Graham v. Lakeview Pantry

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Appellate Court Date: 2020.05.26
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Graham v. Lakeview Pantry, 2019 IL App (1st) 182003

Appellate Court JAKE GRAHAM, Plaintiff-Appellant, v. LAKEVIEW PANTRY
Caption and THE CATHOLIC BISHOP OF CHICAGO,
Defendants-Appellees.

District & No. First District, Second Division
No. 1-18-2003

Filed September 24, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 2016-L-7741;
Review the Hon. William E. Gomolinski, Judge, presiding.

Judgment Affirmed.

Counsel on Erron H. Fisher, of Fisher & LaMonica, P.C., of Chicago, for
Appeal appellant.

Robert M. Burke Jr. and Michael Spanel, of Heineke & Burke, LLC,
of Chicago, for appellee Lakeview Pantry.

Frank N. DeBoni, of Nielsen, Zehe & Antas, P.C., of Chicago, for
other appellee.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Hyman concurred in the judgment and opinion.
 OPINION

¶1 This case stems from Jake Graham’s (plaintiff) fall from the threshold of a doorway in
St. Alphonsus Hall, which ultimately resulted in lacerations and scarring to his face. Plaintiff
visited the food pantry in Chicago’s Lakeview neighborhood (Lakeview Pantry), located
inside St. Alphonsus, which is owned and operated by the Catholic Bishop of Chicago
(Archdiocese), and was exiting the premises when he fell. Due to his injury, plaintiff filed a
premises liability action against Lakeview Pantry and the Archdiocese, alleging, in the main,
that they negligently maintained the premises where the injury occurred and breached their
duty of reasonable care to plaintiff as an invitee on the premises. Lakeview Pantry and the
Archdiocese filed separate motions for summary judgment under section 2-1005 of the Code
of Civil Procedure (735 ILCS 5/2-1005 (West 2016)), based on the deposition testimony
from plaintiff and employees from both Lakeview Pantry and the Archdiocese, as well as the
property’s lease agreement. The trial court granted the summary judgment motions of both
Lakeview Pantry and the Archdiocese. We affirm.

¶2 I. BACKGROUND
¶3 A. Plaintiff’s Complaint and the Testimony
¶4 In the early afternoon on January 17, 2015, plaintiff entered St. Alphonsus, 1414 West
Oakdale Avenue in Chicago, through the entrance/exit door for Lakeview Pantry to accept
donated food items. Plaintiff’s deposition testimony revealed that, on the day of the incident,
the weather was unusually warm for a January morning and there was no snow or ice by the
door or nearby asphalt. Plaintiff testified that, on arriving to St. Alphonsus, he had no
problem opening the door and stepping up about 10 or 11 inches over the threshold through
the doorway. After entering, plaintiff walked across a landing and down seven stairs to the
basement, which houses the parish school gymnasium, a concession stand, and the food
pantry. The process of waiting for and accepting the food took between 30 to 45 minutes, and
there were about 100 other people collecting food. Plaintiff then requested and received a
“banana box,” weighing about 20 pounds, to carry his food items. Plaintiff held the box with
both hands in front of his belly and walked back up the basement stairs. In his testimony, he
explained that the box protruded about a foot-and-a-half in front of him and obstructed his
vision. The record reveals that nobody witnessed these events prior to plaintiff’s fall.
¶5 As plaintiff reached the exit door of the church, a Lakeview Pantry volunteer, Daniel
Rowell, held the door open and began speaking to plaintiff while he stepped out of the hall.
According to plaintiff, this conversation distracted him, causing him to look at the volunteer
rather than at the ground. He then unexpectedly encountered a drop while stepping over the
threshold, lost his balance, and fell to the left. Thus, although Rowell stood on the asphalt
outside the doorway and plaintiff had previously stepped up over this same threshold earlier,
plaintiff claimed he was unaware of any drop-off during his exit. Rather, he mistakenly
believed the exit door and asphalt were on the same level. As he fell, plaintiff dropped his
food box, tried to catch himself, took a few steps, then hit a one-foot drop-off, where the
asphalt turned into a landscape trench, and he went face-first into a metal fence, suffering
head injuries. He noted there were no warnings about any change in elevation.
¶6 Contrarily, Rowell saw plaintiff lose his balance after the first step and take a few steps to
the left, while still holding the box of food as he fell. Rowell, who worked at that location

