No IN THE APPELLATE COURT OF ILLINOIS FOURTH JUDICIAL DISTRICT BRIEF AND ARGUMENT FOR PLAINTIFF-APPELLANT SUE SMITH

Transcription

1 No IN THE APPELLATE COURT OF ILLINOIS FOURTH JUDICIAL DISTRICT SUE SMITH, -vs- Plaintiff-Appellant, PORT OF ALTON RESTAURANT, Inc., Defendant-Appellee. On Appeal from the Circuit Court Seventh Judicial Circuit Jersey County, Illinois No. 05 L 1 Honorable Thomas G. Juris, Judge Presiding BRIEF AND ARGUMENT FOR PLAINTIFF-APPELLANT SUE SMITH EDWARD J. KIONKA Attorney at Law 26 East Washington St., 2d Floor Belleville IL Attorney for Plaintiff-Appellant Sue Smith ORAL ARGUMENT REQUESTED

2 No IN THE APPELLATE COURT OF ILLINOIS FOURTH JUDICIAL DISTRICT SUE SMITH, -vs- Plaintiff-Appellant, PORT OF ALTON RESTAURANT, Inc., Defendant-Appellee. On Appeal from the Circuit Court Seventh Judicial Circuit Jersey County, Illinois No. 05 L 1 Honorable Thomas G. Juris, Judge Presiding BRIEF AND ARGUMENT FOR PLAINTIFF-APPELLANT SUE SMITH POINTS AND AUTHORITIES THERE IS A TRIABLE FACT ISSUE AS TO DEFENDANT S NEGLIGENCE, AND THEREFORE IT WAS ERROR TO GRANT DEFENDANT S SUMMARY JUDGMENT MOTION... 3 Hall v. Henn, 208 Ill. 2d 325, 328, 802 N.E.2d 797 (2003)... 3 Davila v. Yellow Cab Co., 333 Ill. App. 3d 592, 776 N.E.2d 720 (1st Dist. 2002)... 3 Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 809 N.E.2d 1248 (2004)... 5 Northern Ill. Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 837 N.E.2d 99 (2005)... 4 Jones v. Chicago HMO Ltd., 191 Ill. 2d 278, 730 N.E.2d 1119 (2000)... 4 Jackson v. Graham, 323 Ill. App. 3d 766, 753 N.E.2d 525 (4th Dist. 2001)... 4 Wren v. Reddick Community Fire Protection Dist., 337 Ill. App. 3d 262, 785 N.E.2d 1052 (3d Dist. 2003)... 4 Chapman v. Foggy, 59 Ill. App. 3d 552, 375 N.E.2d 865 (5th Dist. 1978)... 5 Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976)... 5 i

3 Moore v. Centreville Tp. Hosp., 246 Ill. App. 3d 579, 616 N.E.2d 1321 (5th Dist. 1993), rev d in part on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994)... 7 Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812, 789 N.E.2d 394 (1st Dist. 2003)... 7, 9 Boersma v. Amoco Oil Co., 276 Ill. App. 3d 638, 658 N.E.2d 1173 (1st Dist. 1995) Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324 (1986)... 8 Darrough v. Glendale Heights Comm. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248 (2d Dist. 1992)... 8, 9, 13 Gatlin v. Ruder, 137 Ill. 2d 284, 560 N.E.2d 586 (1990)... 9, 10 Robles v. Chicago Transit Auth., 235 Ill. App. 3d 121, 601 N.E.2d 869 (1st Dist. 1992)... 9, 10 11, 13 Adams v. Family Planning Associates Medical Group, 315 Ill. App. 3d 533, 733 N.E.2d 766 (1st Dist. 2000)... 9 Lynch v. Precision Machine Shop, 93 Ill. 2d 266, 443 N.E.2d 569 (1982)... 9 Betts v. Crawshaw, 248 Ill. App. 3d 735, 618 N.E.2d 1262 (5th Dist. 1993) Jones v. Minster, 261 Ill. App. 3d 1056, 635 N.E.2d 123 (2d Dist. 1994) Daniels v. Standard Oil Realty Corp., 145 Ill. App. 3d 363, 495 N.E.2d 1019 (1st Dist. 1986) Ludgin v. John Hancock Mut. Life Ins. Co., 145 Ill. App. 3d 703, 495 N.E.2d 1237 (1st Dist. 1986) Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 784 N.E.2d 226 (1st Dist. 2000) Cosgrove v. Commonwealth Edison Co., 315 Ill. App. 3d 651, 734 N.E.2d 155 (2d Dist. 2000) Carroll v. Faust, 311 Ill. App. 3d 679, 725 N.E.2d 764 (2d Dist. 2000) Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 N.E.2d 909 (1st Dist. 1993) Illinois Pattern Jury Instructions (Civil) B22.01 (2000)... 9 Restatement (Second) of Torts Restatement (Second) of Torts Restatement (Second) of Torts ii

