150398, ¶ 10.
¶ 30 Summary judgment is appropriate only where the pleadings, admissions, depositions, and
affidavits show that no genuine issues of material fact exist so that the movant is entitled to
judgment as a matter of law. Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. Conversely,
summary judgment is inappropriate where material facts are in dispute, reasonable persons
could draw different inferences from undisputed facts, or reasonable persons could assign
different weight to factors relevant to the legal standard at issue. Seymour v. Collins, 2015 IL
118432, ¶ 42. Summary judgment is a drastic measure and, consequently, should only be
granted where the movant’s right to judgment is clear. Mashal, 2012 IL 112341, ¶ 49.
Furthermore, we must strictly construe the record against the movant and liberally in favor of
the nonmovant. Seymour, 2015 IL 118432, ¶ 42. In order to demonstrate negligence, Steven
must ultimately show that UCMC owed him a duty, that UCMC breached that duty and that
such breach proximately caused Steven’s injury. See Friedman v. City of Chicago, 333 Ill.
App. 3d 1070, 1073 (2002).

¶ 31 A. Duty
¶ 32 In determining whether a duty exists, courts must consider whether the plaintiff and the
defendant stood in a relationship such that the law obligates the defendant to conduct itself
reasonably for the plaintiff’s benefit, considering four factors: (1) the reasonable foreseeability
of the claimant’s injury; (2) the likelihood of injury; (3) the magnitude of the defendant’s
burden of guarding against that injury; and (4) the consequences of placing the burden on the
defendant. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225-26 (2010). The weight to
be assigned to each factor depends on the circumstances of the case. Simpkins v. CXS
Transportation, Inc., 2012 IL 110662, ¶ 18. Additionally, a defendant’s duty is not defined by
the plaintiff’s own negligence. Ward v. K mart Corp., 136 Ill. 2d 132, 148 (1990).
Furthermore, the open and obvious doctrine pertains to the element of duty in a negligence
action. Ballog v. City of Chicago, 2012 IL App (1st) 112429, ¶ 20.4
¶ 33 Pursuant to that doctrine, a party that owns or controls land is not required to foresee or
protect against injury where the potentially dangerous condition is open and obvious. Bruns v.
City of Centralia, 2014 IL 116998, ¶ 16. An open and obvious danger does not automatically
eliminate a legal duty on the defendant’s part, however. Bucheleres v. Chicago Park District,

4
Where a landowner’s conduct creating a dangerous condition precedes the claimant’s injury, the
claimant may pursue a negligence theory, a premises liability theory or both. Smart v. City of Chicago,
2013 IL App (1st) 120901, ¶ 54. Although Steven contends that the open and obvious doctrine does not
apply to ordinary negligence, he has failed to cite any case stating as such. See Ill. S. Ct. R. 341(h)(7)
(Jan. 1, 2016) (requiring that arguments be supported by legal authority). We further observe that both
Steven’s premises liability claim and his ordinary negligence claim pertain to a condition on UCMC’s
premises.