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 previously, had not seen other clients fall at the entrance/exit, although he had seen “a
number of people carrying boxes over the threshold through that door a number of times.”
Rowell, himself, had never tripped while going over the threshold. Lakeview Pantry
coordinator Carrie McCormack similarly testified that after working at the pantry some 15
years, there were never any incidents involving injury from the exit door. Nonetheless, she
acknowledged that after plaintiff’s fall she was “given” a sign stating, “please step down,”
which a volunteer taped to the exit door.
¶7 After his fall, plaintiff filed the present complaint alleging that the head injuries he
sustained from his fall were caused by the negligence of defendants. In particular, plaintiff
alleged that both Lakeview Pantry and the Archdiocese operated, managed, maintained, and
controlled the premises, and they had a duty to maintain those premises in a reasonably safe
condition for persons lawfully on the premises. Specifically, plaintiff alleged that
(1) defendants breached their duty of care when they negligently operated, managed,
maintained, and controlled the premises in a manner that was unreasonably dangerous;
(2) they allowed a dangerous condition to exist because there was no handrail at the exit
door; (3) they allowed a tripping hazard to exist in the drop-off threshold from the exit door;
and (4) they failed to properly warn entrants of the dangerous condition. As a result of the
defendants’ actions or omissions, plaintiff asserted that he suffered injuries to his head.

¶8 B. Summary Judgment and Responsive Pleadings
¶9 Lakeview Pantry and the Archdiocese filed separate motions for summary judgment,
attaching the aforementioned depositions and the property lease contract. Lakeview Pantry
first argued that it was entitled to judgment as a matter of law because it owed no legal duty
to maintain the area where plaintiff was injured. In so arguing, Lakeview Pantry attached its
lease agreement with the Archdiocese, which showed that the Archdiocese, and not
Lakeview Pantry, controlled the premises where plaintiff fell. In particular, the lease stated
that Lakeview Pantry rented “the Pantry area of the Hall basement” and held a
“non-exclusive right and license” over the “Access Areas,” including the means of
ingress/egress on the property, exits, stairways, and hallways leading to the premises.
Lakeview Pantry’s use of “access areas” was ultimately subject to the rules and regulations
of the Archdiocese. Lakeview Pantry noted the deposition testimony of several Archdiocese
employees corroborated its interpretation of the lease, as they verified that it was the church
maintenance department and not Lakeview Pantry that maintained the foundation of the
building, asphalt landing, iron fence, and flower bed where plaintiff was injured.
¶ 10 In the alternative, Lakeview Pantry argued that it was not liable to plaintiff because the
threshold was an open and obvious condition and was discovered by plaintiff when he first
entered St. Alphonsus. Lakeview Pantry argued that, as a result, it was not reasonably
foreseeable that an invitee would be injured while on its premises.
¶ 11 In response, plaintiff argued that in spite of the lease language, the physical injury was
foreseeable given the step and that there was only one means of ingress/egress to the pantry.
Plaintiff further argued that he was distracted by the box of food he was carrying and by
Rowell’s presence, which precluded him from taking notice of the step, despite the obvious
fact that he did not have any problem walking over the step through the door during his
entrance.

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¶ 12 The Archdiocese, on the other hand, argued that plaintiff’s claim against it was
time-barred by the Illinois statute of repose for construction (735 ILCS 5/13-214(b) (West
2016)). That statute precludes a tort action “brought against any person for an act or omission
of such person in the design, planning, supervision, observation or management of
construction, or construction of an improvement to real property after 10 years have elapsed
from the time of such act or omission.” Id. It was enacted to protect anyone who engages in
those enumerated construction-related activities from the onerous task of defending against
stale claims. Wright v. Board of Education of the City of Chicago, 335 Ill. App. 3d 948, 955
(2002). The Archdiocese argued that the foundation of the entryway where plaintiff fell had
been constructed in 1911, with the asphalt pavement just outside the door being added in
2002 and the current door/threshold in 2003. In support, the Archdiocese pointed to the
deposition testimony, stating the same, of Robert Kilkenny, the facilities engineer at
St. Alphonsus. In his deposition, Kilkenny added that no other changes had been rendered to
that area since then, and there had been no prior accidents or falls involving the area in
question. As 10 years had passed between the construction and plaintiff’s complaint, the
Archdiocese argued plaintiff’s claim was time-barred.
¶ 13 In response to the Archdiocese, plaintiff did not dispute that the improvements to the
threshold occurred in 2002 and 2003, but instead argued that the Archdiocese owed an
ongoing duty of care to operate and maintain the premises in a safe manner. Plaintiff further
argued the testimony of Kilkenny was insufficient to establish that the Archdiocese satisfied
the enumerated activities under the construction statute.
¶ 14 The Archdiocese countered these arguments by offering the affidavit of Reverend James
Hurlbert, who served at St. Alphonsus, and averred that the Archdiocese was involved in the
design, planning, supervising, and observing of the 2002 asphalt job and 2003 door
installation, while also serving as the construction manager for both jobs.

