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SECOND DIVISION
November 26, 2002

No. 1-01-1381

Plaintiffs Raymond and Terri Preze appeal a summary judgment for defendants BordenChemical, Inc., Pinner Electric, Inc., and Lyons Electric Company, Inc., on claims arising out ofRaymond's injuries sustained in a construction accident. Plaintiffs also appeal the trial court'sorder striking their safety expert's affidavit under Supreme Court Rule 191 (145 Ill. 2d R. 191). We reverse the summary judgment for defendant Borden, affirm summary judgments fordefendants Pinner and Lyons, and affirm the trial court's ruling on the affidavit.

Borden hired Scheck Mechanical Corporation to perform routine general maintenance inits resin manufacturing plant. Borden also hired Pinner and Lyons to perform electrical work.

Plaintiff Raymond Preze was employed by Scheck as a pipe fitter. On May 5, 1997,Raymond was repairing a roof in a pump room when he slipped and fell off a ladder coated withresin, sustaining injuries.

Plaintiffs filed an eight-count complaint against Borden, Pinner and Lyons, allegingdefendants were negligent in failing to protect Raymond from the dangerous ladder. Plaintiffsalleged that the ladder Raymond used on May 5 belonged to either Pinner or Lyons. Plaintiffsalleged that Pinner and Lyons knew that Scheck employees routinely used Pinner or Lyonsladders and other tools to complete Scheck jobs. Plaintiffs alleged that this knowledge imposed aduty on Pinner and Lyons to maintain safe equipment. Plaintiffs alleged that Borden wasnegligent in failing to protect Raymond from a dangerous condition on its property: resin.

Raymond testified in his deposition that he had over 25 years' experience as a pipe fitterand that he had worked at the Borden plant for 5 years. Raymond testified that, on May 5, 1997,he was repairing a weakened roof in a pump room. He climbed a 20-foot extension ladder tocheck work he had just completed when he slipped. Raymond said that the ladder rungs wereslippery and coated with resin. He said this was to be expected because "if it was in the building,it had resin on it." Raymond testified that the ladder belonged to either Pinner or Lyons. Scheck, Raymond's employer, only had 40-foot ladders, which would not fit in the pump room. Pinner and Lyons both used 20-foot extension ladders. Borden owned no ladders.

Raymond admitted that he did not complain about the resin-coated ladder on the day hefell. But Raymond said he had complained two days earlier. Raymond asked Ken Biske, aLyons employee, to clean the ladders. Biske told Raymond to clean the ladders himself. Raymond knocked off the bigger pieces of resin but did not clean the ladder completely becausehe believed the task was not his responsibility. Raymond said that he complained to Scheckabout unsafe working conditions at Borden 25 to 50 times. Raymond said he complained aboutfumes, resin and acid leaks.

Raymond testified that he took directions only from Scheck. Borden exercised no controlover Raymond's work. Raymond's equipment was furnished by Scheck, except for the 20-footladders. Raymond did not have to ask Pinner or Lyons to use the ladders. Pinner and Lyons didnot exercise control over Raymond's work or tell him how to use their ladders. Raymondtestified that it was Scheck's policy to tag and remove unsafe equipment from use.

Ken Biske, a Lyons employee, testified in a deposition that he believed that the ladderplaintiff was using on May 5, 1997, belonged to Lyons. Biske admitted that his belief was basedon a conversation he had with Raymond five months after the accident. Biske testified thatRaymond told him that he slipped off a 20-foot extension ladder while working in the pumproom. Borden filed a motion for summary judgment. Borden argued that it had no duty to warnRaymond of danger of resin in the plant. Pinner and Lyons filed a joint motion for summaryjudgment. Pinner and Lyons admitted that ownership of the ladder used by Raymond wasdisputed. But Pinner and Lyons went on to say that, "assuming[,] arguendo," the ladderbelonged to Pinner or Lyons, neither owed a duty to Raymond as a matter of law.