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 171 Ill. 2d 435, 449 (1996). Instead, the existence of an open and obvious dangerous condition
affects the first two factors relevant to assessing duty: the reasonable foreseeability and
likelihood of the injury. Bruns, 2014 IL 116998, ¶ 19. Specifically, the open and obvious
condition renders the impact of those factors slight, weighing against a determination that the
defendant had a duty. Id. Even where the open and obvious rule applies, courts must consider
all four factors relevant to duty. Bucheleres, 171 Ill. 2d at 456; but see Ballog, 2012 IL App
(1st) 112429, ¶¶ 35, 40 (declining to apply the four factors after finding an open and obvious
condition).
¶ 34 Obviousness requires that a reasonable person in the visitor’s position, exercising ordinary
intelligence, perception, and judgment, would recognize both the condition and the risk. Bruns,
2014 IL 116998, ¶ 16. Whether a condition constitutes an open and obvious danger generally
presents a question of fact. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 888 (2009). Where the
parties do not dispute the condition’s physical nature, however, the question is a legal one.
Ballog, 2012 IL App (1st) 112429, ¶ 29.
¶ 35 Moreover, the open and obvious doctrine is subject to a deliberate-encounter exception.
Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 258 (2010). That exception
applies where the possessor of land had reason to anticipate that the invitee would proceed to
encounter an open and obvious danger because a reasonable person in the invitee’s position
would find the advantages of the encounter outweigh the apparent risk. Id. “The
deliberate-encounter exception recognizes that individuals will make deliberate choices to
encounter hazards when faced with employment concerns and that those encounters are
reasonably foreseeable by possessors of a property.” Id. Similarly, the deliberate-encounter
exception usually involves a plaintiff who is forced to choose between facing danger and
neglecting his duties. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶ 42. With that said,
courts applying this exception must focus on what a landowner should anticipate. Kleiber, 406
Ill. App. 3d at 258; see also Restatement (Second) of Torts § 343A (1965). Where the
exception applies, duty analysis is reversed as to the first two factors. Bruns, 2014 IL 116998,
¶ 20.
¶ 36 Here, we question UCMC’s contention that the open and obvious doctrine applies. A
reasonable person in Steven’s position would recognize that, due to the broken leveler, his
truck remained higher than the dock. It does not immediately follow, however, that a
reasonable person would recognize the risk involved. It is undisputed that the height
differential was but a matter of inches. Steven’s belief that a few inches would not pose a
problem to unloading goods with a pallet jack is not inherently unreasonable. Additionally, it
was not clearly unreasonable for Steven to expect that once off the truck, he would have no
problem bringing the pallet jack back on the truck. Similarly, Bracki described the increase in a
truck’s height after removing cargo as insidious. Even with that increase, the height differential
was just a few inches. We cannot say as a matter of law that a reasonable driver in Steven’s
position would recognize that a slight height differential, resulting from a broken leveler,
would lead a pallet jack to get stuck and ultimately lead the driver to injure himself while
attempting to free it. We note that the circuit court found Steven acknowledged he needed a
leveler to unload his goods. While Steven may have understood that his efforts with the pallet
jack might prove unsuccessful without a leveler, it does not follow that he understood that any
lack of success would result in injury.

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¶ 37 Moving on in our analysis, even if the condition and risk were deemed open and obvious,
the deliberate-encounter exception would apply. Ample testimony showed that the hospital
generally expected early deliveries, notwithstanding that no specific delivery time was set.
Additionally, UCMC should expect that professional delivery drivers would make multiple
deliveries in any given day. As Cahill indicated, a delay with respect to one delivery could
create problems for later deliveries. Moreover, Van Ostrand testified it was foreseeable that a
driver would choose to encounter a small gap. We further note that Rosario and Okoniewski
indicated that drivers sometimes worked around mechanical difficulties. See also Cihon v.
Cargill, Inc., 293 Ill. App. 3d 1055, 1064 (1997) (finding a jury could conclude that the
defendant had reason to expect that the plaintiff would walk on a plank to access a storage tank
farm rather than walk 80 feet and step over a short wall to access the farm); LaFever v. Kemlite
Co., 185 Ill. 2d 380, 393 (1998) (rejecting the defendant’s assertion that a deliberate encounter
cannot give rise to liability unless no reasonable alternative to encountering the danger exists
and unless the worker’s continued employment is threatened by not encountering the risk).
Thus, UCMC had reason to anticipate that a delivery driver trying to fulfill his employment
duties by making quick deliveries would choose to encounter a small gap rather than disrupt
his delivery schedule or deviate from HJC’s general practice of delivering early. Cf. Kleiber,
406 Ill. App. 3d at 258-60 (where the parties did not dispute the danger at issue was open and
obvious, the reviewing court found the deliberate-encounter exception did not apply because
the plaintiff had no economic reason, such as a job, to choose to encounter the danger and
could have asked a store employee for assistance); Ballog, 2012 IL App (1st) 112429, ¶¶ 40-41
(where there was “no contention that the plaintiff was compelled to encounter the open and
obvious condition” and the evidence showed she previously avoided the condition, rather than
deliberately encountering it, the deliberate-encounter exception did not apply).
¶ 38 UCMC nonetheless argues it did not have reason to expect that a driver would decline to
wait for another dock to become available. In doing so, UCMC distorts Steven’s testimony by
stating he conceded that nothing prevented him from moving to another dock. While Steven
initially suggested as such, he immediately corrected himself, stating that he could not move to
another dock because no other docks with levelers were available. Furthermore, while UCMC
contends that the lay opinions of other HJC drivers support UCMC’s position, Steven
maintains that those individuals did not witness the incident and, thus, their opinions are
inadmissible. Contrary to UCMC’s assertion, Steven preserved this contention below.
¶ 39 Courts may not consider inadmissible evidence in support of, or in opposition to, a motion
for summary judgment. Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 52. In addition, Steven
correctly observes that a lay witness can offer his opinion only if it is based on his personal
observations, is one that people generally can make and is helpful to the trier of fact.
Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 44. “If the witness is not
testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on the perception of the witness,
and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact
in issue, and (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). Here, no one witnessed the incident.
Accordingly, to the extent the other HJC drivers purported to opine on the reasonableness of
Steven’s actions, their testimony is inadmissible. Moreover, their general opinions based on
specialized knowledge specific to dock equipment would also be inadmissible unless those