¶ 15 C. Trial Court Judgment
¶ 16 After the parties filed responsive pleadings, the trial court held a hearing. The court
issued a written order stating that “for the reasons stated in open court,” it was granting the
motions of summary judgment in favor of both Lakeview Pantry and the Archdiocese.
Notably, plaintiff has not included in the record on appeal the report of proceedings
containing the court’s oral pronouncements. Following the court’s written order, plaintiff
filed a motion to reconsider, which was denied. Plaintiff appealed.

¶ 17 II. ANALYSIS
¶ 18 Summary judgment is proper where the pleadings, affidavits, depositions, admissions,
and exhibits on file reveal that there is no genuine issue of material fact when viewed in the
light most favorable to the nonmovant and the movant is entitled to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2016); Abrams v. City of Chicago, 211 Ill. 2d 251, 257
(2004). If the party moving for summary judgment supplies uncontradicted facts that would
warrant judgment in its favor as a matter of law, the opposing party cannot rely on its
pleadings to create a genuine issue of material fact. Abrams, 211 Ill. 2d at 257. We review
de novo a grant of summary judgment. Id. at 258.

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¶ 19 A. Duty Analysis for Lakeview Pantry
¶ 20 When a premises liability action is filed against a defendant, plaintiff must establish a
duty of care owed by the defendant, a breach of that duty, and an injury proximately caused
by a negligent violation of that duty. Marshall v. Burger King Corp., 222 Ill. 2d 422, 430
(2006). Whether a duty exists is a question of law for the court to decide. Id. On the other
hand, the issues of whether a defendant breached that duty and whether the breach was the
proximate cause of the plaintiff’s injury are generally factual matters for the jury to decide.
Id.
¶ 21 The existence of duty also involves considerations of public policy informed by four
factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the
magnitude of the burden of guarding against the injury, and (4) the consequences of placing
that burden on the defendant. Id. at 436-37. Based on these four factors, the court determines
whether the plaintiff and defendant stood in such a “relationship” to each other that the law
imposed upon the defendant an obligation of reasonable conduct. Id. at 436.
¶ 22 A possessor of land is liable for physical harm caused to invitees by a condition on the
land if he knows or should know that it involves an unreasonable risk of harm to invitees, he
should expect that invitees would not discover/realize the danger or protect themselves
against it, and he fails to exercise reasonable care to protect against the danger. Restatement
(Second) of Torts § 343 (1965). Plaintiff argues that, as an invitee to Lakeview Pantry,
Lakeview Pantry is liable for the physical harm caused to him by the allegedly dangerous
condition on the land. Relying on the four factors above and his status as an invitee, plaintiff
argues that the law imposes a duty on Lakeview Pantry to ensure a safe means of
ingress/egress over the allegedly dangerous threshold.
¶ 23 In response, Lakeview Pantry argues that its duty of care to invitees does not extend to
property that it does not exclusively control. Lakeview Pantry thus maintains that we need
not even consider the four-factor duty analysis. In support, Lakeview Pantry relies on
Hougan v. Ulta Salon, Cosmetics & Fragrance, Inc., 2013 IL App (2d) 130270, where a car
jumped the curb in a shopping center, hitting a store patron on the sidewalk outside the
lessee’s store. In affirming summary judgment for defendant, this court found the lease
contract, which gave the landlord “sole discretion” over common areas outside the leased
premises, including sidewalks, was relevant to determining whether a duty existed in the first
place. Id. ¶¶ 8, 40. Given the lease terms and because the area where the injured plaintiff was
standing was under the exclusive control of the landlord property owner, Hougan held that
the lessee store did not owe a duty of care to the plaintiff, even though the risk of injury from
a car was foreseeable. See also Murphy v. Illinois State Trust Co., 375 Ill. 310, 313-14 (1940)
(“The rule is that where only a portion of the premises is rented and the landlord retains
control of other parts of the same such as stairways, passageways, or cellarways *** [the
landlord] has the duty of exercising reasonable care to keep the premises in a reasonably safe
condition and [the landlord] is liable for an injury which results to persons, lawfully in such
place, from failure to perform such duty.”); St. Phillips v. O’Donnell, 137 Ill. App. 3d 639,
644 (1985) (concluding that, normally, where only a portion of the premises is rented and the
landlord retains control of other parts of the premises for the common use of the tenants, the
landlord has the duty to exercise reasonable care); Hiller v. Harsh, 100 Ill. App. 3d 332, 336
(1981) (holding that the defendant landlord owed the plaintiff a duty of reasonable care to
keep common areas like the stairway in a reasonably safe condition when the plaintiff was

