{ "id": 3427264, "name": "CONRAD HARRIS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees", "name_abbreviation": "Harris v. Bethlehem Steel Corp.", "decision_date": "1984-04-13", "docket_number": "No. 83\u20141269", "first_page": "449", "last_page": "456", "citations": [ { "type": "official", "cite": "124 Ill. App. 3d 449" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "439 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5436067 ], "year": 1983, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0670-01" ] }, { "cite": "328 N.E.2d 559", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415644 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/60/0585-01" ] }, { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "pin_cites": [ { "page": "586-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] } ], "analysis": { "cardinality": 819, "char_count": 16619, "ocr_confidence": 0.728, "pagerank": { "raw": 2.03106178504866e-07, "percentile": 0.746606848507384 }, "sha256": "8381f936083318d298a475cfa1107113762435f8f2bd1ab45e015273bc5b8be2", "simhash": "1:3b7e2cc90fc55245", "word_count": 2745 }, "last_updated": "2023-07-14T22:48:36.140001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CONRAD HARRIS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE MEJDA\ndelivered the opinion of the court:\nPlaintiff appeals from an order of the circuit court which granted the motions for summary judgment of defendants Bethlehem Steel Corporation and Industrial Sling Company. Defendant Northern Engineering Corporation is not a party to this appeal. Plaintiff contends that the trial court erred in entering summary judgment against him because expert testimony cannot provide a basis for overcoming the sufficiency of allegations in the complaint. Plaintiff also argues that the expert\u2019s opinion in the instant case did not eliminate all genuine issues of material fact set up by the complaint. For the reasons which follow, we affirm in part and reverse and remand in part.\nCount I of plaintiff\u2019s unverified second amended complaint alleged that defendants manufactured and distributed cable to plaintiff\u2019s employer and that the cable was used on a crane to hold a metal block weighing between 400 and 500 pounds. Plaintiff alleged that the cable was designed and intended for this use and that the cable broke and severed, causing him personal injury. Count I of the second amended complaint sought recovery under a strict products liability theory, alleging in paragraph 7 three alternative factual bases for recovery. These were that the cable was defective at the time that it left the defendants\u2019 possession and control in: (a) failing to support a load well within its capacity; (b) failing to carry such a load due to lack of metallurgy integrity; and (c) failing to withstand normal wear and tear in normal use so as to support a load well within its capacity. The defendants filed separate answers denying the material allegations of the second amended complaint.\nDefendants\u2019 motions for summary judgment set forth that the expert retained by plaintiff to inspect and study the wire rope testified in a discovery deposition that the cable was not defective and that, in his opinion, the accident was not caused by any improper or defective condition of that product. The motion included the deposition of Sheldon Mostovoy, which disclosed the following. He is an associate professor of metallurgical and materials engineering at the Illinois Institute Technology, and he examined several sections from the failed as well as the intact portions of the cable. His examination revealed that the wires comprising the cable contained ductible overload or tensile failures but no brittle failures. He stated that these failures were caused by \u201cgross overload\u201d rather than by metallurgical defects such as nicks, seams, gouges, or wires rolled in laps. Such defects could have caused a brittle failure, which Mostovoy characterized as a \u201csnapping\u201d type of failure characteristic of improperly manufactured cable. He indicated that the tensile failures which he found in the cable were caused by the deformation of the component wires under stress and their subsequent failure to assume their original shape. This caused a narrowing or \u201cnecking\u201d of the wires which in turn diminished their strength leading to the break in the cable. Although Mostovoy stated that he found nothing to indicate that the manufacturer of the cable was responsible for the failure, he also noted that he had no knowledge of the specific physical properties of the specific wires. He stated \u201c[f]or an example, if that wire was made from an improperly heat treated or improperly manufactured wire, then those tensile overloads might have come at loads that would be substantially below the ones that are claimed for that wire. And so I would have had to have done additional tests to verify that. I did not do them.\u201d Mostovoy stated that additional testing would not change his opinion that the failure of the cable was due to an overload rather than a \u201cdefect\u201d in the cable.\nPlaintiff produced no documents or other depositions to contradict Mostovoy\u2019s statements. The trial court entered summary judgment for defendants, and plaintiff has appealed.\nOpinion\nThe rules governing summary judgments are well settled. \u201cA defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.\u201d (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1005(b).) Further, \u201c[t]he judgment sought shall be rendered without delay 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.\u201d (Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014 1005(c); see also Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586-87, 272 N.E.2d 497.) Discovery depositions may be used in the context of summary judgment proceedings \u201c \u2018for any purpose for which an affidavit may be used.