Nowak v. Coghill
Annotate this Case
No. 2--97--0792
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JOSEPH NOWAK, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 96--L--1
v. )
)
DONALD and LAUREL COGHILL, ) Honorable
) Terrence J. Brady,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Joseph Nowak, appeals from a circuit court order
that granted summary judgment against him and in favor of
defendants, Donald and Laurel Coghill. In his amended complaint,
plaintiff alleged that he was injured as a result of defendants
negligence when he slipped and fell on an unnatural accumulation of
snow on defendants property.
On appeal, plaintiff contends that the grant of summary
judgment in favor of defendants was improper because the trial
court erred when it (1) found that there was not an unnatural
accumulation of snow on defendants driveway; (2) ruled that there
was no evidence of an unnatural accumulation of snow that could be
argued to be a proximate cause of plaintiff s fall and injuries;
and (3) determined that the Dead-Man s Act (735 ILCS 5/8--201 (West
1996)) did not preclude certain testimony by defendant Laurel
Coghill.
We note that defendant Donald Coghill died while this lawsuit
was pending and that Laurel Coghill was appointed the
representative of Donald s estate for this lawsuit. For
convenience, when we refer to defendant we refer to Laurel
Coghill.
Plaintiff s amended complaint alleged the following: at about
11 a.m. on January 2, 1994, plaintiff, who owned and operated a tow
truck service, arrived at defendants residential property in Fox
Lake to provide towing services for defendants at defendants
request; plaintiff parked his tow truck on defendants sloped
driveway; plaintiff exited the truck in order to get the keys to
defendants car, which had stalled at another location; defendants
had previously shoveled snow from their driveway and piled the snow
along the side of the driveway, creating an unnatural
accumulation of snow; because the driveway was narrow, plaintiff
necessarily stepped on the piled snow when he exited the tow truck;
after plaintiff received the keys from defendant and while he was
still out of the tow truck, the tow truck began to roll backward
down the driveway; plaintiff started down the driveway toward the
moving tow truck; upon reaching the tow truck, plaintiff
necessarily had to step in the piled snow on the side of the
driveway in order to reach the driver s side door of the truck; and
the piled snow caused plaintiff to fall, resulting in severe head
injuries to plaintiff.
In their motion for summary judgment, defendants argued that
(1) they owed no duty to plaintiff because any snow that was on the
driveway after defendants had shoveled the driveway was a natural
accumulation; (2) there was no evidence of negligence with respect
to any unnatural accumulation of snow; and (3) plaintiff could not
establish that any act or omission by defendants proximately caused
his fall.
Defendants attached two depositions to their motion for
summary judgment. One of the attached depositions was that of
defendant, Laurel Coghill. Defendant s deposition testimony
included the following: some time after 8 a.m. on the morning of
January 2, 1994, defendant s car broke down about five miles from
her home as she was returning home from work; it was overcast that
day and there had been a little bit of snow for about a half hour
starting around 10 a.m.; the snow was not heavy enough to
accumulate, but it made the ground wet; the most recent snow prior
to that day had started on the evening of December 31, 1993, and
continued until about 5 p.m. on January 1, 1994; that snow caused
an accumulation of about one-half inch; defendant and a friend had
used shovels and a snow blower to clear defendants driveway after
that snow; they had pushed most of the snow off the driveway to the
right side of the driveway as one faces the house, i.e., the south
side of the driveway; through a friend, defendant had arranged for
plaintiff to come to defendant s house, pick up her car keys, and
go get her car with his tow truck; when plaintiff arrived at
defendant s residence, he pulled his tow truck onto the driveway
about even with a set of concrete steps that connected the driveway
to a sidewalk that led to the front porch of defendant s house;
defendant was standing on her front porch waiting for plaintiff
when he arrived; plaintiff got out of the truck and walked to the
front porch; on the front porch, defendant gave plaintiff her car
keys; suddenly there was a clink-clonk sound and the tow truck
started rolling down the driveway; when the sound occurred,
plaintiff turned and, without saying anything, ran down to the
driveway and down the driveway to try to catch the truck; although
the truck was gaining speed, plaintiff reached the truck; when he
reached the truck, plaintiff was on the grass which was wet;
plaintiff managed to open the truck door, but he was slipping and
sliding around and the door of the truck opened and hit
plaintiff s head; this occurred just past a tree that was in
defendant s yard near the driveway; when the door hit plaintiff, it
knocked him down and apparently knocked him out because he just lay
on the grass after he fell; at the time plaintiff fell, the line
separating the north side of the driveway and defendant s yard was
not covered by snow or ice.
The other deposition attached to defendants motion for
summary judgment was plaintiff s. Plaintiff s deposition testimony
included the following: plaintiff has only a limited recall of the
events that occurred on January 2, 1994; plaintiff recalled parking
his tow truck on defendant s driveway on that day but did not
recall the exact spot on the driveway where he parked the truck;
plaintiff did not recall if there was snow on the driveway at the
time but recalled snow in the area; plaintiff recalled that the
driveway was rather narrow and that when he got out of the tow
truck he stepped on a pile of snow; plaintiff could not recall the
size or depth of the snow pile, but he did recall that the snow
pile was hard; plaintiff recalled leaving the tow truck running and
closing the door of the tow truck; plaintiff did not recall what
course he took to get to the porch of defendants house, but he
remembered being at the door of the house; plaintiff recalled
getting keys from a woman and hearing a noise; the next thing
plaintiff could recall was when he woke up in the hospital with
brain surgery ; plaintiff did not recall specifically whether he
was on the driveway or on the area next to the driveway when he
fell.
The record contains several other depositions. One of these
is the deposition of plaintiff s adult son, Joseph S. Nowak
(Joseph). Joseph s deposition testimony included the following: on
January 2, 1994, after being notified of his father s accident, he
went to the scene of the accident; he arrived at the scene while
the ambulance that later took his father to the hospital was still
there; his father was in the ambulance when he arrived; the tow
truck at that time was against two trees in a neighbor s yard
across the street from defendants driveway; shortly after arriving
at the scene, he talked to defendant; defendant was upset because
her car keys were missing; defendant told Joseph that plaintiff
fell by the tree; Joseph searched for defendant s car keys and
found them on the grass about 10 to 15 feet north of the driveway
and about halfway between the tree and the concrete steps near the
driveway; there was snow piled along the north side of the driveway
as if someone had shoveled the driveway; the piled snow was about
one foot wide and from four to six inches deep; the piled snow was
right along the edge of the north side of the driveway and was
generally on the outside of the driveway.
