Short v. CSS Audio, Inc.

NOTICE 2023 IL App (4th) 220479-UThis Order was filed under
FILED
NO. 4-22-0479 February 7, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
SARAH SHORT, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Peoria County
CSS AUDIO, INC. and PREMIERE AUDIO-VISUAL, ) No. 18L124
INC., )
Defendants-Appellees. ) Honorable
) Michael D. Risinger,
) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court.
Justices Cavanagh and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding defendants were entitled to judgment as a
matter of law.
¶2 In November 2018, plaintiff, Sarah Short, filed a first-amended complaint against
defendants, CSS Audio, Inc. (CSS Audio) and Premiere Audio-Visual, Inc. (Premiere), seeking
damages for injuries she suffered when a Genie lift, owned by CSS Audio, fell on her as she
unloaded it from Premiere’s trailer. In March 2022, defendants filed separate motions for
summary judgment. Following a May 2022 hearing, the circuit court granted judgment in
defendants’ favor. Plaintiff appeals, arguing the court’s decision was in error. We affirm.
¶3 I. BACKGROUND
¶4 In November 2018, plaintiff filed a complaint alleging one count of negligence
against defendants. The complaint alleged that on February 1, 2018, plaintiff and another Peoria
Civic Center employee were unloading a Genie lift—a ground-supported device similar to a
forklift and operated by crank—owned by CSS Audio from Premiere’s trailer onto the civic
center’s loading dock. As plaintiff moved the lift down the trailer’s ramp, “the Genie lift got
stuck or the wheels were otherwise not rolling properly when [it] reached the loading dock,”
which caused the lift to fall on plaintiff. The complaint alleged defendants “had a duty to
exercise ordinary and reasonable care to see that the aforesaid trailer and ramp was reasonably
safe for the use of those lawfully upon and in the premises.” Plaintiff contended defendants
violated that duty by committing one or more of the following acts:
“a. Failed to take remedial measures to correct the dangerous condition of the
improperly placed and/or installed ramp at the aforesaid location;
b. Failed to warn employees of [the civic center], including the Plaintiff, of the
dangers that existed at the aforesaid location;
c. Permitted the Genie lift to be unloaded by an improperly placed and/or installed
ramp from the aforementioned trailer to the loading dock;
d. Failed to ensure that there were a sufficient number of people to unload the
Genie lift from the aforementioned trailer to the loading dock;
e. Negligently backed the aforementioned trailer into the loading dock of the
Peoria Civic Center so as to permit an unsafe condition to exist for unloading;
f. Negligently placed the unloading ramp from the aforementioned trailer to the
loading dock so as to permit a dangerous and unsafe condition to exist;
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g. Negligently supervised the unloading of the equipment from the
aforementioned trailer to the loading dock;
h. Negligently and inadequately supervised the unloading of the equipment;
i. Negligently provided dangerous and/or unsafe conditions to the employees of
[the civic center], including the Plaintiff, at or near the loading dock;
j. Negligently understaffed the unloading of equipment owned by CSS [Audio] so
as to permit the unsafe unloading of equipment and thus causing injury to the
Plaintiff;
k. Allowed the Genie lift to be unloaded in a manner so as to create an
unreasonably dangerous and hazardous condition when CSS [Audio] knew or
should have reasonably known that unloading of the Genie lift posed an
unreasonable risk of harm to [civic center] employees, including the Plaintiff;
l. Failed to adequately and properly supervise its agents, employees, and servants
so as to ensure the safe unloading of equipment from the aforementioned trailer;
and
m. Was otherwise careless and/or negligent.”
Plaintiff further alleged, as a proximate result of one or more of defendants’ actions, she was
“permanently injured” and “suffered great pain and anguish, and disability both in mind and
body.”
¶5 Defendants filed motions for summary judgment in March 2022, asserting no
genuine issue of material fact existed on the element of duty and they were entitled to judgment
in their favor. In support of their motions, defendants attached an accompanying memorandum
of law as well as the discovery depositions of several civic center employees, including plaintiff,
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William Kenney, Thomas Chladny, Jeff Wald, and Dan Evans; Premiere’s assistant director of
audio and visual, Michael Reid; and CSS Audio employees, Daniel Grimm and David Batton.
