2020 IL App (2d) 190551-U 

No. 2-19-0551 

Order filed April 29, 2020 

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

SECOND DISTRICT

_____________________________________________________________________________ 

BRIANNA FAY, Special Administrator of ) Appeal from the Circuit Court

the Estate of David Scheck, ) of Lake County. 

) 

Plaintiff-Appellant, ) 

) 

v. ) No. 17-L-753 

) 

FIFTY K CORPORATION, DONALD ) 

OTWAY, JR., and KRA CONSTRUCTION, ) 

INC., ) Honorable 

) Michael J. Fusz, 

Defendants-Appellees. ) Judge, Presiding. 

______________________________________________________________________________ 

PRESIDING JUSTICE BIRKETT delivered the judgment of the court 

Justices Hudson and Brennan concurred in the judgment 

ORDER

¶ 1 Held: In a negligence action alleging that plaintiff’s decedent fell due to dangerous 

conditions on a staircase outside a bar that the decedent was patronizing, summary 

judgment for defendants was proper because plaintiff could only speculate that the 

decedent fell due to the condition of the staircase and not simply due to his extreme 

level of intoxication at the time of the fall. 

¶ 2 Plaintiff, Brianna Fay, special administrator of the estate of David Scheck, appeals the 

grant of summary judgment in favor of defendants, Fifty K Corporation (Fifty K. Corp.), KRA 

Construction, Inc. (KRA), and Donald Otway, Jr., on plaintiff’s complaint alleging that defendants 
2020 IL App (2d) 190551-U 

2 

were liable for dangerous conditions on a staircase that caused Scheck, a patron of Fifty K Sports 

Club (Fifty K), to slip and fall while he was using the staircase. We affirm, as we agree with the 

trial court that there was no issue of material fact on the element of proximate cause such that 

judgment in favor of defendants was proper. 

¶ 3 I. BACKGROUND

¶ 4 Plaintiff’s complaint alleged that, on the night of October 17, 2015, Scheck was a patron 

of Fifty K. While traversing a staircase outside Fifty K’s rear entrance, Scheck fell and was fatally 

injured. Plaintiff alleged that the staircase had dangerous conditions including, but not limited to, 

an improperly constructed handrail and the presence of debris on the stairs including a loose 

wooden plank. Plaintiff alleged that these dangerous conditions caused Scheck to fall. 

¶ 5 Plaintiff named three defendants as allegedly responsible for the dangerous conditions on 

the staircase: Fifty K Corp., which owned and operated Fifty K, KRA Construction, which owned 

premises contiguous to Fifty K, and Otway.1

 

¶ 6 Fifty K Corp. and KRA each answered the complaint and asserted the affirmative defense 

that Scheck was contributorily negligent in that his impairment from alcohol consumption caused 

his accident. Otway did not answer the complaint but moved to dismiss it on the ground that he 

was merely an employee of Fifty K Corp. and had no responsibility for maintaining the staircase 

in question. The trial court held Otway’s motion in abeyance pending discovery in the case. 

¶ 7 All three defendants subsequently filed a joint motion for summary judgment, arguing that 

plaintiff could not prove the element of proximate cause. Defendants cited the undisputed facts 

1 Plaintiff did not allege in what way Otway was responsible for the condition of the 

staircase. His connection to the staircase was revealed later in the proceedings. 
2020 IL App (2d) 190551-U 

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that (1) no one witnessed Scheck’s fall; (2) no one had any information about how he interacted 

with the stairs prior to his fall; and (3) his blood alcohol concentration (BAC) was 0.255 at the 

time of the autopsy. Defendants argued that, based on these facts, plaintiff was unable to 

demonstrate that Scheck’s fall was caused by a dangerous condition in the staircase and not by 

some other factor including, most obviously, his severe intoxication. 

¶ 8 Defendants submitted with their summary judgment motion the depositions of Officer Eric 

Ewald, Detective Kenneth Welsch, and Sergeant Dawn Deservi, who were among the Fox Lake 

police personnel dispatched to Fifty K in response to Scheck’s death. Plaintiff filed a response, to

which she attached the deposition of Lake County Deputy Coroner Sarah Pendley and affidavits 

from Renee Scheck (Renee), Scheck’s ex-wife, and Dr. Thomas Rudd, a pathologist. 

¶ 9 The essential facts are uncontested. At the time of Scheck’s death in October 2015, Fifty 

K Corp. operated a tavern, Fifty K, in part of the ground floor of a building at 50 East Grand 

Avenue in Fox Lake. KRA also occupied space in the ground floor. Outside the rear entrance of 

Fifty K was a smoking area for patrons. Several feet from the smoking area was a wooden staircase 

that led to an apartment that Otway rented on the upper floor of 50 East Grand Avenue. 

¶ 10 On October 17, 2015, Scheck and Renee2 drank alcoholic beverages at several 

establishments before arriving, after 3 p.m., at Fifty K. While at Fifty K, Scheck and Renee 

continued to drink alcoholic beverages. Renee later reported to Welsch that, at some point, 

bartender Margaret Neylon refused to serve Scheck any further alcohol because he was “getting 

too inebriated.” Otway, another bartender on duty that night, reported to Ewald that Scheck was 

“not terrible but not sober.” 

