author: JUSTICE HOFFMAN

text:
    TONY STAFFORD, as Special Adm’r of the Estates of Willie Tabb et al., Deceased, Plaintiff-Appellant, v. HOWARD BORDEN et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—92—0812
    Opinion filed March 25, 1993.

      Paul Armstrong, of Chicago, for appellant.
    Stern & Rotheiser, of Chicago (Robert D. Shearer, Jr., of counsel), for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court;

On March 21, 1986, plaintiff, in his representative capacity, filed the instant action seeking recovery by reason of the deaths of the four decedents on December 7, 1985. The case proceeded to trial before a jury, and defendants, Howard Borden (Borden) and Booth & Gray Shell (Booth), moved for a directed verdict. The trial court granted the motion and entered judgment in favor of defendants, and plaintiff now appeals.

Plaintiff’s decedents were killed on December 7, 1985, when the apartment building in which they lived, at 1475 E. 70th Street in Cook County, was the object of an arson fire. The fire was set by Harvey Julian Allen (Allen).

Allen had purchased a small quantity of gasoline from Borden, an attendant at a gasoline station operated by Booth at 7300 S. Stony Island Avenue in Chicago. At the time of the purchase, Allen placed the gasoline in a pint-size insecticide can that was red and black in color. Although Allen pumped the gas himself, Borden was aware that Allen had put the gas into the insecticide can. Allen told Borden that he had run out of gas nearby and needed only a small amount to start his vehicle and drive it to the gas station. After purchasing the gas, Allen went to the apartment building at 1475 E. 70th Street and set the fire that led to the deaths of the plaintiff’s decedents.

The case against Borden and Booth proceeded to trial upon the allegations contained in count III of plaintiff’s third amended complaint. Count III was an action for negligence-based wrongful death and charged that Borden and Booth committed the following negligent acts or omissions:

“(a) sold and dispensed gasoline to Harvey Allen in violation of the Statutes and Rules cited above;
(b) sold gasoline under circumstances which allowed said Harvey Allen to disguise the nature of the contents of his ‘Black Flag’ insecticide can;
(c) failed to ascertain the use for which Harvey Allen wished to obtain gasoline in a ‘Black Flag’ insecticide can;
(d) failed to properly instruct Howard Borden as to the safety rules for dispensing motor fuels.”

The “Statutes and Rules” to which paragraph (a) above referred included section 1 of “An Act prescribing the color and label for gasoline or benzol receptacles” (Ill. Rev. Stat. 1983, ch. 1271/2, par. 151) (hereinafter the Gasoline Receptacle Labeling Act), and section 1 of “An Act to regulate the storage, transportation, sale and use of gasoline and volatile oils” (111. Rev. Stat. 1983, ch. 1271/2, par. 153) (hereinafter the Gasoline Storage Act). Section 1 of the Gasoline Receptacle Labeling Act, as in effect at the time of the alleged occurrence in this case, provided as follows:

“All receptacles for gasoline or benzol used in the retail trade, except tank wagons or trucks, shall be red and shall be labeled ‘gasoline’ or ‘benzol’ as the case may be *** and it shall be unlawful in such retail trade or anything pertaining thereto to put gasoline or benzol into any receptacle of any other color than red and not labeled as above required.” (Ill. Rev. Stat. 1983, ch. 127x/2, par. 151.)

Section 1 of the Gasoline Storage Act provided as follows:

“It shall be unlawful for any person, firm, association or corporation to keep, store, transport, sell or use any crude petroleum, benzine, benzol, gasoline, naphtha, either [sic] or other like volatile combustibles, or other compounds, in such manner or under such circumstances as will jeopardize life or property.” (111. Rev. Stat. 1983, ch. 1271/2, par. 153.)

The complaint also relied upon regulations governing such storage which were promulgated by the State Fire Marshal. The first provided in pertinent part as follows:

“No motor fuels shall be dispensed at any service station except directly into the fuel tanks of motor vehicles *** provided, however, that individual sales up to twelve (12) gallons may be made in metal or approved containers as defined in Section 170.150 (d)(7)(G), (H), and (I) when painted or colored red and labeled in full conformity with ‘An Act prescribing the color and label for gasoline or benzol receptacles,’ Illinois Red Can Gasoline Law, (Ill. Rev. Stat. 1983, ch. 127V2, para. 151-152) ***.” (41 Ill. Adm. Code §170.15 (1991).)

The second regulation provided, in relevant part:

“The following rules shall be followed at all self-service stations ***:
(7) It shall be the responsibility of the attendant:
A) To carefully observe the dispensing of Class I liquids into portable containers,
F) To refuse service to any customer who appears to lack the ability to properly and safely utilize the equipment (e.g. intoxication), inability to place the nozzle in the gas tank receptacle, inability to follow written or oral instructions of the attendant, and whether [sic] the person is too young to be aware of the hazards and safe dispensing of motor vehicle fuels,
G) Inspect all portable containers for conformance to Illinois Statutes and these rules.
i) All portable containers for gasoline or benzol used in the retail trade shall be red and shall be labeled ‘gasoline’ or ‘benzol’ as the case may be, in letters of a height of not less than one-half inch, and it shall be unlawful in such retail trade, or anything pertaining thereto to put gasoline or benzol into portable containers of any other color than red and not labeled as required by these rules or to use portable containers not complying with these rules.
* * *
(14) All attendants and other employees of the service station shall be instructed in *** safety regulations for the dispensing of motor fuels ***.” 41 Ill. Adm. Code §170.150(d) (1991).

At the close of plaintiff’s evidence, Borden and Booth moved for a directed verdict, which was granted by the trial court. On appeal, plaintiff maintains that the motion was improperly granted because Borden’s violation of the above statute constituted prima facie evidence of negligence.

A motion for directed verdict should be granted only where all of the evidence, when viewed in the light most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Initially, we note that there is no evidence in the record suggesting that the manner in which Allen dispensed the gasoline into the insecticide can had anything whatever to do with the fire that took the lives of plaintiff’s decedents. It is also clear from the record that, despite plaintiff’s allegations to the contrary, Allen informed Borden that Allen was obtaining the gasoline to start a stalled vehicle. There is nothing in this record to support the conclusion that Borden knew or should have suspected that Allen intended to use the gas for any purpose other than that which he articulated. Thus, the only question for our analysis is whether the violation of statutes and regulations restricting the physical characteristics of containers into which gasoline may be dispensed can support a verdict under the circumstances of this case.

The violation of a statute or regulation designed for the protection of human life or property is generally prima facie evidence of negligence (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323; N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629), provided certain conditions exist. Namely, a plaintiff must prove that the statute was designed to protect a class of persons to which he belongs from the type of injury he suffered. (Barthel v. Illinois Central, 74 Ill. 2d at 220.) Additionally, the plaintiff must establish that the statutory violation was the proximate cause of his injury. (Batteast v. Wyeth Laboratories, Inc. (1990), 137 Ill. 2d 175, 194, 560 N.E.2d 315.) The determination of whether these conditions have been satisfied is a question of law. Batteast v. Wyeth, 137 Ill. 2d at 194.

In the instant case, there is no dispute that Borden violated the Gasoline Receptacle Labeling Act, the Gasoline Storage Act, and the regulations of the State Fire Marshal when he sold gasoline to Allen in a receptacle other than an approved one. The requirement that gasoline be sold only in an approved container, however, bears no relationship to the prevention of arson. Rather, the purpose behind the statutes and rules at issue in this case is to facilitate the safe transport and storage of certain highly flammable and dangerous liquids. Unquestionably, the protection of human life and property is inherent in this purpose; however, the specific dangers these rules address are those attending the possible leakage of flammable liquids from their containers, or the potential for disaster if persons inadvertently come in contact with such liquids unaware of their nature. (See Morales v. City of New York (1988), 70 N.Y.2d 981, 521 N.E.2d 425, 526 N.Y.S.2d 418.) There is nothing in the language of the statutes or the rules promulgated by the fire marshal that indicates that the prevention of arson was the intent behind their enactment.

