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SIXTH DIVISION
October 17, 2003

No. 1-02-3818

JUSTICE SMITH delivered the opinion of the court:

Plaintiff-appellant Craig Robertson (plaintiff) appeals from the trial court's order grantingsummary judgment in favor of defendant-appellee Sky Chefs, Inc. (defendant), based on plaintiff'sfailure to respond to defendant's written request for admission of fact pursuant to Illinois SupremeCourt Rule 216 (134 Ill. 2d R. 216). Plaintiff asks that we vacate the order and remand the cause,allowing him to withdraw any admissions or file a late response to defendant's written request. For the following reasons, we affirm.

BACKGROUND

The record in the instant case reveals that on June 2, 1999, plaintiff was operating a motorvehicle on a service ramp in the American Airlines terminal at O'Hare International Airportbetween gates K11 and K13. While plaintiff was driving the vehicle, he slowed to yield to acatering truck that was being operated by an agent of defendant. Despite this, plaintiff's vehicleand defendant's vehicle collided.

On May 29, 2001, plaintiff filed a complaint at law alleging that defendant's agent hadbeen negligent in operating its vehicle and that this negligence resulted in his injury and damages. Defendant answered the complaint and asserted various affirmative defenses. Defendant thenfiled and served upon plaintiff a written request for admission of fact (request to admit), pursuantto Supreme Court Rule 216 (Rule 216). See 134 Ill. 2d R. 216. This request to admitpropounded 12 questions with respect to the alleged accident and sought plaintiff's response toeach. Plaintiff did not respond to defendant's request to admit.

Defendant filed a motion for summary judgment asserting that due to plaintiff's failure torespond to the Rule 216 request to admit, all the facts contained in that request must be deemedadmitted, thereby leaving no issue of material fact with respect to defendant's alleged negligence. Plaintiff responded, claiming that the questions defendant propounded in the request to admitwere improper in form and did not comply with Rule 216. On September 10, 2002, the trial courtentered an order granting defendant's motion for summary judgment.

ANALYSIS

On appeal, plaintiff contends that the trial court abused its discretion in grantingdefendant's motion for summary judgment due to his failure to answer the questions contained indefendant's request to admit. Plaintiff claims that the questions improperly sought admissionsconcerning conclusions of law, and therefore, his failure to respond to them did not result in anybinding admissions. Alternatively, plaintiff contends that even were we to find that his failure torespond did result in his admission of the contents of defendant's Rule 216 request to admit,summary judgment was not proper because genuine issues of material fact still exist. For its part,defendant contends that each question in the request to admit was proper in form. Defendantfurther argues that even if some conclusions of law were present, the remaining factual questionsin the request "are enough by themselves" for plaintiff to have judicially admitted, through hisfailure to answer them, that no cause of action for negligence against defendant exists. We agreewith defendant's latter argument.

As a threshold matter, we note for the record that the parties disagree upon theappropriate standard of review for the instant cause. Plaintiff argues that the trial courtcommitted an abuse of discretion in its ruling, while defendant points out that an appeal from agrant of summary judgment requires de novo review. Neither approach, however, is entirelycorrect. This cause invokes two issues for our consideration: (1) whether the questions indefendant's request to admit were proper in form and thus should be deemed admissions as aresult of plaintiff's failure to respond to them; and (2) whether, after setting aside any improperquestions in the request to admit, the remaining admissions provide adequate support for the trialcourt's award of summary judgment to defendant. Our review for both of these questions is on ade novo basis, since the first is a question of law (see P.R.S. International, Inc. v. Shred PaxCorp., 184 Ill. 2d 224, 234 (1998) (whether request to admit calls for admission of fact orconclusion of law is reviewed de novo)), and the second is an appeal from an order grantingsummary judgment (see Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,102 (1992) (whether summary judgment was properly granted is reviewed de novo)).

The purpose of summary judgment is to determine whether a question of fact exists. SeeAddison v. Whittenberg, 124 Ill. 2d 287, 294 (1988). This relief is proper when the pleadings,affidavits, depositions and admissions of record, construed strictly against the moving party, showthat there is no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law. See Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); accord Purtill v.Hess, 111 Ill. 2d 229, 240-44 (1986). While summary judgment has been called a "drasticmeasure," it is an appropriate tool to employ in the expeditious disposition of a lawsuit in which " 'the right of the moving party is clear and free from doubt.' " Morris, 197 Ill. 2d at 35, quotingPurtill, 111 Ill. 2d at 240.