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 lawfully on the premises). Hougan thus held that the lessee store was immune from the
premises liability action. 2013 IL App (2d) 130270, ¶ 44.
¶ 24 As in Hougan, the lease terms in this case dictate liability. As set forth, plaintiff’s injury
did not occur inside the food pantry, but rather in the “access area” by the door and threshold
in St. Alphonsus. “Access areas” are defined in the lease as the basement bathrooms, ingress
and egress, exits, hallways, and stairways. The lease states that the use of access areas is
“subject to such rules and regulations as [the Archdiocese] *** may impose” and provides
that it is the Archdiocese that can change “the nature of the Access Areas” and make or
remove installations there. Furthermore, section 1(b) of the lease gives Lakeview Pantry only
a limited, “non-exclusive right and license” to the access areas. The lease also prohibits
Lakeview Pantry, absent the written permission of the Archdiocese, to post any signs by the
access areas. Similar to Hougan, where, as here, the landlord retains control over the
common access areas, it is the landlord’s duty to maintain those common areas in a
reasonably safe condition. See id. Thus, even if plaintiff’s injury at the door threshold was
reasonably foreseeable, Lakeview Pantry owed no duty as a renter where it did not retain
exclusive control over that common area. See id. ¶¶ 38, 44; St. Phillips, 137 Ill. App. 3d at
644 (“[T]he landlord has the duty to exercise reasonable care to keep those premises in a
reasonably safe condition and is liable for a foreseeable injury from a failure to perform such
duty.”).
¶ 25 Plaintiff nonetheless argues that Lakeview Pantry can still be liable because it actually
assumed usage and control over the means of ingress/egress to the food pantry. Plaintiff
asserts that only Lakeview Pantry volunteers and invitees used the entry/exit door. Plaintiff
also points to Lakeview Pantry coordinator McCormack’s testimony that Lakeview Pantry
salted the sidewalk leading to the door where he was injured and argues that this illustrates
Lakeview Pantry intended to assume control of the common areas.
¶ 26 This argument fails for several reasons, primarily because plaintiff has cited no legal
authority to support his claim that such practices can trump the lease terms, even though he is
required to do so by Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017). This court is
not a repository for an appellant to foist the burden of argument and research. See Velocity
Investments, LLC v. Alston, 397 Ill. App. 3d 296, 297 (2010). By failing to develop his
argument or cite any authority in support, plaintiff has forfeited his argument. See id.; Ill. S.
Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
¶ 27 Forfeiture aside, both the law and record contradict his claim. We find Godee v. Illinois
Youth Soccer Ass’n, 327 Ill. App. 3d 695 (2002), instructive. There, a parent fell in a drainage
ditch on a school’s field while walking to the parking lot after her child’s soccer game. The
plaintiff sued the nonprofit soccer association and alleged that it operated and controlled the
school’s field where her injuries occurred. Id. at 696. The appellate court affirmed summary
judgment for the nonprofit association because it did not maintain the property or physically
enclose the premises, and therefore, it did not possess or control the property where the
plaintiff’s injury occurred. Id. at 699; see also Caracci v. Patel, 2015 IL App (1st) 133897,
¶ 25 (affirming summary judgment for a defendant strip mall owner when there was no
evidence of affirmative conduct that defendant attempted to appropriate and control the
roadway where plaintiff’s injury occurred).
¶ 28 Similarly, Lakeview Pantry did not maintain or physically enclose the common areas to
such an extent that its practices could trump the lease terms. The deposition testimony of the

