affidavit properly struck where the expert cursorily stated that he read the record but did not disclose which facts in record documents led to his conclusion that the victim was hit on the shoulder of the roadway
How later courts described this case
- affidavit properly struck where the expert cursorily stated that he read the record but did not disclose which facts in record documents led to his conclusion that the victim was hit on the shoulder of the roadway
Written by the judges who cited it.
The opinion
JUSTICE INGLIS dissenting:
I concur with the opinion that an affidavit accompanying a motion for summary judgment must set forth the facts which underlie any expert opinions or conclusions contained therein. I respectfully dissent from that portion of the opinion which reverses the order granting summary judgment.
On September 15, 1983, at approximately 3:45 a.m., an unfortunate accident happened east of the Naperville Road exit on 1-5, an interstate highway. The area was dark and unlighted. Plaintiff, a pedestrian, was struck by defendant’s truck. Plaintiff was found on the shoulder of the road. Plaintiff is now disabled and cannot recall the incident. Defendant’s lips are sealed by the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201). Where did the point of impact take place? No one knows. There was no accident debris. Blood was found on the truck and under plaintiff on the shoulder of the road. There was no blood anywhere else on the shoulder. There was no blood on the highway itself, nor was there any physical evidence indicating whether impact had occurred in the lanes of traffic or on the shoulder. I do not agree that a jury could infer from these facts that plaintiff was struck while on the shoulder of the highway. A jury verdict that would be based on mere conjecture, guess, or speculation should not be permitted. D’Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 548 .
In considering summary judgment, this court recently ruled in Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332 , 338:
“No presumption of negligence arises from the mere happening of an accident. [Citation.] Negligence is not presumed but must be proved as a fact by the party alleging it. [Citation.]
The jury must base its decision on evidence and not on guess or speculation. [Citation.] Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant’s acts caused the injury [Citation.]”
Plaintiff has failed to come forward with sufficient evidence by affidavit, deposition, admission, or other appropriate form to give support to a determination of how and where the incident occurred. When the pleadings, depositions, and affidavits fail to establish an element of the plaintiff’s cause of action, summary judgment is proper. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85 .) Summary judgment should not be reversed absent an abuse of discretion by the trial court such that plaintiff’s right to fundamental justice is violated. 156 Ill. App. 3d 76, 86 ; Kemp v. Sisters of Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361-62 .
Accordingly, I submit that granting summary judgment was appropriate in this case and would affirm the trial court.