¶6 In her deposition, plaintiff testified she started working as a stagehand for the
civic center in 2007. As a stagehand, plaintiff’s duties were to “to unload equipment out of
semitrucks, trailers, whatever the show shows up with” and “take the cases or equipment ***
down the ramp and into wherever it’s going.” Plaintiff further testified she received “[m]ostly
on-the-job training,” stating, “there’s not really much training for pushing-a-case-off-a-truck
kind of thing.”
¶7 On the date of the accident, plaintiff was sent to “the loading dock *** facing
Kumpf Street” to unload equipment for an event hosted by the civic center. The loading dock
was clear of debris. The configuration of Premiere’s trailer was “how it’s supposed to be,” with
its ramp “folded down[,] and then there was a little metal plate that folded down that touched the
concrete.” Plaintiff explained she had, on numerous occasions, unloaded trailers with similar
configurations over the course of her employment. She also had no concerns regarding the
ramp’s stability or safety as she unloaded the trailer.
¶8 Plaintiff testified the Genie lift was the final piece of equipment on Premiere’s
trailer. Although plaintiff received no instruction on how to move the lift on the date of the
accident, she testified she safely unloaded similar lifts in the past and understood them to be
“very top heavy and very tippy.” When asked to describe how the accident occurred, plaintiff
stated:
“I went onto the trailer to get the Genie Lift. Jeff Wald was there. He grabbed one
end. I grabbed the other end. We were moving it towards the front of the trailer. I
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was guiding it down the ramp, he was guiding it from behind, and as we got to the
bottom, the Genie Lift started falling and landed on me.”
In plaintiff’s opinion, the unevenness of the ramp on the concrete caused the lift to fall as she and
Wald unloaded it from the trailer.
¶9 Michael Reid, Premiere’s assistant director of audio and visual, testified CSS
Audio hired Premiere to provide video equipment “for a show in the upstairs of the ballroom at
the [Peoria] Civic Center” on February 1, 2018. In addition to the equipment being delivered for
the event, Reid testified Premiere brought two Genie lifts to be returned to CSS Audio. Reid
explained, “typically *** if we have a piece of equipment of theirs or they have something of
ours[,] if we don’t need it until we meet up in a show at some point[,] we usually bring it back
the next show that we are at.” According to Reid, stagehands had, in the past, unloaded
equipment not used at an event and he was unaware of any rule or regulation prohibiting
stagehands from doing so.
¶ 10 Reid testified he pulled into the civic center’s unloading space, opened the ramp
door of the trailer, unfolded the hinged transition piece (the metal plate at the off-end of the
ramp), and waited for the stagehands to begin unloading. Reid observed nothing defective with
the ramp that day and held no reservations regarding the ramp’s safety. With respect to the
hinged extension, Reid explained, “If it wasn’t folded out, it would be folded up onto the ramp
and it would be almost impossible to unload anything *** because you would try to roll stuff out
and it would stop before it got out.” He also stated the distance from the leading edge of the ramp
to where it met the concrete was “just shy of three-quarter inch.” The Genie lifts were the final
pieces of equipment taken off the trailer. Although he warned the stagehands to be careful, Reid
gave no specific instructions on to how to unload the lifts. After the first Genie lift was unloaded,
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Reid unstrapped the second lift, heard a noise, “and turned around in time to see the [second]
Genie lift falling over onto [plaintiff].”
¶ 11 Daniel Grimm, a manager employed by CSS Audio, testified he drove a “box
truck” with “the sound and lighting equipment” to the civic center on February 1, 2018. He
further testified CSS Audio hired Premiere as a subcontractor to provide video equipment and
stated the Genie lifts belonging to CSS Audio “were being transferred from [Premiere’s] trailer
into our truck.” Upon arriving, Grimm conducted a “site survey” and prepared the truck for
unloading. Due to civic center policy, “[a]ny equipment unloaded from vehicles ha[d] to be
handled by union stage[-]hand loaders.” Grimm told the stagehands what items needed to be
taken out but did not specifically instruct them on how to unload CSS Audio’s truck. Grimm
stated he saw Premiere’s trailer that morning and further testified the trailer’s hinged extension
was present, attached to the ramp, and unfolded. He also did not observe any Premiere employee
instructing stagehands on how to unload anything. Grimm testified he was securing the first
Genie lift in CSS Audio’s truck when the accident occurred. He further stated, “[W]hen I could
see what happened and came around the corner, *** I [saw] that the Genie [lift] had tipped over
and [plaintiff] was under it.”
