2019 IL App (2d) 170962
No. 2-17-0962
Opinion filed January 24, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
RODNEY BARCLAY, Individually and as ) Appeal from the Circuit Court
Independent Administrator of the Estate of) of Kane County.
Joel Barclay, Deceased, )
)
Plaintiff-Appellant, )
)
v. ) No. 14-L-189
)
LORAN YOAKUM; MARY SIEBERT; )
GREATBANC TRUST COMPANY, as )
Trustee Under Trust Agreement Dated )
March 17, 1981, and Known as Trust No. )
5106; and NORTH STAR TRUST )
COMPANY, as Successor Trustee Under )
Trust Agreement Dated March 17, 1981, and )
Known as Trust No. 5106, )
)
Defendants )
) Honorable
(Loran Yoakum and Mary Siebert, ) Susan Clancy Boles,
Defendants-Appellees). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Presiding Justice Birkett and Justice Spence concurred in the judgment and opinion.
OPINION
¶1 After the decedent, Joel Barclay, fell from the second-story walkway of an apartment
building owned by defendants, Loran Yoakum and Mary Siebert, plaintiff, Rodney Barclay,
individually and as independent administrator of Joel Barclay’s estate, brought this action for
2019 IL App (2d) 170962
negligence (wrongful death and survival). The circuit court of Kane County entered summary
judgment in favor of defendants. On appeal, plaintiff argues that a question of fact as to whether
the height of the walkway railing proximately caused the decedent’s fall precluded summary
judgment. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 Around midnight on June 2, 2012, tenants of a second-story apartment observed the
decedent, apparently intoxicated, walking on the apartment building’s second-story walkway.
The tenants went inside their apartment, closing only the screen door. After 5 or 10 minutes had
passed, one of the tenants heard what sounded like something hitting the ground. Upon
investigating, the tenant saw the decedent lying on the ground below the walkway with blood on
his head. Emergency services arrived rapidly on the scene and transported the decedent to a
hospital, where he was pronounced brain-dead the next day.
¶4 Law enforcement’s investigation determined that no one else was present when the
decedent fell and that no crime had been committed. The coroner’s report indicated that the
decedent had a blood-ethanol level of 0.293 near the time of his death.
¶5 On August 27, 2014, plaintiff filed a first amended complaint against defendants and
their trust companies. The complaint stated causes of action for negligence (wrongful death and
survival), alleging, inter alia, that defendants “permitted an inadequate handrail to be in place on
the second floor walkway” of the premises. In support, plaintiff submitted the reports of two
experts, one of whom was also deposed. One expert opined that the walkway railing was 8
inches below the 42-inch height the building code required at the time of the fall and 2 inches
below the 36-inch height the building code required when the building was built. The other
expert opined that the decedent, whose center of body mass was higher than the 34-inch railing,
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2019 IL App (2d) 170962
staggered into the railing and pitched over it. In the expert’s opinion, had the railing been 42
inches high, it would have served its intended purpose and prevented the decedent from falling
off the walkway.
¶6 Defendants moved for summary judgment on the ground that plaintiff had failed to
establish that the decedent’s fall and resulting death were proximately caused by the alleged
unsafe condition of defendants’ premises. The motion was granted, and plaintiff’s motion for
reconsideration was denied. Plaintiff voluntarily dismissed the two trust-company defendants
and filed this appeal.
¶7 II. ANALYSIS
¶8 A motion for summary judgment should be granted when the pleadings, depositions, and
affidavits reveal 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. 735 ILCS 5/2-1005(c) (West 2016); Balla v. Gambro,
Inc., 145 Ill. 2d 492, 508 (1991). To avoid summary judgment, the nonmovant must present
some factual basis that could arguably entitle him to judgment. Harris Bank Hinsdale, N.A. v.
Caliendo, 235 Ill. App. 3d 1013, 1024 (1992). The nonmovant has the burden of providing a
factual basis on which to assert each element of a cause of action in negligence, including
proximate cause. Glass v. Morgan Guaranty Trust Co., 238 Ill. App. 3d 355, 357 (1992).
¶9 Although proximate cause is generally an issue of material fact, to be determined by the
trier of fact, proximate cause may be determined as a matter of law where the facts show that the
plaintiff would never be entitled to recover. Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58
(2004). Proximate cause need not be proved with direct evidence. Canzoneri v. Village of
Franklin Park, 161 Ill. App. 3d 33, 41 (1987). Rather, causation may be established by facts and
circumstances that, in light of ordinary experience, reasonably suggest that the defendant’s
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negligence produced the plaintiff’s injury. Id. That said, proximate cause cannot be predicated
on surmise or conjecture, and, therefore, causation will lie only when there exists a reasonable
certainty that the defendant’s acts caused the injury. Wiegman v. Hitch-Inn Post of Libertyville,
Inc., 308 Ill. App. 3d 789, 795 (1999). If the plaintiff cannot identify the cause of his injury or
can only guess as to the cause, a court cannot find the defendant liable for negligence.
Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817 (1981).
¶ 10 Plaintiff argues that he presented sufficient circumstantial and expert evidence to create
an issue of material fact as to causation. Specifically, plaintiff relies on the eyewitnesses’
testimony that the decedent was apparently intoxicated and walking on the walkway and, 5 or 10
minutes later, was on the ground with blood on his head. Plaintiff also relies on the reports and
deposition testimony of his experts, who opined that the walkway railing was 8 inches below the
42-inch height the building code required at the time of the fall and 2 inches below the 36-inch
height the building code required when the building was built; that the decedent, whose center of
body mass was higher than the 34-inch railing, staggered into the railing and pitched over it; and
that the railing, if it had been 42 inches high, would have served its intended purpose and
prevented the decedent from falling off the walkway.