4 NATURE OF THE CASE This is an action for damages for personal injuries. The complaint alleges that the plaintiff, a customer of defendant s restaurant and tavern, was using the women s bathroom when the sink collapsed and broke and she was seriously injured. The trial court granted defendant s motion for summary judgment and plaintiff appeals. No questions are raised on the pleadings. ISSUE PRESENTED FOR REVIEW The issue is whether the trial court erred in granting defendant s motion for summary judgment on the ground that there is no triable issue of fact as to the defendant s negligence. JURISDICTION This is an appeal under Illinois Supreme Court Rules 301 and 303 from the trial court s order, entered January 12, 2006, granting defendant s motion for summary judgment. C64. Plaintiff s notice of appeal was filed on February 2, C55. STATEMENT OF FACTS Plaintiff filed her complaint in the Circuit Court, Jersey County, on April 2, C2. The complaint alleges that on July 22, 2003, Sue Smith was a patron at the Port of Alton Restaurant, a restaurant and tavern in Alton, Illinois. C2. According to the complaint, she went to use the women s bathroom, and in the process of touching up her make-up, leaned against the sink to get closer to the mirror. C3. The sink collapsed 1

5 and broke, and Ms. Smith was seriously injured when she fell on the jagged edges of the broken sink. C3, C47. John Jones testified in his deposition that on July 22, 2003, he was the operations manager at the restaurant. C43. Not long before this occurrence, there had been a fire in the building, and everything was new. C The plumber would have installed the bathroom sinks. C44, C51. The sinks did not have any supports other than the pipes or sink components; they were lag bolted in. C45, C46. The bathroom sinks in the restaurant/tavern did not appear unstable, and felt secure. C46, C50. However, the sinks in the bathrooms in the boat area had supports underneath. C46. He did not notice anything loose prior to Ms. Smith s accident. C49. He was never told by anyone that they saw Ms. Smith sitting on the sink. C50. Ms. Smith told him she was leaning over the sink. C50. It is possible that there was something wrong with the way the sink was installed, but he was not personally aware of any such defect. C50. In his experience as manager, it is just as likely that the collapse was caused by some construction defect as by someone leaning on it. C51. In her deposition, Dianna Brown, defendant s bartender and cook (C35), testified that after the plaintiff s accident the sink had been repaired (C33; it would necessarily have been replaced), and after the repair it looked exactly like it did prior to the occurrence in question. C33. There were no supports underneath the sink. C33. 2

6 NATURE OF THE CASE This is an action for damages for personal injuries. The complaint alleges that the plaintiff, a customer of defendant s restaurant and tavern, was using the women s bathroom when the sink collapsed and broke and she was seriously injured. The trial court granted defendant s motion for summary judgment and plaintiff appeals. No questions are raised on the pleadings. ISSUE PRESENTED FOR REVIEW The issue is whether the trial court erred in granting defendant s motion for summary judgment on the ground that there is no triable issue of fact as to the defendant s negligence. JURISDICTION This is an appeal under Illinois Supreme Court Rules 301 and 303 from the trial court s order, entered January 12, 2006, granting defendant s motion for summary judgment. C64. Plaintiff s notice of appeal was filed on February 2, C55. STATEMENT OF FACTS Plaintiff filed her complaint in the Circuit Court, Jersey County, on April 2, C2. The complaint alleges that on July 22, 2003, Sue Smith was a patron at the Port of Alton Restaurant, a restaurant and tavern in Alton, Illinois. C2. According to the complaint, she went to use the women s bathroom, and in the process of touching up her make-up, leaned against the sink to get closer to the mirror. C3. The sink collapsed 1