Pursuant to Rule 216, a party to an action may serve another party to that action with awritten request for his admission of "any specified relevant fact set forth in" that request. 134 Ill.2d R. 216(a); see P.R.S. International, 184 Ill. 2d at 234. The party receiving the request then has28 days in which to either deny or object to the request. See 134 Ill. 2d R. 216(c). If he doesneither, those factual matters in the request are deemed judicial admissions which cannot later becontroverted by any contradictory evidence. See 134 Ill. 2d R. 216(c); see also Banco Popular v.Beneficial Systems, Inc., 335 Ill. App. 3d 196, 208 (2002) (failure to respond as required by Rule216(c) results in admission of facts which cannot later be disputed).

However, Rule 216 applies exclusively to the admission of facts or "ultimate facts" whichmight give rise to legal conclusions. See P.R.S. International, 184 Ill. 2d at 236, 239; Walker v.Valor Insurance Co., 314 Ill. App. 3d 55, 62 (2000) ("Rule 216 applies only to the admission offacts"). Thus, a party may not include legal conclusions in his request to admit. See P.R.S.International, 184 Ill. 2d at 236; Walker, 314 Ill. App. 3d at 62 ("legal conclusions may not beadmitted or included in a Rule 216 request"). Any question propounded in the request to admitwhich seeks the admission of a conclusion of law is improper in form (see P.R.S. International,184 Ill. 2d at 236), and the failure to respond to that question does not result in a judicialadmission. See P.R.S. International, 184 Ill. 2d at 239; accord Banco Popular, 335 Ill. App. 3d at209; see also Hubeny v. Chairse, 305 Ill. App. 3d 1038, 1043 (1999) (if request asks party toadmit to conclusion of law, party's failure to respond is irrelevant and "a trial on the issue" is"required").

Accordingly, we must determine whether the defendant's request to admit to whichplaintiff did not respond properly included questions of fact, and subsequently, whether these factsdeemed admitted due to plaintiff's failure to respond support the trial court's award of summaryjudgment to defendant.

With respect to question 1, we find that, contrary to plaintiff's contention, this is aquestion of fact. Specifically, it asked:

"1. Do you admit that on June 2, 1999, that the Plaintiff did not operate, maintain,or control a certain motor vehicle on a working ramp at O'Hare Airport ***?"

Through this question, defendant sought an admission from plaintiff that plaintiff was not presenton the service ramp at the time of the alleged incident. This is clearly a question of fact. SeeHubeny, 305 Ill. App. 3d at 1044 (question in request to admit seeking admission of whether anaction was taken or an event occurred is a question of fact); see also Pryor v. Industrial Comm'n,201 Ill. App. 3d 1, 5 (1990) (whether accident occurred and who was present are issues of fact). Thus, plaintiff's failure to respond to question 1 results in its admission. See P.R.S. International,184 Ill. 2d at 239.

Likewise, question 2 of defendant's request to admit asked:

"2. Do you admit that on the aforesaid date, and time, the Defendant *** did notown or operate a certain motor vehicle, at O'Hare Airport on [the same] workingservice ramp ***?"

This too is a question of fact, as it sought an admission from plaintiff that defendant was notpresent at the scene of the alleged incident. See Hubeny, 305 Ill. App. 3d at 1044; Pryor, 201 Ill.App. 3d at 5. Because plaintiff failed to respond to this question of fact, it is deemed admitted. See P.R.S. International, 184 Ill. 2d at 239.

Question 3 of defendant's request to admit asked:

"3. Do you admit that on the aforementioned dates, times and places *** did theDefendant *** own [sic] a certain motor vehicle being operated, maintained andcontrolled by its agents, servants and/or employees, which came in contact withthe vehicle operated by the Plaintiff?"

In propounding this question, defendant sought the admission by plaintiff that his motor vehicleand a motor vehicle being driven by defendant's agent collided on the service ramp on the day inquestion. Just as questions 1 and 2 in the request to admit, this is a question of fact, dealing withwhether an event, namely the accident, actually occurred. See Hubeny, 305 Ill. App. 3d at 1044;Pryor, 201 Ill. App. 3d at 5. Thus, plaintiff's failure to respond to this question also constitutes anadmission. See P.R.S. International, 184 Ill. 2d at 239.