¶ 11 Plaintiff’s evidence is insufficient to preclude summary judgment on the issue of whether
defendants’ negligence caused the decedent’s fall. Plaintiff identified no eyewitness to the fall.
The eyewitnesses’ testimony about circumstances before and after the fall sheds no light on what
caused the fall. See Strutz v. Vicere, 389 Ill. App. 3d 676, 681 (2009) (where “none of the
testimony and affidavits addresse[d] the issue of what caused [the decedent’s] fall,” summary
judgment was properly entered for the defendants).
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2019 IL App (2d) 170962
¶ 12 An expert purported to address the cause of the decedent’s fall, opining that the
substandard height of the walkway railing “caused” the fall because the decedent “pitched” over
it when he staggered into it. This opinion, however, presents only a possibility of what occurred
before the decedent was discovered on the ground beneath the walkway; it is, therefore,
insufficient to establish proximate cause. See Strutz, 389 Ill. App. 3d at 681 (“The possibility
that the allegedly unreasonably dangerous staircase had caused [the decedent] to slip and fall is
insufficient to establish the necessary causal relationship between [the defendant’s] alleged
negligence and [the decedent’s] injuries.”); see also Kellman v. Twin Orchard Country Club, 202
Ill. App. 3d 968, 975 (“[t]he possibility that the alleged unreasonably dangerous shower stall and
basin had caused decedent to slip and fall is insufficient to establish a causal relationship
between the defendant’s alleged negligence and decedent’s injuries”).
¶ 13 Yoakum’s deposition testimony suggests another possibility regarding the cause of the
fall, one that has nothing to do with the height of the railing. According to Yoakum, the
decedent had been warned several times about his practice of sitting on the railing. It is possible
that the decedent sat on the railing and fell. Significantly, there is no more evidence to support
this possibility than there is to support the possibility that he staggered into the railing and
“pitched” over it; both remain, therefore, mere speculation. See Strutz, 389 Ill. App. 3d at 679
(“[l]iability cannot be predicated on conjecture; rather proximate cause is established when there
is reasonable certainty that the defendant’s acts or omissions caused the injury”); accord
Wiegman, 308 Ill. App. 3d at 795 (“where from the proven facts the nonexistence of the fact to
be inferred appears to be just as probable as its existence, then the conclusion that it exists is a
matter of speculation, surmise, and conjecture, and the trier of fact cannot be allowed to draw
it”).
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2019 IL App (2d) 170962
¶ 14 While circumstantial evidence need not exclude all other possible conclusions, “a fact
cannot be established through circumstantial evidence unless the circumstances are so related to
each other that it is the only probable, and not merely possible, conclusion that may be drawn.”
Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 473 (2010). Viewing all of the evidence
in the light most favorable to plaintiff, we hold that he failed to present any evidence on the issue
of proximate cause. See id. at 474 (holding that, where the plaintiff's suggested inference was
speculative, there was no evidence of proximate cause).
¶ 15 Plaintiff’s reliance on the failure of the railing to comply with the current building-code
height requirement of 42 inches is, without more, unhelpful in establishing proximate cause.
First, plaintiff presents no authority that code height requirements are to be applied retroactively.
Second, “[v]iolations of an ordinance or a failure to comply with the building code, by
themselves without evidence that the violations caused the injury, do not establish proximate
cause.” Strutz, 389 Ill. App. 3d at 681. As discussed above, plaintiff has presented insufficient
evidence that the height of the railing caused the decedent’s fall and consequent death.
¶ 16 The cases on which plaintiff relies for examples of sufficient circumstantial evidence of
proximate cause are distinguishable. See Mort v. Walter, 98 Ill. 2d 391 (1983) (directed verdict
for the defendant driver reversed where there was no doubt that the defendant had hit a four-
year-old child with her car, she testified she was looking at the child’s father on the other side of
the road and not at the child standing in plain view, and a reasonable jury could conclude that her
failure to maintain a proper lookout for a child on the road caused the child’s injuries); Olson v.
Williams All Seasons Co., 2012 IL App (2d) 110818 (testimony regarding a malfunctioning gate,
inadequate lighting, and the absence of safety tape on the floor was sufficient circumstantial
evidence to create fact question as to whether the drop-off in the defendant’s warehouse floor
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proximately caused the plaintiff’s fall); and Wright v. Stech, 7 Ill. App. 3d 1068 (1972)
(sufficient circumstantial evidence linked the defendant’s unlit and littered stairway to the
decedent’s fall where a witness testified to events immediately before and after the fall—that she
heard the decedent on the stairs and then a loud thump, she found the decedent on the landing,
and the decedent told the witness that she had fallen down the stairs). In contrast to these cases,
plaintiff failed to establish a prima facie negligence case, because his evidence allowed only a
speculative inference on the element of proximate cause. See Keating, 401 Ill. App. 3d at 474
(holding that the plaintiff’s speculative inference could not serve as the predicate for liability);
Jewish Hospital of St. Louis, Missouri v. Boatmen’s National Bank of Belleville, 261 Ill. App. 3d
750, 755 (1994) (“[O]n a motion for summary judgment, a fact will not be considered in dispute
if raised by circumstantial evidence alone unless the circumstances or events are so closely
related to each other that the conclusions therefrom are probable, not merely possible.”).
¶ 17 III. CONCLUSION
¶ 18 In the absence of any evidence of the cause of the decedent’s fall, there is no genuine
issue of material fact on the issue of proximate cause, and summary judgment in favor of
defendants was proper. Accordingly, we affirm the trial court’s order granting summary
judgment.
¶ 19 Affirmed.
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