7 and broke, and Ms. Smith was seriously injured when she fell on the jagged edges of the broken sink. C3, C47. John Jones testified in his deposition that on July 22, 2003, he was the operations manager at the restaurant. C43. Not long before this occurrence, there had been a fire in the building, and everything was new. C The plumber would have installed the bathroom sinks. C44, C51. The sinks did not have any supports other than the pipes or sink components; they were lag bolted in. C45, C46. The bathroom sinks in the restaurant/tavern did not appear unstable, and felt secure. C46, C50. However, the sinks in the bathrooms in the boat area had supports underneath. C46. He did not notice anything loose prior to Ms. Smith s accident. C49. He was never told by anyone that they saw Ms. Smith sitting on the sink. C50. Ms. Smith told him she was leaning over the sink. C50. It is possible that there was something wrong with the way the sink was installed, but he was not personally aware of any such defect. C50. In his experience as manager, it is just as likely that the collapse was caused by some construction defect as by someone leaning on it. C51. In her deposition, Dianna Brown, defendant s bartender and cook (C35), testified that after the plaintiff s accident the sink had been repaired (C33; it would necessarily have been replaced), and after the repair it looked exactly like it did prior to the occurrence in question. C33. There were no supports underneath the sink. C33. 2

8 On October 29, 2005, defendant filed a motion for summary judgment. C21, C60. Plaintiff responded. C38. On January 12, 2006, the trial court granted defendant s motion and entered summary judgment on the ground that there was no evidence of defendant s negligence. C64. Plaintiff s notice of appeal was filed February 2, C55. ARGUMENT THERE IS A TRIABLE FACT ISSUE AS TO DEFENDANT S NEGLIGENCE, AND THEREFORE IT WAS ERROR TO GRANT DEFENDANT S SUMMARY JUDGMENT MOTION. This is an appeal from the entry of summary judgment for the defendant, based on the ground that there was no evidence of defendant s negligence. The standard of review is de novo. Hall v. Henn, 208 Ill. 2d 325, 328, 802 N.E.2d 797, 798 (2003). The rules governing summary judgment are axiomatic. As the Illinois Supreme Court said in Adams v. Northern Ill. Gas Co., 211 Ill. 2d 32, 42 43, 809 N.E.2d 1248, 1256 (2004): The purpose of summary judgment is not to try a question of fact, but rather to determine whether a genuine issue of material fact exists. [Citations omitted.] Summary judgment is appropriate only where 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. 735 ILCS 5/2 1005(c) (West 2002). In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. A triable issue precluding summary judgment exists where the material facts are disputed, or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts. The use of the 3

9 summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit. However, 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. Because summary judgment is a drastic means of disposing of litigation, a court must exercise extraordinary diligence in reviewing the record so as not to preempt a party s right to fully present the factual basis for its claim. Northern Ill. Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, , 837 N.E.2d 99, 106 (2005). In reviewing an award of summary judgment, the court must view the facts in the light most favorable to the nonmoving party. Jones v. Chicago HMO Ltd., 191 Ill. 2d 278, 282, 730 N.E.2d 1119, 1123 (2000). Summary judgment must be awarded with caution to avoid preempting a litigant s right to trial by jury or the right to fully present the factual basis of a case where a material dispute may exist. Jackson v. Graham, 323 Ill. App. 3d 766, 779, 753 N.E.2d 525, 535 (4th Dist. 2001). No deference is given to the trial court s decision; the appellate court considers anew the pleadings, affidavits, depositions, admissions, and exhibits on file. Id. Although the record does not include a transcript of the hearing on the motion for summary judgment, or any elaboration of the trial court s reasoning in granting the motion, this Court reviews the trial court s rulings and not the reasons for those rulings. Wren v. Reddick Community Fire Protection Dist., 337 Ill. App. 3d 262, 266, 785 N.E.2d 1052, 1056 (3d Dist. 2003). 4

10 It is axiomatic that the defendant, as the owner of a business open to the public, owed its patrons a duty of ordinary care to make its premises reasonably safe for their use. Chapman v. Foggy, 59 Ill. App. 3d 552, 555, 375 N.E.2d 865, 868 (5th Dist. 1978). It is also undisputed that the collapse of the sink in the women s bathroom was the proximate cause of the plaintiff s injuries, and that she was seriously injured. Therefore, the only possible basis for awarding summary judgment to the defendant was a finding that there was no issue as to the defendant s negligence with respect to the collapse of the sink. In the trial court, defendant relied on the Restatement (Second) of Torts 343, adopted in Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976). Section 343 provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. In the instant case, however, liability is not based on a claim that the defendant knew or should have known that the sink needed repair. It is based on circumstantial evidence the occurrence itself that the sink was improperly or defectively installed in the first place. Defendant obviously had actual or constructive knowledge of the manner in which 5