Apart from the fact that Borden sold the gasoline to Allen in an improper receptacle, there is no evidence in this record that the sale was made under circumstances that would jeopardize life or property. Nothing in the record of this case indicates that Borden should have had any reason to suspect that Allen was purchasing the gasoline for a purpose other than the one he articulated. Finally, in the absence of any evidence that anyone saw Allen enter the apartment building with the insecticide can containing gas, it is pure speculation on plaintiffs part that, had the gasoline been in a properly labeled and approved container, Allen’s access to the building would have been impeded. Verdicts cannot be based upon surmise, speculation or conjecture. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.

For the reasons stated above, we are of the belief that the trial court properly directed a verdict in favor of Borden and Booth.

Judgment affirmed.

JIGANTI, P.J., and CAHILL, J., concur.

       The enactment of section 1 upon which plaintiff relied in his complaint (see Ill. Rev. Stat. 1985, ch. 127V2, par. 151) was not yet in effect at the time of the occurrence in this case. The differences between the language of that enactment and the correct one, however, are immaterial to this case and did not affect the outcome herein.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    MARILYN LEAVITT, Special Adm’r of the Estate of Burton Schwartz, Deceased, Plaintiff-Appellant, v. FARWELL TOWER LIMITED PARTNERSHIP et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—1582
    Opinion filed June 21, 1993.
    Rehearing denied September 14, 1993.

      Jeffrey M. Goldberg & Associates, Ltd., of Chicago (Jeffrey M. Goldberg and Stephen D. Blandin, of counsel), for appellant.
    Cassiday, Schade & door, of Chicago (Timothy J. Ashe, Lynn D. Dowd, and Patricia J. Hogan, of counsel), for appellee Gallaher & Speck.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Perry W. Hoag, and Lloyd E. Williams, Jr., of counsel), for other appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Marilyn Leavitt, special administrator of the estate of Burton Schwartz, appeals an order of the circuit court of Cook County granting summary judgment to defendants Farwell Tower Limited Partnership (Farwell), David E. Friedman, William F. Fallmer, Barbara Fallmer (the Farwell defendants) and Gallaher & Speck. For the following reasons, we affirm.

The record on appeal indicates the following facts. Plaintiff filed a wrongful death action against the defendants named above. Plaintiff alleged that her cousin, Burton Schwartz, was a tenant who resided in apartment 312 of a building located at 2115 West Farwell in Chicago, Illinois. It is alleged that Farwell, Friedman, and the Fallmers were the owners or had legal interests in this building. Gallaher & Speck allegedly contracted with the owners of the building for the maintenance and repair of the building’s elevator. Plaintiff claimed that the owners were negligent in maintaining and repairing the elevator. Plaintiff claimed that Gallaher & Speck was similarly negligent and also negligent in specific technical areas that are discussed below, where necessary. Plaintiff claims that defendants’ negligence caused Schwartz’s death.

Defendants eventually moved for summary judgment; a number of depositions were taken relating to these motions. These depositions indicate that on September 9, 1987, Schwartz was found dead in the sole elevator shaft of the building at 2115 West Farwell. The building is five stories tall.

Ann Abrams, another tenant of the building, stated in her deposition that on the date at issue, she saw Schwartz in the front vestibule of the building at approximately 11 a.m. According to Abrams, Schwartz had a license plate and was exiting the building to put the plate on his car. Schwartz was wearing a white tee shirt and shorts or slacks. Abrams went up to her apartment on the second floor. At approximately 11:10 a.m., Abrams answered a knock at her door from her neighbor, Joyce Rosee. The two women went out into the hallway. Abrams observed that the elevator hoistway doors were open. When Abrams looked upward, she could see the bottom of the elevator cab about six inches above the top of the hoistway. Abrams ran scotch tape across the doorway. Abrams then noticed a package of mail addressed to Schwartz on the floor near the elevator door. Abrams called the building office and spoke with the maintenance man, who arrived shortly thereafter.

Joyce Rosee’s deposition corroborated much of Abrams’ deposition. However, according to Rosee, she first discovered the open elevator door after finishing lunch at approximately 12:15 p.m. Rosee looked into the dark shaft and then knocked on Abrams’ door.

Donald Hurley, an elevator repairman from Gallaher & Speck, stated in his deposition that on the date in question, he arrived at the building to repair leaky packing in the elevator pit. When he arrived, Hurley noticed an “Elevator Out of Order” sign on the first-floor elevator door. Hurley opened the door with the required special key or tool. Hurley saw the elevator cab stopped between the second and third floors. Hurley then saw Schwartz's body in the pit of the elevator. Hurley indicated that the bottom of the pit of the elevator shaft is roughly four feet from the first-floor landing. The body was wrapped around a spring; the travelling power cable had been pulled from underneath the elevator cab and was entangled around the body. The body was clad in pajamas. Hurley inspected the elevator on September 10,1987, accompanied by Henry King.

Henry King, a 50% owner of Gallaher & Speck, stated in his deposition that he had experience as an elevator mechanic. Both Hurley and King indicated in their depositions that the elevator cab was stuck due to a physical obstruction between the vanes in the hoistway and the cam that sat on top of the elevator cab. King indicated that on September 9, 1987, none of the hoistway doors had spirators, which are automatic door closure devices. King indicated he had not recommended installing spirators prior to that date. According to King, the City of Chicago later required the installation of spirators.

Plaintiff also submitted the affidavit of elevator mechanic Russell G. Kramer. The affidavit indicated that from 1983 to 1988, it was the custom and practice of elevator repair and maintenance personnel to install or recommend the installation of spirators for elevators that did not have automatic door closure devices. The affidavit indicated the failure to install or recommend installation of spirators was a deviation from safe practice.

On February 26, 1991, following a hearing, the trial court granted summary judgment in favor of all defendants except Gallaher & Speck. Plaintiff filed a motion to reconsider this ruling. On April 23, 1991, the trial court denied plaintiff’s motion to reconsider and also granted summary judgment in favor of Gallaher & Speck. Plaintiff now appeals.

I

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) If the papers submitted would constitute all the evidence before a court and would require the court to direct a verdict, summary judgment should be entered. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308.) Thus, summary judgment should be entered for defendants where all the evidence, when viewed most favorably toward plaintiff, so overwhelmingly favors defendants that no contrary verdict could ever stand. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

II

Plaintiff brings her claim under the Wrongful Death Act (111. Rev. Stat. 1987, ch. 70, par. 1 et seq.) (Act). In order to maintain a claim under the Act, plaintiff must demonstrate: (1) defendant owed a duty to decedent; (2) defendant breached that duty; (3) the breach of duty proximately caused decedent’s death; and pecuniary damages arising therefrom to persons designated under the Act. (See Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 65, 509 N.E.2d 692, 695.) If plaintiff fails to establish one of these elements from the papers on file, summary judgment for defendants is proper. (See Pyne, 129 Ill. 2d at 358, 543 N.E.2d at 1307.) The questions raised on appeal relate to elements of duty and causation. We address each question in turn.