The deposition of Robert Luerssen is also in the record.
Luerssen s testimony included the following: he has been a Fox Lake
police officer for about 20 years; on January 2, 1994, he was on
duty and was called to defendant s residence in response to
plaintiff s fall; he was the first police officer to arrive at the
scene; he saw plaintiff s body lying on the ground near the tree;
there was nothing to indicate that plaintiff s body had been moved
before Luerssen arrived at the scene; plaintiff s body was lying in
a north-south direction; plaintiff s body was lying on the line
separating the north edge of the driveway from the yard;
plaintiff s body was partly on defendants driveway and partly on
defendants yard; plaintiff s feet and his legs, up to about his
upper thighs, were on the driveway; the upper portion of his body
was on the yard; Luerssen noticed snow on both the yard and the
driveway; he did not recall any evidence of shoveling or any piles
of snow; he observed plaintiff s footprints on the driveway near
where the body was found; based on these footprints, Luerssen
opined that plaintiff was on the driveway when he fell; Luerssen
did not include this opinion in his official report of the incident
because, based on defendant s account of the incident, Luerssen
believed that the cause of plaintiff s fall was the door of the tow
truck hitting plaintiff; when Luerssen observed the tow truck
sitting in the neighbor s yard, he noticed that the driver's door
was open.
The deposition of Mary Ann Nowak (Mary), plaintiff s wife, is
also in the record. Mary s testimony included the following: on
January 2, 1994, she arrived at the scene of plaintiff s accident
after plaintiff had been placed in the ambulance; the ambulance
was still at the scene; there was no snow on the driveway, but the
driveway was wet; there were snow piles on each side of the
driveway as if the driveway had been shoveled or plowed; the snow
piles were about three to four inches deep; some of the piled snow
extended onto the driveway for about four inches on both sides of
the driveway; the piled snow that extended onto the driveway was
along the entire length of the driveway on both sides of the
driveway.
After conducting a hearing on the matter, the trial court
entered an order granting defendants motion for summary judgment.
In oral remarks made at the hearing, the trial court found that
there is no evidence of an unnatural accumulation [of snow or ice]
which could be argued to be a proximate cause of the plaintiff s
fall and injury. The trial court also found that Officer
Luerssen s testimony did not support a finding of negligence
against defendants because his testimony placed plaintiff directly
on the driveway as the site of the fall when, in fact, there is no
evidence of an unnatural accumulation of snow and ice on the
driveway itself. Plaintiff s timely notice of appeal followed.
In appeals from summary judgment rulings, we conduct a de novo
review of the evidence in the record. Berlin v. Sarah Bush Lincoln
Health Center, 179 Ill. 2d 1, 7 (1997). Summary judgment should be
granted only if the pleadings, affidavits, depositions, admissions,
and exhibits on file, when viewed in the light most favorable to
the nonmovant, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law. 735 ILCS 5/2--1005(c) (West 1996); Berlin, 179 Ill. 2d at 7. Although summary judgment is to be encouraged to expedite
the disposition of lawsuits, it is a drastic procedure and should
be allowed only when the right of the moving party to summary
judgment is clear and free from doubt. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).
Plaintiff s amended complaint alleged negligence on the part
of defendants. To state a cause of action for negligence properly,
a plaintiff must establish the following elements: that the
defendant owed a duty of care to the plaintiff; that the defendant
breached that duty; and that the breach was the proximate cause of
the plaintiff s injuries. Mt. Zion State Bank & Trust v.
Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995).
The existence of a duty is a question of law for the court to
decide, and the issues of breach and proximate cause are generally
factual matters for a jury to decide, unless there is no genuine
issue of material fact regarding those issues. Espinoza v. Elgin,
Joliet & Eastern Ry., 165 Ill. 2d 107, 114 (1995). If the
plaintiff fails to establish an element of the cause of action,
summary judgment for the defendant is appropriate. Espinoza, 165 Ill. 2d at 114.
The trial court did not make an explicit ruling regarding the
duty element in this case. However, on appeal, both parties
address the duty element and we will therefore also address it.
Plaintiff contends that defendants owed him a duty to remove
properly the snow and ice on their driveway and that defendants
breached that duty. Plaintiff bases his contention on two
theories: (1) defendants duty arose from a more general duty to
provide plaintiff a reasonably safe means of ingress to and egress
from their property; and (2) defendants duty arose from their
voluntary undertaking to shovel their driveway.
Plaintiff concedes that defendants did not have a duty to
remove natural accumulations of snow and ice from their driveway.
However, plaintiff argues that once defendants undertook to shovel
their driveway, they had a duty to prevent any unnatural
accumulation of snow or ice on the driveway and, perhaps, even
beyond the driveway. Plaintiff asserts that defendants breached
their duty because in shoveling their driveway they created an
unnatural accumulation of snow when they piled snow along the edges
of the driveway on both sides of the driveway. Plaintiff focuses
primarily on the alleged unnatural accumulation of snow up to four
inches wide and from three to six inches deep that was on the
surface of the driveway. However, plaintiff also suggests that
defendants may have had a duty not to create an unnatural
accumulation of snow even outside the boundaries of the driveway.
A property owner generally has no duty to remove a natural
accumulation of snow and ice from his property. Lansing v. County
of McLean, 69 Ill. 2d 562, 571 (1978). However, a property owner
who voluntarily undertakes the removal of snow and ice can be
subjected to liability where the removal results in an unnatural
accumulation of snow or ice that causes injury to a plaintiff.
Graf v. St. Luke s Evangelical Lutheran Church, 253 Ill. App. 3d
588, 591-92 (1993). Each such case turns on its own facts.
Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011,
1016 (1994). As with any voluntary undertaking, the duty of care
that arises from the undertaking is limited to the extent of the
undertaking. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 239 (1996).