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 witnesses were certified as experts. Notwithstanding these rules pertaining to the admissibility
of evidence, UCMC contends that the opinions of HJC drivers were properly before the court
as evidence of the general practices and knowledge of personnel that may encounter the
condition at issue, relying on Sepesy v. Archer Daniels Midland Co., 97 Ill. App. 3d 868, 870
(1981), and Ballog, 2012 IL App (1st) 112429, ¶¶ 7-8. Neither case, however, involved a
challenge to the admissibility of evidence.
¶ 40 Even assuming that lay witnesses can testify regarding the general knowledge among
professionals, UCMC has not shown that a different result is required. First, Okoniewski,
without personal knowledge, opined on the reasonableness of Steven’s specific actions, not the
general practice of delivery drivers. In addition, he specified that he was offering his personal
opinion. While Rosario testified it would be appropriate for a driver encountering a
nonfunctioning leveler to wait for another dock, he did not testify that it would be
inappropriate to act otherwise. At best, Steven’s other fellow drivers testified regarding what
they personally would have done, not what drivers generally would do or generally know about
levelers, motorized pallet jacks, height differentials, or steel dollies. Moreover, UCMC ignores
that one experienced driver, Steven, found no inherent danger in navigating a small gap. Van
Ostrand specifically testified it was foreseeable that a driver would attempt to unload his truck
despite the gap.
¶ 41 Accordingly, the record supports Steven’s assertion that UCMC had a duty. It was
reasonably foreseeable that, in the course of his employment, a driver such as Steven would
attempt to make a delivery at dock 5 despite the broken leveler. Additionally, it is foreseeable
that a driver who had never faced a broken leveler would be unaware that even a small gap
could create a problem and that an insidious increase in height differential would occur after
goods were removed. Furthermore, injury was likely given that the leveler was broken for
months, that the record shows not all security guards knew to direct drivers needing levelers
away from dock 5, and that no UCMC employees were in the vicinity of the unloading area.
We also note that UCMC categorically ignores undisputed testimony that no employees were
around, as well as Harvard’s testimony that he was not responsible for the unloading area.
Thus, it is not at all clear that seeking help presented a viable option.
¶ 42 While UCMC states “it was not likely that he would then slip while using the hand dolly
and brake [sic] his ankle,” it was sufficiently likely that some driver, trying to make an
expeditious delivery, would injure himself in some manner as a result of the broken leveler.
Contrary to UCMC’s contention, Van Ostrand did not testify that Steven should have waited
for help instead of using the dolly. Although Van Ostrand testified Steven would not have been
injured if he “just sat around and waited for help,” Van Ostrand also testified, “[e]ven the
security person is not there. So he does the best thing he can. He gets this [dolly].” In Bracki’s
affidavit, he similarly disagreed with UCMC’s belief that Steven’s attempt to free the
motorized pallet jack was unforeseeable.
¶ 43 Moreover, UCMC has not identified any onerous burden in requiring the hospital to
remedy the broken leveler, whether by warning drivers, blocking off the area or having the
leveler repaired. A $1022.90 bill to repair a busy deliver dock is inconsequential. Furthermore,
UCMC has identified no consequences of placing this burden on the hospital. As a result, the
circuit court erroneously entered summary judgment on the basis of duty.

