Raymond Berke fell in the vestibule of an apartment building where he and his wife were staying with friends. A doorman heard but did not see him fall. There were no eyewitnesses. He suffered spinal injuries that rendered him a quadriplegic. He has no memory of his fall.
Berke filed a lawsuit against the building owner and the management company claiming that the vestibule area, stairs and doorway, in particular, were improperly designed and maintained and were a direct and proximate cause of his injuries. His wife brought a loss of consortium claims against both defendants.
The defendants moved for summary judgment. The trial judge entered judgment in their favor. The Berkes argued that they presented sufficient admissible evidence to support their prima facie case of premises liability that would preclude summary judgment. They also contended that the trial court erred in striking parts of their expert witness affidavits, submitted in support of their response to defendants’ summary judgment motion and that the court should have granted their motion to cite supplemental authority.
The Illinois Appellate Court affirmed the summary judgment order. The court stated that the Berkes presented no evidence other than speculative assertions through expert affidavits that Raymond Berke fell because defendants created and maintained a condition exposing him to an unreasonable risk of injury. The trial court did not abuse its discretion in denying the motion to cite supplemental authority.
In November 2012, Raymond and Carol Berke, who live in California, were staying with friends in a luxury 12-story co-op Chicago apartment building. Trust No. 2450 Lakeview Avenue Trust owned the building. Wolin-Levin Inc., a property management company, managed and maintained it. Toward the back of this building was a west exit form which one can get to the parking garage. The west exit has an exterior building door on top of a threshold with a landing that opens to a stairwell with three steps that led to the exterior door to the outside. The threshold was 7 ½ inches high on the interior side and 2 ¼ inches high on the exterior side. The landing was 10 ½ inches deep.
According to the Berkes, the height and depth of the threshold and the depth of the landing violated code and industry standard and constituted a tripping hazard. The Berkes also contended that the tripping hazard created by the threshold and door was exasperated by the lack of any warning sign.
On Nov. 2, 2012, Raymond and Carol Berke left the apartment building through the west exit and went to their car, which was in the parking garage. Carol forgot her cell phone in the apartment and Raymond went back to get it. The building’s doorman escorted Raymond to the apartment and back. The doorman said he walked with Raymond toward the west exist but Raymond waved him off, indicating that he did not need the doorman to open the door for him. The doorman returned to his desk and moments later heard a noise he described as a “kunk.”
When the doorman reached Raymond, he saw that his eyes were closed and clenching. The doorman did not see Raymond trip and fall. The doorman asked a co-worker for help, called 911 and then went out to the parking garage to tell Carol that her husband had had an accident.
Surgery was done at St. Joseph’s Hospital in Chicago where it was determined that Raymond was a quadriplegic. Raymond did not regain consciousness until after surgery. He has no memory of his fall.
Inasmuch as there were no eyewitnesses to the fall and that the deposed parties, Raymond, Carol and the doorman, were not able to offer any circumstantial evidence to which to infer what happened, there were no witnesses who could point to the mechanism of the fall.
In order to establish a premises liability negligence claim, the plaintiff must present sufficient factual evidence to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Marshall v. Burger King Corp., 222 Ill.2d 422, 430 (2006). Generally, proximate cause presents a question of fact; however, it becomes a question of law when the facts alleged indicate that a party would never be entitled to recover. Bermudez v. Martinez Trucking, 343 Ill.App.3d 25, 29 (2003). Accordingly, a plaintiff who failed to establish the element of proximate cause has not established his or her burden of making a prima facie case and summary judgment is proper. Mann v. Producer’s Chemical Co., 356 Ill.App.3d 967, 972 (2005).
The appellate court stated that it agrees with the defendants in that the Berkes have not “affirmatively and positively shown” with “reasonable certainty” that Raymond fell because he tripped over the threshold or was propelled forward by a door that closed too quickly. No direct evidence showed why Raymond fell, because he has no recollection and, although the doorman heard Raymond fall, he did not hear or see what made Raymond fall. Moreover, the Berkes cannot establish causation through circumstantial evidence. Although a trier of fact could infer that Raymond, who was observed to be walking at a rapid pace, tripped over the threshold or was propelled forward by the door, it is equally likely that a jury could conclude that he fell for reasons unrelated to the conditions of the premises. Accordingly, because of the absence of any evidence of the cause of Raymond’s fall, there is no genuine issue of material of fact for the trier of fact to determine. The trial court properly granted summary judgment.
Berke v. Manilow, et al., 2016 IL App (1st) 150397 (Aug. 23, 2016).
Kreisman Law Offices has been handling catastrophic injury cases, automobile accident cases, truck accident cases, wrongful death accident cases, bicycle accident cases and pedestrian accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Tinley Park, Homewood, Elmwood Park, Elmhurst, Justice, Worth, Alsip, Blue Island, South Holland, Chicago Heights, Morton Grove, Niles, Des Plaines, River Grove, Chicago (Jefferson Park, Rogers Park, Wicker Park, East Side, Back of the Yards, Austin, Lawndale, Hyde Park, Wrigleyville, Chinatown, Little Italy), Rosemont and Arlington Heights, Ill.
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