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 parish and Lakeview Pantry staff established that the pantry was located in a shared space in
the basement hall, along with a parish school gym and concession stand. Although the
entry/exit was primarily used by Lakeview Pantry volunteers and clients, and another door
was used for parish purposes, the entry/exit at issue led to the shared space and the
maintenance director, Kilkenny, routinely utilized it. At one point, the parish children used
the entry/exit at issue when flooding occurred. Lakeview Pantry had to submit a work order
to the Archdiocese maintenance staff before any changes or repairs could be made. In short,
this was a communal space ultimately owned and maintained by the Archdiocese, and
nothing in the record shows that Lakeview Pantry affirmatively excluded others from
accessing the door to St. Alphonsus. Rather, the record suggests that any parish member had
unfettered access to the entire basement through this door. While McCormack’s deposition
testimony established that Lakeview Pantry would sometimes sweep the communal doorway
as a “courtesy” and would only shovel or salt the sidewalk if there was a miscommunication
with the Archdiocese’s snow plow company or after the maintenance workers had left, any
such acts of maintenance are simply insufficient to show appropriation. See Gilmore v.
Powers, 403 Ill. App. 3d 930, 935 (2010).
¶ 29 In reaching this conclusion, we also reject plaintiff’s contention that Lakeview Pantry’s
act of placing a warning sign on the door after plaintiff’s fall creates a genuine issue of
material fact regarding exclusive ownership and control over the access areas. Plaintiff cites
Herzog v. Lexington Township, 167 Ill. 2d 288, 300-01 (1995), as proof that subsequent
remedial measures may sometimes be used to show ownership or control of property. His
reliance on Herzog is misplaced, however, because remedial actions may only be used to
show control and maintenance over property when there is no clear and unambiguous lease,
specifying repairs and maintenance of the property. See Coshenet v. Holub, 80 Ill. App. 3d
430, 431-32 (1980) (concluding that where entire premises have a clear and unambiguous
lease specifying which parties shall make repairs, evidence may not be admitted to show
control over property). In this case, Lakeview Pantry’s lease’s section 10(a) clearly states that
the landlord is responsible for all structural repairs, supporting Lakeview Pantry’s
proposition that it did not control the area where plaintiff fell.
¶ 30 Furthermore, in weighing the consequences of placing the burden on Lakeview Pantry as
the renter and the magnitude of that burden, we find the Archdiocese as landlord is best able
to prevent harm to others in the common area because it retains the right to control the area.
See St. Phillips, 137 Ill. App. 3d at 644.
¶ 31 For the reasons elucidated above, Lakeview Pantry did not have a duty of care, since
plaintiff’s injury occurred in a shared, common area of the property maintained and
controlled by the Archdiocese as the landlord. There is no legal requirement for Lakeview
Pantry to exercise control over an area when its lease contract retains that possession and
control for the property owner. Having reached this conclusion, we need not consider
Lakeview Pantry’s alternative argument that the condition of the threshold was open and
obvious such that it precluded liability.

¶ 32 B. Construction Statute of Repose Analysis for the Archdiocese
¶ 33 Plaintiff next argues that the trial court erred in granting summary judgment to the
Archdiocese based on the statute of repose for construction. See Wright, 335 Ill. App. 3d at
955. As stated, the express purpose of the statute is to guard against stale claims. Id. The