In plaintiff s view, because the shoveled snow constituted an
unnatural accumulation of snow, defendants voluntary undertaking
to shovel their driveway gave rise to a duty to do so in a way that
the driver of any vehicle that subsequently happened to park on the
driveway could exit the vehicle without stepping in the shoveled
snow. We do not disagree with plaintiff that the shoveled snow, at
least to the extent that it ran back onto the surface of the
driveway, was an unnatural accumulation. See Graf, 253 Ill. App.
3d at 592. However, we do not believe that the scope of the duty
of a residential property owner who undertakes to shovel his own
driveway for his own purposes extends to the limits urged by
plaintiff. Perhaps, a residential property owner who undertook to
shovel his driveway knowing that a vehicle of a certain width would
park on the driveway would have such a duty. But in this case,
there is nothing to show that at the time they shoveled their
driveway defendants knew that plaintiff would park his tow truck on
their driveway. In the absence of such knowledge
or without a showing of an intent by defendants to shovel their
driveway to accommodate a class of possible users that encompassed
plaintiff and his tow truck, no duty existed for defendants to
shovel their driveway so that plaintiff would not step in the
shoveled snow when he exited his truck after parking it on
defendants driveway. Thus, defendants voluntary undertaking to
shovel their driveway did not give rise to a duty to shovel the
driveway so that it would accommodate unexpected users such as
plaintiff.
A court may take public policy considerations into account
when determining the limits of a voluntarily undertaken duty. See
Rhodes, 172 Ill. 2d at 240. As a matter of public policy, we
believe it would be inappropriate to hold that a residential
property owner who voluntarily undertakes to shovel his driveway
must shovel the driveway in a way that the cleared surface is wide
enough so that the driver of any vehicle that parks on the driveway
will not step in the shoveled snow. Such a holding would surely
discourage residential property owners from shoveling their own
driveways for their own purposes.
For these reasons, we reject plaintiff s theory that a
voluntary undertaking gave rise to a duty that could be a basis for
liability in this case.
Plaintiff also contends that defendants had a duty to shovel
their driveway so that it would accommodate plaintiff s tow truck
based on a general duty to provide a safe means of ingress and
egress for plaintiff. The limits of such a duty are determined by
the facts of each case. Kokoszynski v. Chicago South Shore & South
Bend R.R., 243 Ill. App. 3d 343, 346 (1993). For the same reasons
that the limits of the purported duty based on a voluntary
undertaking did not extend to require defendants to completely
shovel their driveway, the limits of a duty based on a duty to
provide a safe means of ingress and egress did not extend to the
limits urged by plaintiff. Accordingly, we reject plaintiff s
theory that a general duty to provide a safe means of ingress and
egress gave rise to a duty that could be a basis for liability in
this case.
The cases relied on by plaintiff in arguing that defendants
owed him a duty to completely clear their driveway are
distinguishable from this case. In each of the cases cited by
plaintiff, a property owner of commercial or church property
contracted with a third party or parties to clear snow and ice from
certain parts of their property, knowing that members of the public
or members of the church would use those parts of the property, and
the third party failed to completely clear the specified property
of snow and ice. See Ordman v. Dacon Management Corp., 261 Ill.
App. 3d 275 (1994) (snow-plowing company and/or maintenance staff
failed to completely clear parking lot of apartment complex);
Johnson v. National Super Markets Inc., 257 Ill. App. 3d 1011
(1994) (snow-plowing company piled snow that melted and refroze on
parking lot of grocery store); Graf v. St. Luke s Evangelical
Lutheran Church, 253 Ill. App. 3d 588 (1993) (church custodians
expected by church pastor to completely clear steps to church
basement of snow and ice failed to do so); McCarthy v. Hidden Lake
Village Condominium Ass'n, 186 Ill. App. 3d 752 (1989) (snow-
plowing company charged with removing all snow from driveways in
condominium development failed to do so).
In this case, unlike the cases cited by plaintiff, defendants
were owners of residential property who undertook to shovel their
own driveway for their own use. Plaintiff has not pointed to
anything in the record that indicates that defendants undertook to
shovel their driveway with the intention of clearing it for others
to use or with the knowledge that others were likely to use it.
Consequently, the cases cited by plaintiff do not require us to
hold that defendants voluntary undertaking to shovel their
driveway gave rise to a duty to plaintiff.
Our determination that defendants did not owe plaintiff a duty
to shovel their driveway so that plaintiff would not have to step
in the shoveled snow when he parked his tow truck on the driveway
is dispositive of this case. Plaintiff s failure to establish the
duty element of his negligence claim, by itself, entitles
defendants to summary judgment. However, we will also address the
proximate cause element of plaintiff s negligence claim.
The trial court based its ruling granting summary judgment in
favor of defendants, in part, on its determination that plaintiff
failed to establish the proximate cause element. As noted above,
proximate cause is generally a question of fact. However,
liability may not be based on speculation, imagination, or mere
conjecture. Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 437
(1991). Rather, proximate cause can only be established when there
is a reasonable certainty that the defendant s act caused the
plaintiff s injury. Vance v. Lucky Stores, Inc., 134 Ill. App. 3d
166, 168 (1985). Although a plaintiff need not prove his case at
the summary judgment stage of the proceedings, if he fails to
present sufficient evidentiary facts to support the elements of his
cause of action, including the proximate cause element, then
summary judgment in favor of the defendant is appropriate. Barker
v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068, 1071 (1994).
In this case, plaintiff acknowledges that the only direct
evidence regarding the cause of his fall is the testimony of
defendant. The gist of defendant s testimony, disregarding
inconsistencies alleged by plaintiff, was that the door of the tow
truck struck plaintiff while he was chasing the truck and caused
him to fall. Defendant also testified that plaintiff was on the
grass, which she described as wet, when he fell.
The trial court ruled that the Dead-Man s Act (Act) (735 ILCS
5/8--201 (West 1996)) did not preclude defendant s testimony.
Plaintiff contends that the trial court ruling was erroneous. It
is not necessary for us to resolve this issue because we can
completely disregard the part of defendant s testimony concerning
the cause of plaintiff s fall and still resolve the proximate cause
issue.
We also note that defendants contend that the trial court
erred when it did not exclude Officer Luerssen s opinion testimony
that plaintiff was on the driveway when he fell. Defendants argue
that the court should have excluded this testimony because
plaintiff did not make a timely disclosure that Luerssen would
offer opinion testimony. It is unnecessary for us to resolve this
issue because even if we include Luerssen s testimony it does not
alter our determination as to the proximate cause element.