2

 The two were divorced at the time but had started a relationship again. 
2020 IL App (2d) 190551-U 

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¶ 11 At some point in the evening, Scheck exited through the rear door of Fifty K. According 

to Welsch, Renee reported that Scheck stepped out back to smoke a cigarette while she stepped 

out front to smoke. When Renee came back inside, Scheck was still absent. After waiting at Fifty 

K for a time, Renee looked for Scheck at another establishment, Dino’s Den, because they had 

discussed going there next. Scheck was not at Dino’s Den and could not reached by cell phone. 

Renee eventually went home. 

¶ 12 Pendley, however, reported a different account from Renee. Renee stated that Scheck went 

out the back of Fifty K because he needed to vomit and the men’s restroom was occupied. When 

Renee last saw Scheck, he was vomiting on a wall outside Fifty K’s rear entrance. 

¶ 13 Several hours after Scheck went outside, a patron of Fifty K found Scheck lying face down 

at the bottom of the wooden staircase behind 50 East Grand Avenue. He was unresponsive. Fox 

Lake police and emergency personnel were summoned, and Scheck was pronounced dead at the 

scene. No one had witnessed Scheck fall or observed him on the staircase. 

¶ 14 The condition of the wooden staircase was noted in the depositions of Welsch, Deservi, 

and Pendley. They described the staircase as dark; the only light came from the Fifty K’s smoking 

area several feet away. The staircase had one handrail. Two stacked wooden planks lay lengthwise 

on the stairs opposite the handrail. The planks extended about halfway up the staircase from the 

bottom and were not attached to the staircase. Pendley and the officers also described some of the 

stair treads as being in poor condition, as we note further below. 

¶ 15 Several photographs were taken of the scene, but our digitized record contains just one 

photo, which is black and white, dark, and grainy. The photo seems to depict a long object lying 

lengthwise along the edge of the staircase. The condition of the stairs themselves is not discernible 

from the photo. 
2020 IL App (2d) 190551-U 

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¶ 16 Ewald was the first police officer to arrive on the scene. He could not recall whether he 

used the staircase as part of his investigation. He also could not recall seeing any debris on the 

staircase. Ewald believed that, given the position of Scheck’s body, he must have fallen down the 

stairs. 

¶ 17 Welsch, Deservi, and Pendley each climbed the staircase while surveying the scene. 

Welsch described the staircase as narrow and “extremely steep.” He noticed that one of the 

topmost three stair treads (not the platform) was “very loose” and “wobbly.” While descending 

the stairs, he “almost fell down” on the loose planks. 

¶ 18 Deservi also described the staircase as narrow. She noticed that the second stair tread from 

the top was “loose” and that it “wobbled.” Deservi believed there was a “good possibility” that 

the staircase “was involved in the occurrence,” but she could form no opinion because she lacked 

evidence of where Scheck was standing when he fell. 

¶ 19 Pendley testified that an officer warned her about the stairs before she climbed them. She 

had to be “really careful” near the top of the stairs because the stair treads in that area were “really 

loose and rickety.” The loose planks on the stairs did not cause her to trip because she was aware 

of them and had space to avoid them. In her view, the planks and the rickety stair treads made the 

staircase “dangerous.” Pendley noted no scratch or claw marks on the handrail. 

¶ 20 Pendley testified to her observations of Scheck’s body at the scene. When she rolled him 

over, she detected the odor of an alcoholic beverage. He had lacerations on his nose and eyebrow 

area, lacerations on both hands, and contusions on the knuckles of his left hand. The wounds on 

his hands looked “fresh,” i.e., sustained that same day, and since Scheck’s family made no mention 

that he had those wounds earlier that day, Pendley concluded that they were the result of the fall. 
2020 IL App (2d) 190551-U 

6 

Later in her testimony, Pendley admitted that it was “hard to determine” if the wounds on Scheck’s 

hands were consistent with a fall down the stairs, but she knew of no other cause.

¶ 21 Pendley testified that the pathologist on the case, Marta Helenowski, determined that 

Scheck died of a cervical fracture from a fall down the stairs. Pendley opined that a fall from the 

bottom step would not have generated enough force to fracture Scheck’s neck. A fall from halfway 

up the stairs would have generated enough force, as would, possibly, even a fall from one-quarter 

of the way up the stairs. 

¶ 22 Pendley noted that Scheck’s BAC was 0.255 at the time of the autopsy. She explained that 

such a BAC “would cause significant motor sensory impairment”; one “could fall on a flat surface 

just by walking” or “could *** lose consciousness.” 

¶ 23 As to what caused Scheck to fall, Penley testified:

“Q. You don’t know what role the planks played in the fall, correct? 

A. No, [I] do not. 

Q. And you do not know what role the loose stairs played in the fall, correct? 

A. Correct.

Q. But you believe that the loose stairs and the planks and all of the other things 

that you noticed out there that you put in your report led Mr. Scheck to fall down the stairs?

*** 

A. Yes.

Q. Are you unsure of your findings? 

A. No.

Q. You know, just sometimes you’re not 100 percent certain. You know, it’s

probably more true than not. I mean, where are you on this? *** 
2020 IL App (2d) 190551-U 

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A. I am comfortable saying he was intoxicated, and he fell down the stairs. 

Q. Okay. 

A. I can’t place him on the stairs. I can’t place if he was at the very top of the stairs 

or if he was in the middle of the stairs.” 