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 construction statute applies whenever (1) the product at issue is an improvement to real
property and (2) the defendant’s activities fall within those listed in the statute. Ryan v.
Commonwealth Edison Co., 381 Ill. App. 3d 877, 882 (2008).
¶ 34 Plaintiff, apparently having conceded that the construction at issue constituted an
improvement, now argues that the statute does not apply because the Archdiocese did not
participate in the “design, planning, supervision, observation or management of construction,
or construction of an improvement to real property.” See 735 ILCS 5/13-214(b) (West 2016).
The Archdiocese responds that the record contradicts plaintiff’s contention. We agree.
¶ 35 Evidence presented by the Archdiocese showed that the door and threshold were
constructed and improved upon in 1911, 2002, and 2003. Kilkenny, the parish facilities
engineer, testified that in 2002, the Archdiocese contracted with a company to pour asphalt
between the door and the landscaping bed. In his deposition, he reviewed a spreadsheet
indicating that the check number and date he believed a check was issued to a contracting
company. In 2003, Kilkenny himself signed off on the construction proposal to employ
another contractor to retrofit a new door into St. Alphonsus pursuant to the Archdiocese’s
request. He explained that the Archdiocese chose to retrofit a new door for the existing door
frame, rather than rebuild the entrance. Reverend Hurlburt’s affidavit supports Kilkenny’s
testimony that the Archdiocese was involved in these specific construction activities in 2002
and 2003. His affidavit states that the Archdiocese was involved in the design, planning,
supervision, observation, and management of the construction activities in 2002 and 2003. In
plaintiff’s appeal, plaintiff claims that “Throughout the course of fact discovery, not one
disclosed witness testified that [the Archdiocese] played a single role in the design, planning,
supervision, observation or management of the improvements to its property ***.” However,
the record directly contradicts plaintiff’s allegation, and we agree the construction statute of
repose applies to the Archdiocese, barring plaintiff’s claim against it.
¶ 36 Plaintiff nonetheless argues that it was the unfilled landscaping trench that proximately
caused his injury, a fact he claims the trial court “ignored” in its ruling. Plaintiff maintains
that the Archdiocese “failed to properly maintain this one foot drop off area,” which was an
unsafe condition created from “the bushes [that] died off or were removed.” He points to the
deposition of the parish director of operations, John Schuch, who testified that at some point
there were bushes in the drop-off area, whether before or after the fall, implied that plaintiff
could have steadied himself on the bushes, the bushes would have stopped his fall, or he
would have suffered only minor scratches. Although his reasoning is not entirely clear,
plaintiff is surely trying to bypass the construction statute of repose by arguing that the trench
does not constitute an “improvement” or that the Archdiocese had an ongoing duty to
maintain the asphalt drop-off that created the trench. See, e.g., Ryan, 381 Ill. App. 3d at 882
(holding that, notwithstanding any defects in design, planning, supervision, observation, or
management, a party still may be held liable for failure to maintain its equipment, so the
statute of repose does not apply).
¶ 37 At the outset, we note that plaintiff’s proximate cause argument fails because he
neglected to raise this specific argument in response to the motion for summary judgment,
instead waiting until his motion to reconsider. However, it is well established that arguments
raised for the first time in a motion for reconsideration in the circuit court are forfeited on
appeal. Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36 (such motions are
intended to identify newly discovered evidence that was not available at the time of the

