2020 IL App (1st) 191861-U

No. 1-19-1861 

December 21, 2020 

FIRST DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by 

any party except in the limited circumstances allowed under Rule 23(e)(1). 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

RASHIDA RAY, ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

GREGORY CARLSON, )

 ) 

 Defendant-Appellee. ) 

Appeal from the Circuit Court

Of Cook County. 

No. 15 CH 18755 

The Honorable 

Margaret A. Brennan

Judge Presiding. 

PRESIDING JUSTICE WALKER delivered the judgment of the court. 

Justices Hyman and Coghlan concurred in the judgment.

 ORDER

¶ 1 Held: Summary judgment proper when plaintiff failed to provide evidence of a leak in 

defendant’s condominium. The circumstantial evidence provided by plaintiff did not present a 

factual basis that would arguably entitle plaintiff to a favorable judgment. 

¶ 2 Plaintiff Rashida Ray filed a complaint seeking damages against defendant, Gregory 

Carlson. Ray argued that Carlson’s negligence in maintaining his condominium unit caused 

damage to her unit. Specifically, she alleged Carlson failed to correct a water leak in his unit, 

failed to allow a prompt inspection, and failed to facilitate repairs. The circuit court granted 
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summary judgment for Carlson. Ray now appeals, arguing that the circuit court improperly 

imposed a burden of production on her instead of Carlson, improperly made a finding on a 

disputed issue of fact, and that she presented a factual basis that would arguably entitle her to 

a favorable judgment. For the following reasons, we affirm. 

¶ 3 BACKGROUND

¶ 4 The subject property is located at 1448 West Arthur Avenue in Chicago, Illinois. The 

property is part of a condominium building that contains three separate units. Ray owns the 

bottom unit, a duplex down; it has a main level on the first floor and a second level is below. 

Carlson owns the unit directly above Ray, and Joel Markovits (“Markovits”) owns the unit 

directly above Carlson.

¶ 5 The Board of Managers of Arthur Arms Condominium Association (“Board”) is 

responsible for the administration, operation, and management of the real property located at 

1448-50 W. Arthur Avenue and 6501-07 N. Greenview Avenue. The Arthur Arms 

Condominium Association (“Association”) consists of owners of condominiums located at the 

Arthur Arms Condominium property. Hales Property Management, Inc. (“Hales”) is a

Community Association Manager and the agent of the Association. 

¶ 6 Ray purchased her unit in 2005 as an investment property. From 2005 until 2014, she 

experienced issues with sewage backing up in her kitchen sink, which caused the sink to 

overflow and water to run down into the basement bedroom located directly below the kitchen 

in Ray’s unit. In 2014, Ray discovered that the cause of the sink issue was because Markovits’s 

unit on the third floor had a garbage disposal. Markovits’s garbage disposal backed up Ray’s
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kitchen sink if not allowed to run long enough. Ray also experienced water damage in her 

basement from an issue with a common element around 2007, which was repaired and has not 

reoccurred.

¶ 7 On July 25, 2015, Ray visited her unit and discovered extensive water damage. She went

to the basement level and noticed the bathroom door closed. Ray tried to open the door, but it 

was stuck. Ray then noticed the bathroom ceiling “hanging down” blocking the door, a water 

stain on the granite tile in the bathroom, and water damage on the ceiling outside of the 

bathroom. Ray then went to the main level of her unit to further investigate. Under the cabinets 

in the kitchen, Ray noticed water pockets behind the paint and wet walls. She observed water 

dripping down the walls above the second level. There was also water damage on the main 

level to the walls in the kitchen, den, both bathrooms, the master bedroom, and the hallways.

Since the water was running down her walls from the ceiling, Ray assumed it started from 

above her unit. Ray did not notice any water damage when she last visited her unit on July 3, 

2015. 

¶ 8 Ray notified the Association through its agent, Jacqulin Goodlove of Hales, about the 

damage. The Board, through Hales, hired a plumber from AMW Building Services (“AMW”)

who inspected the property on July 27, 2015. The plumber examined Ray’s unit but did not get 

access to inspect Carlson’s unit. The plumber ran the water in Ray’s unit, flushed the toilet, 

and pulled down the hanging drywall but was unable to find any active leaks in her unit. Next, 

the Board hired Axcellent Plumbing to investigate the source of the leak. Axcellent Plumbing 

also performed an inspection of Carlson’s unit but could not find the source of the leak. On 
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August 6, 2015, another plumber from Bernard Dentzer Plumbing investigated the source of 

the leak. Bernard also could not find the source of the leak. 

¶ 9 On August 26, 2015, Ray hired Goode Plumbing to inspect both Ray’s and Carlson’s unit. 

The plumber was unable to identify the source of the leak. However, in its report, the plumber

noted the tub surround on Carlson’s master bathtub appeared to have new silicone installed

and believed it may have been the source of the leak. Further, the report indicated Carlson was 

“very uncooperative” and would not allow further access to his unit. 