11 the sink was attached to the wall and supported. The trier of fact can infer that, given that knowledge, it should have realized that the sink was unsafe. The sink in question had been recently installed, due to the fact that there had been a fire which had required extensive repairs. C The manager testified that the plumber hired by defendant would have been the person who installed the sink. C44, C51. There were no supports underneath the sink; it was merely lag bolted 1 to the wall. C The inference is that however the sink was installed, it was not installed so as to be reasonably safe for its ordinary and foreseeable use. Defendant cannot evade liability by disclaiming knowledge of any defect in the installation. The Restatement (Second) of Torts 417 provides: 417. Work Done In Public Place One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use. The Restatement (Second) of Torts 422 provides: 422. Work On Buildings And Other Structures On Land A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the 1 A lag bolt is a heavy wood screw with a square or hexagonal head that is driven in with a wrench. 6

12 structure (a) while the possessor has retained possession of the land during the progress of the work, or (b) after he has resumed possession of the land upon its completion. In other words, the defendant has a nondelegable duty to perform repairs such as the one in question with reasonable care so as not to make the premises unsafe for the use of members of the public. This nondelegable duty is recognized in Illinois. Moore v. Centreville Tp. Hosp., 246 Ill. App. 3d 579, 600, 616 N.E.2d 1321, 1335 (5th Dist. 1993), rev d in part on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994). There are two analyses applicable to the facts of this case. Under either one, the trial court erred in entering summary judgment. First, the facts of this case support the doctrine of res ipsa loquitur. Although the complaint does not use that term, Illinois is a fact-pleading state. Res ipsa loquitur is not a cause of action, but merely a rule of evidence relating to the sufficiency of the plaintiff s proof. Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812, 816, 789 N.E.2d 394, 397 (1st Dist. 2003). As the court stated in Boersma v. Amoco Oil Co., 276 Ill. App. 3d 638, , 658 N.E.2d 1173, 1181 (1st Dist. 1995): As the doctrine of res ipsa loquitur is a rule of evidence and not a cause of action, plaintiff did not have to plead it in his complaint. The requirements of pleading are procedural.... Illinois cases do not require the pleading of the doctrine, but they do require that the complaint allege the general negligence of defendant. [Citation.] Section 2 603(b) of the Code of Civil Procedure requires that each 7

13 separate cause of action upon which a separate recovery might be had shall be stated in a separate count... Plaintiff s first amended complaint did allege general negligence ( failed to provide plaintiff with a safe place within which to work ) in addition to specific negligence, and therefore plaintiff was able to raise the applicability of the res ipsa loquitur doctrine. In the instant case, the complaint alleges general negligence. The complaint contains a single count; paragraph 6 states that the defendant negligently failed to maintain said restroom equipment in a reasonably safe condition for use by Plaintiff and others persons, thereby creating a condition which was dangerous to Plaintiff or such other persons, all of which Defendant, its agents and employees, well knew, or in the exercise of ordinary care and caution should have known. C3. Thus, the only allegation of negligence is a general allegation, which supports the evidentiary rule of res ipsa loquitur. Res ipsa loquitur is merely a procedural rule of circumstantial evidence. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, (1986); Darrough v. Glendale Heights Comm. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, (2d Dist. 1992). It permits the trier of fact to infer negligence even though, as in the instant case, plaintiff cannot prove the specific negligence or defect that caused her injury. Imig v. Beck, supra. The doctrine of res ipsa loquitur states that the trier of fact may infer defendant s negligence if it finds that (1) at the relevant time (i.e., when the negligence, if any, must have occurred), the instrumentality that caused the plaintiff s injury was in the control of the defendant, and (2) the event in question ordinarily would not have occurred unless the 8