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 original hearing, changes in existing law, or errors in the circuit court’s application of the
law). In addition, the common law record does not disclose that plaintiff raised this argument
before the court, and nowhere in his brief does plaintiff point to the record demonstrating he
set forth the argument. See also Ill. S. Ct. R. 341(h)(6), (7) (eff. Nov. 1, 2017); Hall v. Naper
Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12 (requiring reference to the pages of the
record relied on). Furthermore, plaintiff did not include the report of proceedings on appeal,
even though plaintiff maintains the burden of providing a sufficiently complete record for us
to review his claims. Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App.
3d 645, 655 (2007). Thus, although we have de novo review at this stage, we cannot discern
whether the trial court “ignored” this argument, given that we have no evidence plaintiff even
raised the matter orally below. In re Marriage of Cepek, 230 Ill. App. 3d 1045, 1046 (1992)
(where the record is incomplete, we presume the trial court’s judgment was correct). Plaintiff
therefore has forfeited his proximate cause argument.
¶ 38 Putting forfeiture aside while assuming a court could impose on the Archdiocese a legal
duty to plant bushes in an area where no one would be expected to walk, plaintiff’s claim still
fails because it is based on mere surmise or conjecture. While proximate cause is generally
an issue of material fact to be determined by the jury, proximate cause may be determined as
a matter of law where the facts establish plaintiff would never be entitled to recover. Abrams,
211 Ill. 2d at 257-58. To establish proximate cause, the plaintiff must affirmatively and
positively show that the defendant’s alleged negligence caused the injuries for which the
plaintiff is trying to recover. Berke v. Manilow, 2016 IL App (1st) 150397, ¶ 34. Proximate
cause may also be established by circumstantial evidence that, in light of ordinary
experience, reasonably suggests that the defendant’s negligence produced the plaintiff’s
injury. Canzoneri v. Village of Franklin Park, 161 Ill. App. 3d 33, 41 (1987). However, 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. Berke, 2016 IL App (1st) 150397, ¶ 35. When proven facts appear to demonstrate that
the nonexistence of the fact to be inferred appears to be just as probable as its existence, the
conclusion is a matter of speculation, conjecture, and guess, and the trier of fact will not be
permitted to make that inference. Id.
¶ 39 We find Berke particularly instructive on the matter of whether plaintiff attempted to
create a material issue of fact through guess, speculation, and conjecture. In Berke, a guest at
an apartment building brought a premises liability claim against the building owner and its
management company after sustaining injuries from a fall. The guest specifically argued that
the threshold was unreasonably high and that the door closed too quickly, proximately
causing him to trip and fall down the stairs. This court determined it was equally likely that a
jury could infer that the guest fell due to reasons unrelated to the condition of the premises
and concluded that even if the threshold created a dangerous condition, this was insufficient
to establish a causal connection between the defendant’s negligence and the guest’s injuries.
Berke held summary judgment was proper because the guest’s conclusion that the height of
the threshold proximately caused his fall was nothing more than a possible (not probable)
conclusion. Id ¶ 41; see also Strutz v. Vicere, 389 Ill. App. 3d 676, 681 (2009) (finding
summary judgment proper when the plaintiff’s statement that he fell down over the stairway
railing did not explain the cause of the fall or create a genuine issue of material fact);
Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968, 975 (1990) (affirming

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 summary judgment when the plaintiff’s testimony only gave the possibility of a cause and
was not enough to establish a causal relationship between the alleged negligence and
plaintiff’s injuries).
¶ 40 In the case sub judice, plaintiff relies on his own testimony that his fall was complete at
the open landscaping trench in an attempt to create a genuine issue of material fact that it was
the landscaping trench, and not the threshold, that caused his injury. In his deposition,
plaintiff stated: “The first step down started me falling forward. When my foot hit the
threshold that’s when I went all the way down face first into the fence.” However, plaintiff
has presented only conjecture suggesting that a landscape trench filled with bushes would
have prevented this injury or stopped his fall. 1 Even accepting all his statements as true,
plaintiff has only established that the allegedly dangerous landscaping trench possibly caused
or contributed to his injury, and this is insufficient to establish proximate cause. See Billman
v. Frenzel Construction Co., 262 Ill. App. 3d 681, 687 (1993) (the existence of a fact cannot
be inferred when a contrary fact could be inferred with equal certainty from the same
evidence). As speculation would be required to determine the issue, causation cannot be a
triable issue of fact in this case. Therefore, plaintiff’s proximate cause argument fails.
¶ 41 For all the reasons stated above, plaintiff’s claim against the Archdiocese is time-barred
by the Illinois construction statute of repose.

¶ 42 III. CONCLUSION
¶ 43 Based on the foregoing, we affirm the judgment of the trial court in favor of Lakeview
Pantry and the Archdiocese.

¶ 44 Affirmed.

1
Plaintiff also submitted an affidavit by his expert witness, Daniel Robison. Lakeview Pantry now
argues we should disregard the affidavit as improper and lacking a foundation, just as the trial court did.
Plaintiff has failed to respond to this argument in his reply brief. Given his lack of response and the
incomplete record, we need not consider the affidavit further. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1,
2017) (points not argued are forfeited). We note only that the affidavit does not necessarily help
plaintiff’s proximate cause argument, as Robison identified multiple methods to cure the means of
ingress/egress into St. Alphonsus, including warning signs regarding the threshold, removal of a ramp,
handrails for the step down, and creating a level landing. Notably, Robison’s affidavit referred to a “low
area by the ramp at the fence opening” that should have been corrected, but he does not state whether
this area should have been filled with bushes or flattened completely. Furthermore, he identifies the
cause of plaintiff’s fall as the uneven threshold.

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