author: JUSTICE McNAMARA

text:
    MAUREEN JOHNSON, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—1842
    Opinion filed July 21, 1989.

      Bryan J. O’Connor III and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellant.
    Arnstein & Lehn, of Chicago (Arthur L. Klein, Kurt J. Heinz, and C. Vincent Maloney, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Maureen Johnson, appeals from a trial court order entering summary judgment for defendant, Sears, Roebuck & Company, in this slip and fall case.

On December 10, 1983, plaintiff slipped and fell on an accumulation of “water, snow, mud and other foreign substances” inside the entrance of a Sears store in Freeport, Illinois. On March 12, 1984, she filed a complaint alleging that Sears negligently allowed the substances to accumulate, failed to warn invitees of the hazard, and failed to provide floor mats in the store. Sears filed an answer denying any negligence.

Defendant’s husband stated in affidavits and at a deposition that several bags of garden soil, one of which was broken and from which dirt was spilled, were piled next to the entrance. There was a layer of mud on the sidewalk coming from the area of the soil bags and leading to the entrance. He saw dirt and mud on the floor where his wife fell. He also believed that piles of snow placed next to the entrance caused an unnatural accumulation of slush and mud because of the manner in which the lot had been plowed. Eyewitnesses Lyle and Karen Koehler also testified at depositions that the substance was tracked in from the parking lot. Plaintiff’s husband stated at his deposition that he could not say what caused the fall.

Plaintiff filed an amended complaint alleging a violation of paragraph 401.12 of the National Building Code, and alleging that Sears had plowed and negligently piled snow along the walkways leading into the store. Plaintiff maintained that the muddy substance accumulating outside the store entrance was an unnatural condition.

In its motion for summary judgment, Sears argued that water or snow tracked into the store by individuals constituted a natural accumulation of water or snow from which no warning was necessary. Sears pointed to plaintiff’s deposition testimony that the water was tracked in from a slushy parking lot. Sears filed an affidavit of Patrick Sanders, its employee, that Sears did not stock.or sell garden soil in December 1983.

While a landowner is not liable for injuries resulting from natural accumulations of ice and snow, it may be liable for unnatural or artificial accumulations or where the owner aggravates a natural condition. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160.) Thus, a storeowner has no duty to remove tracks left by customers who have walked through natural accumulations of snow, slush or water. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160; Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 488 N.E.2d 679.) In order to withstand a motion for summary judgment, plaintiff must establish that an unnatural accumulation of ice and snow existed and that defendant was responsible for the condition.

Plaintiff, her husband, and the Koehlers all testified that there was dirty water, slush or mud on the floor where plaintiff fell. While there had been several inches of snow on the ground, it was not snowing on the day that plaintiff fell. The key here is the origin of the wet substance.

In conflict with Sanders’ affidavit, plaintiff’s husband testified regarding several bags of garden soil piled next to the entrance. One bag had been broken open and the dirt was scattered across the sidewalk, creating a layer of mud. The mud in turn permitted additional puddles of water to accumulate, through which the customers were forced to walk in order to enter the store. See Fanning v. Lemay (1966), 78 Ill. App. 2d 166, 222 N.E.2d 815, mod. on other grounds (1967), 38 Ill. 2d 209, 230 N.E.2d 182 (storeowner subject to liability where it knew that water tracked in by customers on top of the asphalt tile which, upon becoming wet, is very slippery and dangerous, and therefore whether defendant’s failure to place mats on floor was negligent was a jury question).

Defendant’s reliance on Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328, is misplaced. In Kimbrough, plaintiff alleged she slipped on a ramp outside defendant’s store, and that the ramp had grease spots on it, but she stated repeatedly that she did not know why she fell. This court held defendant was entitled to summary judgment because plaintiff failed to show that some condition caused her fall and that the condition was caused by defendant. In contrast, in the present case, plaintiff expressly states that the cause of her fall was the substance which defendant negligently permitted to accumulate and remain in the entranceway.

We conclude that the affidavit of plaintiff’s husband as to the garden soil is sufficient to withstand a motion for summary judgment. Plaintiff should be permitted to present her evidence to a trier of fact to resolve the genuine issue of material fact as to whether or not the conditions at the store entrance were natural. We hold that the trial court erred in entering summary judgment in favor of defendant.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

QUINLAN and LaPORIA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    ANTHONY ESPOSITO, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Metropolitan Sanitary District of Greater Chicago, Appellee and Cross-Appellant).
    First District (Industrial Commission Division)
    No. 1—88—0966WC
    Opinion filed July 21, 1989.

      Gierach, Schussler & Walsh, Ltd., of Oak Lawn (James E. Gierach, of counsel), for appellant.
    Allen S. Lavin, of Chicago (James B. Murray and Maureen K. Whelan, of counsel), for appellee Metropolitan Sanitary District of Greater Chicago.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Anthony Esposito, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for back injuries allegedly sustained in the course of his employment with respondent, Metropolitan Sanitary District. An arbitrator awarded claimant temporary total disability (TTD) for a period of 1324/7 weeks and permanent total disability benefits under section 8(f) of the Act.

Following a hearing on review, the Industrial Commission (Commission) reduced the TTD award to 5sh weeks and found that claimant was entitled to permanent partial disability as provided in section 8(d)l of the Act, rather than permanent disability. The circuit court of Cook County reinstated the award of 1324/7 weeks of TTD and confirmed the Commission’s award of permanent partial disability. This appeal followed.

Claimant argues on appeal that the Commission’s reduction of his TTD benefits and the award of permanent partial disability rather than permanent total disability were contrary to the manifest weight of the evidence. Respondent cross-appeals, contending that the circuit court’s reinstatement of 1324/7 weeks of TTD was against the manifest weight of the evidence.

The evidence is largely undisputed. Claimant had been employed by respondent as a provisional sheet metal worker since 1976. In 1981, while still employed by respondent, claimant ran for and was elected to a four-year term as the highway commissioner of Worth Township, Cook County. In 1985, he was reelected to another four-year term as highway commissioner.

On March 1, 1982, claimant was standing on a ladder, lifting part of a metal roof, when he felt a “pop” in his back and then pain in his back and down both legs. At the time of his accident, claimant was in good health and had not experienced any problems with his back or legs.

After his accident, the claimant went home, took a hot bath, took his wife’s pain pills, and used a heating pad. The next morning he reported to the respondent’s nurse’s office; he was taken directly to the Clearing Medical Center by respondent’s police car. Claimant was treated there with Motrin, various pain pills, and diathermy. He noticed his left foot was numb, and he had pain in both legs and his back. After five or six treatments, which did not result in a release for work, he went on March 8, 1982, to the District Medical Center. Soon thereafter, respondent gave him permission to see an orthopedic physician, Dr. James P. Elmes. Claimant continued to have back and leg pain and numbness in his left leg.