14 defendant had been negligent. Gatlin v. Ruder, 137 Ill. 2d 284, 295, 560 N.E.2d 586 (1990). It is no longer necessary to establish a third element, the absence of plaintiff s contributory negligence. Id.; Robles v. Chicago Transit Auth., 235 Ill. App. 3d 121, 601 N.E.2d 869, (1st Dist. 1992). See generally Illinois Pattern Jury Instructions (Civil) B22.01 (2000); Collins v. Superior Air-Ground Ambulance Service, 338 Ill. App. 3d 812, 789 N.E.2d 394 (1st Dist. 2003) (unexplained broken leg); Adams v. Family Planning Associates Medical Group, 315 Ill. App. 3d 533, 733 N.E.2d 766 (1st Dist. 2000) (death following routine abortion). The element of control is a flexible concept; it need not be exclusive. Lynch v. Precision Machine Shop, 93 Ill. 2d 266, 443 N.E.2d 569, (1982). The only control necessary is that which is necessary to support an inference that the defendant was negligent. Id.; Darrough v. Glendale Heights Comm. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, (2d Dist. 1992). As the court stated in the Darrough case (600 N.E.2d at ): A defendant s control of the instrumentality at the time of the alleged negligence is not defeated by lack of control at the time of the injury.... Rather, if the instrument that causes the injury was in the control or management at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury, sufficient control and management is established for invocation of the doctrine of res ipsa loquitur. In response to a motion for summary judgment, plaintiff need only present sufficient evidence to create a fact issue as to whether the defendant had the requisite control; she need not establish that 9

15 defendant s control was probable. Gatlin v. Ruder, 137 Ill. 2d 284, 297, 560 N.E.2d 586 (1990). In the Lynch case, the plaintiff (res ipsa was asserted in a counterclaim) argued that he did not have exclusive control over the instrumentality (a machine he was repairing) because defendant s own employees, who were not plaintiff s employees, assisted in the disassembly and repair of the machine. The Illinois Supreme Court held that sufficient control was shown, because plaintiff was responsible for the overall repair. The same is true here. The Port of Alton Restaurant was responsible for the repair and replacement of the sink in question. It had a nondelegable duty to furnish a sink that was reasonably safe for use by the public. So far as the design and installation of the sink was concerned, the defendant had exclusive control. In Betts v. Crawshaw, 248 Ill. App. 3d 735, 618 N.E.2d 1262, 1266 (5th Dist. 1993), a tenant was injured when a clothesline pole collapsed. The appellate court held that res ipsa loquitur was properly invoked because all of its requirements were met. The landlord retained sole responsibility for maintenance of the pole, and therefore had the requisite control. In Robles v. Chicago Transit Auth., 235 Ill. App. 3d 121, 601 N.E.2d 869 (1st Dist. 1992), plaintiff s decedent was killed when he was run over by defendant s bus as it pulled away from its stop while he was exiting the rear door. The court held that the case was properly submitted on res 10

16 ipsa loquitur because the defendant had control over the bus and its door, even though decedent was using the manually-operated door to exit the bus. 601 N.E.2d at In the instant case, the plaintiff was using defendant s instrumentality in a foreseeable manner when it collapsed and broke. Res ipsa loquitur applies. As the court stated in Jones v. Minster, 261 Ill. App. 3d 1056, 635 N.E.2d 123, 126 (2d Dist. 1994), control is a flexible standard in which the key question is whether the probable cause of the plaintiff s injury was one which the defendant was under a duty to anticipate or guard against. In this case, defendant was under a duty to provide a safe bathroom sink, one that would not collapse in ordinary use. Therefore, the control element is satisfied. The second element, that the event in question ordinarily would not have occurred unless the defendant had been negligent, is a permissible inference on the facts of this case. Defendant s manager and its bartender both testified that the sink was not loose or otherwise out of its proper position. C34, C49. It had been in place a relatively short time, having been installed following a fire the year before. C It was located in a place where it would be in regular use by members of the public. Plaintiff alleged (C3), and told medical personnel and the manager (C26, C50), that she merely leaned on the sink to get closer to the mirror when applying her makeup. Unlike the sink in the bathroom in the boat dock area (C46), there were no supports under this sink; it was merely 11

17 bolted to the wall. C Therefore, the trier of fact can infer that it was not properly secured to the wall, or properly braced, or both, so as to be safe for ordinary use by defendant s patrons. Daniels v. Standard Oil Realty Corp., 145 Ill. App. 3d 363, 495 N.E.2d 1019 (1st Dist. 1986), is also in point on this issue. In Daniels, as plaintiff was riding in an elevator in defendant s building, his foot became trapped and compressed in the space between the elevator floor and the 35th floor. The court held that res ipsa loquitur applied; in the normal course of events, an elevator does not operate as it did, and therefore negligence was a likely cause of the occurrence. 495 N.E.2d at The same is true here. Defendant, as the owner of the premises, had a nondelegable duty to use reasonable care to provide a bathroom sink that would not collapse in normal use. When the sink malfunctioned and caused injury, a likely cause of that injury was negligence in the design or installation of the sink. In Ludgin v. John Hancock Mut. Life Ins. Co., 145 Ill. App. 3d 703, 495 N.E.2d 1237 (1st Dist. 1986), plaintiff was injured when the handrail of an escalator in the John Hancock Building malfunctioned. Even though the management of the building had been contracted to Sudler & Company, who in turn contracted the operational maintenance of the escalators to Otis Elevator Company, John Hancock, as the owner of the premises open to the public, was liable under a res ipsa loquitur theory for the plaintiff s injury. Hancock s liability arose from this duty to 12