A

Defendants claim that plaintiff failed to show that they owed a duty to decedent. Plaintiff argues that defendants have waived the argument because they failed to raise it below. Although the trial court granted defendants’ motions on the proximate cause issue, the record indicates that the issue of duty was raised in the memoranda submitted in support of and in opposition to summary judgment. This court may affirm summary judgment for any reason that properly appears in the record, regardless of whether that reason is the reason relied upon by the trial court. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 418, 513 N.E.2d 506, 513.) Consequently, this court may consider the issue on appeal.

Gallaher & Speck, which maintained the elevator at issue, was legally required to exercise that degree of care that an ordinarily prudent elevator maintenance business would exercise under the same or similar circumstances. (Jardine v. Rubloff (1978), 73 Ill. 2d 31, 41, 382 N.E.2d 232, 236.) For example, Gallaher & Speck may be charged with the duty to take reasonable steps to discover problems with an elevator and the duty to take reasonable steps to correct any problem so discovered. See Davlan v. Otis Elevator Co. (7th Cir. 1987), 816 F.2d 287, 291.

Gallaher & Speck argues that none of the prior problems with the elevator at issue involved the door closure devices and therefore Gallaher & Speck had no prior knowledge of any problem with the door closure devices. However, plaintiff introduced the affidavit of an elevator mechanic that it was the custom and practice of elevator maintenance personnel to install or recommend the installation of spirators and that failure to do so was a deviation from accepted safe practice. The record indicates that Gallaher & Speck did not recommend the installation of spirators before the events at issue here occurred. Thus, plaintiff raised a question of material fact as to whether Gallaher & Speck breached a duty to decedent to recommend or install spirators in this case.

There is a question as to which standard of care is applicable to the Farwell defendants. Plaintiff contends that the Farwell defendants, as owner-operators of the building and its elevator, are viewed as common carriers and have a nondelegable duty to exercise the highest degree of care to the elevator passengers. (See Jardine, 73 Ill. 2d at 41, 382 N.E.2d at 236.) The Farwell defendants argued in the trial court that decedent was not a passenger of the elevator, given the nature of the death. This argument is supported by this court’s decision in Kaminsky v. Arthur Rubloff & Co. (1966), 72 Ill. App. 2d 68, 79-80, 218 N.E.2d 860, 865. Nevertheless, the Farwell defendants, as landlords of the building, owe a duty to tenants such as decedent to exercise reasonable care in maintaining common areas controlled by the landlord. E.g., Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 485, 448 N.E.2d 1042, 1045.

The Farwell defendants contend that plaintiff’s expert’s affidavit indicated that from 1982 to 1988, the Chicago Building Code adopted a requirement from the National Elevator Code of the American National Standards Institute (ANSI) that landing door closure devices be installed, but omitted any reference to a “grandfather clause” in the Chicago Building Code that exempted the elevator at issue from the door closure device regulation.

Violation of an ordinance or regulation designed to protect the public may be prima facie evidence of negligence. (E.g., Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 209, 462 N.E.2d 753, 756.) However, this court has indicated that the existence of a grandfather clause in a building code supports the dismissal of a negligence suit based on violation of that code. See Beese v. National Bank (1980), 82 Ill. App. 3d 932, 933-34, 403 N.E.2d 595, 596.

Plaintiff notes, however, that she need not use the Chicago Building Code itself to establish defendants’ duty. Regardless of the extent of their incorporation into the Chicago Building Code, if relevant, the ANSI standards could be used as evidence of the custom or practice within an industry. (See Ruffiner v. Material Service Corp. (1987), 116 Ill. 2d 53, 58, 506 N.E.2d 581, 584; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 125, 273 N.E.2d 809, 812-13.) It thus appears that plaintiff raised a question of material fact as to whether the Farwell defendants breached a duty they owed decedent to install spirators.

Unlike Gallaher & Speck, the Farwell defendants have not argued that they had no prior knowledge of the need for spirators. Although this failure to raise the point may constitute waiver on appeal, the point must be considered to properly determine the issue of duty.

The Farwell defendants could have claimed that they lacked this knowledge and relied on the expertise of Gallaher & Speck to make proper recommendations as to the need for spirators. The record indicates that Friedman suggested as much in his deposition. The record suggests that Gallaher & Speck was an independent contractor; generally, a landowner is not responsible for the negligence of an independent contractor. (See, e.g., DiMaggio v. Crossings Homeowners Association (1991), 219 Ill. App. 3d 1084, 1089, 580 N.E.2d 615, 618.) However, there is an exception to this general rule in the landlord-tenant context when the landlord retains control of the area where the contractor worked. (Glickauf v. Maurer (1874), 75 Ill. 289; W. Prosser, Torts §63, at 411 (4th ed. 1971).) Consequently, the Farwell defendants cannot argue that they delegated their duty to exercise reasonable care in the maintenance of the elevator to Gallaher & Speck.

In sum, it would appear that plaintiff is able to show that defendants owed a duty of reasonable care to decedent, given the record on appeal.

B

As plaintiff notes, however, the trial court granted summary judgment to defendants upon the issue of causation. Plaintiff may establish a genuine issue of material fact regarding causation with circumstantial evidence when an inference may be reasonably drawn therefrom, but damages cannot be awarded on the basis of conjecture, guess or speculation as to what caused decedent’s death. (Tarulis v. Prassas (1992), 236 Ill. App. 3d 56, 603 N.E.2d 13; Kellman v. Twin Orchard Country Club (1990), 202 Ill. App. 3d 968, 974, 560 N.E.2d 888, 892; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 331.) The circumstances must justify an inference of probability, as opposed to possibility. See Geelan v. City Of Kankakee (1992), 239 Ill. App. 3d 528, 530-31, 605 N.E.2d 1015, 1017.

In this case, the record indicates that shortly after leaving the building to put a license plate on his car, wearing a white tee shirt and shorts or slacks, decedent was found at the bottom of an elevator shaft, clad in his pajamas. Other tenants indicated that the hoistway door on the second floor was standing open at this time. The elevator cab was stuck between the second and third floors. Abrams noticed mail addressed to the name of “Schwartz” stacked near the elevator door on the second floor. The record also indicates that there was only a four-foot drop from the first-floor landing to the pit of the elevator shaft.

Plaintiff argues that it is reasonable to infer from this record that decedent entered the shaft at the second-floor landing in the mistaken belief that the elevator was present, due to the lack of spirators on the hoistway doors. Indeed, plaintiff suggests this is the most probable scenario. Defendants contend that plaintiff’s scenario is speculative. Defendants argue that decedent may have jumped into the elevator shaft, slipped into the elevator shaft, fallen while reaching into the shaft in an attempt to fix the elevator himself, run into the shaft or forced open the doors himself. Defendants maintain that there is no reasonable basis for selecting any of these scenarios as the most probable.

It is apparent that all of the above scenarios rely on a chain of inferences. Although there is no rule against basing an inference upon another inference, at some point, the probative value of such inferences becomes so weak that they should not be permitted. (See Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 637, 360 N.E.2d 1324, 1329.) Ultimately, the existence of a fact cannot be inferred when a contrary fact could be inferred with equal certainty from the same evidence. (See, e.g., Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 143, 527 N.E.2d 414, 421.) In this case, even if a trier of fact could reasonably infer from the circumstantial evidence presented here that decedent entered the elevator shaft at the second-floor landing, it is no more likely on this record that the lack of spirators caused decedent’s death than it is that they did not cause the death. The trial court, in its discretion, concluded that a trier of fact would be required to speculate on this latter point.

In her reply brief, plaintiff admits that the absence of eyewitness testimony in this case makes any determination of causation “difficult,” but attempts to dismiss the other possible scenarios by stating that she

“is not asserting that the Defendant’s [sic] were negligent by causing Burton Schwartz to slip and/or trip into the elevator shaft. Instead, Defendant’s [sic] were negligent in their failure to prevent the condition that allowed for the opening in the shaft.”