¶ 24 Pendley reiterated later that she was “very comfortable saying that [Scheck] was 

intoxicated and he fell down the stairs.” “[O]utside of that,” she was unable to “speak to the 

mechanism of the fall or where [Scheck] was located on the stairs at the time of the fall.” She “had 

no information from any source as to how any portion of [Scheck’s] body interacted with any of 

the stairs.” She acknowledged that intoxication could have been the sole cause of Scheck’s fall. 

¶ 25 In her affidavit, Renee stated that, when she last saw Scheck on night of the accident, he 

had no injuries to either hand. 

¶ 26 In his affidavit, Rudd stated that he was the former coroner for Lake County. He had “vast 

experience analyzing bodily tissue and fluid, interpreting medical tests and observations, and 

diagnosing diseases and injuries.” He further stated: 

“4. I have had an opportunity to review the following items regarding David 

Scheck’s death and legal case: the Report of Postmortem Examination; the Coroner’s Case 

Report; the Fox Lake Police Reports; 11 color photos of the scene of the accident and of 

decedent; the affidavit of Renee Scheck; the deposition transcript of Sarah Pendley; the 

deposition transcript of Dawn Deservi; the deposition transcript of Kenneth Welsch; and 

the deposition transcript of Eric Ewald. 

5. Several factors were of particular interest to me, including but not limited to: the 

loose boards laying on the stairs; the fact that the stairs near the top of the staircase were 

reported to be rickety; the position of Mr. Scheck’s body (face down at the bottom of the 
2020 IL App (2d) 190551-U 

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stairs); the wounds on Mr. Scheck’s hands; the location of Mr. Scheck’s feet on the stairs 

and the loose boards; and the fact that Mr. Scheck’s neck was broken in the fall. 

6. The wounds on Mr. Scheck’s hands are of the type and in the locations I would 

expect to find on a person who had fallen from a great height, and was trying to catch 

himself on something as he fell. There is evidence that these wounds were not in existence 

prior to the fall.

7. It is more probably true than not that the wounds on Mr. Scheck’s hands were 

defensive wounds, created during the fall as he attempted to regain his balance and/or 

keep from falling further. 

8. Had Mr. Scheck been unconscious as he fell, he would not have sustained 

defensive wounds on his hands as demonstrated. Accordingly, it is more probably true 

than not that Mr. Scheck was conscious and alert as he fell. 

9. The force needed to break a human being’s neck is significant. That force is 

greater than would occur had Mr. Scheck simply fallen on his face at the bottom of the 

stairs. The broken neck indicates that Mr. Scheck fell from more than halfway up the 

staircase. Accordingly, it is more probably true than not that Mr. Scheck fell from a height 

of more than halfway up the staircase.

10. Based on the testimony of Kenneth Welsch, Dawn Deservi, and Sarah Pendley, 

the staircase was very steep and some of the actual steps near the top were loose, wobbly, 

and rickety. In addition, they reported that there were loose boards or planks laying on the 

staircase, as can be seen in the pictures.
2020 IL App (2d) 190551-U 

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11. The loose boards on the staircase are an obvious tripping and slipping hazard, 

and would be encountered by a person descending the stairs at a sufficient height to create 

a fall of great enough force to break a man’s neck.

12. The rickety stairs at the top of the staircase, coupled with the loose boards laying 

on the staircase, create precisely the type of fall hazard at precisely the height to produce 

the fatal injuries observed in Mr. Scheck. 

13. In summary, I give the following opinions to a reasonable degree of medical 

certainty:

a. Mr. Scheck’s fall was caused by the rickety stairs at the top of the 

staircase, the loose boards laying on the staircase, or a combination of the two; 

b. Mr. Scheck began to fall from at least as high as the point where one 

would first encounter the loose boards while descending the staircase;

c. Mr. Scheck suffered defensive wounds on his hands while falling; and 

d. Mr. Scheck was conscious and alert at the time of and during the fall.” 

¶ 27 The trial court issued a written order granting defendants’ motion for summary judgment 

but providing no rationale. The order reflects that a hearing was held on the motion, but no report 

of proceedings appears in the record. “Although our review of a summary judgment ruling is de 

novo [citation], it is our preference to have before us whatever rationale the trial court offered in 

deciding the motion for summary judgment.” In re Marriage of Dann, 2012 IL App (2d) 100343, 

¶ 3. 

¶ 28 Plaintiff filed this timely appeal.

¶ 29 II. ANALYSIS
2020 IL App (2d) 190551-U 

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¶ 30 Plaintiff argues that summary judgment was inappropriate because material questions of 

fact exist as to what caused Scheck to fall from the staircase. We disagree. 

¶ 31 We begin with the standards governing summary judgment. Summary judgment is 

appropriate only 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.” 735 ILCS 5/2-1005(c) (West 2014). The 

purpose of summary judgment is not to try a question of fact, but rather to determine whether a 

genuine issue of material fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 

(2004). In determining whether there exists a genuine issue of material fact, a court must construe 

the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in 

favor of the opponent. Id. at 43. A triable issue precluding summary judgment exists where the 

material facts are disputed, or where, the material facts being undisputed, reasonable persons might 

draw different inferences from the undisputed facts. Id. In order to survive a motion for summary 

judgment, a plaintiff need not prove her case, but she must present a factual basis that would 

arguably entitle her to judgment. Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. The use of 

the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a 

lawsuit. Adams, 211 Ill. 2d at 43. However, it is a drastic means of disposing of litigation and, 

therefore, should be allowed only when the right of the moving party is clear and free from doubt.