Dr. Elmes originally treated the claimant with injections into the back and hip, medication, physical therapy, traction, a shoe lift, a corset, and a TNS machine. Later ultrasound, bedrest, and other medications were prescribed by Dr. Elmes. In March and April 1982, the claimant experienced weakness in his left leg, and his left leg was collapsing.

On May 23, 1982, claimant was admitted to St. Francis Hospital for 19 days under the care of Dr. Elmes. He received treatment consisting primarily of traction and physiotherapy, and he underwent a myelogram procedure. The myelogram revealed a large defect at L5 on the left and L4 central.

Respondent requested that claimant be examined by Dr. Camacho. Dr. Camacho and claimant discussed the Chymopapain injection, but claimant was not released for work. Claimant received permission from respondent to travel to Canada in August 1982 to see Dr. McCulloch concerning the experimental injection, but claimant was found to be an unsuitable candidate for the treatment.

On September 10, 1982, claimant was again hospitalized at St. Francis Hospital with incapacitating low back pain. On September 14, 1982, two discs located at L4 central and left and L5 central were surgically removed with neurolysis at L5 on the right. At the same time, a spinal fusion at L4-S1 was performed with bone taken from the left hip.

On discharge from the hospital, claimant noticed that he had constant pain in his back and both legs. The pain interfered with his ability to sleep. Following his first operation, claimant was again treated with physical therapy, traction, a TNS unit, ultrasound, and spinal injections.

From October 1983 to January 1984, respondent had claimant attend the Parkview Orthopedic Back School, the Chicagoland Spine Clinic, and the Willow Springs Spinal Clinic for exercises and swimming therapy. Despite these measures, no improvement in claimant’s condition was achieved.

In January 1984, the respondent sent the claimant to be examined and treated by Dr. James B. Boscardin, an orthopedic physician associated with the Parkview Orthopedic Clinic. Dr. Boscardin’s written report to respondent confirmed that the claimant moves “very, very slowly and carefully,” has positive straight leg raising on the left, and decreased extensor hallucius longus. Dr. Boscardin found radiculopathy on claimant’s left side. Dr. Boscardin recommended further medical treatment, including a CT scan to rule out spinal stenosis. Dr. Boscardin further found after in-depth evaluation that “this gentleman probably will never return to strenuous activity *** he represents less than an ideal result following a laminectomy and spinal fusion. He is disabled at this time and unable to work. I feel he has made a total attempt at physical therapy and I do not feel that any further time or effort should be spent in these endeavors.”

On July 21, 1984, a computer tomography of the lower spine revealed a mild bulging disc at L4-L5 and no central canal stenosis.

During this time period claimant continued to receive treatment from Dr. Elmes at four- to six-week intervals.

On August 30, 1984, Dr. Elmes wrote the following to Mr. Jack Singh, claims administrator and investigator for respondent:

“Anthony Esposito is unable to return to regular duty at this time, should do sedentary type of work with no lifting, no excessive bending or twisting. Standing ability, to sit at least 5 minutes every half hour and if primarily sitting, to be able to stand and move around at least 5 minutes every half hour.
Please send any job classifications with specific duties involved for any light duty jobs available to see if Mr. Esposito’s physical capacities would be adequate.
For specific information on his present condition, please refer to remarks on the enclosed report of his last visit on 8/30/84.”

The enclosed report stated claimant was “still disabled.” Dr. Elmes never received any response to his letter.

On September 24, 1984, Dr. Elmes examined claimant and was of the opinion that claimant was not able to perform any work, including sedentary work. Thereafter, from October 4, 1984, to February 19, 1985, claimant was treated with additional physical therapy at St. Francis Hospital as an outpatient. On January 10, 1985, the physical therapist noted that “progress overall has been relatively unchanged and his mobility remains limited.”

Claimant was treated and examined regularly by Dr. Elmes through the close of proofs on review before the Commission. Claimant was treated for pain with multiple spinal injections of cortisone and pain killers on several occasions in 1984 and 1985.

At the April 19, 1985, arbitration hearing, claimant testified as to his current condition. He had constant pain in his back and both legs. This pain was aggravated by sitting more than one-half hour. Claimant experienced cramps in his back and legs; the pain extended to the left foot. He had swelling and numbness in the left foot. Pain prevented him from sleeping more than three or four hours at a time. He was then taking medication prescribed by Dr. Elmes, including Phenophen 3, Equinal 400, and Valium 10. His left leg continued to collapse without warning. He wore a back brace prescribed by Dr. Elmes all the time and used a cane to assist his walking.

On cross-examination, claimant testified that he was elected the highway commissioner of Worth Township in April 1981 and was reelected in April 1985. He was paid $15,120 per year during the first four-year term, and during his second four-year term, he received a fixed salary of $14,000 per year.

Claimant testified that his elective position required his attendance at two to three meetings per month. Since his accident, he had only been able to attend about one-half of the meetings.

Dr. Irwin T. Barnett, claimant’s consulting physician, examined him on January 16, 1984, January 21, 1985, and December 17, 1985, and wrote three reports, which were admitted into evidence. Dr. Barnett found numerous positive nerve root signs, limited mobility, muscle spasm, disc narrowing at the fourth and fifth disc spaces, and left leg weakness. Forward flexion was performed to 30 degrees where normal is 90 degrees; backward flexion was completely absent where normal is 35 degrees; left and right flexion was performed to 10 degrees, where 40 degrees is normal.

In his deposition taken May 15, 1985, which was admitted into evidence, Dr. Barnett opined that claimant’s physical condition and pain would prevent him from performing any work, including sedentary work, on a regular basis. In Dr. Barnett’s opinion, claimant’s ability to perform up to six hours of work per week on township duties and an inability to perform any such work or duties in other weeks was consistent with his medical findings and the claimant’s condition. Dr. Barnett described claimant as having a failed surgical back and being severely disabled. Dr. Barnett testified that claimant’s condition was permanent.

Dr. Elmes’ evidence deposition, taken May 31, 1985, was admitted into evidence. He testified that claimant could continue to perform township duties “as he apparently has been doing over the past two or three years.” Dr. Elmes also stated that he did not know the specifics of claimant’s duties as highway commissioner. In letters dated October 22, 1984, December 12, 1984, and January 14, 1985, Dr. Elmes advised respondent that claimant was unable to return to work.

Julie Bose, a certified rehabilitation counselor, whose evidence deposition was admitted at arbitration, administered a battery of tests to claimant on March 25, 1985. She determined that claimant was functionally illiterate, and performed at a middle grade-school level in reading, spelling, and arithmetic. Based on her training, experience, observations of claimant, review of his medical records, test scores, grades, work history, and the length of time the claimant had been out of the labor market, Ms. Bose was of the opinion that claimant would not be placeable in the competitive job market.

Bose further opined that claimant was not placeable in the competitive job market because employers look for stamina and dependability in an employee. She also noted that the pattern of the claimant’s work as highway commissioner was dominated by erratic performance and hours and limited by his need to alternately sit, stand, and lie down.