Asserting a difference between a condition and a cause does not aid plaintiff. In Carr v. Lee J. Behl Hotel Corp. (1944), 321 Ill. App. 432, 53 N.E.2d 295, the plaintiff slipped on an icy spot in an alley and fell against an unsecured door to defendant’s building which gave way such that plaintiff tumbled down a flight of stairs inside the building. This court held that the slipping was the proximate cause and the door a mere condition of the injury. In this case, given slipping as a possible scenario, the result could be similar.

In sum, we cannot conclude that the trial court abused its discretion in granting summary judgment to defendants, given the facts and circumstances (or lack thereof) in this case.

Ill

Finally, plaintiff contends that the trial court misapplied Gatlin v. Ruder (1990), 137 Ill. 2d 284, 294, 560 N.E.2d 586, 590, in which our supreme court indicated that a trial court cannot weigh a witness’ deposition with a subsequent affidavit of that witness to determine proximate causation and grant summary judgment. However, in this case, there is no evidence of the cause in fact of decedent’s death, leaving only speculation, guess and conjecture. There was no evidence to (improperly) weigh.

Plaintiff also implies that the Pedrick standard does not apply to summary judgment proceedings. However, the above-cited Pyne decision indicates that the Pedrick standard is appropriate where the evidence submitted is all that would be submitted at trial. In this case, the transcript indicates that plaintiff’s counsel indicated that there would be no eyewitnesses produced in this case. Thus, the Pedrick standard was appropriate here.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE MANNING

text:
    BESSIE MAE HUMBERT, Adm’r of the Estate of Marvin Humbert, Deceased, Plaintiff-Appellant, v. PALUMBO EXCAVATING COMPANY, INC., Defendant-Appellee (Becor-Western, Inc., Third-Party Plaintiff; Leininger Mid-States Paving Company, Inc., Third-Party Defendant).
    First District (1st Division)
    No. 1—91—3888
    Opinion filed April 12, 1993.
    Rehearing denied November 17, 1993.

      Bruce A. Dickman, Robert Carrillo, and Edward T. Graney, all of Chicago, for appellant.
    Landau, Omahana & Kopka, Ltd., of Chicago (Jeffrey S. Herden, Timothy M. Palumbo, and Gene A. Pinkus, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal by plaintiff, as administrator of the estate of decedent, from a judgment of the trial court granting summary judgment in favor of defendant. Plaintiff brought a four-count complaint against defendant Palumbo Excavating Company seeking to recover damages for the death of decedent, Marvin Lamont Humbert. Plaintiff’s complaint alleged specific acts of negligence and violation of the Illinois Structural Work Act (HI. Rev. Stat. 1987, ch. 48, pars. 60 through 69). Summary judgment was granted in favor of defendant as to the Structural Work Act claim, and after plaintiff’s unsuccessful motion for reconsideration, this appeal followed.

The record reveals that on June 21, 1986, decedent was employed by Leininger Mid-State Paving Company to work on a construction job on the 1-290 expressway project in Chicago, Illinois. Decedent worked with Filippo Sgaramella and Daryl Turner on the project. Sgaramella testified in deposition that on the day of the incident he was assigned the task of taking the boom apart and enlisted Turner and decedent to furnish the tools to help him. He stated that decedent’s responsibility was also to drive the crane in order that it be moved to the set-up site to be dismantled for transport. Sgaramella and decedent drove the crane about one-half mile to the crushing site.

Sgaramella testified in deposition that once at the site he directed decedent to park the crane, then Sgaramella lowered the boom to the ground to begin work on it. Sgaramella stated that it was necessary to use a “cherry picker” to pick up and hold the boom so that it could be dismantled. He left to get a “cherry picker,” and he testified that before leaving, he instructed decedent and Turner not to touch the crane. Sgaramella stated that decedent wanted to take the boom apart by removing the cotter pins from the middle of the boom section, and he told Sgaramella that he had dismantled the boom on a prior occasion.

Sgaramella explained that in order to remove the entire boom, it had to be lowered on a trailer. The procedure is required to be done by an operator. When only a section of the boom is to be removed or added to lengthen or shorten the boom, it is placed on wooden blocks or machines are used to hold the boom in place. Sgaramella stated that on the day of the incident a section of the boom was being removed to shorten the boom. He explained that the procedure used to remove the boom required that the middle section of the boom’s three component parts be detached by removing the cotter keys and pins that hold it in place. This is done after first using the “cherry picker” and chains to secure the middle section from collapsing. The next step would be to remove the four pins and cotter keys that hold the boom parts together.

Sgaramella stated that after he returned with the “cherry picker,” decedent was crushed under the boom in a sitting position. He testified that he did not see the accident happen, but explained that the accident would not have occurred had the boom been secured with the “cherry picker.” Sgaramella stated that the pins which hold the boom sections together are located at eye level, about five feet high, and that a person would have to stand on the ground in order to take pins out of the boom. He explained that the normal procedure in removing the boom is that the cotter pin or key is removed and the regular pin is removed afterwards. Sgaramella stated that one cannot be under the boom and take the pins out because it would collapse if not first secured.

Joseph Palumbo, president of defendant company, testified in deposition that decedent was familiar with the assembly and disassembly of the crane. He explained that he and decedent had worked on numerous road construction projects. He stated that the project that they worked on in June 1986 was the 1-290 project. Palumbo testified that the accident occurred at the crushing site, a location where asphalt was crushed for use in the road project, and also where equipment and concrete were stored. Palumbo testified that the construction project area and the crushing site were geographically adjacent so one could walk from one location to the other.

Palumbo testified that the correct procedure to remove the middle section of the boom is to remove the top pins first and then the bottom pins. Palumbo stated that the crane used on the 1-290 project was ordered to be disassembled in order to be transported to another jobsite. He testified that there were two pins for the top and two pins for the bottom of the crane, and that after the accident, he saw that both of the bottom pins had been removed and both of the top pins were still in place. Palumbo testified that removing the bottom pins first is improper because there would be no support for the boom once the pins were removed. Usually a person has to stand on the ground in order to remove the bottom pins.

Daryl Turner testified that on June 21, 1986, he worked for Leininger at the 1-290 jobsite and recalled that he had been responsible for taking a crane to the crushing site to remove a section of the boom. He stated that the section to be removed was the middle section, which was connected by four pins. The pins extended through the boom and were held by cotter keys or pins. He testified that there were two pins at the top of the boom and two at the bottom. He explained that to remove the middle section of the boom, first the cotter keys had to be removed with a hammer and then the pins are removed by using a very large hammer. Turner testified that it was not necessary for one to be inside the boom in order to knock the pins out because the pins could be knocked out from outside the boom. Turner testified that he and decedent were advised by Sgaramella that to take the boom apart required that a “cherry picker” be used for support. Turner stated that after Sgaramella left, decedent went over to the boom and started to remove the cotter keys. Decedent did not get inside the crane, he remained outside. Decedent was underneath the boom structure when it fell on him.

Turner stated that when the boom that they were responsible for removing fell on decedent, it was above decedent’s head. Decedent was actually squatting under the boom and had removed cotter keys by using a hammer and pliers. Turner testified that the top pins were still in place after the accident. Turner stated that decedent had apparently removed one of the lower pins and then attempted to, or did, knock out the other lower pin. Turner based this assumption on the fact that he recalled hearing the hammer hit the pin just before the boom fell. When Turner reached decedent the upper pins were still in the crane. Turner stated that Sgaramella returned with a “cherry-picker” after the incident and lifted the boom off decedent.