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¶ 44 B. Proximate Cause
¶ 45 We also agree with Steven’s assertion that a genuine issue of material fact exists as to
proximate cause. Proximate cause is defined as a cause that, in the ordinary course of events
produced the plaintiff’s injury, but a cause need not be the only or last cause; rather, the
combination of multiple causes may result in the injury. Richter v. Village of Oak Brook, 2011
IL App (2d) 100114, ¶ 21. In addition, proximate cause includes cause in fact and legal cause.
Krywin, 238 Ill. 2d at 225-26. Cause in fact exists where a reasonable certainty exists that the
defendant’s acts caused the injury. Id. at 226. Specifically, courts consider whether the
defendant’s conduct was a material and substantial factor in bringing about the claimant’s
injury. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). Conduct constitutes a material
and substantial factor if the injury would not have occurred absent the defendant’s conduct. Id.
With respect to legal cause, the inquiry is whether the injury sustained is one that a reasonable
person would consider to be a likely consequence of his conduct. Young v. Bryco Arms, 213 Ill.
2d 433, 446-47 (2004). With that said, a reasonable person need not be able to foresee the exact
way that the injury would occur or the extent of the injury. Hooper v. County of Cook, 366 Ill.
App. 3d 1, 7 (2006). Furthermore, proximate cause constitutes a question for the trier of fact to
decide. Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011).
¶ 46 Here, the record would permit a trier of fact to find that UCMC’s conduct was a material
and substantial factor in bringing about Steven’s injury, as Steven would not have been injured
but for the leveler being broken. Specifically, the motorized pallet jack would not have become
stuck, Steven would not have attempted to use another device to free it, and he would not have
hurt himself while doing so. Thus, the broken leveler constitutes cause in fact. Additionally,
ample evidence would permit a trier of fact to find it foreseeable that a broken leveler could
result in a broken ankle.
¶ 47 The purpose of the leveler was to eliminate any height differential. Without a leveler, a
differential of some kind was likely to exist. As stated, it is common knowledge that drivers,
not just HJC drivers, make multiple deliveries in a day. Even if not adhering to a precise
schedule, delivery drivers are likely to be in a hurry. Thus, a trier of fact could find it
foreseeable that an expeditious driver would choose to navigate a gap of only a few inches
where no other levelers were available, rather than wait for some unknown amount of time for
a leveler to become available. Additionally, a trier of fact could find it foreseeable that a driver
would not appreciate that the slight change in height after removing cargo would make it
difficult to get the pallet jack back on the truck. Moreover, a trier of fact could find it
foreseeable that, in the absence of any UCMC employees, a driver would find another device
to dislodge the pallet jack, injuring himself in the process.
¶ 48 In reaching this determination, we reject UCMC’s contention that the broken leveler
constitutes a mere condition, rather than a cause of Steven’s injury. If a defendant’s breach of
duty provides a condition which makes an injury possible, and an independent third person
then causes an injury, the defendant’s creation of the condition does not constitute a proximate
cause of the injury. Trigsted v. Chicago Transit Authority, 2013 IL App (1st) 122468, ¶ 53.
That being said, the test is always whether the first wrongdoer might reasonably have
anticipated the intervening efficient cause as a probable and natural result of his own
negligence. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257 (1999).
¶ 49 Steven would not have been injured but for the broken leveler and no independent third
party was involved. Additionally, UCMC arguably should have anticipated that absent any

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 warnings or the removal of the dock from service a driver would be injured due to the broken
leveler at some point during the multiple months that it was broken. Cf. First Springfield Bank
& Trust, 188 Ill. 2d at 261 (finding after trial that it was not reasonably foreseeable that
violating a no parking sign would result in a pedestrian (1) jaywalking, (2) attempting to cross
a truck route despite a compromised view of traffic, and (3) being hit by another vehicle).
Thus, the record does not compel a determination that the broken leveler was a mere condition.
¶ 50 Finally, UCMC’s allegations of contributory negligence do not change the result at this
juncture. Contributory negligence results from a lack of due care for one’s safety and is
measured by the objective standard of a reasonable person. McCarthy v. Kunicki, 355 Ill. App.
3d 957, 972 (2005). While UCMC argues that HJC drivers were not instructed to use a steel
dolly to free a pallet jack, it does not follow that HJC drivers were explicitly told not to use a
steel dolly in that manner. Additionally, Cahill admittedly used hindsight when he testified that
Steven’s manner of using the dolly was unsafe. More importantly, we review UCMC’s motion
for summary judgment in the light most favorable to Steven, not UCMC, and contributory
negligence generally constitutes a question for the trier of fact (Graham v. Northwestern
Memorial Hospital, 2012 IL App (1st) 102609, ¶ 19). Accordingly, Steven is entitled to a trial
on his claims.

¶ 51 III. CONCLUSION
¶ 52 Here, UCMC failed to demonstrate that it was entitled to judgment as a matter of law with
respect to duty and proximate cause. Consequently, the circuit court improperly granted
summary judgment in UCMC’s favor, and we reverse and remand for further proceedings. In
light of our determination, we need not consider Steven’s remaining contentions.

¶ 53 Reversed and remanded.

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