In her opinion, an elected office is not a job in the competitive job market. Bose stated, “An ordinance position is not a competitive labor market because competitive labor market by virtue of definition is that other people apply for the position and get it, get substantially gainful employment to do specific which is not the case in this ordained [sic] position that he holds. My consideration of his ability to perform his ordained position was considered in my opinion regarding his ability to work in the competitive labor market. Also, in the competitive job market, one gets paid for production.” Finally, she testified that employability in the competitive job market commonly involves the ability to travel to work every day.

Joan P. Murphy, the Worth township clerk called by the respondent, testified as to her observations of the claimant at township meetings. On some occasions, he only stayed a few minutes and then would leave the meeting, which normally lasted an hour or less. He used a cane and limped when he walked. He squirmed from side to side as he sat and had to, alternately, sit and stand. Between March 1982 and January 1985, claimant missed 33 township meetings. In the early months of 1985, she observed that the claimant’s face was drawn and that he appeared to be in extreme pain.

Murphy testified that projects undertaken by the highway department, of which claimant was commissioner, were primarily accomplished through the efforts of the township clerk, the township engineer, and the township attorney. She described the claimant’s work as being done mostly on the telephone from his home.

The arbitrator found that claimant was permanently disabled under the Act and was entitled to 1324/7 weeks of TTD.

At the March 4, 1986, review hearing before the Commission, claimant testified concerning his current activities and condition at that time. He stated that his condition had worsened since he had testified at the arbitration hearing conducted a year earlier. Dr. Elmes continued treating him during this period, and he received three or four spinal and hip injections for pain about every two months. His left leg continued to collapse. On May 1, 1985, the collapse of his left leg resulted in an emergency room examination at St. Francis Hospital. His body trembled if he sat for any length of time; he experienced back pain radiating down both legs if he were on his feet any length of time. At night, he was up every couple of hours, unable to sleep due to pain. He continued to wear a corset all the time. Claimant continued to take prescribed medication, including Equanal 400’s, Phenophen, three pain pills, and Valium. He also continued to do prescribed exercises.

Claimant further testified that he had continued to hold his elected office as highway commissioner, having been reelected in April 1985 for a second four-year term. His total hours of work were down to four or five hours a week because of pain in his back and legs. Claimant’s condition on review was identical to his condition at the time of arbitration, in the respect that pain would not permit him to perform any township work for weeks at a time. About half of his work continued to be carried out at his home.

On cross-examination, claimant testified that no time records are kept by the township concerning his work hours, because he is an elected official. He further testified that he gets paid the same amount by the township whether he performs any work or no work at all.

On December 18, 1985, respondent had claimant examined by Dr. James W. Ryan, an orthopedic surgeon, who wrote a report of his findings. The Commission received his report in evidence as an admission against interest. Dr. Ryan reported claimant was unable to work and further reported:

“The examination reveals a multitude of positive nerve root signs, such as bilateral Nafzigger, Bowstrings, Laseque, Straight Leg Raising to 30 degrees bilaterally, and pain with flexion of the lumbar spine. There are also bizarre findings, such as decreased sensation to the pinwheel in the stocking distribution below the knee with decreased vibratory and light touch sensation of all dermatomes below the left knee. He has some weakness of the extensor hallucis longus on the left. The patient, in spite of some functional overlay, appears to have pathology. The symptoms and findings appear to be that of spinal stenosis. I would recommend a CT Scan and myelography. He cannot work in his present condition.”

The evidence deposition of Dr. Ryan was received in evidence by the Commission, Based upon his examination of the claimant, Dr. Ryan found that claimant’s fifth lumbar root was permanently damaged. He thought the claimant might have nerve compression, and he found tenderness in either sciatic notch where the sciatic nerve emerges from the pelvis at the level of L3-L4 in the middle line over the posterior spine of the pelvis on either side at L4-L5. X rays of the lumbar spine showed narrowing of the disc spaces at L3-L4 and L4-L5.

Dr. Ryan testified that the claimant has a significant low back problem, and based on his examination, he concluded that claimant was not able to work.

Dr. Ryan stated that he received a telephone call from Jack Singh, respondent’s claims investigator, shortly after he mailed his report of examination to Singh. Dr. Ryan was told by Singh that claimant was a highway commissioner and had a strictly sedentary job. Dr. Ryan could not recall any other description of duties provided by Singh in the telephone call, but he assumed that claimant was working at a place of business. Dr. Ryan modified his report after receiving Singh’s telephone call by a supplemental letter, dated January 8, 1986, which stated, “In response to your inquiry on the above named patient, I feel that Mr. Esposito as a highway commissioner can perform his duties. However, he has permanent partial disability of which the percentage cannot be quantified at this time.”

Dr. Ryan conceded on cross-examination that the interruption of claimant’s sleep due to pain could influence claimant’s ability to work in even a sedentary job. Dr. Ryan noted that claimant was taking Equinal 400, Valium 10 mg, and Phenophen No. 3, and testified that these drugs, particularly Valium, have side effects and that Phenophen is a Codein product. Dr. Ryan conceded that claimant’s use of Valium could adversely affect his ability to work, including sedentary work. He further testified that the history of left leg collapse could be consistent with a back problem such as claimant exhibited. Dr. Ryan admitted that a history of leg collapses, the use of prescribed Valium, Phenophen, and Equinal, and the inability to sleep at night could possibly affect claimant’s ability to get a job, even a sedentary one, but he would not absolutely rule out the possibility of such employment. However, he further testified that the chronic use of medication would tend to prevent claimant from being employed. He agreed that one might have trouble getting a sedentary job after 30 years of job experience as a sheet metal worker. Finally, Dr. Ryan confirmed that he modified his report solely on the basis of the telephone call from Singh.

The essence of Dr. Ryan’s testimony concerning the ability of the claimant to perform light duties or to perform the duties of a highway commissioner is reflected in the following series of questions and answers, which occurred during his cross-examination:

“Q. So, basically, when you said that he was able to continue his highway commissioner job, what you are saying, basically, is if he is able to do that job, something, he should do that?
A. That’s correct.
Q. And if that happens to be 6 hours a week, so be it. And if it’s 2 hours a week, so be it?
A. Correct.
Q. And you were not saying Mr. Esposito could work 40 hours a week in industry at light — a light-duty job?
A. I would say that that’s largely correct, that that consideration didn’t even enter my mind. I didn’t give it any thought. I assumed that he had a political job and I didn’t know the extent of it. I know from friends that people with political jobs can do more than their own job. My own secretary here had a political job and handled both of them, so political jobs are political jobs, so I really don’t know — .”

Relying on the fact that claimant was maintaining his elective position, the Commission found that he was entitled only to temporary total disability for those weeks during which he was hospitalized and unable to return to his sheet metal work for respondent or to assume his duties as highway commissioner. The Commission further found that claimant was entitled to permanent partial disability rather than permanent and total disability.