Defendant moved for summary judgment, and its motion was granted. Plaintiff argues on appeal that the trial court erred in granting defendant’s motion for summary judgment. Specifically, plaintiff contends that the trial court misconstrued the facts in the instant case and misapplied case law in determining that the activity that decedent was engaged in at the time of his death was not covered under the Structural Work Act.

Defendant argues that plaintiff failed to state a cause of action under the Structural Work Act by failing to meet two elements necessary to state a claim. Defendant maintains that at the time of the accident, decedent was not involved in an extrahazardous activity and that the crane was not being used as a support or structure.

Summary judgment is appropriate where the pleadings, depositions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 594 N.E.2d 313.) Because of the extreme nature of summary judgment, a court must exercise extraordinary diligence in its review of the record so as not to preempt a party’s right to trial by jury or its right to fully present the factual basis for its claim. (O’Brien v. Rogers (1990), 198 Ill. App. 3d 341, 555 N.E.2d 1005.) The court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 463 N.E.2d 1339.

Here, based on the deposition testimony of Sgaramella, Palumbo and Turner, the crane involved in the accident had been removed from the site where the construction work was being performed to a location about one-half mile away. The purpose of the relocation was to dismantle the crane so that it could be transported to the next jobsite. The crane was not operational, and at the time of the accident, decedent was standing on the ground. However, the Structural Work Act was enacted to provide protection to workers engaged in extrahazardous work. (St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740.) Section 1 of the Act requires:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1987, ch. 48, par. 60.

Although the Act should be liberally construed in order to effectuate its intended purpose, the Act is not designed to govern all injuries that may occur at a construction site. (Dubrovich v. Commonwealth Edison Co. (1991), 209 Ill. App. 3d 498, 568 N.E.2d 285.) Rather, the Act should be interpreted in order to provide protection to those injured at a construction site because of the particular hazards associated with the uses of scaffolds and other similar types of support devices to perform one of the specific activities enumerated in the Act, or structural work activities. (Lafata v. Village of Lisle (1990), 137 Ill. 2d 347, 561 N.E.2d 38.) The Structural Work Act, by its terms, requires that the injury involve the use of a scaffold, hoist, crane, stay, ladder, support or other mechanical contrivance before the provisions of the Act apply. (Ill. Rev. Stat. 1987, ch. 48, par. 60.) In analyzing whether a device is covered under the Structural Work Act, a court should look past the mere elevation of the worker or material and consider whether the hazard created by the elevation was one the Act was designed to prevent. Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223.

In Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889, the appellate court concluded that the Structural Work Act applied to an injury sustained by the driver of a tractor equipped with a forklift while the tractor was transporting several poles used in the construction of a pole barn from a storage area to their place of installation. The plaintiff was injured when several poles slid from the forklift onto the operator’s compartment while he was raising the forklift device. The Illinois Supreme Court analyzed the facts in Prange when it decided the case of Lafata v. Village of Lisle (1990), 137 Ill. 2d 347, 561 N.E.2d 38. The court concluded that the transport of the poles in Prange was considered an activity sufficiently unique to the construction industry, such that the activity was of a particularly hazardous nature and one that the General Assembly was attempting to alleviate when it passed the Structural Work Act. Lafata, 137 Ill. 2d at 357.

Similarly, in Miller v. Clark Wood Construction Co. (1986), 151 Ill. App. 3d 723, 502 N.E.2d 1061, the appellate court reversed and remanded a judgment of the trial court granting summary judgment in favor of defendant. In that case, plaintiff was injured when he walked under the boom section of a crane that was being dismantled and loaded unto a truck for transport. The crane had earlier been utilized in lifting steel joists in the construction of a library building, but at the time of plaintiff’s injury the crane had been moved to a parking lot adjacent to the work site. The trial court granted summary judgment because the crane was not engaged in the erection, repair, alteration, or removal of the building project at the time of the accident.

In relying on McNellis v. Combustion Engineering, Inc. (1973), 13 Ill. App. 3d 733, 301 N.E.2d 96, the appellate court held that, as a matter of law, it could not conclude that the activity in which plaintiff was arguably engaged at the time of his injury was not that kind of hazardous construction activity within the purview of the Structural Work Act. The court stated that plaintiff was in fact injured in the dismantling of the boom and that the dismantling of the boom was a necessary component of the use of the crane in erection of the library. In McNellis, a workman was fatally injured while removing large, 20,000-pound pedestals from a railroad car located one-half mile from the construction site of Commonwealth Edison’s power generating plant. The pedestals were eventually to be installed in the plant as part of the steam generating units. Cranes were available to assist in unloading the pedestals but were not used. The workman was assisting in cutting loose the metal plates that secured the pedestals to a car when one of the pedestals fell, pinning him to the car. The crane could have been used to hold the pedestals in place. The court concluded that the workman was engaged in a hazardous activity in removing the heavy, axial pedestals from the railroad car.

We find these cases persuasive in determining that the activity in which plaintiff here was involved was a hazardous activity and one which the the Structural Work Act intended to cover.

Defendant cites to Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 685, 442 N.E.2d 1330, for the proposition that where plaintiff’s injury is not the result of a functional or operational defect of the crane, then plaintiff’s injury is not covered under the Structural Work Act. In Cooley, plaintiff, an operating engineer, was injured when he slipped and fell while attempting to enter into the cab of a crane which he was repairing. The crane was at the construction site and had been temporarily out of service. In ruling that plaintiff’s injuries did not fall under the purview of the Act, the court stated:

“While the word ‘crane’ does appear in the Structural Work Act, *** neither the use of the crane, which was out of service for repairs, nor the activity or ‘work’ in which plaintiff was engaged at the time of the injury, entering the cab, can be fairly said to be structural work covered by the Act.” Cooley, 110 Ill. App. 3d at 692.

In reviewing Cooley, we find that case distinguishable from the instant case. In Cooley, the appellate court found determinative the fact that plaintiff had mud on his shoes and that the mud proximately caused his injury as he attempted to climb into the crane. Here, unlike in Cooley, the plaintiff was involved in the disassembly of a truck crane boom that had been used in a construction activity and was being transported for use on another project. As the court in Miller found, we also find that the disassembly of the crane was a unique construction activity and involved extrahazardous activity intended to be covered by the Act. Disassembly is an integral activity of the construction process, and because the crane was being moved from one jobsite to prepare it for transport to another, Cooley is not binding.

The trial court in the instant case found the facts in Miller readily distinguishable. This distinction was based on the fact that the crane here had been removed from the jobsite where it had previously been used, and that the boom was not required to be removed before transport to another site. The crane was not being dismantled so that it could be transported. That distinction appears to be the determining factor as to whether or not the dismantling was an integral part of the construction activity. The trial court here explained that the dismantling of the crane in Miller was on site, and in the instant case, it was moved “off site,” therefore distinguishing Miller from the instant case.

The court’s distinction here deals only with the time and location of when the activity occurred and not the hazardous activity itself. It would stand to reason that had decedent simply been engaged in the activity while at the immediate work site then his activity would be covered. The facts here tell us that the crane had been transported to the crushing ground to be dismantled for transport. The crushing grounds were only one-half mile away, and the crane would be transported to another work site after being disassembled. In reviewing Miller, Prange, McNellis and the Structural Work Act itself, it is clear that activities here related to the disassembly of a crane used in a construction project which involved a unique hazardous activity. The Structural Work Act is to be given a liberal construction in achieving its purpose of preventing injuries to persons employed in the dangerous and extrahazardous occupation of construction.

Summary judgment should not be granted unless the right of the moving party is clear and free from doubt. Here, there is a genuine issue of material fact as to whether defendant was engaged in a hazardous activity at the time of his injury. Therefore, the trial court erred in granting summary judgment in favor of defendants.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause remanded.

