concurring in part and dissenting in part:
I concur in the majority’s disposition of plaintiff’s claim against Bernard Weitekamp, but dissent from its affirmance of the circuit court’s judgment in favor of Nokomis Township and Montgomery County. The circuit court entered summary judgment for Nokomis Township on the theory that plaintiff had failed to offer sufficient evidence to “tip the scales” in favor of his theory of recovery. As this court recently held, however, a hearing on a summary judgment motion is not a minitrial. The party opposing the motion is not required to try its case at that time. (Hall v. Stamm (1991), 208 Ill. App. 3d 83, 85, 566 N.E.2d 995, 997.) Rather, the party moving for summary judgment is obligated to demonstrate the absence of factual dispute with respect to all issues raised by the pleadings. West Suburban Mass Transit District v. Consolidated R. Corp. (1991), 210 Ill. App. 3d 484, 488, 569 N.E.2d 187, 190.
In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 1215.) Summary judgment is improper when there is a dispute as to a material fact or when material facts are undisputed but reasonable persons may draw different inferences from those facts. (Lehrman v. South Chicago Cable, Inc. (1991), 210 Ill. App. 3d 346, 351, 569 N.E.2d 99, 102.) This is such a case.
The inlet which allegedly caused plaintiff’s injuries was not a natural formation. It had to have been constructed and maintained by Nokomis Township, Montgomery County, or the State. No other possibilities were suggested. Although the township and county disavow any responsibility, the district maintenance engineer for the Illinois Department of Transportation testified in his discovery deposition that inlets such as this may be the responsibility of local governmental entities even where, as here, the inlets fall within the State’s right-of-way.
The same engineer further testified that the local governmental units would have required a permit had they actually constructed the inlet, and I recognize that no such permit was produced. The absence of such a permit, however, is scarcely dispositive. Plaintiff’s cause of action against the county and township is not premised solely on the proposition that those entities were negligent in constructing the inlet. Plaintiff also alleged negligent maintenance of the inlet. On that claim, the issue of a permit was irrelevant. In any case, I fail to see how any real significance can be given to the absence of a permit considering that a fire or flood had rendered the State’s records incomplete.
The circuit court found the matter here to be in “equipoise,” which means “[a] state of equal balance” (30 C.J.S. Equipoise §757 (1965)). Implicit in this conclusion is that the court engaged in weighing of the evidence. That was wholly improper. It is fundamental that on a motion for summary judgment neither the trial court nor the reviewing court may weigh the evidence. (See Russell v. Subbiah (1986), 149 Ill. App. 3d 268, 273, 500 N.E.2d 138, 142 (Barry, J., dissenting); Fletcher v. Boxx (1973), 10 Ill. App. 3d 928, 931, 295 N.E.2d 248, 250.) As vexing as the evidence may have been to the trial judge, he was not the trier of fact. The jury was, and plaintiff should have been permitted to present to the jury his claims against the township and the county. I would therefore reverse the entry of summary judgment against plaintiff on those claims and remand for further proceedings.