We first address the issue of whether the Commission’s decision to award claimant permanent partial disability was against the manifest weight of the evidence. We initially note that the determination of the extent or permanency of the employee’s disability is a question of fact, and the Commission’s decision will not be set aside unless it is against the manifest weight of the evidence. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353.) The claimant has the burden of proving by a preponderance of the evidence the extent and permanency of his injury. (Continental Drilling Co. v. Industrial Comm’n (1987), 155 Ill. App. 3d 1031.) Once the claimant has met this burden, the respondent must then show that some kind of competitive market work is regularly and continuously available to the claimant. Ceco Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 278.

Regarding the standard by which permanent and total disability is judged, our supreme court has stated:

“We have often held that an employee is totally and permanently disabled under the act when ‘such employee is unable to make some contribution to the work force sufficient to justify the payment of wages.’ [Citation.] However, a claimant is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted. [Citations.] A person is totally disabled when he cannot perform any services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. [Citations.] Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life, he is not entitled to total and permanent disability compensation.” Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 176.

Initially, we observe that the evidence clearly supports claimant’s assertion that he is permanently and totally disabled in regard to his work as a sheet metal worker and that he has no marketable talents. All physicians who have either examined or treated claimant indicate his continuing inability to work as a sheet metal worker. No physician has found claimant able to return to work. For example, as noted above, Dr. Ryan, following his December 18, 1985, examination of claimant, observed that claimant was unable to work. Dr. Ryan noted compelling objective evidence of the extent of claimant’s lower back problems. Further, claimant’s consulting physician, Dr. Barnett, described his back as a failed surgical back. Dr. Barnett stated that claimant’s severely disabled condition was permanent.

As noted above, the Commission found that claimant was entitled to a permanent partial disability award rather than an award of full permanent disability because of claimant’s elective position. Based upon the testimony of Dr. Elmes, the Commission found that claimant was tolerating his activities as highway commissioner “quite well” and that he should continue in this position. The Commission also focused upon Dr. Elmes’ view that claimant could perform sedentary work that did not include lifting, excessive bending or twisting. Further, the Commission relied upon claimant’s testimony that in his position as highway commissioner, claimant supervised six full-time employees, attended some township meetings, worked 6 to 10 hours a week in the township office, and performed work-related duties, including paperwork and radio work, at his home.

The manifest weight of the evidence contradicts the Commission’s finding that claimant’s elective position served to mitigate the compensation due him.

A close inspection of Dr. Elmes’ complete testimony, upon which both respondent and the Commission heavily rely, demonstrates Dr. Elmes’ unfamiliarity with claimant’s performance as highway commissioner.

During Dr. Elmes’ cross-examination by respondent, the following colloquy took place.

“Q. Doctor, if you had been aware during that time that Mr. Esposito was working as a full-time highway commissioner, isn’t it true you would have permitted him to continue on as the highway commissioner for Worth Township?
A. Yes, apparently from what you have told me, he is tolerating this moderate amount of activity fairly well, and it was non-physical and not aggravating to his back apparently.
Q. If you assume Mr. Esposito worked anywhere from approximately 6 to 10 hours a week making telephone calls, attending meetings, listening to the radio, making a few radio phone calls, sometimes going out to different civic affairs in the community, would you call that a sedentary job that Mr. Esposito could perform if, in fact, you knew that he was doing those activities during the past three years?
A. Yes, I feel he could continue in that capacity of that type of sedentary job.”

In contrast to this testimony was Dr. Elmes’ answer to the following question put to him by claimant’s attorney:

“Q. I want you to assume that Mr. Esposito spends approximately six hours a week making telephone calls from his home, from his bed at home and attends periodic meetings of the Worth Township Board at which he will periodically come and make a report and then leave the meeting and that the total of all his activities, *** are probably six hours a week.
I would like to have you further assume that in some weeks Mr. Esposito’s pain prevents him from performing any duties or work whatsoever on behalf of the township whether it is making a telephone call from home or not.
Based on that information and your training and experience and examination of Mr. Esposito, as well as your knowledge of his physical condition, do you have an opinion as to whether or not Mr. Esposito could be gainfully employed in the labor market performing those services?
A. I think if that is his ultimate capacity, no.”

Dr. Elmes’ unfamiliarity with the position and the way in which claimant performed his duties vitiate the weight of his testimony.

In determining the effect of this elected position upon the degree of claimant’s disability, we must look at the substance of his duties as highway commissioner and the work actually performed by claimant. The evidence regarding claimant’s performance as highway commissioner is found in the testimony of claimant, Julie Bose, and Joan Murphy.

As noted above, claimant testified to the following regarding his work as highway commissioner. Prior to the instant injury, he worked approximately 30 hours per week on township business. Following the accident, claimant worked six hours per week on township duties. There were some weeks during which he was not able to do any work due to his back condition. Much of his township business is performed by telephone or radio rather than in person at the township office. He talks with the township secretary on the phone several times a week. In the busy season, depending on the weather, he talks to his lead man on the radio at most once or twice during the day.

On review, claimant testified that he had a radio at home but weeks went by without any calls. He talked to the township on the telephone from his home two or four times a week. Claimant met with the secretary a couple of times a week, usually at his home, to sign papers. He talked with his lead man once per week for a few minutes. In the year prior to the hearing on review, he received two emergency calls.

Claimant has a secretary who handles the highway commissioner’s office work. The lead man handles the work out in the field. An attorney drafts the budget, and an engineer handles the engineering duties. The township clerk prepares legal notices and accepts the bids for the roadwork to be done. At the time of the review hearing, claimant was spending four to five hours a week on township business, and during some weeks, he was unable to work at all because of pain.

The testimony of Joan Murphy, the Worth Township clerk, reflects claimant’s sporadic and uncertain performance as highway commissioner since his injury. Murphy identified the 33 township meetings that claimant missed from March 1982 to January 1985. Murphy witnessed claimant’s behavior at township meetings and observed that he squirmed as he sat, alternated standing and sitting, limped when he walked, used a cane, stayed at some meetings only a few minutes, and on occasion, left meetings after delivering his report. Murphy thought that in early 1985, claimant appeared to be in extreme pain.

Julie Bose, a certified rehabilitation counselor, administered a battery of tests to claimant on March 25, 1985. She determined that he was functionally illiterate and was performing at a middle grade level in reading, spelling, and arithmetic. Based on claimant’s medical records, test scores, work history, and the time that claimant was out of the labor force, she found him unable to compete in the competitive job market.

Bose also stated that claimant’s lack of stamina and dependability made him unplaceable in the competitive job market. She noted that his work as highway commissioner was marked by erratic performance and limited hours, which constrained his need to alternately stand, sit, and lie down.