Plaintiff acknowledges that without defendant s testimony
there is only circumstantial evidence as to the proximate cause of
his fall. Plaintiff was the only person other than defendant
present when he fell. However, plaintiff testified that he cannot
remember anything about his fall from the time that he heard a
sound while he was standing on defendant s porch until the time
when he woke up in the hospital. Thus, the issue before us is
whether plaintiff presented sufficient circumstantial evidence to
establish the proximate cause element of his negligence claim.
A party may establish negligence by using either direct or
circumstantial evidence. Mort v. Walter, 98 Ill. 2d 391, 396
(1983). Circumstantial evidence is the proof of facts and
circumstances from which a fact finder may infer other connected
facts that usually and reasonably follow, according to the common
experience of mankind. Housh v. Swanson, 203 Ill. App. 3d, 377,
381 (1990). Even where the circumstances support more than one
logical conclusion, circumstantial evidence is sufficient to
establish proximate cause to overcome a motion for summary judgment
as long as the inference in question may reasonably be drawn from
the evidence. Mort, 98 Ill. 2d 396-97. However, the mere
possibility of a causal connection is insufficient to raise the
requisite inference of fact. Housh, 203 Ill. App. 3d at 381.
The specific question before us is whether plaintiff presented
sufficient circumstantial evidence to establish that the snow that
he alleges was an unnatural accumulation on the surface of
defendants driveway caused him to fall. Critical to this inquiry
is whether the circumstantial evidence sufficiently establishes
that plaintiff was on the alleged unnatural accumulation of snow
when he fell.
After carefully reviewing the record in the light most
favorable to plaintiff, we conclude that it is not reasonable to
infer that plaintiff was on the snow piled on the edge of the
driveway when he fell. Therefore, it is not reasonable to infer
that the snow piled on the driveway caused plaintiff to fall.
Plaintiff argues that the testimony of Luerssen in connection
with other evidence in the record creates questions of material
fact sufficient to preclude summary judgment on the issue of
causation. In his deposition testimony, Luerssen opined that
plaintiff was on the driveway when he fell. Luerssen based his
opinion on his observation of footprints on the driveway heading
down toward the street and on the position of plaintiff s body
after he fell. Luerssen testified that the position of plaintiff s
body after he fell was such that his feet and lower legs were on
the driveway and the rest of his body was on the yard next to the
driveway. The other evidence relied on by plaintiff includes
evidence concerning the width of the truck, the width of the
driveway, and the width of the snow piled on and near the driveway.
Plaintiff also relies on the fact that upon exiting and
attempting to enter the truck plaintiff necessarily had to step
on the snow piled on and near the driveway.
We are not persuaded that this evidence sufficiently
establishes that the snow piled on the driveway proximately caused
plaintiff to fall. Even assuming that Luerssen correctly concluded
that plaintiff was on the driveway when he fell, that conclusion
does not lead to an inference that he was on the piled snow on the
driveway when he fell. Plaintiff s exact location when he fell is
simply unknown. Adding the other factors relied on by plaintiff
does not lessen the speculative nature of the evidence.
Plaintiff s testimony that he stepped on the piled snow when he
exited the truck does not lead to a reasonable inference that he
must have been on the piled snow if and when he attempted to
reenter the truck. The evidence relied on by plaintiff does not
establish that plaintiff ever reached the truck or, if he reached
it, that he was ever in a position to try to reenter it. Even if
we assume that he got in such a position, the location of the truck
in relation to the piled snow at that time would be, at best, a
guess. The truck could have been the same distance away from the
piled snow as when plaintiff exited the truck, but there is nothing
to show that it was not some other distance away from the piled
snow.
Compounding the speculative nature of all this is the fact
that the piled snow was not the only thing that might have caused
plaintiff to slip and fall. In addition to the snow that had
naturally accumulated on the yard, there was testimony that the
shoveled surface of the driveway was wet from precipitation that
had fallen that day. The witnesses who could recall the condition
of the part of the surface of the driveway that had previously been
shoveled by defendants testified that the driveway surface was
either wet or covered with snow on the day plaintiff fell.
Plaintiff therefore could have fallen while chasing the truck on
the part of the driveway surface that defendants previously
shoveled and did not have piled snow on it. Finally, the position
of plaintiff s body does not show with any degree of conclusiveness
that plaintiff was on the piled snow when he fell.
On this record, we conclude that plaintiff s circumstantial
evidence simply failed to establish with reasonable certainty that
defendants acts caused plaintiff to fall. Accordingly, summary
judgment in favor of defendants on the ground that plaintiff failed
to establish the proximate cause element of his negligence claim
was appropriate.
Plaintiff s reliance on Ordman v. Dacon Management Corp., 261
Ill. App. 3d 275 (1994), does not require us to change our
conclusion. In Ordman, the plaintiff s decedent died from injuries
he suffered in a fall. The decedent was unable to testify as to
what caused him to fall. There were no eyewitnesses who saw the
decedent fall. Ordman, 261 Ill. App. 3d at 283. However, there
was deposition testimony from a witness who testified that he heard
the sound of the decedent falling and almost immediately found the
decedent lying on a patch of ice about 10 feet wide. Ordman, 261
Ill. App. 3d at 278. With one justice dissenting, the appellate
court determined that the circumstantial evidence in Ordman was
sufficient to allow a jury to find that the patch of ice caused the
fall. Ordman, 261 Ill. App. 3d at 284.
Ordman is distinguishable from this case because the
circumstantial evidence regarding the cause of the fall in Ordman
was far less speculative than the circumstantial evidence regarding
the cause of plaintiff s fall in this case. In Ordman, the
decedent was found lying on a large patch of ice, and there was no
evidence that anything other than the patch of ice caused the fall
or that he was not on the ice when he fell. In this case,
plaintiff was found lying across a thin strip of piled snow that
plaintiff asserts caused him to fall. However, it is quite
possible that plaintiff was not on the piled snow when he fell.
Moreover, other slippery surfaces were in close proximity to the
thin strip of piled snow and could easily have caused plaintiff s
fall because plaintiff was running after a truck that was rolling
down a wet, sloped driveway when he fell.