Id. In appeals from summary judgment rulings, our review is de novo. Id. 

¶ 32 We move to the underlying substantive standards. Plaintiff’s complaint alleges that 

dangerous conditions existed on the staircase, namely that it was in disrepair and cluttered with 

debris. At some points in her complaint, plaintiff alleges that defendants both created the 

conditions and allowed them to continue, while at other points plaintiff alleges that defendants 
2020 IL App (2d) 190551-U 

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created the conditions and/or allowed them to continue. A defendant who simply allows a 

dangerous condition on its premises to persist is subject to premises liability, but a defendant whose 

conduct gives rise to the dangerous condition is also subject to liability in negligence. See Garcia 

v. Goetz, 2018 IL App (1st) 172204, ¶ 31; Smart v. City of Chicago, 2013 IL App (1st) 120901, 

¶ 54. This distinction does not impact this appeal, however, because the sole point of contention 

is proximate cause, an element of both negligence and premises liability. See Bell v. Hutsell, 2011

IL 110724, ¶ 11 (negligence); Hope v. Hope, 398 Ill. App. 3d 216, 219 (2010) (premises liability). 

The parties argue specifically over just one of the dual aspects of proximate cause. “The term 

‘proximate cause’ embodies two distinct concepts: cause in fact and legal cause.” Turcios v. 

DeBruler Co., 2015 IL 117962, ¶ 23. “ ‘Cause in fact’ is established where there is reasonable 

certainty that the injury would not have occurred ‘but for’ the defendant’s conduct or where a 

defendant’s conduct was a ‘substantial factor’ in bringing about the harm.” Stanphill v. Ortberg, 

2018 IL 122974, ¶ 34. By contrast, legal cause involves the policy question of whether the 

defendant should be held responsible for the harm that he, in fact, caused. Id. “Legal cause,

therefore, is established only when it can be said that the injury was reasonably foreseeable.” Id. 

Here, the parties’ dispute on proximate causation is limited to whether defendants’ conduct was 

the cause in fact of Scheck’s fatal injury. 

¶ 33 An injury may have more than one cause in fact, and the defendant’s conduct need not be 

the last or nearest cause as long it is a cause. Richter v. Village of Oak Brook, 2011 IL App (2d) 

100114, ¶ 21 (citing Illinois Pattern Jury Instructions, Civil, No. 15.01 (2011)). Though proximate 

causation is ordinarily a question of fact to be resolved at trial, it may be settled as a matter of law 

by the trial court where the facts as alleged show that the plaintiff would never be entitled to 

recover. Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004). The plaintiff in a negligence 
2020 IL App (2d) 190551-U 

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or premises liability case cannot resist summary judgment by citing the fact that an accident 

occurred and resorting to speculation, surmise, or conjecture as to its cause. Kellman v. Twin 

Orchard Country Club, 202 Ill. App. 3d 968, 974 (1990). Rather, the plaintiff must present 

“positive and affirmative proof” establishing with “reasonable certainty” that the defendant’s 

conduct caused the plaintiff’s injury. Id. 

¶ 34 Causation may be proven entirely through circumstantial evidence. “That is, causation 

may be established by facts and circumstances that, in the light of ordinary experience, reasonably 

suggest that the defendant’s negligence operated to produce the injury.” Berke v. Manilow, 2016 

IL App (1st) 150397, ¶ 35. However, to support an inference of causation, 

“circumstantial evidence must show a probability of the existence of the fact to be inferred. 

[Citation.] Although the circumstantial evidence need not exclude all other possible 

inferences, it must be of such a nature and so related as to make the conclusion reached the 

more probable. [Citation.] Where from the proven facts the non-existence of the fact to 

be inferred appears to be just as probable as its existence, then the conclusion that it exists 

is a matter of speculation, surmise, and conjecture. [Citation.]” Romano v. Municipal 

Employees Annuity & Benefit Fund of Chicago, 402 Ill. App. 3d 857, 864-65 (2010). 

Thus, “a fact cannot be established by circumstantial evidence unless the circumstances are of such 

a nature and so related to each other that it is the only probable, not merely possible, conclusion 

that can be drawn therefrom.” Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 

789, 796 (1999). 

¶ 35 Cases applying the foregoing principles highlight the difficulties that a plaintiff can face in 

resisting summary judgment in a slip-and-fall case that is based entirely on circumstantial 

evidence. We discuss four representative cases: Berke, 2016 IL App (1st) 150397, Strutz v. Vicere, 
2020 IL App (2d) 190551-U 

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389 Ill. App. 3d 676 (2009), Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220 (2009), 

and Kellman, 202 Ill. App. 3d 968. In each of these cases, no witness observed the fall, but the 

plaintiff(s) attempted to attribute the fall to a defect or dangerous condition in stairs or a walking 

surface maintained by the defendant(s). The trial court granted summary judgment for the 

defendant(s) on the issue of proximate cause, and the appellate court affirmed, finding that the 

plaintiff(s) failed to establish with reasonable certainty that the condition caused the fall. See 

Berke, 2016 IL App (1st) 150397, ¶¶ 37-43; Strutz, 389 Ill. App. 3d at 680-82; Majetich, 389 Ill. 

App. 3d at 224-27; Kellman, 202 Ill. App. 3d at 974-76. 