¶ 10 On September 21, 2015, Ray hired John Harvey (“Harvey”) from Castino Restoration to 

prepare an estimate for repair of the damages. 

¶ 11 On October 28, 2015, Goode Plumbing returned and was able to inspect all three units. 

However, the plumber was again unable to identify the source of the water leak. In his report, 

he noticed what appeared to be new silicone around the base of Carlson’s master bathtub. 

Additionally, the plumber found evidence of a prior leak from the washer dryer unit and a grey 

box in Markovits’ unit. 

¶ 12 This case originated when the Board filed suit for declaratory and injunctive relief against 

Ray on December 30, 2015. On February 11, 2016, Ray filed a counterclaim against the Board 

and a third-party complaint against the Association and Hales. On October 4, 2016, Ray filed 

the subject Second Amended Third Party Complaint against Carlson and Markovits. Ray’s 

claim against Carlson is the only one remaining in the case. 

¶ 13 In the Second Amended Third Party Complaint, Ray alleged Carlson owed her duties to 

take care of and maintain his unit, repair any leak, prevent damage to Ray’s unit, and permit 
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a prompt inspection of his unit to determine the source of any leak. Ray alleged Carlson

breached those duties when a water leak occurred in his unit, he failed to correct it, refused to 

allow a prompt inspection of his unit, and refused to facilitate repairs or insurance coverage 

for Ray’s losses. Ray also alleged that her unit was damaged by Carlson’s negligent handling 

of the water leak. 

¶ 14 On January 24, 2018, this case was referred to mandatory arbitration. On May 31, 2018, 

Carlson won at arbitration. Ray rejected the arbitration award on June 4, 2018.

¶ 15 During discovery, witnesses provided testimony about their thoughts as to the source of 

Ray’s water damage. 

¶ 16 Carlson testified he assumed Ray’s water damage was related to the water damage he 

suffered a few years prior because of its similarity. Carlson later surmised the source of the 

water damage to Ray’s unit could have been a roof drain or something similar. Carlson also 

assumed that a leak in the third-floor unit was the cause of Ray’s damage. Markovits, however,

testified he believed the “most logical” explanation was that the closest unit to the water 

damage would be the source.

¶ 17 Harvey testified he assumed based upon the stains on the ceiling that the water came from 

above Ray’s unit. However, he admitted he did not know whether the water came from

Carlson’s unit. 

¶ 18 On May 23, 2019, Carlson filed a motion for summary judgment arguing that no genuine 

issue of material fact existed, and he was entitled to judgment as a matter of law. Carlson

pointed to the lack of expert testimony and argued Ray failed to meet her burden because she 
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did not produce evidence demonstrating that he caused the leak. In response, Ray argued the 

source of the water intrusion causing her damage was a genuine issue of material fact. Ray also 

argued that Carlson sought to impose the wrong standard, and the question was simply whether 

an issue of material fact existed, not whether Ray had proven the facts offered in support of 

her claim. 

¶ 19 On August 15, 2019, the circuit court granted Carlson’s Motion for Summary Judgment,

holding that Ray had “not presented this Court with any admissible evidence that establishes 

that defendant breach[ed] any duty of care.” The circuit court noted that evidence showing 

there was new caulk in the guest bathroom tub did not “establish[] that the leak came from 

defendant’s unit” and only “call[ed] for speculation.” The circuit court concluded Ray “failed 

to establish a factual basis which would entitle her to judgment.” 

¶ 20 Ray filed a notice of appeal on September 12, 2019. 

¶ 21 ANALYSIS

¶ 22 On appeal, Ray argues that the circuit court improperly imposed a burden of production on 

her instead of Carlson, improperly made a finding on a disputed issue of fact, and that she 

presented a factual basis that would arguably entitle her to a favorable judgment.

¶ 23 Summary 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. Henry v. Panasonic 

Factory Automation Co., 396 Ill. App. 3d 321, 327 (2009). As such, summary judgment “is 

appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file, when 

viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue as to 
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any material fact and the movant is entitled to judgment as a matter of law.” Argueta v. 

Krivickas, 2011 IL App (1st) 102166, ¶ 5, quoting Busch v. Graphic Color Corp., 169 Ill. 2d 

235, 333 (1996). In determining whether a genuine issue of material fact exists, the evidence 

in the record must be construed strictly against the parties moving for summary judgment and 

liberally in favor of the party opposing it. Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. 

Where the material facts are disputed or where the material facts are undisputed, but reasonable 

persons might draw different inferences from those undisputed facts, summary judgment must 

be denied. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). 