¶ 12 William Kenney, the director of operations at the civic center, testified he
completed a “follow-up report” after being informed of the accident. Kenney explained, pursuant
to their union contract, stagehands were responsible for unloading equipment from trailers
arriving at the facility. However, Kenney acknowledged the civic center did not provide “a
specific training program on loading and unloading trailers.” Over the course of his
investigation, Kenney inspected Premiere’s trailer and “felt like the trailer and the ramp were in
good condition.” He also noticed a “a little bit of a dropoff” of approximately three-quarters of
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an inch where the ramp met the concrete and observed “no other way to position this trailer ***
to not have that drop.”
¶ 13 David Batton testified he had unloaded “[a] lot” of Genie lifts as an audio and
lighting technician at CSS Audio and explained his role was to help “[s]et up, load and unload
trucks and get gear ready for shows and run shows.” After parking the truck in the loading dock
with Grimm, Batton stated they “went upstairs to check out the room, we drop[ped] off our bags
and then we wait[ed] for the stagehands to show up.” At the time of the accident, Batton was
inside Premiere’s trailer speaking with Reid. Batton did not notice any defects or dangerous
conditions with Premiere’s trailer while he was in it. However, Batton observed the Genie lift as
it fell over and testified, “[i]t was being pushed from up above,” which was improper. Batton
explained “[plaintiff] was on the bottom part of it and Jeff Wald was at the top pushing, like
coming—walking forward down the ramp and she was going backwards down the ramp.”
¶ 14 Thomas Chladny, a civic center stagehand and union president, testified he “did
not see the actual accident itself.” However, Chladny stated he saw the “aftermath” and recalled
Wald telling him “he had a hand on the top of [the lift] and he stumbled and it let go.” With
respect to Premiere’s ramp, Chladny did not observe anything unusual or out of the ordinary. He
further stated, “the amount of *** smooth to the ground ramps *** is almost nonexistent, they all
have some sort of a drop.” According to Chladny, Premiere’s ramp would be “considered a
suitable ramp,” and it was “a normal thing” to unload Genie lifts from trailers like it.
¶ 15 In his deposition, Dan Evans testified he was an event services manager employed
by the civic center and assigned stagehands their tasks. Evans explained stagehands “unload and
load trucks” and assist with setting up any equipment brought by an outside company. Despite
not seeing the Genie lift fall on plaintiff, Evans stated, based on where she was lying, “it seemed
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like when the Genie lift got to the bottom of the ramp *** the center of gravity was just too much
and it tipped and [plaintiff] was in the wrong place at the wrong time.” Evans noticed nothing
dangerous or defective when he observed Premiere’s trailer and stated it was customary for
stagehands to unload lifts from similarly configured ramps. He further stated it was not unusual
for stagehands to swap equipment between trailers.
¶ 16 Jeff Wald testified he was employed as a stagehand at the civic center. He assisted
plaintiff with taking the Genie lift off Premiere’s trailer and did not recall anyone from Premiere
or CSS Audio directing stagehands as to what equipment needed to be unloaded. Shortly before
the accident, Wald “got the lift, [he] was pushing it to the ramp, and then it just happened to be
[plaintiff] *** [who] was the next one up to help [him] get it out.” Besides the lift, Wald testified
he had no difficulty rolling any equipment off the ramp of Premiere’s trailer. As he and plaintiff
moved the lift down the ramp, “the leading wheels made the small drop to get to the concrete
from the trailer, ramp, door, to the ground [and] *** there was no little piece of metal edging that
made a ramp that would fold up onto the trailer that completed that ramp-to-ground transition.”