¶ 36 In Kellman, the plaintiff sued a country club, alleging that the defective condition of a 

shower stall caused her husband, the decedent, to fall while showering. The evidence at the 

summary judgment hearing was that the decedent was helped to the shower area by Robert 

Stempel, a member of the club, after Stempel observed that the decedent was “unsteady on his 

feet,” was “reeling,” and was “us[ing] the wall to keep himself from falling.” Kellman, 202 Ill. 

App. 3d at 970. While Stempel was showering in a neighboring stall, he heard two bumps and, 

walking to the decedent’s stall, observed him lying face down, unconscious. The decedent was 

positioned such that his head and torso were on the floor of the stall’s changing area, his legs were 

on the curb that separated the changing area from the shower basin, and his feet were pointing 

down in the basin. He was naked and wet and there was soap in his hair. The water was still 

running. The decedent was found to have sustained a cervical spinal fracture. The plaintiff 

claimed that the decedent told her that he slipped in the shower. The plaintiff produced affidavits 

from medical experts who opined that the decedent was injured, and ultimately died, as a result of 

falling in the shower. The plaintiff also produced the affidavit of an engineer and safety expert 

who opined that the shower stall in which the decedent fell was unreasonably dangerous because 
2020 IL App (2d) 190551-U 

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the floor would have become slippery and dangerous when wet and soapy, and because there were 

not enough grab bars on the walls or adhesive strips on the floor. Id. at 970-72, 974-75. 

¶ 37 The appellate court “found nothing in the record from which it can be inferred that any 

alleged act or omission of defendant was the proximate cause of decedent’s injuries.” Id. at 974. 

The plaintiff had not examined the floor of the stall immediately after the incident, and, though the 

decedent had told her that he slipped, the plaintiff admitted that she did not know the cause of the 

slip or precisely where the decedent slipped. The court also noted a possible alternative cause of 

the decedent’s fall, in that he appeared unsteady on his feet prior to entering the shower stall. Thus, 

it was “reasonable to conclude that several factors may have caused decedent’s fall.” Id. at 976. 

Regarding the affidavit of the safety expert, the court commented: “The possibility that the alleged 

unreasonably dangerous shower stall and basin had caused defendant to slip and fall is insufficient 

to establish a causal relationship between defendant’s alleged negligence and decedent’s injuries.” 

(Emphasis added.) Id. at 974. The plaintiff failed to “establish with reasonable certainty that 

decedent’s injury was the proximate result of decedent’s negligence.” Id. at 976. 

¶ 38 In Majetich, the plaintiff alleged that the decedent fell due to a dangerous condition in a 

strip mall’s parking lot. The plaintiff sued the owner of the mall and the contractor who was 

repaving the parking lot at the time of the accident. The parking lot’s pavement had been removed 

but not replaced. The plaintiff alleged that there was a one-to-two foot step up from the parking 

lot to the sidewalk. The plaintiff’s 89-year-old decedent was stepping up from the parking lot 

when she fell. Immediately after the fall, the decedent told others that the curb appeared higher 

than normal and that, as she reached for a pole for support, she fell. There was evidence that, at 

the time of the accident, decedent had several medical conditions affecting her balance and vision. 

Majetich, 389 Ill. App. 3d at 221-23. The appellate court found “nothing in the record from which 
2020 IL App (2d) 190551-U 

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it can be inferred that any alleged act or omission of defendants was the proximate cause of the 

decedent’s injuries.” Id. at 227. There was “insufficient evidence to determine whether [the 

decedent] lost her balance due to one of her medical conditions, or to rule out that she tripped or 

slipped for any one of the other countless reasons that people fall.” Id. “In Illinois,” the court 

noted, “[a] proper inference cannot be based on mere conjecture or speculation as to what possibly 

happened to cause the injury.” Id. The plaintiff failed to carry her burden on causation, as she 

“can only present evidence that decedent’s injuries are possibly related to the alleged negligence 

of defendants[.]” (Emphasis added.) Id. 

¶ 39 The plaintiff in Strutz sued her landlords, alleging that her husband, the decedent, fell due 

to a dangerous condition on the back staircase in the defendant’s building. The plaintiff found the 

decedent sitting up against the wall at the bottom of the stairs. He reported to her that he “ ‘fell 

down over the railing.’ ” Strutz, 389 Ill. App. 3d at 677. The decedent later told the responding 

paramedics that he had fallen down the stairs. The plaintiff testified that the stairs were in good 

condition and that she had had no problem with them. However, she presented the affidavit of an 

architect who opined that the stairs were dangerous, and violated the city building code, because 

the treads were too small, the handrails were inadequate, and the staircase was inadequately lit. 

There was evidence that the decedent had health problems, including poor circulation in his legs; 

that he would sometimes walk backwards down the stairs; and that he told a responding paramedic 

that he was walking backwards down the stairs when he slipped and fell. Id. at 678-80. 

¶ 40 In affirming the grant of summary judgment for the defendants, the appellate court found 

that none of the evidence “addresses the issue of what caused [the decedent’s] fall.” Id. at 681. 

The violations of the building code did not in themselves establish causation. The plaintiff raised 

at most “[t]he possibility that the allegedly unreasonably dangerous staircase had caused [the 
2020 IL App (2d) 190551-U 

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decedent] to slip and fall,” and this showing was “insufficient to establish the necessary causal 

relationship between [the defendants’] alleged negligence and [the decedent’s] injuries.” 