¶ 24 The party moving for summary judgment bears the initial burden of proof. Evans v. Brown, 

399 Ill. App. 3d 238, 243 (2010). Only if movant satisfies his initial burden of production does 

the burden shift to the non-moving party to present some factual basis that would arguably 

entitle her to a favorable judgment. Pecora v. County of Cook, 323 Ill. App. 3d 917, 933 (2001). 

The movant may meet his initial burden of production in two ways: (1) by affirmatively 

showing that some element of the case must be resolved in movant's favor, or (2) by pointing 

out to the court that there is an absence of evidence to support the non-moving party's case. Id 

at 933-934. If the movant supplies facts that, if not contradicted, would warrant judgment in 

its favor as a matter of law, the non-moving party cannot rest on its pleadings to create a 

genuine issue of material fact. Harrison v. Hardin Community Unit School Dist. No. 1, 197 Ill. 

2d 466, 470 (2001). 

¶ 25 Although a plaintiff is not required to prove her case at the summary judgment stage, to 

survive a summary judgment motion as the non-moving party, she must present a factual basis 
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that would arguably entitle her to a judgment. Fichtel v. Board of Directors of River Shore of 

Naperville Condominium Ass'n, Hillcrest Management Co., 389 Ill. App. 3d 951, 956 (2009). 

This includes presenting some evidence to support each element of her cause of action. Bruns 

v. City of Centralia, 2014 IL 116998, ¶ 12. Summary judgment is appropriate if a plaintiff 

cannot establish an element of her claim. Dardeen v. Kuehling, 213 Ill. 2d 329, 335 (2004). 

Appellate review of a summary judgment ruling is de novo. Monson v. City of Danville, 2018 

IL 122486, ¶ 12. 

¶ 26 To state a cause of action for negligence, the plaintiff must present evidence demonstrating 

that (1) the defendant owed a duty of care to plaintiff; (2) the defendant breached that duty; 

and (3) the breach proximately caused the plaintiff’s injuries. Guvenoz v. Target Corp., 2015 

IL App (1st) 133940, ¶ 89. 

¶ 27 Ray first argues the circuit court improperly imposed a burden of production on her instead 

of Carlson. Specifically, Ray maintains the circuit court imposed no burden on Carlson. 

¶ 28 In Carlson’s motion for summary judgment, he argued Ray failed to produce any evidence 

that the source of the leak originated from his unit. This argument is supported by the record. 

At least three different plumbers attempted to identify the source of the leak, and none 

succeeded. Nonetheless, Ray argues that Carlson merely asserted a lack of evidence when he 

was instead required to show Ray could not acquire sufficient evidence to prove her claim at 

trial. See Kleiss, 349 Ill. App. 3d at 350. Ray then argues that expert testimony is unnecessary 

in the case because it is common sense “that a severe leak causing significant damage that has 

not recurred must have been repaired.” We are unpersuaded by this argument. 
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¶ 29 Although Ray dismisses expert testimony as unnecessary, she appears to concede that such 

testimony is in fact unobtainable given the previous unsuccessful investigations and the 

passage of time. However, without expert testimony or direct evidence, Ray only provides 

limited circumstantial evidence that, as discussed below, is insufficient to survive a motion for 

summary judgment. Therefore, Carlson met his initial burden of production for summary 

judgment. 

¶ 30 Next, Ray argues the circuit court improperly made a finding on a disputed issue of fact

that should have been left for the trier of fact. Specifically, Ray maintains the trial court 

improperly weighed the following facts: (1) none of the plumbing reports positively identified 

the source of the leak, (2) a plumbing report indicated the presence of new caulk around a tub 

in Carlson’s unit, (3) Carlson testified that Gebhardt re-caulked his tubs prior to the leak, and 

(4) Gebhardt testified that he re-caulked only Carlson’s master bathroom tub and not the guest 

bathroom tub. 

¶ 31 Ray attempts to overcome the lack of evidence identifying Carlson’s unit as the source of 

the leak by relying on a plumbing report that merely speculates about a possible leak. However,

Ray failed to lay proper foundation for the report. In summary judgment proceedings, a court 

can only consider evidence that would be admissible at trial, and the basic rules of evidence 

require a party to lay the proper foundation for the introduction of a document into evidence if 

it wishes to rely on that document. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. 

App. 3d 334, 384 (2008). “To lay a proper foundation for a document, a party must present 

evidence that shows the document is what it purports to be.” Id. The party can authenticate the 
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document by providing an affidavit or by presenting testimony of a witness with sufficient 

personal knowledge of the document. Id. Additionally, as a business record, Ray must lay a 

proper foundation by showing the report was made (1) in the regular course of business, and 

(2) at or near the time or event of the occurrence. US Bank, Nat. Ass’n v. Avdic, 2014 IL App 

(1st) 121759 (2014), ¶ 23. Here, Ray failed to depose any representative from Goode Plumbing

to authenticate the report or establish it as an admissible business record. Therefore, the 

plumbing report is inadmissible.