Bose testified that an elective office is not a job in the competitive job market. She stated that, by definition, the competitive job market means that others can apply for jobs, which is not the case when one holds an elected position for a fixed term. Also, Bose stated that a job in the competitive employment differs from an elective position in that the former is paid for one’s production. Finally, she stated that employability in a competitive job market commonly requires that services be performed away from home.

This evidence demonstrates that, following his injury, claimant performed minimal duties as highway commissioner. His back injury severely limited his capacity to carry out the duties of highway commissioner. In essence, other township officials and employees performed claimant’s duties when he was physically unable to do so. He was not a “full-time employee,” as characterized by respondent, but rather one who was, at best, a marginal, part-time official of Worth Township.

Claimant met his burden of demonstrating that, although he is not altogether incapacitated for work, he is so handicapped as to be unemployable in any known branch of the labor market. Ceco Corp., 95 Ill. 2d at 286-87.

As noted above, when a claimant has met this burden, the employer must come forward with evidence to show not only that the claimant is capable of engaging in some kind of regular and continuous employment but that such employment is reasonably available. E.R. Moore Co., 71 Ill. 2d 353.

We find that respondent did not meet its burden of showing that some kind of employment was regularly and continuously available to claimant. Also, the record reflects that claimant was not performing and could not perform services regularly for which there was a reasonably stable labor market.

Consequently, we reverse the judgment of the circuit court which confirmed the Commission’s award of permanent partial disability, and we find that claimant is entitled to an award of permanent and total disability. It follows that we affirm the circuit court’s finding that claimant was entitled to 1324/7 weeks of temporary total disability.

Affirmed in part; reversed and remanded in part.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE O’CONNOR

text:
    HENRY C. DIETZ, Plaintiff-Appellant, v. LOUIS SPALLA et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—87—3841
    Opinion filed July 24, 1989.

      Anesi, Ozmon, Lewis & Associates, Ltd., of Chicago (Robert E. Haney, of counsel), for appellant.
    Modesto, Reynolds & McDermott, of Chicago (James P. Hynes and Gregory G. Lawton, of counsel), for appellee Louis Spalla.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order granting a motion for summary judgment in favor of defendant and denying plaintiff’s motion to reconsider. We reverse and remand for further proceedings.

The plaintiff, Henry C. Dietz, was injured on July 19, 1983, while employed by Outdoor Display Welding & Fabricating as an iron-worker. On July 15, 1985, plaintiff filed a first amended complaint against Richmond Development Corporation; Louis Spalla (Spalla), individually and d/b/a S & B Sign Company; Bennett & Pless, Inc.; Ronald A. Richmond; and Harriet W. Bennett. Count I alleged that defendant Spalla was liable for violating the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Count II alleged common law negligence.

On May 1, 1987, defendants Richmond, Spalla and Bennett filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The motion was supported by defendant Spalla’s deposition testimony, taken January 20, 1987, in which he testified as follows: As of the date of the accident, he was a partner in the S & B Sign Company in addition to working as a real estate agent. Harriet Bennett was his other partner in the sign business. The S & B Sign Company was in the business of leasing advertising space on expressway billboards, and the sign at 172nd Street and Ashland Avenue in East Hazelcrest, Illinois, where this accident occurred, was the third sign he had had built. Spalla stated that S & B has no involvement in the building of the signs but merely manages the sign for the landowners after it is built.

Spalla hired Outdoor Display and Welding to construct the billboard based on a written proposal submitted to him. Spalla testified that he gave Outdoor Display the general specifications for the sign but that Outdoor Display supplied the equipment and tools and supervised the construction. According to Spalla, the position of the sign was noted on the legal survey and he never went to the jobsite where the accident happened and never gave instructions as to how to build the sign. He further testified that he had no construction experience, had no knowledge of whether a particular construction practice was safe or unsafe and had no authority to stop the work.

In opposition to defendant’s motion, plaintiff submitted the affidavit of Brent Guptill (Guptill), a co-worker at the construction site. Guptill stated that he had witnessed the accident and that before the accident occurred, he had noticed a tall, thin, gray-haired man about 60 years of age on the jobsite. The man had directed employees in the positioning and placement of anchor bolts so that the sign would face in the right direction. Guptill stated that he was told by the job foreman that the gray-haired man said he was one of the owners. Plaintiff’s counsel also submitted an affidavit averring that Louis Spalla generally fit the description given by Guptill and expressing the opinion that Spalla was the man who had been giving directions at the jobsite. The trial court granted defendants’ motion for summary judgment on July 23, 1987, ruling that the evidence was too speculative and could not support the inference that the gray-haired man referred to in Guptill’s affidavit was defendant Spalla.

On July 28, 1987, plaintiff filed a supplemental request for production requesting any and all photographs taken of Louis Spalla for the purpose of clarifying the identity of the owner alleged to be present on the jobsite. Defendant refused to comply with the request on the grounds that plaintiff’s right to discovery ended when summary judgment was entered in his favor.

In the absence of the judge who heard the motion for summary judgment, an emergency motion was brought on August 14, 1987, before a second judge, who ordered Spalla to provide plaintiff with a photograph or, in the alternative, present himself at the law offices of plaintiff’s counsel for a viewing. Plaintiff also filed a motion for reconsideration and sanctions on August 21, 1987.

At the request of the initial judge, the judge who entered the emergency motion reconsidered the issues raised by defense counsel and subsequently vacated the order compelling production. The motion for reconsideration was referred back to the judge who had heard the motion for summary judgment, who denied both that motion and plaintiff’s motion to compel production. Plaintiff now brings this appeal.

Plaintiff’s principal contention is that summary judgment was improperly granted as a question of fact exists regarding whether defendant Spalla violated the Structural Work Act. He contends that the affidavits of Brent Guptill and plaintiff’s counsel, along with other matters in the record, are sufficient to support the inference that Spalla was present on the jobsite and that he gave directions to certain employees of Outdoor Display and Welding, the contractor hired to construct the sign. We agree.

In determining whether a moving party is entitled to summary judgment, the trial court must consider the entire record and construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177, 483 N.E.2d 210.) The party moving for summary judgment must affirmatively show that he has a clear right to a judgment, and if any facts are presented upon which reasonable persons may disagree, or if inferences which could be drawn from those facts lead to different conclusions, the court must deny the motion and the matter must be resolved at trial. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697.

In order to establish liability under the Structural Work Act, it must appear from the evidence that the defendant was “in charge of” the construction operations involving the violations. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321, 211 N.E.2d 247.) In order to find that a defendant was “in charge” of the work, it must be shown that “he had some direct connection with the construction operations,” and the defendant “must have been in charge of the particular operations which involved the violations from which the alleged injury arose.” (McGovern v. Standish (1976), 65 Ill. 2d 54, 67, 357 N.E.2d 1134.) Whether the defendant was in charge of the work within the meaning of the act is primarily a question of fact to be determined by the jury. (McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101, 338 N.E.2d 868.) Such a determination is not solely dependent on a written contract but is based on the circumstances as a whole. (Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 1054, 398 N.E.2d 60.) The question to be resolved here, therefore, is whether the statements in Guptill’s affidavit, considering the record as a whole, create a reasonable inference that defendant Spalla was present at the jobsite and was directing the work of the employees.