Based on the foregoing, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
COLWELL and RATHJE, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JOSEPH NOWAK, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 96--L--1
v. )
)
DONALD and LAUREL COGHILL, ) Honorable
) Terrence J. Brady,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Joseph Nowak, appeals from a circuit court order
that granted summary judgment against him and in favor of
defendants, Donald and Laurel Coghill. In his amended complaint,
plaintiff alleged that he was injured as a result of defendants
negligence when he slipped and fell on an unnatural accumulation of
snow on defendants property.
On appeal, plaintiff contends that the grant of summary
judgment in favor of defendants was improper because the trial
court erred when it (1) found that there was not an unnatural
accumulation of snow on defendants driveway; (2) ruled that there
was no evidence of an unnatural accumulation of snow that could be
argued to be a proximate cause of plaintiff s fall and injuries;
and (3) determined that the Dead-Man s Act (735 ILCS 5/8--201 (West
1996)) did not preclude certain testimony by defendant Laurel
Coghill.
We note that defendant Donald Coghill died while this lawsuit
was pending and that Laurel Coghill was appointed the
representative of Donald s estate for this lawsuit. For
convenience, when we refer to defendant we refer to Laurel
Coghill.
Plaintiff s amended complaint alleged the following: at about
11 a.m. on January 2, 1994, plaintiff, who owned and operated a tow
truck service, arrived at defendants residential property in Fox
Lake to provide towing services for defendants at defendants
request; plaintiff parked his tow truck on defendants sloped
driveway; plaintiff exited the truck in order to get the keys to
defendants car, which had stalled at another location; defendants
had previously shoveled snow from their driveway and piled the snow
along the side of the driveway, creating an unnatural
accumulation of snow; because the driveway was narrow, plaintiff
necessarily stepped on the piled snow when he exited the tow truck;
after plaintiff received the keys from defendant and while he was
still out of the tow truck, the tow truck began to roll backward
down the driveway; plaintiff started down the driveway toward the
moving tow truck; upon reaching the tow truck, plaintiff
necessarily had to step in the piled snow on the side of the
driveway in order to reach the driver s side door of the truck; and
the piled snow caused plaintiff to fall, resulting in severe head
injuries to plaintiff.
In their motion for summary judgment, defendants argued that
(1) they owed no duty to plaintiff because any snow that was on the
driveway after defendants had shoveled the driveway was a natural
accumulation; (2) there was no evidence of negligence with respect
to any unnatural accumulation of snow; and (3) plaintiff could not
establish that any act or omission by defendants proximately caused
his fall.
Defendants attached two depositions to their motion for
summary judgment. One of the attached depositions was that of
defendant, Laurel Coghill. Defendant s deposition testimony
included the following: some time after 8 a.m. on the morning of
January 2, 1994, defendant s car broke down about five miles from
her home as she was returning home from work; it was overcast that
day and there had been a little bit of snow for about a half hour
starting around 10 a.m.; the snow was not heavy enough to
accumulate, but it made the ground wet; the most recent snow prior
to that day had started on the evening of December 31, 1993, and
continued until about 5 p.m. on January 1, 1994; that snow caused
an accumulation of about one-half inch; defendant and a friend had
used shovels and a snow blower to clear defendants driveway after
that snow; they had pushed most of the snow off the driveway to the
right side of the driveway as one faces the house, i.e., the south
side of the driveway; through a friend, defendant had arranged for
plaintiff to come to defendant s house, pick up her car keys, and
go get her car with his tow truck; when plaintiff arrived at
defendant s residence, he pulled his tow truck onto the driveway
about even with a set of concrete steps that connected the driveway
to a sidewalk that led to the front porch of defendant s house;
defendant was standing on her front porch waiting for plaintiff
when he arrived; plaintiff got out of the truck and walked to the
front porch; on the front porch, defendant gave plaintiff her car
keys; suddenly there was a clink-clonk sound and the tow truck
started rolling down the driveway; when the sound occurred,
plaintiff turned and, without saying anything, ran down to the
driveway and down the driveway to try to catch the truck; although
the truck was gaining speed, plaintiff reached the truck; when he
reached the truck, plaintiff was on the grass which was wet;
plaintiff managed to open the truck door, but he was slipping and
sliding around and the door of the truck opened and hit
plaintiff s head; this occurred just past a tree that was in
defendant s yard near the driveway; when the door hit plaintiff, it
knocked him down and apparently knocked him out because he just lay
on the grass after he fell; at the time plaintiff fell, the line
separating the north side of the driveway and defendant s yard was
not covered by snow or ice.
The other deposition attached to defendants motion for
summary judgment was plaintiff s. Plaintiff s deposition testimony
included the following: plaintiff has only a limited recall of the
events that occurred on January 2, 1994; plaintiff recalled parking
his tow truck on defendant s driveway on that day but did not
recall the exact spot on the driveway where he parked the truck;
plaintiff did not recall if there was snow on the driveway at the
time but recalled snow in the area; plaintiff recalled that the
driveway was rather narrow and that when he got out of the tow
truck he stepped on a pile of snow; plaintiff could not recall the
size or depth of the snow pile, but he did recall that the snow
pile was hard; plaintiff recalled leaving the tow truck running and
closing the door of the tow truck; plaintiff did not recall what
course he took to get to the porch of defendants house, but he
remembered being at the door of the house; plaintiff recalled
getting keys from a woman and hearing a noise; the next thing
plaintiff could recall was when he woke up in the hospital with
brain surgery ; plaintiff did not recall specifically whether he
was on the driveway or on the area next to the driveway when he
fell.
The record contains several other depositions. One of these
is the deposition of plaintiff s adult son, Joseph S. Nowak
(Joseph). Joseph s deposition testimony included the following: on
January 2, 1994, after being notified of his father s accident, he
went to the scene of the accident; he arrived at the scene while
the ambulance that later took his father to the hospital was still
there; his father was in the ambulance when he arrived; the tow
truck at that time was against two trees in a neighbor s yard
across the street from defendants driveway; shortly after arriving
at the scene, he talked to defendant; defendant was upset because
her car keys were missing; defendant told Joseph that plaintiff
fell by the tree; Joseph searched for defendant s car keys and
found them on the grass about 10 to 15 feet north of the driveway
and about halfway between the tree and the concrete steps near the
driveway; there was snow piled along the north side of the driveway
as if someone had shoveled the driveway; the piled snow was about
one foot wide and from four to six inches deep; the piled snow was
right along the edge of the north side of the driveway and was
generally on the outside of the driveway.
