dissenting:
I would reverse the summary judgment entered by the trial court in this cause and remand for trial; hence, I must dissent.
The majority opinion states that plaintiff failed to satisfy his burden of proof on the issue of proximate cause and that plaintiff must prove that “it is more probably true than not true that the defendant’s negligence was a proximate cause of the plaintiff’s injury.” That is not the standard of review on appeal from a summary judgment. The Illinois Supreme Court, in Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871, recently stated:
“Because the purpose of a summary judgment proceeding is to determine whether there are any genuine issues of triable fact [citation], a motion for summary judgment should be granted only when ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.] While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. [Citations.]”
The supreme court also stated that the pleadings, depositions, admissions, exhibits, and affidavits must be construed strictly against the movant and liberally in favor of the opponent in determining the existence of a genuine issue of material fact. The majority has not followed that maxim in this case.
The purpose of a summary judgment proceeding “is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried.” (Beverly Bank v. Alsip Bank (1982) 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598, 602.) Neither party has a “burden of proof” under a motion for summary judgment, and neither the trial court nor the reviewing court may weigh the evidence.
The majority opinion cites Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662, for the proposition that plaintiff failed to satisfy its burden of proof as to an essential element of the cause of action. Taylor v. Hocker was a case where a shopping center customer brought a negligence action against the operators of the shopping center for injuries suffered when the customer was assaulted and stabbed by an unknown criminal assailant in the parking lot of the center. The court held that, as a matter of law, the defendant had no duty to take security precautions or to warn of violent attacks by third persons where the management had no notice of violent crimes occurring on the premises. In a case such as the one at bar, where there are no depositions or affidavits other than those of plaintiff’s ■witness, summary judgment for defendant would be proper only if plaintiff fails to demonstrate an ability to offer evidence at trial on the proximate cause of his injury. Cf. Purtill v. Hess (1986), 111 Ill. 2d 229. 489 N.E.2d 867.
Here Dr. Heydemann’s discovery deposition asserted that the delay in diagnosis was causally related to plaintiff’s injury and that the delay was a concurrent and proximate cause but that he could not say with medical certainty the extent to which the injury was caused by the delay in diagnosis. During cross-examination, Dr. Heydemann made some confusing comments, as quoted in the majority opinion above, but he clearly was led into that confusion when defendant’s attorney wrongly defined “proximate” as “direct.” Certainly defendant should not be able to take advantage of the ambiguity introduced by his own attorney. It would appear that the doctor’s problem with the term “proximate cause” involved the difference between the medical and the legal understanding of the term.
In my judgment, the doctor’s deposition and affidavit, taken together, are sufficient to create a jury issue as to the question of proximate cause. I certainly do not agree with the majority view that the determinative factor was the doctor’s statement that there was a “50/50” probability the delay in diagnosis prolonged the recovery period. Using the test set forth in Borowksi v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301, the majority concluded that this testimony was insufficient to meet plaintiff’s burden of proving proximate cause. Borowski was tried before a jury, and on appeal the supreme court considered the burden of proof necessary to establish proximate cause in a medical malpractice case. The court concluded that the question was properly submitted to the jury in that case.
Here there has been no trial, and so we are not in a position to consider whether plaintiff has met his burden of proof. Dr. Heydemann’s deposition testimony and affidavit do establish that plaintiff can introduce evidence showing that defendant’s delay in diagnosis was a cause of plaintiff’s injury. The extent to which the delay in diagnosis retarded the recovery will be one of the questions to be determined by the jury. In sum, proximate cause is a material question of fact which should be submitted to trial.