The record shows that there were only two owners of the property; Lords Spalla and Harriet W. Bennett. In his affidavit, Brent Guptill stated that “a tall, thin gray-haired man approximately 60 years old was present on the jobsite” directing Guptill and other workers with respect to the placement of certain bolts on the sign column. Plaintiffs attorney had deposed defendant Spalla on January 20, 1987, and he also submitted an affidavit in opposition to the motion for summary judgment stating that Spalla was a tall, gray-haired man approximately 60 years of age and he believed Spalla had been present on the jobsite.

Affidavits submitted in response to a motion for summary judgment must be made upon the personal knowledge of the affiant, must not consist of conclusions but of facts admissible in evidence, and must affirmatively show that the affiant, if sworn as a witness, could competently testify as to the facts set forth therein. (107 Ill. 2d R. 191; Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 598, 491 N.E.2d 803.) Thus while the attorney affiant’s opinion regarding the presence of Spalla is conclusory and is therefore inadmissible (Rosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 1079, 478 N.E.2d 464), a reasonable inference can be drawn from his description of Louis Spálla as a tall gray-haired man, from Guptill’s description of the man directing activities on the jobsite and from other matters of record that the person present at the site was Louis Spalla. See Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 399-400, 515 N.E.2d 1047.

Defendant Spalla’s deposition was taken only two months before summary judgment was entered in defendant’s favor on July 23, 1987. Immediately after the summary judgment was entered, plaintiff served a request to produce a photograph on Spalla’s counsel. When defendant declined to comply, plaintiff filed a motion to compel which was noticed up for an emergency hearing on August 14, 1987. This was not a case where plaintiff was dilatory in seeking new evidence in support of a motion to reconsider. Cf. Getman v. Indiana Harbor Belt R.R. Co. (1988), 172 Ill. App. 3d 297, 301, 526 N.E.2d 557.

The purpose of a motion for reconsideration is to alert the court to any errors it has made and to allow an opportunity for their correction. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 2d 719, 722, 365 N.E.2d 115.) A rehearing is warranted where the newly discovered evidence is sufficiently conclusive or decisive in character to make it probable that a different result would have been reached by the trial court. (Powers v. Sturm (1973), 12 Ill. App. 3d 346, 352-53, 297 N.E.2d 628.) Here, plaintiff could proceed with his motion for reconsideration only if he could produce new evidence of a decisive nature to establish the identity of the person at the jobsite. The requested photograph constituted evidence of a conclusive nature in that it would have enabled Guptill to establish whether or not Spalla was the person he observed on the construction site, thus resolving whether a genuine issue of fact existed. We conclude that the trial court abused its discretion in vacating the order to compel production and denying plaintiff’s motion for reconsideration. Accordingly, the order denying plaintiff’s motion for reconsideration and his motion to compel are vacated and this matter is remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    CANDACE S. MEDVID, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants (Jewel Company, Inc., Defendant).
    First District (1st Division)
    No. 1—88—1570
    Opinion filed July 24, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Respicio F. Vazques, Assistant Attorney General, of Chicago, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County reversing a decision of the Board of Review of the Illinois Department of Employment Security which found plaintiff, Candace Medvid, ineligible for unemployment insurance benefits. This court has jurisdiction pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301).

At issue is whether the Board’s decision that plaintiff was disqualified from receiving unemployment benefits was contrary to the manifest weight of the evidence. We believe it was not.

Plaintiff, Candace Medvid (Medvid), was employed full time by the Jewel Companies, Inc. (Jewel), as a service desk clerk between June 17, 1985, and November 3,1986.

On November 3, 1986, Medvid was terminated because of unauthorized absence from work. She filed a claim for unemployment compensation, which was denied by a claims adjudicator. She applied for reconsideration of the claims adjudicator’s determination. The request for reconsideration was considered an appeal and the claims adjudicator’s decision to disqualify Medvid from receiving benefits was affirmed.

On January 7, 1987, Medvid appeared before an Illinois Department of Employment Security (IDES) hearing referee, who reversed the claims adjudicator’s decision. Jewel filed an appeal with the Board of Review of IDES, which reversed the hearing referee’s decision. The Board found that the evidence demonstrated that Medvid gave a false reason for her absence from work and concluded that she violated her duty to report to work and her duty to give notice of the reason for her absence to her employer.

Plaintiff then filed a pro se complaint in the circuit court of Cook County under the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq. (the Administrative Review Law).) The circuit court reversed the decision of the Board of Review, and the IDES, the Director of IDES and the Board appealed.

The hearing before the referee revealed the following. While employed at Jewel, Medvid had a conflict with a supervisor so she applied for a transfer. Her supervisor testified that she had been offered several other positions which she first accepted and later rejected. He stated that the problem Jewel had with Medvid was her attitude and that she came to work tired every day as a result of other employment. She was notified that her conduct was not acceptable, and her supervisor told Medvid he intended to recommend that she be taken out of a training program because of her attitude and conduct at work. Medvid then took a week off without pay while awaiting a transfer.

Following her return to work on October 20, 1986, plaintiff worked for several days. On October 24, 1986, Medvid was scheduled to work between 8:30 a.m. and 5 p.m. The employer’s rule requires that if the employee is not going to be at work, the employee is required to call in before the start of her working day. Medvid failed to show up for work and did not call to notify Jewel of her absence. On October 25, Medvid was scheduled to work between 2:30 p.m. and 11 p.m. She again failed to show up at work but called at 5:30 p.m. to state that she had overslept and would not be at work. The employer informed her of the disciplinary action for failing to show up for work and failing to give notice of her absence.

The employer was aware at this time that Medvid was working for another employer. On October 26, Medvid was scheduled to work from 1 p.m. to 8 p.m. and October 27, she was scheduled to work from 2:30 to 11 p.m. On both days, Medvid called in sick. Her supervisor then informed the area personnel manager that he had heard she was working at another job while calling in sick. On October 28, the area personnel manager verified that Medvid was working for another employer at the same hours she was scheduled to work for Jewel.

Medvid’s employment with Jewel was terminated by a letter dated October 29, 1986. She was also notified personally on November 3, 1986, that her employment was terminated. At the hearing, plaintiff stated that she was aware that she would be fired if she called in sick on days when she was scheduled to work while in fact she was working for someone else.

The only issue presented is whether plaintiff was discharged for misconduct connected with her work under section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432). Plaintiff not having filed a brief, this case is taken on defendant/appellant’s brief alone. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133, 345 N.E.2d 493.