(Emphasis added.) Id.

¶ 41 In Berke, the plaintiff fell while exiting an apartment building. He and his wife sued the 

owners and managers of the building, alleging that he fell due to design defects in the exit area. 

To exit the building, a person had to walk out an interior door “onto or over a 7 1/2-inch threshold, 

step down 2 1/4 inches onto the 10 1/2-inch landing, and then up the three stairs out through the 

exterior door.” Berke, 2016 IL App (1st) 150397, ¶ 6. The building’s doorman witnessed the 

plaintiff exit through the interior door. A short time later, the doorman heard a noise and, going 

to investigate, observed the plaintiff lying on the floor of the vestibule area between the two doors. 

His feet were several inches from the interior door. He had no memory of falling. The plaintiff 

submitted affidavits from an accident reconstructionist, an architect, and an emergency room 

physician. The reconstructionist and architect averred that the interior door onto the vestibule 

violated building codes and industry standards because the threshold was too high and the door 

closed too quickly. The physician stated that he had reviewed the plaintiff’s medical records and 

found no acute conditions that would have impacted the plaintiff’s balance on the day of the 

accident. Each affiant also expressed an opinion on causation, but the trial court struck those 

opinions as speculative. The plaintiffs relied on the following evidence as proof that the plaintiff 

fell because he tripped on the threshold or was pushed forward by the interior door: “(i) the 

expert’s affidavits, (ii) the height of the threshold, (iii) the position in which [the plaintiff] was 

found, (iv) the abrasions on [the plaintiff’s] knees and face, (v) the absence of any other reason for 
2020 IL App (2d) 190551-U 

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the fall, (vi) a prior fall in the vestibule,3 and (viii) [sic] testimony that [the plaintiff] was walking 

normally and appeared healthy on the day of the accident[.]” Id. ¶¶ 6-9, 23-29, 36. 

¶ 42 The appellate court agreed with the trial court that there was no question of material fact 

as to causation. The appellate court held that the purely circumstantial evidence on which the 

plaintiffs relied was inadequate. The court remarked that the evidence of code violations and 

departures from industry standards did not, standing alone, establish causation. The court held 

that, “[a]lthough a trier of fact could infer that [the plaintiff], who was observed to be walking at 

a rapid pace, 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.

¶ 37. 

¶ 43 In their analyses, Majetich and Kellman distinguished Wright v. Stech, 7 Ill. App. 3d 1068 

(1972), another slip-and-fall case. As in Majetich, Kellman, and the other cases we have discussed, 

the plaintiff in Wright relied entirely on circumstantial evidence. The plaintiff in Wright sued the 

owner of an apartment building for negligence after the decedent fell while descending stairs 

between floors. At the jury trial, a tenant in the building testified that the decedent left the tenant’s 

apartment and began descending the stairs. From inside her apartment, the tenant heard the 

decedent descend two or three stairs and then heard a loud thump. Looking out of her apartment, 

the tenant saw the decedent lying on the landing between the second and third floors. At the time, 

the staircase was “littered” or “covered” with debris and “was dark, the only illumination being 

provided by the skylight, which was also partially covered with debris.” Id. at 1069-70. The jury 

found in favor of the plaintiff, but the trial court directed a verdict in favor of the defendant. The 

appellate court reversed. The court cited the condition of the staircase and the fact that the decedent 

3

 The court did not elaborate on this “prior fall” or mention it further in its analysis. 
2020 IL App (2d) 190551-U 

18 

was apparently in good health on the day of the accident. The court held that “the jury could 

reasonably have concluded that the decedent fell down the stairs and that her fall was caused by 

the littered condition of the stairway and the darkness of the stairwell.” Id. at 1070. 

¶ 44 The courts in Kellman and Majetich found Wright distinguishable because there was 

evidence that the decedents in Kellman and Majetich had physical conditions impacting balance 

and coordination, and it was just as probable that the decedents fell because of these conditions 

and not because of any dangerous condition on the premises. See Majetich, 389 Ill. App. 3d at 

227; Kellman, 202 Ill. App. 3d at 975-76. 

¶ 45 As the foregoing cases illustrate, the element of causation in a negligence or premisesliability case requires “positive and affirmative proof” establishing with “reasonable certainty” 

that the defendant’s conduct caused the injury. See Kellman, 202 Ill. App. 3d at 974. Where the 

plaintiff relies on circumstantial evidence, the plaintiff must establish more than just the possibility 

that the defendant’s conduct contributed to the plaintiff’s injury. See Wiegman, 308 Ill. App. 3d 

at 796. This burden is onerous enough simply given that, as the court Majetich noted, there are 

“countless” reasons why people slip and fall (389 Ill. App. 3d at 227), and the plaintiff must 

establish, among that universe of possibilities, the greater probability that the defendant caused the 

injury. See Berke, 2016 IL App (1st) 150397, ¶ 37 (“Although a trier of fact could infer that [the 

plaintiff], who was observed to be walking at a rapid pace, 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.”); Wiegman, 308 Ill. App. 3d at 796. The task becomes 

even more difficult where there is affirmative evidence to support explanations that rival the 

plaintiff’s causation theory, such as where the decedent was walking down the stairs in an 
2020 IL App (2d) 190551-U 

19 

unorthodox manner (Stultz, 389 Ill. App. 3d at 680) or had a physical condition impacting balance 

and coordination (id.; Majetich, 389 Ill. App. 3d at 227; Kellman, 202 Ill. App. 3d at 975-76). 

