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Lubin v. Goldblatt Bros.

OCTOBER 29, 1962.

FAY LUBIN, PLAINTIFF-APPELLEE,

v.

GOLDBLATT BROS., INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. L.L. WINN, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 15, 1962.

This is an action commenced by plaintiff, Fay Lubin, to recover damages for injuries sustained by her when she fell in defendant's premises. After a trial before the court without a jury, judgment was entered for plaintiff in the amount of $40,000 and defendant appeals.

Defendant contends the finding of negligence against it is contrary to the law and to the evidence and that plaintiff failed to prove she exercised reasonable care for her own safety. Alternatively, defendant contends that if the verdict is affirmed, the amount of damages should be reduced as grossly excessive.

From the testimony it appears that on July 11, 1960, the plaintiff, then about seventy years of age, was about to leave defendant's store when she slipped and fell in the foyer between some sales counters and the revolving exit door. The accident occurred between 12:30 and 2:00 o'clock p.m., a short time after the store was opened for business. Plaintiff testified she was familiar with the store and said this was her customary place of going in and out. She stated that the slippery condition of the floor was the cause of her fall.

There were no eyewitnesses to the occurrence. Ronald Kerman, employed by defendant, heard someone cry out and was the first person to reach the scene. He found plaintiff on the floor in the foyer inside the Broadway entrance directly in front of the revolving door. When plaintiff told him she could not get up he called Mrs. Jean Ross in Personnel and the latter called Charles W. Baker, the store supervisor. The plaintiff complained of an injury to her leg. After a phone call, the fire department personnel and two policemen arrived. Plaintiff was placed in a wheel chair and then taken to Weiss Memorial Hospital.

With respect to the condition of the floor in the area where plaintiff fell, the evidence showed that the floor was composed of asphalt tile, was clean except for buffing marks, and there was no dirt, debris, or foreign material present. It had been swept the night before with an oil cloth mop and buffed with a fiber pad on the morning of the occurrence. The standing maintenance care consisted of waxing the floor about every two months. The porter in charge of waxing the floor could not recall the last time it had been waxed prior to the accident.

At the point where plaintiff fell, the floor sloped from a distance of one foot from the nearest counter, which was less than six feet from the revolving door, and extended to the center of the revolving door. The slope measured 5/8ths of an inch per foot. This converts to a three degree slope.

The amended complaint charged the defendant with the following acts of negligence:

(1) Permitting the floor of the store to be waxed and polished and in a slippery condition;

(2) Failing to warn the plaintiff that the floor was in a slippery and dangerous condition;

(3) Applying wax to the floor at a point where there was a substantial grade in the level of the floor as a result of which the floor at the point where the grade was located became extremely slippery; and

(4) Permitting the floor to be in a dangerous and slippery condition at a point where there was a substantial grade or change in level of the floor which grade or change in level was unexpected and not readily visible.

The answer denied all charges of negligence and affirmatively alleged that the floor was surfaced with the type of flooring customarily used in department stores and that the flooring was cleaned and dressed in the customary manner. The plaintiff's reply was a general denial of the affirmative allegations. The case was tried without a jury and the trial judge found in favor of the defendant, Broadland Building Corporation, the owner of the building, and against the defendant, Goldblatt Bros., Inc., the lessee. The damages were assessed at $40,000.

Defendant maintains there is no evidence whatsoever of any negligence by the defendant in its floor and maintenance procedures. A court of review will consider the evidence taken in the light most favorable to the plaintiff inasmuch as a reviewing court is not authorized to disturb the findings of the trial judge unless the judgment is against the manifest weight of the evidence and an opposite ...


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