The primary purpose of the Illinois Unemployment Insurance Act is to provide benefits to persons who are involuntarily unemployed due to the lack of suitable work and for no other reason. Accordingly, the Act disqualifies from benefits an individual who is discharged for misconduct connected with the work. In such cases, the individual is unemployed because of his violation of some reasonable rule of conduct which the employer has the right to control and not because of the lack of suitable work.

Section 602(A) provides in part: “An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work ***.” The Illinois Supreme Court has determined that misconduct is:

“[Cjonduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, *** or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 511-12, 475 N.E.2d 879, quoting Boynton Cab Co. v. Neubeek (1941), 237 Wis. 249, 259-60, 296 N.W. 636, 640.)

The Jackson court also made it clear that not every violation of a company rule constitutes misconduct. Violation of a rule constitutes misconduct only if the rule is a reasonable rule governing the conduct or performance of an employee and if there is some nexus between the rule and the employment. (Jackson, 105 Ill. 2d at 512.) The violation of rules regarding being absent from work without notifying the employer and without having a reasonable excuse for not doing so has been found to constitute misconduct by Illinois courts. See Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 383, 465 N.E.2d 1052; Robinson v. Department of Labor (1983), 118 Ill. App. 3d 986, 987-88, 455 N.E.2d 567.

After reviewing the facts here, we conclude that the Board of Review correctly found that plaintiffs failure to notify her employer of her absence and calling in sick while working for another employer constituted misconduct which disqualified her from receiving unemployment benefits.

Plaintiff acknowledged that she called in sick for a week and intended to continue to do so pending a transfer which she had requested and which had not yet been arranged. When she was informed that the transfer would not be immediately available and that she was scheduled to return to work at the same store, she returned for only three days after which she either called in sick or failed to report to work while working for another employer. It is undisputed that plaintiff knew she was expected to report for work unless there was good cause for her not to do so. It was also undisputed that she knew she was expected to give adequate notice of any expected absence. Medvid admitted that she falsified the reason for her absence by claiming illness when she was working for another employer and further admitted that she knew that if Jewel discovered the falsehood, she would be terminated. Plaintiffs conduct constituted a deliberate violation of a standard of conduct that her employer had a right to expect and a substantial disregard for both her employer’s interests and her duties to her employer.

We concur with the Board of Review’s finding that plaintiff was discharged for misconduct connected with her work, pursuant to section 602 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432). Accordingly, we reverse the decision of the circuit court of Cook County.

Judgment reversed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    DONNA McCarthy, Plaintiff-Appellant, v. HIDDEN LAKE VILLAGE CONDOMINIUM ASSOCIATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0960
    Opinion filed July 25, 1989.

      William J. Sneckenberg & Associates, Ltd., of Chicago (William J. Sneckenberg and Benjamin E. Alba, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold and William E. Spizziri, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

This action arises from a fall sustained by the plaintiff, Donna McCarthy, on the driveway at 1066 Hidden Lake Drive in Buffalo Grove, Illinois. Defendant, L & F Maintenance Company (L & F), which provided snow removal services for the driveway, was awarded summary judgment against plaintiff, who now appeals.

From September 1983 through July 1985, plaintiff resided at the above address in a condominium owned by her fiance located in a development controlled by the Hidden Lake Villiage Condominium Association (the Association), which maintained the driveways and common walks. The Association had an oral contract with L & F for snow plowing whenever there was a snowfall of two inches or more. In his deposition, the owner of L & F testified that he was satisfied with the performance of a particular job if he could see the concrete on the entire driveway.

On January 24, 1984, L & F plowed the driveway in front of the garage at 1066 Hidden Lake Drive. Three days later, plaintiff backed her car out of the garage and onto the driveway; she then stopped the car, and got out in order to close the garage door. Steadying herself on the car, she walked alongside it up to the garage door, a distance of about 18 inches. She closed the door and was returning to her car when she slipped and fell.

Plaintiff fell when she was next to the left front wheel of her car, in an area of the driveway adjacent to the lawn upon which L & F had pushed the snow, thereby creating snow banks. According to plaintiff’s deposition testimony, she was not walking on a flat plowed surface, but was on the edge of a snow and ice embankment which extended “six to twelve inches into the driveway itself *** [and] had the snow been pushed over another eight to twelve inches, the sloping edge wouldn’t have been there; and it would have been a flat surface.”

Defendant moved for summary judgment on two grounds: first, that it was under no duty to remove unnatural accumulations of ice and snow, and second, that plaintiff’s sole cause of action was limited to the Association.

Plaintiff’s response to L & F’s motion for summary judgment in-eluded the affidavit of Henry L. Mikolajczyk, an architect for nearly 50 years and professor of architecture at the University of Illinois at Chicago since 1949. Mikolajczyk’s opinion was that the failure to plow the driveway from end to end contributed to the unnatural accumulation of snow and ice which was present at the time of plaintiffs fall, and that this unnatural accumulation caused her fall. Mikolajczyk reviewed the National Weather Service reports, which indicated that during the three days preceding plaintiffs fall, the temperature fluctuated ábove and below the freezing point, until it remained below the freezing point on the day of her fall. He concluded that this weather pattern would have caused the embankments to alternately melt and refreeze, thereby forming an unnatural accumulation of ice in the area where plaintiff fell.

The trial judge granted summary judgment against plaintiff, holding that “no duty was owed by defendant L & F Maintenance Company to plaintiff to clear the entire driveway of snow and ice.”

Section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par 2 — 1005) provides that summary judgment is appropriate “if 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.” Summary judgment is a remedy to be awarded with some caution so as not to preempt the right to a jury trial or the right to fully present the factual basis of a case wherein a material dispute may exist. (Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 149-50, 240 N.E.2d 699.) Moreover, a motion for summary judgment raises the primary issue of whether the nonmovant has presented any evidence giving rise to a genuine issue of material fact. (Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 570, 501 N.E.2d 376, appeal denied (1987), 114 Ill. 2d 547, 508 N.E.2d 729.) And although summary judgment is an expeditious method of disposing of a lawsuit, it should be allowed only when the right of the moving party is clear and free from any doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) The court must consider all of the evidence before it and construe such evidence strictly against the movant and liberally in favor of the nonmovant. Purtill, 111 Ill. 2d at 240.

Plaintiff argues that the record here indicates that she had to hold on to her. car to steady herself on an ice and snow embankment in the area that she customarily used to walk back and forth from her car to the garage; that the pathway she used was the only way she could reasonably be expected to get to and from her garage door; that the embankment extended 6 to 12 inches into the driveway, and had it been pushed farther into the lawn she would not have been forced to walk on the embankment; that defendant’s president admitted that proper plowing required exposure of all of the concrete in a driveway, from which it can be reasonably inferred that the driveway had to be plowed end to end; and that there was evidence of a temperature pattern that would have caused snow embankments unnaturally created by defendant to alternately melt and refreeze during the days prior to plaintiff’s fall, thereby causing unnatural accumulations of ice, as her expert opined.