¶ 46 Here, apparently, no one witnessed Scheck fall, observed him on the staircase, or heard 

any sound that may have been related to his fall. Nonetheless, there is no dispute that Scheck fell 

down the stairs and suffered fatal injuries as a result. Also not in dispute are facts relating to the 

condition of the stairs: 

(1) the stairs were dark, narrow, and extremely steep; 

(2) one or more stair treads near the top of the staircase were “rickety,” “wobbly,” or “loose, 

and there were unattached planks running halfway up along the edge of the stairs; 

(3) based on (1) and (2), the stairs were “dangerous”; and 

(4) Welsch “almost fell down” on the loose planks while descending the stairs. 

Some of these “facts” are the impressions and opinions of the police officers involved in the 

investigation of Scheck’s death, but they are nonetheless uncontested for purposes of this appeal. 

¶ 47 Also uncontested, however, are critical facts relating to Scheck’s physical condition at the 

time of the fall. He had a BAC of at least 0.255,4 and this level of intoxication (as described by 

Pendley) “would cause significant motor sensory impairment”; one “could fall on a flat surface 

just by walking” or “could *** lose consciousness.” 

¶ 48 These undisputed facts align this case with Kellman, Strutz, and Majetich, and distinguish 

it from Wright. In Kellman, Strutz, and Majetich, the court found that the decedent’s physical 

condition(s), affecting balance and coordination, made it just as likely as not that the decedent’s 

4

 For perspective, Scheck’s level of intoxication was over three times the legal limit for 

operation of a motor vehicle in Illinois. See 625 ILCS 5/11-501(a)(1) (West 2014). 
2020 IL App (2d) 190551-U 

20 

fall was unrelated to the dangerous condition of the stairs or walking surface involved. Likewise 

here, we cannot say that it is more likely that Scheck fell because of the condition of the staircase

than because of some unrelated reason, particularly his gross inebriation. 

¶ 49 Our conclusion is not changed by the opinions of Pendley and Rudd as to causation. 

Pendley’s opinion evolved under examination. She began by testifying that she did not know what 

role the rickety stairs and loose planks played in Scheck’s fall. She then claimed that those 

conditions “led” to Scheck’s fall. When pressed, she offered the less committal assessment that 

Scheck “was intoxicated, and he fell down the stairs.” She could say nothing “outside of that,” 

i.e., nothing about the mechanics of the fall. She also later acknowledged that intoxication could 

have been the sole cause of Scheck’s fall. 

¶ 50 Our discussion of Rudd’s affidavit must begin with its most glaring deficiency: his failure 

to discuss Scheck’s BAC and its likely effects. Rudd might have been addressing the BAC tacitly 

when he opined that Scheck must have been “conscious and alert as he fell” because he had 

defensive wounds on his hands. This opinion begged the question of whether Scheck could have 

been “conscious and alert” yet had his balance and coordination so compromised by intoxication 

that he could have fallen even on a flat surface. If Rudd did not regard this as a physiological 

possibility, he should have explained why. 

¶ 51 Notably, while Rudd was convinced that Scheck did not fall of his own accord, Rudd could 

not decide which of the hazards on the staircase was the cause. He hedged, suggesting that Scheck 

fell from one or a combination of hazards, i.e., if the rickety treads at the top did not unbalance 

Scheck—or did not unbalance him enough—then the loose planks would have sent him falling. 

Rudd’s opinion leaves open the possibility that Scheck safely cleared the rickety treads only to 
2020 IL App (2d) 190551-U 

21 

slip, because of his extreme intoxication, on one of the hazard-free treads that the record suggests 

existed between the rickety treads and those treads on which the loose planks lay. 

¶ 52 There is yet another possibility: Scheck fell from the platform of the staircase before 

setting foot on any of the treads. Notably, though Rudd identified a minimum height—halfway 

up the ladder—from which Scheck must have fallen, he did not assert that Scheck must have had 

his feet on the treads themselves when he fell. Scheck’s intoxication might have caused him to 

stumble as he approached the stairs—or to forget that there even were stairs as he stepped off the 

platform.

5

 In either case, he could have been sent headlong down the staircase and ended up in 

the position in which he was found. We are conjecturing, admittedly—but the undisputed facts 

permit nothing more definitive. None of the foregoing theories, including plaintiff’s, is more likely 

than the others, and this is fatal to a circumstantial case, which cannot be based on speculation. 

¶ 53 Wright is distinguishable here for the same reason it was found distinguishable by the 

courts in Kellman and Majetich: the decedent in Wright was in good health at the time of her fall 

(7 Ill. App. 3d at 1070), but here Scheck’s level of intoxication provided an explanation for his 

fall that was as viable as plaintiff’s theory of causation.

¶ 54 Plaintiff relies on Radtke v. Schal-Bovis, 328 Ill. App. 3d 51 (2002), and Block v. Lohan 

Associates, 269 Ill. App. 3d 745 (1993). In Block, the wife of a disabled construction worker, 

Block, sued several parties involved in a construction project. The plaintiff alleged that Block fell 

5 We say “forget” because we presume that Scheck was descending the stairs because he 

had previously ascended them. The record shows no other means by which Scheck reached the 

upper level outside the building. It is not clear why Scheck went up the stairs to begin with, but 

most likely he had forgotten, in his intoxication, how to return to the bar. 
2020 IL App (2d) 190551-U 

22 

off a ladder due to the negligence of a crane operator who was maneuvering the whip line of the 

crane over to Block while he stood on a ladder waiting to attach a boatswain’s chair to the line. 

