Circumstantial Evidence Insufficient to Establish Causation in Premises Liability Claim

by Uri Abt

The Illinois appellate court was recently presented with an interesting fact pattern that allowed it to consider the boundary between permissible inferences drawn from circumstantial evidence and impermissible speculation.  In Berke v. Manilow, 2016 IL App (1st) 150397, the appellate court held that the defendant in a premises liability claim was entitled to summary judgment because the plaintiffs’ circumstantial evidence of causation only established that its theory was “a possible conclusion, not a probable conclusion.”  Id. at ¶ 41.  The court also held that the plaintiffs’ evidence was insufficient to support the opinions of their causation experts.  Id. at ¶¶ 19-29.      

The central plaintiff, Raymond Berke, fell in the vestibule of an apartment building while exiting the building and sustained spinal injuries that rendered him a quadriplegic.  The vestibule consisted of a door separating the building from the vestibule, a raised threshold between the building and the vestibule that led to a small landing, and three steps up from the landing to a second door that led outside.  The plaintiff’s theory was that the raised threshold and heavy inner door were unreasonably dangerous and caused him to trip and fall, but he had no memory of the incident and no one witnessed his fall.  A doorman had walked the plaintiff to, but not through, the vestibule door.  Moments later the doorman heard a “kunk” coming from the vestibule.  He went to the vestibule and found plaintiff face-down with his head on the second step.  The plaintiffs’ wife was nearby and also witnessed plaintiff immediately after the fall lying in the vestibule with his head on the steps and his feet near the threshold.  Plaintiff had bruises and abrasions on his face and knees.  A medical expert testified that plaintiff did not have any medical condition that would have caused his fall. 

The plaintiff submitted three expert affidavits in support of his theory that the raised threshold and heavy door caused him to trip and fall.  The first two experts opined, based on the physical characteristics of the vestibule and inner door, that they were unreasonably dangerous and, based on that conclusion and the position in which the plaintiff was found, that it was more likely than not that the plaintiff had tripped and fell as a result of the vestibule’s unreasonably dangerous characteristics.  The appellate court held that the first two experts’ opinions concerning the cause of the plaintiff’s fall was speculative and therefore inadmissible.

The third expert was a doctor who opined, based on a review of medical records, that no acute medical condition caused plaintiff’s fall and that the abrasions to his legs and face were “more likely the result of a prone forward fall resulting from a trip.”  Id. at ¶ 29.  The appellate court held that, while the doctor could opine that the fall was not caused by a medical condition, it was inadmissible speculation for him to opine that his fall was caused by a trip.

Finally, the appellate court considered whether—after the expert affidavits had been stricken—the remaining evidence was sufficient to establish that the plaintiff had tripped on the raised threshold of the vestibule.  The appellate court noted that causation can be established with circumstantial evidence where the “facts and circumstances [], in the light of ordinary experience, reasonably suggest that the defendant’s negligence operated to produce the injury.”  Id. at ¶ 35.  But “where the proven facts demonstrate that the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion is a matter of speculation, conjecture, and guess and the trier of fact cannot be permitted to make that inference.”  Id.  Turning to the plaintiff’s evidence of the unreasonably high threshold, the position in which he was found, the abrasions on his legs and face, the fact that there had been a prior fall in the vestibule, and the absence of any other explanation for the fall, the court held “although a trier of fact could infer that [the plaintff] tripped over the threshold or was propelled forward by the door, it is equally likely that a jury could conclude that he fell for reasons unrelated to the condition of the premises.”  Id. at ¶ 37.  As either conclusion was just as likely, the plaintiff had failed to establish the element of proximate cause, and summary judgment was granted in favor of the defendant.