The deposition of Robert Luerssen is also in the record.
Luerssen s testimony included the following: he has been a Fox Lake
police officer for about 20 years; on January 2, 1994, he was on
duty and was called to defendant s residence in response to
plaintiff s fall; he was the first police officer to arrive at the
scene; he saw plaintiff s body lying on the ground near the tree;
there was nothing to indicate that plaintiff s body had been moved
before Luerssen arrived at the scene; plaintiff s body was lying in
a north-south direction; plaintiff s body was lying on the line
separating the north edge of the driveway from the yard;
plaintiff s body was partly on defendants driveway and partly on
defendants yard; plaintiff s feet and his legs, up to about his
upper thighs, were on the driveway; the upper portion of his body
was on the yard; Luerssen noticed snow on both the yard and the
driveway; he did not recall any evidence of shoveling or any piles
of snow; he observed plaintiff s footprints on the driveway near
where the body was found; based on these footprints, Luerssen
opined that plaintiff was on the driveway when he fell; Luerssen
did not include this opinion in his official report of the incident
because, based on defendant s account of the incident, Luerssen
believed that the cause of plaintiff s fall was the door of the tow
truck hitting plaintiff; when Luerssen observed the tow truck
sitting in the neighbor s yard, he noticed that the driver's door
was open.
The deposition of Mary Ann Nowak (Mary), plaintiff s wife, is
also in the record. Mary s testimony included the following: on
January 2, 1994, she arrived at the scene of plaintiff s accident
after plaintiff had been placed in the ambulance; the ambulance
was still at the scene; there was no snow on the driveway, but the
driveway was wet; there were snow piles on each side of the
driveway as if the driveway had been shoveled or plowed; the snow
piles were about three to four inches deep; some of the piled snow
extended onto the driveway for about four inches on both sides of
the driveway; the piled snow that extended onto the driveway was
along the entire length of the driveway on both sides of the
driveway.
After conducting a hearing on the matter, the trial court
entered an order granting defendants motion for summary judgment.
In oral remarks made at the hearing, the trial court found that
there is no evidence of an unnatural accumulation [of snow or ice]
which could be argued to be a proximate cause of the plaintiff s
fall and injury. The trial court also found that Officer
Luerssen s testimony did not support a finding of negligence
against defendants because his testimony placed plaintiff directly
on the driveway as the site of the fall when, in fact, there is no
evidence of an unnatural accumulation of snow and ice on the
driveway itself. Plaintiff s timely notice of appeal followed.
In appeals from summary judgment rulings, we conduct a de novo
review of the evidence in the record. Berlin v. Sarah Bush Lincoln
Health Center, 179 Ill. 2d 1, 7 (1997). Summary judgment should be
granted only if the pleadings, affidavits, depositions, admissions,
and exhibits on file, when viewed in the light most favorable to
the nonmovant, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law. 735 ILCS 5/2--1005(c) (West 1996); Berlin, 179 Ill. 2d at 7. Although summary judgment is to be encouraged to expedite
the disposition of lawsuits, it is a drastic procedure and should
be allowed only when the right of the moving party to summary
judgment is clear and free from doubt. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).
Plaintiff s amended complaint alleged negligence on the part
of defendants. To state a cause of action for negligence properly,
a plaintiff must establish the following elements: that the
defendant owed a duty of care to the plaintiff; that the defendant
breached that duty; and that the breach was the proximate cause of
the plaintiff s injuries. Mt. Zion State Bank & Trust v.
Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995).
The existence of a duty is a question of law for the court to
decide, and the issues of breach and proximate cause are generally
factual matters for a jury to decide, unless there is no genuine
issue of material fact regarding those issues. Espinoza v. Elgin,
Joliet & Eastern Ry., 165 Ill. 2d 107, 114 (1995). If the
plaintiff fails to establish an element of the cause of action,
summary judgment for the defendant is appropriate. Espinoza, 165 Ill. 2d at 114.
The trial court did not make an explicit ruling regarding the
duty element in this case. However, on appeal, both parties
address the duty element and we will therefore also address it.
Plaintiff contends that defendants owed him a duty to remove
properly the snow and ice on their driveway and that defendants
breached that duty. Plaintiff bases his contention on two
theories: (1) defendants duty arose from a more general duty to
provide plaintiff a reasonably safe means of ingress to and egress
from their property; and (2) defendants duty arose from their
voluntary undertaking to shovel their driveway.
Plaintiff concedes that defendants did not have a duty to
remove natural accumulations of snow and ice from their driveway.
However, plaintiff argues that once defendants undertook to shovel
their driveway, they had a duty to prevent any unnatural
accumulation of snow or ice on the driveway and, perhaps, even
beyond the driveway. Plaintiff asserts that defendants breached
their duty because in shoveling their driveway they created an
unnatural accumulation of snow when they piled snow along the edges
of the driveway on both sides of the driveway. Plaintiff focuses
primarily on the alleged unnatural accumulation of snow up to four
inches wide and from three to six inches deep that was on the
surface of the driveway. However, plaintiff also suggests that
defendants may have had a duty not to create an unnatural
accumulation of snow even outside the boundaries of the driveway.
A property owner generally has no duty to remove a natural
accumulation of snow and ice from his property. Lansing v. County
of McLean, 69 Ill. 2d 562, 571 (1978). However, a property owner
who voluntarily undertakes the removal of snow and ice can be
subjected to liability where the removal results in an unnatural
accumulation of snow or ice that causes injury to a plaintiff.
Graf v. St. Luke s Evangelical Lutheran Church, 253 Ill. App. 3d
588, 591-92 (1993). Each such case turns on its own facts.
Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011,
1016 (1994). As with any voluntary undertaking, the duty of care
that arises from the undertaking is limited to the extent of the
undertaking. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 239 (1996).
In plaintiff s view, because the shoveled snow constituted an
unnatural accumulation of snow, defendants voluntary undertaking
to shovel their driveway gave rise to a duty to do so in a way that
the driver of any vehicle that subsequently happened to park on the
driveway could exit the vehicle without stepping in the shoveled
snow. We do not disagree with plaintiff that the shoveled snow, at
least to the extent that it ran back onto the surface of the
driveway, was an unnatural accumulation. See Graf, 253 Ill. App.