Reversed and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE RIZZI

text:
    ALSIP PARK DISTRICT, Plaintiff-Appellant, v. D & M PARTNERSHIP et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—3206
    Opinion filed June 16, 1993.

      Vincent Cainkar, of Burbank, for appellant.
    Richard E. Friedman and Gerald B. Mullin, both of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Alsip Park District (District), brought this condemnation action against defendants, D & M Partnership (D&M) and unknown owners, to acquire land (the site) for which a building permit was previously issued to construct a group home for developmentally disabled persons. The trial court granted defendants a traverse and dismissed the action on their motion, on the basis of its finding that plaintiff abused its discretion when exercising the power of eminent domain because plaintiff had no purpose, ascertainable public need or plan, current or future, for the site. We reverse and remand.

The issues before this court for review are (1) whether the trial court’s finding that plaintiff had no purpose, ascertainable public need or plan, current or future, for the site was contrary to the manifest weight of the evidence; and (2) whether the trial court’s finding that plaintiff’s taking of the site constituted an abuse of the power of eminent domain was against the manifest weight of the evidence.

The site is located at the southeast comer of 119th Place and Kostner Avenue within the District’s corporate limits. Located across Kostner Avenue, west of the site, is a swimming pool and recreational facility known as Aquatic Park. To the north of the site, across 119th Place, is a church parking lot. Prairie Junior High School is located northwest of the site. The parking lot for the school adjoins a parking lot for Aquatic Park. To the east is a residential development and to the south is additional land owned by the District.

On January 11, 1989, defendant D&M entered into a contract to purchase the site whereupon RFMS, Inc. (RFMS), planned to construct a group home. Defendant D&M is an Illinois general partnership organized for the purpose of acquiring sites for the construction of group homes for developmentally disabled persons on behalf of RFMS, a Nevada corporation registered to transact business in the State of Illinois, which constructed and managed homes for developmentally disabled persons.

After defendant D&M purchased the site, RFMS obtained a special use permit for the group home from the Village of Alsip. Soon after RFMS applied for the permit, several citizens approached James T. Quinn, a member of the District’s Board of Park Commissioners (Board/Board Commissioners), and told him that they were opposed to defendants’ proposed use of the site.

On or about May 30, 1989, plaintiff informed RFMS that it desired to acquire the site. RFMS thereafter communicated with plaintiff, suggesting alternatives for the parties’ shared use of the site, so as to permit the use of a portion of the site by it for the group home and a portion of the site by plaintiff for parkland. On or about June 20, 1989, RFMS offered to convey between 40 and 50 feet of the site to plaintiff. On or about June 28, 1989, plaintiff rejected that proposal.

On July 25, 1989, the District passed ordinance No. 89 — 4 (ordinance) authorizing the acquisition of the site by defendants. Plaintiff later introduced a certified copy of the ordinance into evidence. On September 21, 1989, RFMS received a certificate of need from the Illinois Health Facilities Planning Board to construct and operate a 15-bed facility for the developmentally disabled.

On October 26, 1989, plaintiff informed RFMS that it would obtain the site via an exercise of its eminent domain power and it then initiated condemnation proceedings. On November 3, 1989, plaintiff filed this complaint.

On December 1, 1989, RFMS and defendant D&M brought an action in the United States District Court for the Northern District of Elinois seeking a preliminary and a permanent injunction to restrain the condemnation proceeding and for other relief under the Fair Housing Act (42 U.S.C. §3601 et seq. (1989)). (See R F M S, Inc. & D & M Partnership v. Alsip Park District, No. 89—C—8900.) On June 29, 1990, the district court entered an order staying the Federal court proceedings pending this court’s determination of the issues in the present case and dismissing the portion of the complaint which sought to enjoin condemnation of the site.

Defendants presented the testimony of James T. Quinn, Leslie S. Pollock and John Curran to the circuit court, concerning the necessity and excessiveness of the taking during a hearing on defendants’ traverse and motion to dismiss. James T. Quinn testified that he had been a Board Commissioner for eight years and that he spent 20 to 25 hours per week working on matters pertaining to plaintiff. Quinn further testified that plaintiff had no concrete plans for the use of the site. Quinn told the court that plaintiff acquired the site for “inventory purposes” rather than immediate use and that all of the Commissioners knew that if the property was condemned, “there wouldn’t be a group home built on it.”

Next, Leslie S. Pollock, a city planner, and an expert witness, testified that he conducted an investigation of plaintiff’s parks and park services in order to obtain information about the pattern of land use in the vicinity of the site and the ultimate population growth of the District.

Pollock stated that there are general guidelines used in park planning which prescribe the appropriate number of acres of parkland per 1.000 persons in the population. Pollock testified that one such commonly employed standard is the Recreation, Park and Open Space Standards and Guidelines written by the National Recreation and Park Association (NRPA). The Recreation, Park and Open Space Standards and Guidelines provide for a minimum of 6.25 to 10.5 acres of parkland per 1,000 persons.

PoHock further testified that the Village of Alsip was divided into eight neighborhoods based upon land usage and physical boundaries. Pollock testified that he prepared an analysis of the balance, quality and distribution of recreational and park services in each of the eight neighborhoods. Pollock testified that in the course of his analysis, he examined the ratio of parkland to the population in order to determine whether there was a “surplus” or “deficit” of parkland, where such a deficit or surplus might be located and how the acquisition of the site would affect said surplus or deficit.

Pollock testified that the ratio of neighborhood and mini-parks per 1.000 persons in the District is 2.99 acres per 1,000 persons. At the time plaintiff brought this action, neighborhood B, where the site is located, had 132.95 acres of recreational and open space including schools and parking lots and a population of 4,926 persons. Pollock found that neighborhood B had the largest ratio of acres of parkland per 1,000 persons (13.65 acres per 1,000 persons) in the District and that the ratio of neighborhood and mini-parks per 1,000 persons within neighborhood B is 5.65 acres per 1,000 persons. Pollock also told the court that neighborhood B had more than twice the ratio of parkland per 1,000 persons as the next highest neighborhood ratio within the Village of Alsip.

Pollock concluded that there was no need for plaintiff to acquire the site for the following reasons: (1) because there was already a surplus of park and recreational land in the area that would be served by the site; (2) because there is no public demand for use of the site; (3) because the acquisition of the site would not be useful to the public; and (4) because the site would not be needed as “inventory” for future recreational purposes.

Upon cross-examination, however, Pollock admitted that 2.99 acres per 1,000 persons was not the actual average ratio of the District, but was an average of the average ratios for each neighborhood. Pollock also conceded that the 13.65-acres-per-l,000-persons ratio within neighborhood B included all school property even if such property was not designated for recreational use. Furthermore, Pollock admitted that he failed to consider the use of plaintiff’s parks by nonresidents and that he neglected to interview program participants and area citizens in the course of his investigation.

Next, defendants called John Curran, director of the District, as an adverse witness. Curran stated that he had served as the director since 1979. Curran testified that plaintiff serves a large nonresident population, including members of the Southwest Suburban Special Recreational Association and an industrial baseball league involving 1,200 persons, 80% to 85% of whom were not residents of the District. Curran testified that at the time the ordinance was passed, plaintiff planned to expand its parklands to accommodate anticipated future recreational needs including space for soccer, tennis courts and parking facilities. Curran stated, however, that there is no written development plan for the site. Curran maintained that in formulating its plan, the Board surveyed the community and had meetings with area citizens to help it determine the proper course of programming and facility development.