Wald stated, “[E]verything was fine with that lift until it came off *** the final inch dropoff ***
of that trailer.” He attempted to “put a foot on the bottom and pull it back so the front wheels
come up,” but he believed “physics took over because this thing [was] very top heavy coming
down the ramp *** and then those front wheels, those leading wheels [were] now off the ramp
two inches.” According to Wald, the missing hinged piece caused the lift to fall on plaintiff.
¶ 17 In April 2022, plaintiff filed a response to defendants’ summary judgment
motions, asserting a genuine issue of material fact existed “as to the unreasonable and unsafe
condition of [Premiere’s] ramp to preclude summary judgment.” Plaintiff argued, “the defect
associated with the ramp was testified to by various witnesses,” who, plaintiff claimed,
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“confirmed that this ramp was not safe for transporting this *** lift.” Thus, plaintiff argued, it
became CSS Audio’s duty to ensure the ramp was in safe condition “since the lifts in question
belonged to CSS Audio, and CSS Audio along with Premiere *** instructed the [p]laintiff to
unload the lift out of *** Premiere’s trailer.”
¶ 18 In May 2022, the circuit court conducted a hearing on defendants’ motions for
summary judgment and ultimately found Premiere’s ramp was “[c]learly *** not the problem.”
There were “plenty of people testifying that the ramp was in normal shape; that it’s not a defect
to have a lip, *** and that’s normal.” The court noted the “three-quarter inch lip” and explained,
“there is no ramp *** that’s ever going to not have a lip. It’s not like walking into the ocean,
ever.” Rather, “it’s seamless coming out of the trailer until you get to the portion that’s laying on
the concrete.” Moreover, the court determined the trailer “must have been good enough for
everything else to be taken off” because “everybody involved unloaded that whole trailer except
for the very last item.” The court also found Wald’s testimony insufficient to raise a genuine
issue of material fact and stated, “I have seven people and just one that’s hanging in there saying,
no, that lip was too much. That piece either wasn’t there or it was a much wider gap.” While the
court believed Wald “hedge[d] a lot when he [got] to that point,” it stated, “I don’t assign weight
to any testimony. I don’t. I’m not finding that [Wald] going back and forth creates any issue at
all for me to disbelieve him.” As no genuine issue of material fact existed in the case, the court
granted summary judgment in favor of defendants.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, plaintiff challenges the circuit court’s grant of summary judgment in
defendants’ favor. Specifically, plaintiff asserts the court erred in granting defendants’ motions
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for summary judgment because the evidence showed a genuine issue of material fact as to
whether Premiere’s ramp was in a reasonably safe condition to unload CSS Audio’s Genie lift.
Plaintiff also claims CSS Audio “had a duty to ensure that Premiere [p]rovide a safe ramp for
unloading of the Genie [l]ift owned by CSS Audio.”
¶ 22 Section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West
2020)) governs summary judgments, providing the circuit court must enter judgment 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.” We recognize that “[s]ummary judgment is a drastic means of
disposing of litigation and ‘should be allowed only when the right of the moving party is clear
and free from doubt.’ ” Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22, 131 N.E.3d 488 (quoting
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43, 809 N.E.2d 1248, 1256 (2004)).
“ ‘[W]here reasonable persons could draw divergent inferences from the undisputed material
facts or where there is a dispute as to a material fact, summary judgment should be denied and
the issue decided by the trier of fact.’ ” Beaman, 2019 IL 122654, ¶ 22 (quoting Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995)). “With a
summary judgment motion, courts construe the pleadings, depositions, admissions, and affidavits
strictly against the movant and liberally in favor of the opponent.” Smith v. Hancock, 2019 IL
App (4th) 180704, ¶ 19, 133 N.E.3d 666. A circuit court’s ruling on a motion for summary
judgment presents a question of law, and thus we apply the de novo standard of review. Mayfield
Cooper Brotze v. City of Carlinville, 2021 IL App (4th) 200369, ¶ 27, 183 N.E.3d 251.