Therefore, we find that questions 1, 2 and 3 are questions of fact that were properlyincluded in defendant's request to admit. Thus, plaintiff's failure to respond to them, namely, todeny them or object to their content within 28 days as mandated under the auspices of Rule 216,results in their admission. See 134 Ill. 2d R. 216; P.R.S. International, 184 Ill. 2d at 235-36 (Rule216 is not a suggestion but, rather, a rule that must strictly be obeyed and enforced). Accordingly, these admissions cannot be controverted by any contradictory evidence. See 134 Ill.2d R. 216(c); accord Banco Popular, 335 Ill. App. 3d at 208.

With respect to questions 1, 2 and 3, plaintiff contends that even if these are deemed to bequestions of fact, it becomes evident that the facts contained in those admissions create genuineissues of material fact which prohibit the grant of summary judgment in this cause. This isbecause, as plaintiff points out, questions 1 and 2 result in the admissions that neither plaintiff nordefendant operated motor vehicles at the time, date and location of the alleged accident, yetquestion 3 results in the admission that vehicles operated by plaintiff and defendant at the time,date and location of the accident "came in contact" with each other. We agree. Ostensibly, theadmission that neither party was present at the scene of the accident is in direct conflict with theadmission that the parties were present and involved in the accident. Thus, these contradictoryadmissions give rise to a conflicting issue of material fact, namely, whether a collision occurredbetween a vehicle operated by plaintiff and a vehicle for whose operation defendant is responsible. However, upon our review of the other questions contained in defendant's Rule 216request to admit, specifically question 5, we find that there is no basis upon which to support anyfinding of liability against defendant, even assuming a collision between the parties occurred.

Question 5 asks plaintiff to admit the following:

"5. Do you admit that on the aforesaid date, the Defendant *** did not commitany of the following acts or omissions:

(a) operating, maintaining and controlling a motor vehicle on the aforesaidService Ramp so that Plaintiff was greatly injured;

(b) failing to keep proper and/or any lookout for traffic then and therelawfully proceeding on said service ramp;

(c) operating said motor vehicle in a reckless manner with disregard forsafety of persons and other motor vehicles lawfully driven on said serviceramp, in violation of Illinois Statute 5/11-503;

(d) operating said motor vehicle on the aforesaid roadway at a rate ofspeed that was greater than was reasonable, proper and prudent, havingregard of traffic, the condition of the roadway and the use of way;

(e) act in violation of Illinois Statute 5/11-601(a), by operating a motorvehicle at a rate of speed that was greater than was reasonable, proper andprudent, having regard for traffic, the condition of the roadway and the useof way;

(f) failing to stop and/or turn the course and/or reduce the speed of saidmotor vehicle in time to avoid a collision with another vehicle on theaforesaid service ramp;

(g) failing to make proper and/or any use of the brakes of said motorvehicle in time to avoid causing a collision with another motor vehicle onthe aforesaid service ramp."

Omitting consideration of subparts (c) and (e), which are questions of law (see People v. Wallace,77 Ill. App. 3d 979, 981 (1979) ("[w]hether certain conduct occurred is a question of fact, butwhether certain conduct violates a certain statute is a question of law"); accord McCoy v.McCoy, 227 Ill. App. 3d 244, 247 (1992)), plaintiff's failure to respond to the remaining subpartsof question 5 resulted in the judicial admission of the following facts: defendant was not operatinga vehicle that injured plaintiff, defendant kept a proper lookout, defendant was operating thevehicle at a reasonable and proper speed, defendant stopped and/or turned the course and/orreduced speed to avoid a collision, and defendant properly used his brakes in an attempt to avoidthe collision. See Hubeny, 305 Ill. App. 3d at 1044 (request to admit with respect to action takenor event's occurrence is question of fact that is admitted if not answered). The assertions in thesesubparts, as set forth by defendant in its request to admit, specifically tracked the language usedby plaintiff in his complaint as a predicate for defendant's liability. Thus, plaintiff's admission ofthese factual assertions, through his failure to respond to them, eliminates any basis or foundationfor defendant's alleged negligence as postured in the complaint. See P.R.S. International, 184 Ill.2d at 243-44 (through failure to respond to request to admit, party constructively admitted tofacts which precluded finding of alleged liability, and thus, summary judgment for opposing partywas proper).

Accordingly, although questions 1, 2 and 3 may be characterized as conflicting admissionswith respect to whether a collision occurred, even were we to assume, as plaintiff claims, that acollision did indeed occur, plaintiff's failure to respond to question number 5 is preemptive andleaves no basis upon which to support any finding of liability against defendant, thereby renderingthe trial court's grant of summary judgment proper in this cause.

CONCLUSION

For the foregoing reasons, we affirm the holding of the trial court.

Affirmed.

GORDON and McNULTY, JJ., concur.