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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

January 2018, vol. 48, no. 7

Personal injury plaintiff cannot rely solely on expert opinion to create a question of fact on proximate causation

A personal injury plaintiff cannot create a genuine issue of material fact as to the proximate cause of her injuries based on an assumption, even if she has expert opinions supporting her theory. Allen v. Cam Girls, LLC d/b/a Jazzercise Glenview, et al., 2017 IL App (1st) 163340 (Dec. 26, 2017). In Allen, the Illinois Appellate Court upheld a Cook County trial court’s decision that summary judgment was appropriate in a case where the plaintiff could only guess or assume what caused her to slip and fall in a parking lot. The judgment was affirmed despite expert opinion testimony that the defendant’s conduct would have created the condition that the plaintiff assumed caused her injury. The plaintiff’s failure to establish a causal link beyond mere speculation doomed her claim. Allen, 2017 IL App (1st) 163340 at 52. The First District reiterated that “liability cannot be based on mere speculation,” and without “‘positive and affirmative proof of causation, plaintiff cannot sustain the burden of establishing the existence of a genuine issue of material fact.’” Id. at 47, 43; citing Strutz v. Vicere, 389 Ill. App. 3d 676, 679 (2009)(quoting Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968, 974 (1990)).

Plaintiff Robin Allen alleged that she was injured when she slipped and fell in the parking lot outside her Jazzercise class. Allen, 2017 IL App (1st) 163340 at 1. Ms. Allen sued the property owner, the snow removal company, and her Jazzercise studio to recover for injuries sustained as a result of that fall. Multiple witnesses confirmed that there was snow and ice in the parking lot at the time. Allen, 2017 IL App (1st) 163340 at ¶¶9 - 19. Weather reports also confirmed the likelihood of multiple layers of snow and ice in the parking lot. Id. At the time of plaintiff’s fall, the lot had been plowed in a manner that left trails, depressions, and uneven snow deposits. Id. One witness testified that she parked along the street to avoid the perils of the parking lot. Id. It was also undisputed that the parking lot was not salted in advance of plaintiff’s fall. Id.

At her deposition, however, Allen stated unequivocally that she did not see ice in the location of her fall:

Q. But you can’t say with any degree of certainty if it was a patch of ice that you slipped on, correct?

A. I did not see any ice, but I did see snow.

Q. Since you didn’t see any ice, would you agree that any statement that you would have tripped on ice would be a guess on your part?

A. It would be a guess on my part.

Allen, 2017 IL App (1st) 163340 at 42.

To support her claim, Allen secured testimony from two different expert witnesses that the defendant “created a hazardous condition in the parking lot” and, to a reasonable degree of engineering certainty, the defendant’s “maintenance of the parking lot would have created icy conditions that led to the plaintiff falling.” Id. at 22 - 23. Despite the expert testimony the court confirmed the grant of summary judgment to the defense. The lynchpin of the court’s decision was plaintiff’s unequivocal admission that she was speculating about what condition actually caused her fall.

The court was clear that guesswork and speculation is insufficient to create an issue of fact for the jury. “Although her experts opined that ZL’s snow clearing procedures would have created an unnatural accumulation of ice in the Jazzercise parking lot, Allen did not see whether she fell on ice, so she cannot establish a causal link between the alleged unnatural ice and her fall beyond mere speculation.” 2017 IL App (1st) 163340 at 52.

While the parties disagreed about what the applicable duty was in the case, the court found that discussion irrelevant given that Allen could not meet her burden on the issue of proximate causation. Id. The plaintiff’s failure to “establish a causal nexus between the alleged unnatural accumulation of ice in the parking lot and her fall” entitled the defendants to judgment as a matter of law. Id. at 50.

Allen is consistent with the long line of Illinois jurisprudence holding that a personal injury plaintiff bears the burden of proof on proximate causation, and speculation, conjecture, and guesswork are not sufficient to raise genuine issues of material fact on that element. Allen also reminds Illinois litigants that a plaintiff cannot rely solely on expert opinion testimony to carry their burden on proximate causation. Put simply, if a plaintiff “cannot establish a causal link . . . beyond mere speculation,” the case cannot proceed to trial under Illinois law. Allen, 2017 IL App (1st) 163340 at 52.