¶ 32 Ray then argues that conflicting deposition testimony regarding whether Gebhardt recaulked Carlson’s guest bathroom tub is critically important to her claim. We disagree. As 

previously stated, there is no evidence in the record the leak originated anywhere in Carlson’s 

unit, including his guest bathroom. Additionally, the plumbing report, on which Ray relies, 

mentioned Carlson’s master bathroom as the possible source of the leak, not his guest 

bathroom. New caulking in the guest bathroom alone does not establish the leak came from

Carlson’s unit. Therefore, whether Gebhardt or someone else re-caulked Carlson’s guest 

bathroom is immaterial to Ray’s claim.

¶ 33 Finally, Ray argues she presented a factual basis that would arguably entitle her to a 

favorable judgment. Specifically, she maintains that she introduced circumstantial evidence 

showing the source of the leak originated in Carlson’s guest bathroom. We disagree.

¶ 34 Circumstantial evidence may be sufficient for a plaintiff to survive a motion for summary 

judgment when: 
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“an inference may be reasonably drawn from it. Facts, however, will not be 

established from circumstantial evidence where more than one conclusion can be 

drawn. [Citation.] If plaintiff relies upon circumstantial evidence to establish 

proximate cause to defeat a motion for summary judgment, the circumstantial 

evidence must be of such a nature and so related as to make the conclusion more 

probable as opposed to merely possible.” Majetich, 389 Ill. App. 3d at 224–25. 

¶ 35 Here, the circumstantial evidence against Carlson does not support the conclusion that a 

leak originating in his unit was more probable than not. While it is undisputed that a leak 

occurred from above Ray’s unit and Carlson resides directly above Ray’s unit, no plumbing 

expert identified the source of the leak and none concluded it came from Carlson’s unit. From 

this evidence, it is possible Carlson’s unit was the source of the leak, but it is also possible it 

was not. When the proven facts demonstrate 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. Mann v. Producer's 

Chemical Co., 356 Ill. App. 3d 967, 974 (2005). 

¶ 36 Ray relies on Deliberto v. Stahelin, 171 Ill. App. 3d 355 (1988), to argue she has come 

forward with circumstantial evidence allowing her to avoid summary judgment. In Deliberto, 

the plaintiff was a passenger in a vehicle involved in a rollover accident as it drove around a 

curve. Id. at 356. The road conditions were otherwise dry that day, but plaintiff alleged the car 

skidded on water present on the road that originated from a sprinkler system. Id. The plaintiff

sued defendants—owner of the office building and the installer of the sprinkler system—for 
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negligence, and both defendants filed motions for summary judgment. Id. The owner of the 

office building argued that plaintiff “offered nothing more than speculation or conjecture that 

water from the sprinkler system caused the accident.” Id. at 356-57. The sprinkler installation 

company argued that “plaintiff failed to show that any act” by it “caused or contributed to the 

presence of water on the roadway.” Id. at 357. The trial court granted both motions and held 

“that there were no genuine issues of material fact as to either defendant.” Id.

¶ 37 On appeal, the appellate court noted the plaintiff had offered deposition testimony that the 

vehicle began to slide when it encountered wet pavement as it rounded a curve, and the water 

was coming from the defendants’ sprinklers. Id. at 358. The plaintiff also presented testimony 

from an accident investigation and reconstruction expert who testified that a large amount of 

accumulated water could have impacted steering or could have created a tripping mechanism. 

Id. at 359. The defendant property owner argued the plaintiff had presented no more than 

speculation or conjecture that water from the sprinkler system caused the accident and 

summary judgment was proper. Id. at 360. The appellate court noted the occurrence witnesses 

testified they saw water on the road and the car slid or fishtailed prior to rolling over. Id. 

¶ 38 The appellate court reversed, holding that plaintiff’s evidence “raised material factual 

issues as to the presence, amount, and extent of water on the roadway at the time of the 

accident, as well as the role any such water may have played in causing the accident.” Id. at

359. The appellate court stated, “all the evidence taken together could lead a fair-minded 

person to more than one conclusion or inference,” precluding summary judgment. Id. 
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¶ 39 The present case is distinguishable from Deliberto. In Deliberto, the plaintiff provided 

testimony from occurrence witnesses establishing the presence of water and expert testimony 

that water on the road could have caused the car to go out of control. Id. at 360. Here, Ray

provided no witness or expert testimony establishing a leak in Carlson’s guest bathroom. In 

fact, she admits her case against Carlson lies in “physics and common sense.” However, 

without any support, “physics and common sense” is simply her own conjecture. Therefore, 

the circumstantial evidence Ray presents did not provide a factual basis that would arguably 

entitle her to a favorable judgment and the circuit court’s grant of summary judgment to 

Carlson was proper. 

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 42 Affirmed.