3d at 592. However, we do not believe that the scope of the duty
of a residential property owner who undertakes to shovel his own
driveway for his own purposes extends to the limits urged by
plaintiff. Perhaps, a residential property owner who undertook to
shovel his driveway knowing that a vehicle of a certain width would
park on the driveway would have such a duty. But in this case,
there is nothing to show that at the time they shoveled their
driveway defendants knew that plaintiff would park his tow truck on
their driveway. In the absence of such knowledge
or without a showing of an intent by defendants to shovel their
driveway to accommodate a class of possible users that encompassed
plaintiff and his tow truck, no duty existed for defendants to
shovel their driveway so that plaintiff would not step in the
shoveled snow when he exited his truck after parking it on
defendants driveway. Thus, defendants voluntary undertaking to
shovel their driveway did not give rise to a duty to shovel the
driveway so that it would accommodate unexpected users such as
plaintiff.
A court may take public policy considerations into account
when determining the limits of a voluntarily undertaken duty. See
Rhodes, 172 Ill. 2d at 240. As a matter of public policy, we
believe it would be inappropriate to hold that a residential
property owner who voluntarily undertakes to shovel his driveway
must shovel the driveway in a way that the cleared surface is wide
enough so that the driver of any vehicle that parks on the driveway
will not step in the shoveled snow. Such a holding would surely
discourage residential property owners from shoveling their own
driveways for their own purposes.
For these reasons, we reject plaintiff s theory that a
voluntary undertaking gave rise to a duty that could be a basis for
liability in this case.
Plaintiff also contends that defendants had a duty to shovel
their driveway so that it would accommodate plaintiff s tow truck
based on a general duty to provide a safe means of ingress and
egress for plaintiff. The limits of such a duty are determined by
the facts of each case. Kokoszynski v. Chicago South Shore & South
Bend R.R., 243 Ill. App. 3d 343, 346 (1993). For the same reasons
that the limits of the purported duty based on a voluntary
undertaking did not extend to require defendants to completely
shovel their driveway, the limits of a duty based on a duty to
provide a safe means of ingress and egress did not extend to the
limits urged by plaintiff. Accordingly, we reject plaintiff s
theory that a general duty to provide a safe means of ingress and
egress gave rise to a duty that could be a basis for liability in
this case.
The cases relied on by plaintiff in arguing that defendants
owed him a duty to completely clear their driveway are
distinguishable from this case. In each of the cases cited by
plaintiff, a property owner of commercial or church property
contracted with a third party or parties to clear snow and ice from
certain parts of their property, knowing that members of the public
or members of the church would use those parts of the property, and
the third party failed to completely clear the specified property
of snow and ice. See Ordman v. Dacon Management Corp., 261 Ill.
App. 3d 275 (1994) (snow-plowing company and/or maintenance staff
failed to completely clear parking lot of apartment complex);
Johnson v. National Super Markets Inc., 257 Ill. App. 3d 1011
(1994) (snow-plowing company piled snow that melted and refroze on
parking lot of grocery store); Graf v. St. Luke s Evangelical
Lutheran Church, 253 Ill. App. 3d 588 (1993) (church custodians
expected by church pastor to completely clear steps to church
basement of snow and ice failed to do so); McCarthy v. Hidden Lake
Village Condominium Ass'n, 186 Ill. App. 3d 752 (1989) (snow-
plowing company charged with removing all snow from driveways in
condominium development failed to do so).
In this case, unlike the cases cited by plaintiff, defendants
were owners of residential property who undertook to shovel their
own driveway for their own use. Plaintiff has not pointed to
anything in the record that indicates that defendants undertook to
shovel their driveway with the intention of clearing it for others
to use or with the knowledge that others were likely to use it.
Consequently, the cases cited by plaintiff do not require us to
hold that defendants voluntary undertaking to shovel their
driveway gave rise to a duty to plaintiff.
Our determination that defendants did not owe plaintiff a duty
to shovel their driveway so that plaintiff would not have to step
in the shoveled snow when he parked his tow truck on the driveway
is dispositive of this case. Plaintiff s failure to establish the
duty element of his negligence claim, by itself, entitles
defendants to summary judgment. However, we will also address the
proximate cause element of plaintiff s negligence claim.
The trial court based its ruling granting summary judgment in
favor of defendants, in part, on its determination that plaintiff
failed to establish the proximate cause element. As noted above,
proximate cause is generally a question of fact. However,
liability may not be based on speculation, imagination, or mere
conjecture. Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 437
(1991). Rather, proximate cause can only be established when there
is a reasonable certainty that the defendant s act caused the
plaintiff s injury. Vance v. Lucky Stores, Inc., 134 Ill. App. 3d
166, 168 (1985). Although a plaintiff need not prove his case at
the summary judgment stage of the proceedings, if he fails to
present sufficient evidentiary facts to support the elements of his
cause of action, including the proximate cause element, then
summary judgment in favor of the defendant is appropriate. Barker
v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068, 1071 (1994).
In this case, plaintiff acknowledges that the only direct
evidence regarding the cause of his fall is the testimony of
defendant. The gist of defendant s testimony, disregarding
inconsistencies alleged by plaintiff, was that the door of the tow
truck struck plaintiff while he was chasing the truck and caused
him to fall. Defendant also testified that plaintiff was on the
grass, which she described as wet, when he fell.
The trial court ruled that the Dead-Man s Act (Act) (735 ILCS
5/8--201 (West 1996)) did not preclude defendant s testimony.
Plaintiff contends that the trial court ruling was erroneous. It
is not necessary for us to resolve this issue because we can
completely disregard the part of defendant s testimony concerning
the cause of plaintiff s fall and still resolve the proximate cause
issue.
We also note that defendants contend that the trial court
erred when it did not exclude Officer Luerssen s opinion testimony
that plaintiff was on the driveway when he fell. Defendants argue
that the court should have excluded this testimony because
plaintiff did not make a timely disclosure that Luerssen would
offer opinion testimony. It is unnecessary for us to resolve this
issue because even if we include Luerssen s testimony it does not
alter our determination as to the proximate cause element.
