Barclay v. Yoakum
Barclay v. Yoakum
Opinion
*327 ¶ 1 After the decedent, Joel Barclay, fell from the second-story walkway of an apartment building owned by defendants, Loran Yoakum and Mary Siebert, plaintiff, Rodney Barclay, individually and as independent administrator of Joel Barclay's estate, brought this action for negligence (wrongful death and survival). The circuit court of Kane County entered summary judgment in favor of defendants. On appeal, plaintiff argues that a question of fact as to whether the height of the walkway railing proximately caused the decedent's fall precluded summary judgment. For the reasons that follow, we affirm.
¶ 2 I. BACKGROUND
¶ 3 Around midnight on June 2, 2012, tenants of a second-story apartment observed the decedent, apparently intoxicated, *524 *328 walking on the apartment building's second-story walkway. The tenants went inside their apartment, closing only the screen door. After 5 or 10 minutes had passed, one of the tenants heard what sounded like something hitting the ground. Upon investigating, the tenant saw the decedent lying on the ground below the walkway with blood on his head. Emergency services arrived rapidly on the scene and transported the decedent to a hospital, where he was pronounced brain-dead the next day.
¶ 4 Law enforcement's investigation determined that no one else was present when the decedent fell and that no crime had been committed. The coroner's report indicated that the decedent had a blood-ethanol level of 0.293 near the time of his death.
¶ 5 On August 27, 2014, plaintiff filed a first amended complaint against defendants and their trust companies. The complaint stated causes of action for negligence (wrongful death and survival), alleging, inter alia , that defendants "permitted an inadequate handrail to be in place on the second floor walkway" of the premises. In support, plaintiff submitted the reports of two experts, one of whom was also deposed. One expert opined that the walkway railing was 8 inches below the 42-inch height the building code required at the time of the fall and 2 inches below the 36-inch height the building code required when the building was built. The other expert opined that the decedent, whose center of body mass was higher than the 34-inch railing, staggered into the railing and pitched over it. In the expert's opinion, had the railing been 42 inches high, it would have served its intended purpose and prevented the decedent from falling off the walkway.
¶ 6 Defendants moved for summary judgment on the ground that plaintiff had failed to establish that the decedent's fall and resulting death were proximately caused by the alleged unsafe condition of defendants' premises. The motion was granted, and plaintiff's motion for reconsideration was denied. Plaintiff voluntarily dismissed the two trust-company defendants and filed this appeal.
¶ 7 II. ANALYSIS
¶ 8 A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016);
Balla v. Gambro, Inc.
,
¶ 9 Although proximate cause is generally an issue of material fact, to be determined by the trier of fact, proximate cause may be determined as a matter of law where the facts show that the plaintiff would never be entitled to recover.
Abrams v. City of Chicago
,
¶ 10 Plaintiff argues that he presented sufficient circumstantial and expert evidence to create an issue of material fact as to causation. Specifically, plaintiff relies on the eyewitnesses' testimony that the decedent was apparently intoxicated and walking on the walkway and, 5 or 10 minutes later, was on the ground with blood on his head. Plaintiff also relies on the reports and deposition testimony of his experts, who opined that the walkway railing was 8 inches below the 42-inch height the building code required at the time of the fall and 2 inches below the 36-inch height the building code required when the building was built; that the decedent, whose center of body mass was higher than the 34-inch railing, staggered into the railing and pitched over it; and that the railing, if it had been 42 inches high, would have served its intended purpose and prevented the decedent from falling off the walkway.
¶ 11 Plaintiff's evidence is insufficient to preclude summary judgment on the issue of whether defendants' negligence caused the decedent's fall. Plaintiff identified no eyewitness to the fall. The eyewitnesses' testimony about circumstances before and after the fall sheds no light on what
caused
the fall. See
Strutz v. Vicere
,
¶ 12 An expert purported to address the cause of the decedent's fall, opining that the substandard height of the walkway railing "caused" the fall because the decedent "pitched" over it when he staggered into it. This opinion, however, presents only a possibility of what occurred before the decedent was discovered on the ground beneath the walkway; it is, therefore, insufficient to establish proximate cause. See
Strutz
,
¶ 13 Yoakum's deposition testimony suggests another possibility regarding the cause of the fall, one that has nothing to do with the height of the railing. According to Yoakum, the decedent had been warned several times about his practice of sitting on the railing. It is possible that the decedent sat on the railing and fell. Significantly, there is no more evidence to support this possibility than there is to support the possibility that he staggered into the railing and "pitched" over it; both remain, therefore, mere speculation. See
Strutz
,
¶ 14 While circumstantial evidence need not exclude all other possible conclusions, "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."
Keating v. 68th & Paxton, L.L.C.
,
¶ 15 Plaintiff's reliance on the failure of the railing to comply with the current building-code height requirement of 42 inches is, without more, unhelpful in establishing proximate cause. First, plaintiff presents no authority that code height requirements are to be applied retroactively. Second, "[v]iolations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause."
Strutz
,
¶ 16 The cases on which plaintiff relies for examples of sufficient circumstantial evidence of proximate cause are distinguishable. See
Mort v. Walter
,
¶ 17 III. CONCLUSION
¶ 18 In the absence of any evidence of the cause of the decedent's fall, there is no genuine issue of material fact on the issue of proximate cause, and summary judgment in favor of defendants was proper. Accordingly, we affirm the trial court's order granting summary judgment.
¶ 19 Affirmed.
Presiding Justice Birkett and Justice Spence concurred in the judgment and opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.