Curran further testified that plaintiff currently owns or leases 168 acres, at least 95% of which remains undeveloped. Curran stated that plaintiff planned to use most of the undeveloped land for a golf course near Kedzie Avenue. Curran also told the court that plaintiff planned to construct a pedestrian path from 127th Street to Aquatic Park. Upon cross-examination, Curran testified that plaintiff is developing plans for the site and working on a new five-year master plan, although the entire five-year plan would not be fully executed within a five-year period.

After defendants rested, plaintiff called Robert A. Porter and Charles Galvin as witnesses. Porter testified as an expert witness. Porter was the director of parks and recreation for the Lemont Park District, the township supervisor of Lemont Township and the owner of a consulting company. Porter analyzed each park in the District in an effort to determine which resources were located thereon and what area it serviced. Porter determined that the parkland ratios for plaintiff amounted to 3.79 acres of owned park property for every 1,000 persons, excluding the Kedzie golf course. Porter found that there were 5.32 acres of parkland per 1,000 persons if leased parklands were included.

In preparing his analysis, Porter also met with plaintiff’s administrators, surveyed its parks and reviewed its recreational programs as well as the site. Porter noted that there were several unusual aspects of plaintiff’s programming, such as its allowing a large number of non-District residents to utilize parklands and park facilities. Porter testified that this use factor was not found in other park districts and that said use affected the amount of parkland needed to adequately serve the area. Porter concluded that plaintiff does not have adequate parkland.

Porter also concluded that the proper amount of parkland with respect to the District’s population would be 10 acres per 1,000 persons. This standard includes allowances for mini-parks, neighborhood parks, community parks and undeveloped land, but excludes special facilities such as a golf course and land planned for special facilities. Porter also maintained that church grounds and property occupied by Commonwealth Edison should not be counted in meeting parkland standards because such land is not available for public recreational use.

Porter testified that acquisition of the site would be consistent with plaintiff’s five-year plan and was desirable even if plaintiff did not have a plan. Porter further testified that the acquisition of the site would be desirable because it was located in the center of the District and was easily accessible to the public via two main thoroughfares. Porter also stated that the site was desirable because it would serve the three largest neighborhoods in the District containing a total population of 12,700 persons. Porter further maintained that the site was desirable because it had infrastructure in place and because it tied into the idea of developing a community park in conjunction with Aquatic Park and the proposed path across the property occupied by Commonwealth Edison.

Porter further testified that the acquisition of the site would be favorable because plaintiff may need additional parking space for Aquatic Park. Porter opined that the parking ratio for Aquatic Park should be one space per seven patrons, requiring 187 parking spaces, whereas the District only had 45 parking spaces on the property it owns.

On cross-examination, Porter testified that the primary document he relied upon in forming his opinions was plaintiff’s exhibit 35, the NRPA Recreation, Park and Open Space Standards and Guidelines. Porter conceded that he did not know whether any demographic studies, preference and demand studies or base of participation data were created with regard to the site. Porter also admitted that he made his analysis based upon the assumption that the site would be developed into a community park.

Next, Charles Galvin testified for plaintiff. Galvin told the court that he had been a Board Commissioner for eight years and that he worked between 60 and 80 hours per month on plaintiff’s business. Galvin testified that participation in plaintiff’s programs had doubled in the last eight years. Galvin stated that he was familiar with the site, as the Commissioners had discussed acquiring the site as a community park. Galvin testified that the possible uses discussed for the site included volleyball facilities, a soccer field and a park, but that no exact determination concerning the development of the site had been made. Galvin maintained that it is the standard procedure of the District to acquire land and then formulate a preliminary plan for its development. Thereafter, the District would present its preliminary plan to area residents, seeking and receiving the citizens’ input concerning specific land use and the type of infrastructure that should be placed on the land.

Defendants then presented a traverse and a motion to dismiss based upon necessity and a violation of the Federal Fair Housing Act (42 U.S.C. §3601 et seq. (1989)). After a hearing on motions, the trial court decided in favor of the District on the Fair Housing Act claim. The trial court concluded that the taking of the site was an abuse of discretion as plaintiff had no purpose, ascertainable public need or plan, current or future, for the site. The trial court granted defendants’ traverse and then dismissed the action. Plaintiff appeals from that order. No cross-appeal was taken by defendants pertaining to the trial court’s decision regarding the Fair Housing Act claim. Arguments which pertain to the issue of necessity are set forth herein.

First, plaintiff contends that the trial court’s finding that it had no ascertainable public need or plan, current or future, for the land was contrary to the manifest weight of the evidence. Plaintiff argues that this finding was improper because the necessity for the taking of the site was a legislative determination to be made by the Board, as it has wide discretion to determine the amount of property necessary to condemn for a legitimate public purpose and because it may acquire property for anticipated needs. Defendants maintain that the trial court’s finding was proper because there was a surplus of land in the vicinity of the site which exceeded the standards for accessible parkland.

Initially, we strongly agree with the premise that if the facts established that plaintiff had no ascertainable public need or plan, current or future, for the land, defendants should prevail. We find, however, that the trial court’s finding was against the manifest weight of the evidence because defendants failed to successfully rebut plaintiff’s prima facie case for the necessity of condemning the site. Illinois courts have refused to second-guess a condemnor’s authority with respect to its decision concerning the necessity of a taking or its decision regarding the amount of property it deems necessary to condemn for a public purpose. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 325, 335 N.E.2d 443, 447; City of Chicago v. Vaccarro (1951), 408 Ill. 587, 597, 97 N.E.2d 766, 772.) In Illinois, the issue of whether the exercise of the power of eminent domain is necessary and sufficient to justify the taking of private property for a public purpose is not a judicial question, but instead constitutes a legislative determination that is within a condemnor’s discretion. (Keller, 61 Ill. 2d at 325, 335 N.E.2d at 447; Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245-46, 103 N.E.2d 595, 597-98; City of Chicago v. Lehmann (1914), 262 Ill. 468, 470-71, 104 N.E. 829, 830.) The introduction of a valid ordinance approving the taking of private property for a public purpose into a trial record establishes a prima facie case with respect to the necessity of the condemnor’s acquisition of the property, making it the duty of the party challenging said condemnation to offer evidence that the condemnor abused its discretion with respect to its decision concerning the necessity of the taking. Trustees of Schools of Township No. 37 v. First National Bank (1971), 49 Ill. 2d 408, 414, 274 N.E.2d 56, 60; Village of Wheeling v. Exchange National Bank (1991), 213 Ill. App. 3d 325, 331, 572 N.E .2d 966, 969; City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, 350, 542 N.E .2d 478, 482; City of De Kalb v. Anderson (1976), 43 Ill. App. 3d 915, 917, 357 N.E.2d 837, 839.

Defendants have failed to establish that plaintiff abused its discretion with respect to its decision to acquire the site. Plaintiff had wide discretion to determine the amount of land to be taken. The Board passed an ordinance which constituted a legislative determination with respect to the necessity for condemning the site. Plaintiff introduced a certified copy of the ordinance at the hearing on the traverse and motion to dismiss. The introduction of the ordinance into evidence was sufficient to establish a prima facie case for the necessity of the condemnation of the site and plaintiff’s authority to exercise its power of eminent domain.

The burden then shifted to defendants to show that plaintiff abused its discretion or lacked the authority to condemn the site on the basis that plaintiff had no purpose, ascertainable public need or plan, current or future, for the site. Defendants failed to meet their burden of proof. After plaintiff established a prima facie case for the necessity of the taking, defendants presented the testimony of Pollock, an expert witness, and District director Curran, an adverse witness. Plaintiff then introduced the testimony of Porter, an expert witness, and Commissioner Galvin. Galvin, who served on the Board for eight years and spent many hours each month working on matters pertaining to plaintiff, testified that participation in plaintiff's park programs had doubled in the last eight years. Galvin had firsthand knowledge of the facilities and programs needed to service the District. Galvin stated that he was familiar with the site, as the Commissioners had discussed acquiring the site as a community park.

