dissenting:
Under Illinois law, proximate cause is a term of art which encompasses the distinct concepts of cause in fact and legal cause. A plaintiff who fails to establish the first of these elements, cause in fact, has not sustained his burden of making a prima facie case in negligence. Cause in fact can be established only where there is a reasonable certainty that the defendant’s conduct caused the injury. If no facts are put forth by the plaintiff to show that the injuries sustained were caused or contributed to by an act or omission of the defendant, a judgment based on such evidence cannot be sustained. (Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 559-60, 490 N.E.2d 995, 999.) This is such a case. Defendant’s motion for judgment notwithstanding the verdict should have been granted.
In reaching a contrary conclusion, the majority applies the wrong standard for establishing proximate cause. The majority contends that plaintiff here was not, in fact, required to prove causation to a “reasonable certainty.” This is manifestly incorrect. The “reasonable certainty” standard has been uniformly followed in this district (141 Ill. App. 3d at 559-60, 490 N.E.2d at 999; Cornstubble v. Ford Motor Co. (1988) , 178 Ill. App. 3d 20, 34, 532 N.E.2d 884, 893) and elsewhere (see, e.g., N.W. v. Amalgamated Trust & Savings Bank (1st Dist. 1990), 196 Ill. App. 3d 1066, 1076, 554 N.E.2d 629, 637; Kennedy v. Joseph T. Ryerson & Sons, Inc. (1st Dist. 1989), 182 Ill. App. 3d 914, 919, 538 N.E.2d 748, 750; McCormick v. Maplehurst Winter Sports, Ltd. (2d Dist. 1988), 166 Ill. App. 3d 93, 98, 519 N.E.2d 469, 473; Lang v. B.I.T., Inc. (3d Dist. 1981), 96 Ill. App. 3d 37, 39, 420 N.E.2d 767, 769). While a lower threshold may suffice in medical malpractice actions, medical malpractice obviously has nothing to do with this litigation. The majority’s reliance on Hare v. Foster G. McGaw Hospital (1989) , 192 Ill. App. 3d 1031, 549 N.E.2d 778, is therefore completely misplaced.
The majority makes much of the fact that defendant’s expert witness conceded on cross-examination that additional security may have reduced the risk of harm to the decedent. This tentative conclusion, however, scarcely approaches the level of “reasonable certainty” necessary to establish proximate cause. In any case, I fail to see how it adds anything of value to the resolution of this appeal. There is no question that decedent, and everyone else on defendant’s premises for that matter, would have been safer, at least from certain perils under certain circumstances, if additional security measures had been implemented. To recover, however, plaintiff had to show more than just this. She needed to prove that one or more of the particular security deficiencies identified at trial caused or contributed to the specific circumstances that led to the decedent’s death.
This she could not do. No one at trial could substantiate the existence of the requisite causal link, and that link is scarcely self-evident. For example, plaintiff’s expert criticized the absence of fences and inadequate access control. But as the majority itself points out, if the decedent’s killer were one of his co-workers, the killer would have been authorized to be in the area, and no amount of fencing or additional access control may have prevented his confrontation with the decedent.
Improved lighting, surveillance, patrolling, and arming the guards likewise may have done absolutely no good. According to the record before us, their principal benefit apparently would have been deterrence. If, however, the decedent were killed in the heat of passion during an argument, nothing the defendant could have done would have deterred the killer. Deterrence, after all, depends on a considered appraisal of risk, and crimes of passion, by definition, are devoid of any sort of considered judgment.
Because there was absolutely no evidence, direct or otherwise, as to why or by whom the decedent was killed, and because the circumstances leading to the decedent’s shooting death are largely a mystery, each of these possibilities and many others are as likely to have taken place as any scenario offered by plaintiff. Any conclusion that defendant’s security deficiencies were linked in any way to decedent’s death would therefore be purely speculative. This is fatal to plaintiff’s case, for it is fundamental that in a negligence action the jury must base its decision on evidence, not on guess or speculation. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury. Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 560, 490 N.E.2d 995, 999.
The circumstances before us closely parallel those in N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629, a recent decision by a unanimous panel of the Appellate Court, First District. In that case, a tenant brought a negligence action against the owners and manager of her apartment building to recover damages for injuries she sustained after an intruder broke into her apartment through the kitchen door and sexually assaulted her. The tenant argued that defendants should be held liable for this attack because (1) they failed to repair the lock on the building’s rear entrance, and (2) it was through this unlocked back door that the assailant was able to gain access to the tenant’s kitchen door prior to the assault.
The problem, as here, was that the identity of the assailant was completely unknown. There was no evidence that he was not simply another tenant, or a social guest of a tenant, who would have had access to the plaintiff’s kitchen door regardless of whether the rear entrance was locked. In the view of the appellate court, this defeated the tenant’s action, even assuming, for the sake of argument, that the assault was reasonably foreseeable or that defendants had, in fact, engaged in a voluntary undertaking to protect the tenant from criminal activity. According to the court:
“The only piece of evidence supporting the plaintiff on the issue of proximate cause is the fact that the lock was inoperable on the night of the attack and, hence, a mode of access to plaintiff’s apartment was available. From this the plaintiff infers that the assailant entered the building through the unlocked rear entrance. Such an inference would be quite reasonable but for the fact that access to the plaintiff’s kitchen door was also available to other tenants and their social guests. A mere possibility of a causal connection is insufficient to raise the requisite inference of fact.” (196 Ill. App. 3d at 1077, 554 N.E.2d at 637.)
The court therefore affirmed summary judgment in favor of defendants.
Although the present case is before us following a jury trial, not simply a summary judgment, the failure of proof on the question of proximate cause is no less complete. To affirm the jury’s verdict under the circumstances present here would be tantamount to holding that defendant must be an insurer of the safety of everyone lawfully on its premises. While I am naturally sympathetic to the decedent’s widow and his children, the law of this State will not countenance such a result. I therefore dissent.