Plaintiffs submitted an affidavit of a safety expert, Dennis Puchalski, opposing thesummary judgment motions. Puchalski testified that he was experienced in constructionmanagement, worksite safety and investigating worksite accidents. Puchalski said the presenceof resin, inadequate lighting and loud noise in the pump room in Borden's plant were hazardousand dangerous. Puchalski also averred that Borden was responsible for project supervision andshould have cleaned up the resin but failed to do so. Puchalski concluded that Borden knew orshould have known that the dangerous conditions in the pump room could cause an accident. Puchalski also testified that the ladder belonged to Pinner and that Pinner had a duty to maintainthe ladder in a safe condition. Puchalski's affidavit was based on a review of Borden's, Pinner'sand Scheck's company policies and rules relating to employee safety, photographs of the pumproom, and Occupational Safety and Health Administration standards. The documents referencedby Puchalski were not attached to the affidavit.

Pinner and Lyons filed a motion to strike the Puchalski affidavit under Rule 191 (145 Ill.2d R. 191). Borden joined the motion. Defendants argued that the affidavit offered opinion, notfacts, and failed to include documents as required by Rule 191 (145 Ill. 2d R. 191). The motionalso alleged Puchalski's statement that Pinner owned the ladder was not based in fact.

The trial court granted the motion to strike. The trial court then granted the motions forsummary judgment on all claims.

We first address the ruling on plaintiffs' affidavit.

We agree that the Puchalski affidavit was properly stricken under Rule 191. 145 Ill. 2dR. 191. Plaintiffs contend that the failure to attach papers upon which the affiant relied and theoffer of conclusions instead of facts supported by evidence were improper grounds for strikingthe affidavit. Plaintiffs argue the affidavit "firmly supported" their claim that defendants wereliable for Raymond's injuries.

The trial court granted the motion to strike "in part as explained on the record." Plaintiffsdid not include a transcript of the hearing in the record on appeal. We cannot tell from the briefswhat parts of the affidavit were stricken or the trial court's reasons for striking them. Plaintiffsalso failed to cite case law to support their argument. Plaintiffs, as appellants, bear the burden ofproviding a complete record to facilitate a meaningful review. Foutch v. O'Byrant, 99 Ill. 2d 389,391-92, 459 N.E.2d 958 (1984). We must assume that the trial court's order was correct and hadsufficient factual basis absent a complete record on appeal. Foutch, 99 Ill. 2d at 391-92. Thetrial court's reasoning aside, it is clear that the ruling on the Puchalski affidavit was correct.

Affidavits submitted under Rule 191 in opposition to a motion for summary judgment aresubstitutes for testimony at trial. Strict compliance with Rule 191 insures that a trial court ispresented with all valid evidentiary facts upon which to base a decision. The plain language ofRule 191(a) requires that documents supporting an affidavit must be attached. Robidoux v.Oliphant, 201 Ill. 2d 324, 339, 775 N.E.2d 987 (2002). The failure to attach the documents isfatal. Robidoux, 201 Ill. App. 3d at 339-40.

We next address the grant of summary judgments for all defendants. We review theserulings de novo. General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18(2002).

Plaintiffs first argue that Borden, as owner, owed Raymond a duty to protect him from thedangerous conditions on its property.

Whether a duty exists is a question of law. Ward v. K mart Corp., 136 Ill. 2d 132, 140,554 N.E.2d 223 (1990). We consider four issues to determine whether a duty exists: (1)foreseeability; (2) likelihood of injury; (3) magnitude of the burden on the defendant to guardagainst the injury; and (4) consequences of placing a burden on the defendant. LaFever v.Kemlite Co., 185 Ill. 2d 380, 389, 706 N.E.2d 441 (1998). Where, as here, an injury is allegedlycaused by a condition on a defendant's property, we first consider foreseeability and are guided inthe analysis by section 343 of the Restatement (Second) of Torts and on supreme courtinterpretation of it. LaFever, 185 Ill. 2d at 389. Section 343 subjects a landowner to liability ifhe: knows or by the exercise of reasonable care would discover the condition; should realize thatit involves an unreasonable risk of harm; should expect that the danger will not be discovered byinvitees; and fails to exercise reasonable care to protect invitees against the danger. Restatement(Second) of Torts