18 maintain a safe place for its business invitees and from its ownership and control, through its agent, of the operation of the escalator. 495 N.E.2d at The court went on to hold that the case was properly submitted to the jury under res ipsa loquitur. [U]nder the doctrine of res ipsa loquitur plaintiff is not required to conclusively prove negligence. 495 N.E.2d at The jury could properly infer that Otis negligence was responsible for the malfunction of the handrail, and John Hancock was responsible for that negligence. Robles v. Chicago Transit Auth., 235 Ill. App. 3d 121, 601 N.E.2d 869 (1st Dist. 1992), discussed above, is also analogous on this element. Similarly, in Darrough v. Glendale Heights Comm. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1253 (2d Dist. 1992), the court held that res ipsa loquitur was properly invoked when the leg rest of the wheelchair in which the plaintiff was sitting collapsed, and summary judgment for defendant was reversed. This is the same kind of event as occurred in the instant case. In Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 784 N.E.2d 226 (1st Dist. 2000), the plaintiff was injured when she was struck by a sliding glass door as she attempted to enter defendant s store. The trial court refused to permit the plaintiff to amend her complaint at trial to add allegations to support res ipsa loquitur. Although the appellate court refused to find an abuse of discretion in this ruling, due to the lateness of the request, the court reversed a directed verdict for the defendant and 13

19 ordered that on retrial, the plaintiff be permitted, if requested, to allege res ipsa. 784 N.E.2d at 237. [P]laintiff has made a persuasive case for the application of the doctrine of res ipsa loquitur N.E.2d at 235. In response to an argument like that made by the defendant below in the instant case that the plaintiff had to prove actual or constructive notice of the dangerous condition the appellate court agreed with plaintiff s argument that this was not necessary, so long as the plaintiff offered sufficient evidence to support an inference that defendant s negligent acts or omissions had produced the condition that caused her injury. 784 N.E.2d at 232. There, just as here, the defendant s employees or agents were responsible for the condition of the door and its installation, and that is sufficient to support an inference of negligence. 784 N.E.2d at 233. See also Cosgrove v. Commonwealth Edison Co., 315 Ill. App. 3d 651, 734 N.E.2d 155, 160 (2d Dist. 200) (in the ordinary course of events, a break or rupture in a gas line does not occur absent negligence of the gas company); Carroll v. Faust, 311 Ill. App. 3d 679, 725 N.E.2d 764, (2d Dist. 2000) (170-degree water coming from a bathtub faucet creates an inference of negligence). Thus, the elements of res ipsa loquitur are satisfied, and the trial court erred in entering summary judgment for the defendant. The second route to the same result is simply res ipsa loquitur without 14

20 the label. This is analogous to a variant of res ipsa loquitur applicable in product liability cases know as the Tweedy rule. A defect in a product can be proved by circumstantial evidence. It is enough to show that (1) there was no abnormal use of the product, (2) there was no reasonable secondary cause of the injury, and (3) the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 N.E.2d 909, (1st Dist. 1993). In Doyle, the court held that the Tweedy rule was applicable where the ladder on which the plaintiff was standing collapsed. The same analysis can be applied to the facts of this case. A bathroom sink in a public restroom should not collapse when used in a normal, expected and foreseeable manner. Defendant s manager and its bartender testified that they had observed the sink in question prior to the plaintiff s accident and there was no obvious looseness or other problem. C34, C46, C50. Therefore, it may be inferred that the cause of the collapse was the fact that it was not properly installed or braced. The jury could find that if the defendant or its contractor had used reasonable care, the sink would have been installed so as to be safe for ordinary use. Summary judgment is a drastic remedy, and should not be used to deprive a plaintiff of her right to a jury trial. It may be granted only when the moving party s right is clear and free from doubt. The issue is not 15

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