¶ 23 As a threshold matter, we note plaintiff’s contention the circuit court made
improper credibility determinations regarding deposition testimony in ruling on defendants’
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motions for summary judgment. See Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 396,
893 N.E.2d 303, 309 (2008). Although plaintiff “correctly points out a trial court does not make
credibility determinations or weigh evidence when ruling on a motion for summary judgment”
(Hollenbeck v. City of Tuscola, 2017 IL App (4th) 160266, ¶ 34, 72 N.E.3d 880), she cites no
authority holding reversal is necessary for such an error. “[A]s stated, our review on the grant of
a motion for summary judgment is de novo, and ‘thus we are examining the depositions and
pleadings anew to determine whether a material question of fact exists.’ ” Hollenbeck, 2017 IL
App (4th) 160266, ¶ 34 (quoting Coole, 384 Ill. App. 3d at 396). “As no deference is given to the
trial court’s ruling, and as we are analyzing the court’s rulings on summary judgment anew, we
need not address the merits of this particular issue.” Hollenbeck, 2017 IL App (4th) 160266, ¶ 34
(citing Coole, 384 Ill. App. 3d at 396).
¶ 24 Based on this record, we agree with the circuit court that Premiere’s ramp was
“not the problem.” The Genie lift plaintiff unloaded was the final piece of equipment to be
removed from Premiere’s trailer, and Wald testified he had no difficulty rolling any other
equipment off its ramp. According to Reid, if the hinged extension “wasn’t folded out, it would
be folded up onto the ramp and it would be almost impossible to unload anything.” Further,
plaintiff, Reid, Chladny, Batton, and Evans all testified they observed no defects or dangerous
conditions with Premiere’s trailer. Following the accident, Chladny spoke with Wald, who “said
that he had a hand on the top of [the lift] and he stumbled and it let go.” Kenney also inspected
Premiere’s trailer during his follow-up investigation and “felt like the trailer and the ramp were
in good condition.” He noted an approximately three-quarter-inch drop from the leading edge of
the ramp to the concrete and saw “no other way to position this trailer *** to not have that drop.”
In fact, Chladny testified, “the amount of *** smooth to the ground ramps *** is almost
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nonexistent.” He further stated Premiere’s ramp was “a suitable ramp” for unloading Genie lifts,
and Evans testified it was customary for stagehands to unload lifts from similarly configured
ramps.
¶ 25 More importantly, the different version of the facts provided by Wald—such as
his testimony that he observed no three-quarter-inch transition piece—do not alter our
conclusion. His testimony is in direct conflict with that provided by plaintiff during her
deposition. “[A] party’s testimony at a discovery deposition may amount to a judicial admission,
and ‘the party making the admission is bound by that admission and cannot contradict it.’ ”
Hollenbeck, 2017 IL App (4th) 160266, ¶ 50 (quoting Eidson v. Audrey’s CTL, Inc., 251 Ill.
App. 3d 193, 195-96, 621 N.E.2d 921, 923 (1993)); see also Hansen v. Ruby Construction Co.,
155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 303-04 (1987) (stating “a party cannot create a
factual dispute by contradicting a previously made judicial admission”). Plaintiff herself
specifically recalled Premiere’s trailer being set up “how it’s supposed to be,” with its ramp
“folded down[,] and then there was a little metal plate that folded down that touched the
concrete.” As the evidence fails to show the existence of a defect or dangerous condition with
Premiere’s ramp, plaintiff’s attempt to create a genuine issue of material fact is nothing more
than speculation. See Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20, 52
N.E.3d 319 (stating “unsupported conclusions, opinions, or speculation are insufficient to raise a
genuine issue of material fact”).
¶ 26 After reviewing the pleadings, the witnesses’ depositions, and other exhibits and
construing them strictly against the movant and liberally in favor of the opponent, we find the
circuit court did not err by concluding there was no genuine issue of material fact as to the
condition of Premiere’s ramp. See Beaman, 2019 IL 122654, ¶ 22. Accordingly, we need not
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address plaintiff’s second argument that CSS Audio had a duty to ensure Premiere provide a safe
ramp for unloading its lifts because there is no genuine issue of material fact that Premiere’s
ramp was in a reasonably safe condition. Thus, summary judgment in defendants’ favor was
proper.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 29 Affirmed.
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