The plaintiff alleged specifically that the crane operator lowered the line “ ‘in the blind,’’ without 

some form of communication from Block, and that the hook and ball attached to the line struck 

Block or otherwise caused him to fall from the ladder. The defendants, noting that no witness 

observed Block fall from the ladder, moved for summary judgment on the issue of proximate 

cause. The trial court agreed with the defendants and granted them summary judgment as to 

causation. The appellate court reversed because, though no witness saw Block fall from the ladder, 

the “pre-occurrence and post-occurrence witnesses” provided circumstantial evidence of 

proximate cause. These witnesses saw Block on the ladder, saw the crane operator lower the line 

in Block’s direction, heard Block say “ ‘ “Hold it,’ ” and then heard a thump and observed Block 

on the ground. In addition, an accident reconstruction expert testified in support of the plaintiff’s 

theory. The appellate court held that this evidence raised a material question of fact as to causation. 

Id. at 751-54, 757. 

¶ 55 In Radtke, the plaintiff fell while traversing a scaffold on a construction project. She sued 

the general contractor on the project. Her theory was that she fell because she tripped on the handle 

of a jack that was used to raise the scaffold, and that the general contractor was negligent for 

leaving the handle lying across the surface of the scaffold rather than in an upright position. Two

of the plaintiff’s coworkers testified that they saw the plaintiff fall but did not see what caused the 

fall. However, both coworkers saw a jack handle lying across the surface of the scaffold near 

where the plaintiff fell. Immediately after the accident, the plaintiff told one of the coworkers that 

she tripped on a jack handle. The other coworker observed no overlapping planking in the area

that might have caused the fall. Both coworkers believed that the jack handle was the only 
2020 IL App (2d) 190551-U 

23 

explanation for the fall. The plaintiff testified that she had no recollection of what caused her fall, 

but she believed a jack handle was responsible because this was what eyewitnesses reported, and 

these reports were consistent with a red mark that the plaintiff had on her foot following the 

accident. The plaintiff and the two coworkers also testified that there was a recurring problem on 

the jobsite with jack handles left lying across the walking surface of the scaffold. Radtke, 328 Ill. 

App. 3d at 52-54. 

¶ 56 The trial court granted summary judgment for the general contractor, but the appellate court 

reversed. The court relied on Block, finding as much, if not more, circumstantial evidence to 

support the plaintiff’s case than was presented in Block. Id. at 56-57. 

¶ 57 Radtke and Block are distinguishable. In each case, observations contemporaneous with 

the accident supported the inference that the defendant’s conduct was the cause. Here, by contrast,

there were no observations contemporaneous with Scheck’s fall. Another significant difference is 

that neither in Radtke nor Block was there evidence of an equally probable cause for the injury that 

did not involve the defendant’s conduct. Here, Scheck’s intoxication furnished just such an 

alternative cause. Rudd’s opinion was flawed because he did not address the possibility that 

Scheck, though “conscious and alert” at the time, was so intoxicated that his fall had nothing to do 

with the condition of the stairs. 

¶ 58 Finally, plaintiff asserts that defendants have raised, for purposes of summary judgment, 

the issue of contributory negligence premised on Scheck’s intoxication. This was improper, 

plaintiff claims, because defendants did not plead contributory negligence as an affirmative 

defense. Plaintiff is mistaken; defendants Fifty K and KRA indeed did plead the affirmative 

defense of contributory negligence based on Scheck’s intoxication (Otway, for his part, did not 

answer the complaint before moving for summary judgment). Regardless, defendants’ argument 
2020 IL App (2d) 190551-U 

24 

for purposes of summary judgment is not based on the doctrine of contributory negligence, or more 

precisely, comparative fault. If it were, defendants would have to demonstrate that plaintiff’s fault 

was more than 50% of the cause of injury in order to defeat plaintiff’s claim. See Gillespie 

Community Unit School District No. 7, Macoupin County v. Union Pacific RR. Co., 2015 IL App 

(4th) 140877, ¶ 197; 735 ILCS 5/2-1116 (West 2014). Instead, defendants’ argument is that their 

conduct was not a proximate cause of plaintiff’s injury, thus negating any question of comparative 

fault. See Strutz, 389 Ill. App. 3d at 682 (distinguishing, for purposes of summary judgment, 

between contributory negligence barring a plaintiff’s recovery and lack of evidence of proximate 

cause).

¶ 59 We recognize that summary judgment should be granted only when the movant’s right to 

that remedy is clear and free from doubt. See Adams, 211 Ill. 2d at 43. Here, defendants 

established their right as it is clear that plaintiff has not presented “positive and affirmative proof” 

establishing with “reasonable certainty” that the defendants’ conduct caused Scheck’s fatal injury. 

Kellman, 202 Ill. App. 3d at 974. Thus, we affirm the grant of summary judgment. 

¶ 60 III. CONCLUSION 

¶ 61 For the foregoing reasons, we affirm the judgment of the circuit court of Lake County. 

¶ 62 Affirmed.