Husband and wife are in their early sixties. They live on the rented top floor of a two-flat in Chicago. Wife notices that husband has been missing from the house for some time. She calls out his name. She hears him respond from the alley behind the house. He yells back that he fell over the railing of their back porch. He then loses consciousness and dies. An investigation reveals that the back porch and railing are in violation of several city ordinances. Wife files a wrongful death lawsuit against the landlord.
Landlord moves for summary judgment alleging that plaintiff cannot prove that the ordinance violations proximately caused her husband's death. Landlord points out that there were no witnesses to the fall. Even the decedent's statement that he "fell over the railing" does not tell why he fell over the railing. He could have been climbing on the railing at the time and been blown off by the wind, or knocked off by a bird, or pushed off by his wife, etc.
The trial court and the appellate court both agree. Liability cannot be predicated on conjecture, rather proximate cause is established when there is reasonable certainty that the defendant's acts or omissions caused the injury. Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause.
Strutz v. Vicere, 1-07-2564, decided by the 1st District on April 29, 2009. Not yet released for publication.