\u2019 (See 87 Ill. 2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 676, 445 N.E.2d 1184.)\u201d In re Estate of Myers (1983), 120 Ill. App. 3d 726, 731, 458 N.E.2d 1102.\nPlaintiff asserts that summary judgment cannot be based on the opinion of an expert witness adduced at a deposition. Plaintiff notes correctly that a jury is not bound to accept the opinion of an expert on an ultimate issue. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 122, 273 N.E.2d 809.) From this rule plaintiff further posits that because the jury need not accept the opinion of the expert, that opinion is too inconclusive to form the predicate for a summary judgment. Defendants reply that the courts have affirmed summary judgments entered on the basis of the depositions of experts. (See, e.g., Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055; Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 395 N.E.2d 1158; Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36.) In our view this is entirely proper. Although a jury is not bound to accept the testimony of an expert witness (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118), the issue in summary judgment cases is not whether a jury would accept or reject the statement of the affiant or deponent but rather whether that statement is contradicted so as to create a genuine issue of material fact.\nIn the area of medical malpractice the uncontradicted affidavit of an expert witness is generally sufficient to support entry of summary judgment. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 327, 431 N.E.2d 48; see also Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 359-68, 407 N.E.2d 1067 (Harrison, J., dissenting).) Of course, in medical malpractice cases, with few exceptions, the use of expert testimony is required in order to prove the standard of care which the defendant doctor must meet. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326, 431 N.E.2d 48.) Plaintiff has offered no reason to distinguish between a case in which expert testimony would be required at trial with respect to an issue of fact and a case in which such testimony is merely permitted. Plaintiff has not argued that Mostovoy, whom plaintiff engaged as an expert, would be incompetent to testify as to his opinion at a trial of this matter. Accordingly, we hold that the trial court could properly consider Mostovoy\u2019s expert opinion in ruling on the motion for summary judgment.\nIt is elementary that the issues are raised initially by the complaint and answer and that on a motion for summary judgment a party cannot rely on his pleading in the face of contradictory affidavits. (See Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380-81, 313 N.E.2d 457.) In determining whether there exists a genuine issue of material fact, the court considers the entire record and construes the evidence strictly against the moving party and liberally in favor of the opponent. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47.) If the party moving for summary judgment supplies evidentiary facts which, if uncontradicted, would entitle him to judgment, the opposing party cannot rely on his pleadings alone to raise issues of material fact. (In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770, 458 N.E.2d 1065.) Nonetheless, even though the party opposing the motion fails to file counteraffidavits, the movant should not be awarded summary judgment unless the affidavits establish the right to a judgment as a matter of law. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47.) Thus, the consequence of failing to file counteraffidavits is that the statements in the affidavits supporting the motion stand as admitted. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 541, 458 N.E.2d 575.) It therefore follows that the statements in the affidavits relied upon as justifying summary judgment must avoid the theories of recovery set forth by the complaint.\nPlaintiff contends that in the instant case Mostovoy\u2019s deposition testimony, although uncontradicted, nevertheless does not entitle defendants to judgment. The question before us thus becomes whether the second amended complaint and the answer thereto created any issues of material fact which were not addressed by the uncontradicted statements in the deposition.\nOur review of the record indicates that Mostovoy\u2019s opinion that the cable in question contained no \u201cdefects\u201d rebutted the allegation in subparagraph (b) of paragraph 7 that the cable lacked metallurgical integrity. Accordingly, plaintiff could not rely on his complaint to create a genuine issue of material fact but was obliged to present some factual basis that would arguably entitle him to a judgment upon the applicable law. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 540, 458 N.E.2d 575.) Because plaintiff failed to present a sufficiently contradictory factual basis by affidavit, deposition or other suitable method, summary judgment was properly entered for defendant on this allegation. See Bennett v. Raag (1982), 103 Ill. App. 3d 321, 327, 431 N.E.2d 48.\nThe expert also testified that the failure of the cable was due to \u201cgross overload\u201d which could have occurred at loads \u201csubstantially below\u201d those claimed for the cable. Construing the deposition strictly against the movant and liberally in favor of the opponent, as indeed we must (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47; Heller v. Sullivan (1978), 57 Ill. App. 3d 190, 194, 372 N.E.2d 1036), it is apparent that Mostovoy\u2019s conclusion that the cable was not \u201cdefective\u201d was not tantamount to a conclusion that the cable was not in fact defective within the common meaning of that term, but only that the cable was relatively free from nicks, gouges, and laps in its infrastructure, which would be the result of improper manufacture. Mostovoy\u2019s deposition indicated that these are not the only indicia of improper manufacture and that subsequent testing would be required to determine the cause of the tensile failure. Mostovoy stated that this could have been caused by improper manufacture. Where the facts admit of more than one conclusion, including a conclusion unfavorable to the movant, such facts cannot support summary judgment. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 118, 383 N.E.2d 672.) Thus, the allegation of subparagraph (a) of paragraph 7 in the complaint that the cable failed to support a load well within its capacity was not contradicted by the expert\u2019s opinion. Similarly, the allegation in subparagraph (c) of paragraph 7 that the cable was unable to withstand normal wear and tear was not addressed by the expert\u2019s deposition testimony. \u201cThe purpose of a summary judgment proceeding is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried [citations], and since the party opposing the motion has the right to trial by jury if there is a genuine issue of fact, the motion should be granted only when the right to it is clear and free from doubt.\u201d (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598.) Summary judgment was not appropriate for these two issues because genuine issues of material fact existed concerning them. Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1005(c).\nDefendants argue that summary judgment was properly entered by the trial court because the expert indicated that further testing would not change his opinion. The expert did state that further testing would not change his opinion, but it is clear from the record that by this statement he meant that further testing would not convince him that the cable severed due to a brittle failure rather than a tensile failure. Mostovoy did not indicate that a tensile failure could not be caused by improper manufacture and indeed he stated the opposite to be true. Construing the deposition against the movant (see Heller v. Sullivan (1978), 57 Ill. App. 3d 190, 194, 372 N.E.2d 1036), we conclude that the trial court erred in allowing the motion for summary judgment with regard to the two issues indicated.\nDefendants contend that our holding conflicts with the holdings of Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36 and Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503. Defendants mischaracterize these cases as placing the burden upon the opponent of a summary judgment motion to \u201ccome forward with facts, proof, supporting all of the allegations of the complaint.\u201d (Final emphasis added.) In Coleman the defendant filed a motion for summary judgment based on an expert\u2019s written opinion which concluded that the cause of the plaintiff\u2019s injury was a third party\u2019s substitution of control panels on the product. The court held that the plaintiff, who had not filed any affidavits indicating any other reasonably dangerous condition that had existed at the time the press left the defendant\u2019s control, could not avoid summary judgment. The court did not hold, as defendants vigorously maintain, that summary judgments might be entered where uncontradicted facts do not refute all of the theories raised by the complaint. In Coleman, the preemptive nature of the defense set forth by the expert\u2019s opinion, i.e., that the defective condition arose after the press left the defendant\u2019s control, made it incumbent upon plaintiff to introduce some factual support for a conclusion that defendant might be liable to plaintiff. Similarly, in Mateika, plaintiff failed to produce any support for his contention that a defective condition existed in the propane tank at the time that it left defendants\u2019 control.\nAs this court has indicated, it is the ratio decidendi of a case which forms the basis for application of principles of stare decisis. (Panchinsin v. Enterprise Cos. (1983), 117 Ill. App. 3d 441, 444, 453 N.E.2d 797.) \u201c \u2018A judicial opinion, like a judgment, must be read as applicable only to the facts involved and is an authority only for what is actually decided.\u2019 (People ex rel. Schuler v. Chapman (1939), 370 Ill. 430, 435, 19 N.E.2d 351, 354.)\u201d (Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 79, 439 N.E.2d 975.) The cases relied upon by defendants are distinguishable in that the uncontradicted facts in the instant case, namely, the absence of gouges, nicks, laps, or brittle failures, do not eliminate the viability of plaintiff\u2019s two remaining factual theories of recovery. Thus, our holding does not, as defendants have suggested, do violence to the holdings in Coleman and Mateika.\nFor the foregoing reasons, the order granting summary judgment is affirmed as to the issue of liability predicated on subparagraph (b) of paragraph 7 of count I of the second amended complaint, and is reversed as to the issues of liability predicated on subparagraphs (a) and (c) thereof. The case is remanded to the trial court for further proceedings consistent herewith.\nAffirmed in part; reversed and remanded in part.\nLORENZ, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE MEJDA" } ], "attorneys": [ "William J. Harte, Ltd., and Herbert E Stride, Ltd., both of Chicago, for appellant.", "George. W. Gessler and Barbara A. Frick, both of Rooks, Pitts, Fullagar and Poust, of Chicago, for appellees." ], "corrections": "", "head_matter": "CONRAD HARRIS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 83\u20141269\nOpinion filed April 13, 1984.\nModified on denial of rehearing June 15, 1984.\nWilliam J. Harte, Ltd., and Herbert E Stride, Ltd., both of Chicago, for appellant.\nGeorge. W. Gessler and Barbara A. Frick, both of Rooks, Pitts, Fullagar and Poust, of Chicago, for appellees." }, "file_name": "0449-01", "first_page_order": 473, "last_page_order": 480 }