Plaintiff suggests that all of the foregoing evidence raises a fact question as to whether the manner in which defendant plowed the driveway created the unnatural accumulation that caused her fall. Yet, plaintiff states, the trial court decided that she had no factual basis that would arguably bar summary judgment and erroneously concluded that, as a matter of law, there was “nothing in the record to indicate that the plowing was negligent.”

The following was the basis for the trial court’s conclusions:

“I don’t see the duty at all upon L & F to plow to such a fashion that it has to be past the line of the door, particularly where apparently, she said if she slipped anywhere, it would have been in the tire track which has to be in the area within the garage door. To put the burden of every plower of snow to make sure there is nothing left on the entire driveway, I think is unreasonable, because otherwise we would say that there may be always liability when we have a 20 inch snow fall or a one inch snow fall or one snow fall that follows another, where it’s almost physically impossible if anyone knows or lives in the northern climate to get snow piled up on top of snow in such a fashion that there’s nothing else at all left on a driveway or sidewalk.”

The question of the existence of a legal duty is one of law to be decided by the court, while the question of whether a duty was properly performed is a question of fact to be determined by the trier of fact. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) In Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 643, 411 N.E.2d 1168, this court, in quoting from Durkin v. Lewitz (1954), 3 Ill. App. 2d 481, 491, 123 N.E.2d 151, which in turn quoted from Goodman v. Corn Exchange National Bank & Trust Co. (1938), 331 Pa. 587, 590, 200 A. 642, 643, stated:

“ ‘ “It may be stated as a general rule that there is no absolute duty to keep outside steps free from ice or snow at all times. Where the precipitation is recent or continuous, the duty to remove such obstruction as it forms cannot be imposed, and the dangers therefrom are viewed as the normal hazards of life, for which no owner or person in possession of property is held responsible. It is only when the owner or possessor having a duty to remove snow and ice, improperly permits an accumulation thereof to remain after a reasonable length of time for removal has elapsed, that liability may arise for the unsafe and dangerous condition thereby created.” ’ ”

In Schoondyke, plaintiff brought an action against defendants for injuries she sustained on the premises where she resided in a condominium unit owned by her parents, alleging that her injuries were caused by defendants’ failure to remove ice and snow from the common sidewalk on which she slipped and fell. This court reversed the trial court’s award of summary judgment to defendants, rejecting their argument that they owed no duty of snow removal to plaintiff because they had no contract with her. The court went on to hold that “because defendants, by virtue of the declaration of condominium and condominium bylaws, have voluntarily assumed a duty of snow removal not imposed upon them by common law, defendants owed a duty to plaintiff herein to remove natural accumulations of snow and ice.” 89 Ill. App. 3d at 645.

In Tressler v. Winfield Village Cooperative, Inc. (1985), 134 Ill. App. 3d 578, 481 N.E.2d 75, plaintiff sued her landlord for negligent failure to comply with a covenant to remove snow. In following Schoondyke, the appellate court reversed the trial court’s grant of summary judgment in favor of defendant, and stated: “[A] question concerning breach of a duty, whether the defendant exercised reasonable care, is a matter for the trier of fact. *** We cannot say that the defendant exercised due care as a matter of law.” 134 Ill. App. 3d at 581.

As can be readily seen, both Schoondyke and Tressler involved a failure to plow at all, not defective plowing as charged by plaintiff in the case at bar and by the plaintiff in Burke v. City of Chicago (1987), 160 Ill. App. 3d 953, 513 N.E.2d 984. In Burke, defendant, City of Chicago, leased certain portions of Midway Airport to Northwest Airlines under a lease agreement in which the city agreed “to keep the airport free from obstruction, including the removal of snow *** as reasonably as may be done.” The city had hired two contractors to remove snow by means of plowing at the airport. On the day of the evening on which Burke slipped, fell, and was injured, snow had fallen in excess of two inches, but prior to Burke’s fall, snow removal equipment had plowed the area in which he fell, and no more snow had fallen since that time. However, what remained after the plowing had turned to ice. It was further shown that the city had previously spread sand and urea after snowplowing even though there was no contractual obligation to do so. The court distinguished Schoondyke and Tressler from the facts with which it was presented, noting that no plowing had occurred in either of those cases, but because there had been plowing in Burke, the court found that such plowing would have to be shown to have been defective in order to show a breach of duty. The court further found that to find defective plowing, it would have to conclude that the city had a duty to remove all snow. The court found that such a duty had not been assumed as the lease provided for the removal of snow “as reasonably as may be done.”

As the court did in Eichler v. Plitt Theatres, Inc. (1988), 167 Ill. App. 3d 685, 521 N.E.2d 1196, appeal denied (1988), 122 Ill. 2d 573, 530 N.E.2d 243, we find that the holdings in Schoondyke and Tressler are not diminished by Burke, for the Burke court as we have just noted above, distinguished those two cases on the facts with which it was presented. In Eichler, the court affirmed summary judgment for those defendants who contracted for removal of snow only, and reversed summary judgment for those defendants who contracted for the removal of snow and ice in a case where plaintiff slipped and fell on ice in a theatre parking lot. The court, in holding that only those defendants who contracted to remove ice owed a duty to remove it, remanded the cause for trial on the issue of whether the defendants had complied with their duty to remove all of the ice that was reasonably removable, which is precisely the issue that faced the trial judge in the case at bar — a genuine issue, we are constrained to hold, of material fact, which, as Eichler, could not properly be resolved in a summary judgment proceeding.

Here, plaintiff presented evidence that she had to support herself by holding- on to her car as she trod on and between a snow and ice embankment in the area that she customarily used to get to and from her garage door and her car; that the pathway she used was the only way she could reasonably be expected to get from her car to her garage and vice versa; that the embankment extended 6 to 12 inches into the driveway, and had it been pushed further into the lawn she would not have been forced to walk on the embankment. Defendant contractor’s deposition testimony is that the procedure his employees would follow and which was followed in this case was to push the snow directly into the lawn from the driveway; that he would inspect the job after plowing “to see if it was done properly”; by “done properly” he meant that he would be able “to see the concrete” for the entire driveway; and on this occasion he saw the concrete for the entire driveway.

In view of the obvious differences the parties had as to the all-important facts in this case, the trial judge’s grant of summary judgment to defendant was in error, based, as it was, on his conclusion that “no duty was owed by defendant L & F Maintenance Company to plaintiff to clear the entire driveway of snow and ice.” As Burke and Eiehler amply demonstrate, defective plowing can lead to liability, and here the testimony clearly shows that only the trier of fact can resolve that issue.

Accordingly, the judgment of the trial court must be and the same is hereby reversed.

Reversed.

BILANDIC, P.J., and EGAN, J., concur.

       Justice Egan participated in this decision before joining the sixth division.