Plaintiff acknowledges that without defendant s testimony
there is only circumstantial evidence as to the proximate cause of
his fall. Plaintiff was the only person other than defendant
present when he fell. However, plaintiff testified that he cannot
remember anything about his fall from the time that he heard a
sound while he was standing on defendant s porch until the time
when he woke up in the hospital. Thus, the issue before us is
whether plaintiff presented sufficient circumstantial evidence to
establish the proximate cause element of his negligence claim.
A party may establish negligence by using either direct or
circumstantial evidence. Mort v. Walter, 98 Ill. 2d 391, 396
(1983). Circumstantial evidence is the proof of facts and
circumstances from which a fact finder may infer other connected
facts that usually and reasonably follow, according to the common
experience of mankind. Housh v. Swanson, 203 Ill. App. 3d, 377,
381 (1990). Even where the circumstances support more than one
logical conclusion, circumstantial evidence is sufficient to
establish proximate cause to overcome a motion for summary judgment
as long as the inference in question may reasonably be drawn from
the evidence. Mort, 98 Ill. 2d 396-97. However, the mere
possibility of a causal connection is insufficient to raise the
requisite inference of fact. Housh, 203 Ill. App. 3d at 381.
The specific question before us is whether plaintiff presented
sufficient circumstantial evidence to establish that the snow that
he alleges was an unnatural accumulation on the surface of
defendants driveway caused him to fall. Critical to this inquiry
is whether the circumstantial evidence sufficiently establishes
that plaintiff was on the alleged unnatural accumulation of snow
when he fell.
After carefully reviewing the record in the light most
favorable to plaintiff, we conclude that it is not reasonable to
infer that plaintiff was on the snow piled on the edge of the
driveway when he fell. Therefore, it is not reasonable to infer
that the snow piled on the driveway caused plaintiff to fall.
Plaintiff argues that the testimony of Luerssen in connection
with other evidence in the record creates questions of material
fact sufficient to preclude summary judgment on the issue of
causation. In his deposition testimony, Luerssen opined that
plaintiff was on the driveway when he fell. Luerssen based his
opinion on his observation of footprints on the driveway heading
down toward the street and on the position of plaintiff s body
after he fell. Luerssen testified that the position of plaintiff s
body after he fell was such that his feet and lower legs were on
the driveway and the rest of his body was on the yard next to the
driveway. The other evidence relied on by plaintiff includes
evidence concerning the width of the truck, the width of the
driveway, and the width of the snow piled on and near the driveway.
Plaintiff also relies on the fact that upon exiting and
attempting to enter the truck plaintiff necessarily had to step
on the snow piled on and near the driveway.
We are not persuaded that this evidence sufficiently
establishes that the snow piled on the driveway proximately caused
plaintiff to fall. Even assuming that Luerssen correctly concluded
that plaintiff was on the driveway when he fell, that conclusion
does not lead to an inference that he was on the piled snow on the
driveway when he fell. Plaintiff s exact location when he fell is
simply unknown. Adding the other factors relied on by plaintiff
does not lessen the speculative nature of the evidence.
Plaintiff s testimony that he stepped on the piled snow when he
exited the truck does not lead to a reasonable inference that he
must have been on the piled snow if and when he attempted to
reenter the truck. The evidence relied on by plaintiff does not
establish that plaintiff ever reached the truck or, if he reached
it, that he was ever in a position to try to reenter it. Even if
we assume that he got in such a position, the location of the truck
in relation to the piled snow at that time would be, at best, a
guess. The truck could have been the same distance away from the
piled snow as when plaintiff exited the truck, but there is nothing
to show that it was not some other distance away from the piled
snow.
Compounding the speculative nature of all this is the fact
that the piled snow was not the only thing that might have caused
plaintiff to slip and fall. In addition to the snow that had
naturally accumulated on the yard, there was testimony that the
shoveled surface of the driveway was wet from precipitation that
had fallen that day. The witnesses who could recall the condition
of the part of the surface of the driveway that had previously been
shoveled by defendants testified that the driveway surface was
either wet or covered with snow on the day plaintiff fell.
Plaintiff therefore could have fallen while chasing the truck on
the part of the driveway surface that defendants previously
shoveled and did not have piled snow on it. Finally, the position
of plaintiff s body does not show with any degree of conclusiveness
that plaintiff was on the piled snow when he fell.
On this record, we conclude that plaintiff s circumstantial
evidence simply failed to establish with reasonable certainty that
defendants acts caused plaintiff to fall. Accordingly, summary
judgment in favor of defendants on the ground that plaintiff failed
to establish the proximate cause element of his negligence claim
was appropriate.
Plaintiff s reliance on Ordman v. Dacon Management Corp., 261
Ill. App. 3d 275 (1994), does not require us to change our
conclusion. In Ordman, the plaintiff s decedent died from injuries
he suffered in a fall. The decedent was unable to testify as to
what caused him to fall. There were no eyewitnesses who saw the
decedent fall. Ordman, 261 Ill. App. 3d at 283. However, there
was deposition testimony from a witness who testified that he heard
the sound of the decedent falling and almost immediately found the
decedent lying on a patch of ice about 10 feet wide. Ordman, 261
Ill. App. 3d at 278. With one justice dissenting, the appellate
court determined that the circumstantial evidence in Ordman was
sufficient to allow a jury to find that the patch of ice caused the
fall. Ordman, 261 Ill. App. 3d at 284.
Ordman is distinguishable from this case because the
circumstantial evidence regarding the cause of the fall in Ordman
was far less speculative than the circumstantial evidence regarding
the cause of plaintiff s fall in this case. In Ordman, the
decedent was found lying on a large patch of ice, and there was no
evidence that anything other than the patch of ice caused the fall
or that he was not on the ice when he fell. In this case,
plaintiff was found lying across a thin strip of piled snow that
plaintiff asserts caused him to fall. However, it is quite
possible that plaintiff was not on the piled snow when he fell.
Moreover, other slippery surfaces were in close proximity to the
thin strip of piled snow and could easily have caused plaintiff s
fall because plaintiff was running after a truck that was rolling
down a wet, sloped driveway when he fell.
Based on the foregoing, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
COLWELL and RATHJE, JJ., concur.
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