Curran, who had served as District director for 10 years, testified that a large nonresident population, including members of the Southwest Suburban Special Recreational Association and an industrial baseball league with 1,200 residents, 80% to 85% of whom were not District residents, used plaintiff’s parkland. Curran, like Galvin, had firsthand knowledge of the infrastructure and programs needed to properly serve the District. Curran testified that at the time the ordinance was passed, plaintiff planned to expand its parklands to accommodate future recreational needs including soccer, tennis and parking facilities.

In addition, Porter testified that plaintiff does not have adequate parkland due to its accommodation of a large number of non-District residents with respect to their use of parklands and park facilities. Porter concluded that the acquisition of the site by plaintiff would be desirable.

Curran’s and Galvin’s immediate knowledge with respect to plaintiff’s needs exceeded that of Pollock, defendants’ expert witness, who opined that the site should not have been acquired. Furthermore, Porter’s analysis of plaintiff’s needs was more comprehensive than Pollock’s analysis since Porter considered the use of plaintiff’s parkland by non-District residents as a factor in his analysis, while Pollock failed to consider the use of plaintiff’s parks by nonresidents as a factor in his determination concerning the issue of the propriety of plaintiff’s taking of the site. Pollock’s analysis was also inferior to Porter’s study because Pollock assumed that the site would be developed as a neighborhood park, whereas the record shows that plaintiff intended to develop the site into a community park. In contrast, Porter based his analysis upon the notion that the site would be used as a community park. For the above reasons, we conclude that defendants have failed to successfully rebut plaintiff’s prima facie case for the necessity of condemning the site.

We also rule that the trial court’s finding that plaintiff had no purpose, ascertainable public need or plan, current or future, for the site was against the manifest weight of the evidence because plaintiff properly acquired the site for its anticipated needs by exercising its power of eminent domain. Our supreme court has held that a condemning authority should “anticipate the future increased demands for the public use to which the land is to be devoted.” (City of Chicago v. Vaccarro (1951), 408 Ill. 587, 597, 97 N.E.2d 766, 772.) The advance acquisition of parkland is practical in a society with a growing population and changing recreational needs.

We are not persuaded by defendants’ argument that the taking of the site was unnecessary on the basis that plaintiff already owns undeveloped land south of the site and that the amount of said land combined with land already owned by plaintiff exceeded the standards for accessible parkland. The record shows that the amount of land plaintiff owned before it sought to acquire the site did not exceed the standards for accessible parkland. The minimum standards for parklands established by the NRPA in its Recreation, Park and Open Space Standards and Guidelines provide that there should be a minimum of 6.25 to 10.5 acres of District parkland per 1,000 persons. Pollock testified that his ideal minimum standard of parkland in the District would be in the range of 5 to 10 acres per 1,000 persons. Porter testified that his ideal minimum ratio for District parkland would be 10 acres per 1,000 persons.

Both experts testified that the ratio of parkland per 1,000 persons in the District was lower than that of any of the above recommended ratios. Pollock testified that the ratio of neighborhood and mini-parks per 1,000 persons in the District is 2.99 acres per 1,000 persons. Porter testified that the parkland ratios for the District amounted to 3.79 acres of owned park property for every 1,000 persons excluding the Kedzie golf course. Porter found that there were 5.32 acres of parkland per 1,000 persons if leased parklands were included.

Defendants’ assertion that the trial court’s finding was not contrary to the manifest weight of the evidence because there was a surplus of land in the vicinity of the site which exceeded the standards for accessible parkland is therefore erroneous on the basis of the facts in the record.

Moreover, defendants’ argument must fail on the basis that it is contrary to Illinois law. The Illinois Supreme Court has defined necessity with respect to the exercise of the power of eminent domain as meaning “ ‘expedient,’ ‘reasonably convenient’ or ‘useful to the public,’ and [not] limited to an absolute physical necessity.” (Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245, 103 N.E.2d 595, 597.) The standard used by Illinois courts in determining whether an entity has abused its condemnation power by taking more properly than necessary is whether the proposed taking was “grossly excessive.” City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 604, 129 N.E.2d 751, 756.

In order for defendants to establish that plaintiff’s condemnation of the site was “grossly excessive,” they would have to demonstrate that the taking was neither expedient, nor reasonably convenient, nor useful to the public. Defendants have failed to make such a showing. The acquisition of the site was expedient in regards to the development of a community park. The site is located in the middle of the District and is adjacent to Aquatic Park and the undeveloped land south of the site. The site is a key parcel of property which ties both Aquatic Park and the undeveloped properties together. It would therefore be reasonably convenient for plaintiff to obtain the site in order to expand and develop its parkland. Furthermore, the site will be useful to the public. It is clear that the site could be used by plaintiff as a public recreational area.

We therefore conclude that the trial court’s finding that plaintiff had no ascertainable public need or plan, current or future, for the site was contrary to the manifest weight of the evidence, as defendants have failed to offer evidence sufficient to defeat plaintiff’s prima facie case for the necessity of condemning the site and because it was proper for plaintiff to acquire the site to meet its anticipated future needs.

The second issue before this court is whether the trial court’s finding that plaintiff’s taking of the site amounted to an abuse of the power of eminent domain was against the manifest weight of the evidence. Plaintiff alleges that the trial court’s finding that the taking was an abuse of its power of eminent domain was contrary to the manifest weight of the evidence. Plaintiff argues that the trial court’s finding was improper because Illinois law does not require final use plans for property acquired by condemnation prior to an entity’s exercise of the power of eminent domain and because the testimony of certain witnesses established that plaintiff does not own property sufficient to meet minimum requisite standards for parklands, including that of the NRPA. Defendants maintain that the finding of the trial court that the taking was an abuse of the power of eminent domain was not contrary to the manifest weight of the evidence. We disagree.

An eminent domain action may be maintained even though the ultimate use of the subject property has not been determined as long as the ordinance authorizing the condemnation states that the acquired property will be taken for a public purpose. (City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, 350, 542 N.E.2d 478, 482; State of Illinois Medical Comm’n v. United Church of the Medical Center (1986), 142 Ill. App. 3d 498, 503, 491 N.E.2d 1327, 1331; Department of Transportation v. Keller (1984), 127 Ill. App. 3d 976, 978-79, 469 N.E.2d 262, 265.) In the present case, the proposed use for the site is a community park and public recreational area, although there are no specific plans as to the exact facilities and infrastructure that will be constructed thereon. Defendants’ assertion that plaintiff is required to have a plan for developing specific facilities on the site prior to its acquisition is contrary to Illinois law.

In addition, we rule that the trial court’s finding was improper because the testimony of certain witnesses established that the District does not meet minimum standards for parklands, including those of the NRPA. As we noted above, Pollock and Porter testified that the amount of parkland owned by plaintiff is not sufficient to meet the minimum standards for parklands established by the NRPA in its Recreation, Park and Open Space Standards and Guidelines or the minimum standards for parkland that they themselves recommended.

We therefore conclude that the trial court’s finding that the taking of the site was an abuse of the power of eminent domain was contrary to the manifest weight of the evidence on the basis that plaintiff does not comply with the minimum standards for the amount of parkland and because plaintiff is not required to have a specific development plan for the site prior to its acquisition.

For the above reasons, we reverse the order of the circuit court and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

TULLY, P.J., and GREIMAN, J., concur.