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Guidani v. Cumerlato

APRIL 19, 1965.

DOMINIC GUIDANI, PLAINTIFF-APPELLANT,

v.

DOMINIC CUMERLATO AND DOMINIC FASSERO, D/B/A TAYLORVILLE BOWL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Christian County; the Hon. FRANKLIN R. DOVE, Judge, presiding. Judgment reversed and cause remanded for further proceedings.

MORAN, J.

Rehearing denied May 19, 1965.

Plaintiff, Dominic Guidani, appeals from a judgment notwithstanding the verdict entered in favor of the defendants by the Circuit Court of Christian County, in a suit for damages for personal injuries arising out of a fall by the plaintiff in a bowling alley owned and operated by the defendants, Dominic Cumerlato and Dominic Fassero. The case was tried before a jury and at the close of all the evidence, defendants moved for a directed verdict, which motion was denied by the trial court. The jury returned a verdict for the plaintiff assessing his damages at $7,500. In granting defendants' post-trial motion for judgment notwithstanding the verdict, the trial court held that the allegations of the complaint were not sustained by the evidence.

Plaintiff's complaint alleged that he was a patron of defendants' bowling alley on the date in question; that while bowling he had occasion to use the men's rest room furnished by the defendants for their patrons; that upon returning from the men's rest room he made his approach to deliver his bowling ball onto the alley when his left foot stuck and he failed to slide on the alley approach, thus causing his motion to be stopped abruptly and causing him to twist and fall to the floor, thereby injuring him severely; that his failure to slide was caused by certain liquids which he got on his left shoe without his knowledge while he was using the aforesaid rest room; that defendants were negligent in permitting the aforesaid liquids to remain on the floor of said rest room for a period of approximately one hour, well knowing that such liquids might get onto the soles of a bowler's shoes and thus endanger his safety when he attempted to bowl.

The defendants had moved to dismiss plaintiff's complaint in the trial court on the grounds that it did not state a cause of action; that the complaint showed on its face that plaintiff was guilty of contributory negligence as a matter of law and that the complaint showed on its face that the alleged acts of negligence were not the proximate cause of plaintiff's injuries. The motion to dismiss the complaint was denied by the trial court and after the filing of an answer by the defendants, the case proceeded to trial resulting in a verdict for the plaintiff. The post-trial motion of defendants consisted of (1) a motion in arrest of judgment to again test the legal sufficiency of the complaint and (2) an alternative motion for judgment notwithstanding the verdict on the ground that the evidence was insufficient to support the verdict. The trial judge denied the post-trial motion for arrest of judgment but granted the alternative post-trial motion for judgment notwithstanding the verdict on the ground that the allegations of plaintiff's complaint were not sustained by the evidence. He thereupon entered judgment in favor of the defendants and against the plaintiff.

When the trial court overruled that portion of defendants' post-trial motion asking for the arrest of the judgment in this case, it in effect ruled that plaintiff's complaint stated a cause of action. This was the same ruling that the trial court made before the filing of defendants' answer. In our opinion, the pretrial and post-trial rulings of the trial court holding that the complaint stated a cause of action were correct because the complaint contained all the material allegations necessary to fix liability on the defendants.

[2-4] The next problem facing this court is whether the trial court was correct in granting defendants' alternative post-trial motion for judgment notwithstanding the verdict on the ground that the allegations of the complaint were not sustained by the evidence. If there is a complete absence of probative facts to support the conclusion drawn by the jury in this case, we must sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict. If, on the other hand, there is an evidentiary basis for the jury's verdict, we must reverse this case even though we might draw a contrary inference or feel that another conclusion may be more reasonable. In considering this case it must be remembered that the jury is free to disregard or disbelieve whatever facts are inconsistent with its conclusion. In Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, 851, our Supreme Court said: "A motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case."

To like effect, Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855, 858, wherein it was also stated: "No contradictory evidence, or other evidence of any kind or character, will justify a directed verdict or a judgment for the defendant notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense." (Citing cases.)

It was said in McCormick v. Kopmann, 23 Ill. App.2d 189, 161 N.E.2d 720, 730, in passing upon a motion for a directed verdict: "Proof unfavorable to the plaintiff, even though the plaintiff herself introduced that proof, cannot be considered. The determination to be made is whether there is any evidence (all unfavorable evidence excluded) upon which the jury could base a verdict for the plaintiff under the count in question, and if there is, the motion as to that count must be denied and issues submitted to the jury." (Citing cases.)

There is considerable conflict in the evidence. However, this court like the trial court in considering the propriety of entering a judgment notwithstanding the verdict, does not weigh the evidence, consider its credibility nor test its preponderance. Whether or not we differ with the jury's conclusion is of no moment so long as we are able to say that reasonable persons might differ in their conclusions.

Plaintiff, with his brother and two friends, went to defendants' bowling alley to bowl in open play at approximately 1:30 p.m., on the 12th day of February, 1961. They had bowled two complete games and three or four frames of a third game when plaintiff had occasion to visit the men's rest room. He did not notice anything unusual about the rest room at this time. Upon returning it was plaintiff's turn to bowl and he proceeded to do so. He then described the happening of his accident as follows: "Well, when I reached to the finish of my approach my left foot out forward so I wouldn't fall, kind of slid, but mine stuck at this time and threw me to the left and spun me around, jolted me and I grabbed hold of the ball return, I believe it was, and found out I hurt my back. I didn't know what was wrong. Ball went in the gutter. That was about it. . . . Well, it threw me to the left and stopped all like that and the weight of the ball carried my body, momentum threw me to the left and I went kind of left, I think I touched one knee. I don't know for sure, John. I don't remember, but my back was just, just pain all at once. I just kind of grabbed onto something."

He remained at that place until his ball returned but his back was hurting him so badly that he had to cease bowling. He sat on a chair directly behind the bowling approach to the alley, but the pain in the lower part of his back was such that he was becoming nauseated, so he then went back to a bench to lie down. He further described the happening: "Well, I tried to lay down. Excuse me. I tried to let myself down, lay down on it, and as I went down I kind of kicked off my left shoe because the pain was down my left leg behind here and down by the calf and I didn't know if my ankle or anything was hurt. I kicked off my left shoe with my right and as I laid down I seen my shoe and I seen — I thought it was gum on the bottom of my shoe — and I went to get that, I think I might have put my head down, I got sick in the stomach and I grabbed the shoe and went to the rest room and as I went in the rest room I noticed — ." He looked at the two urinals while he was on the way to the lavatory and noticed that there was water or a liquid substance between the two urinals. He then returned to where he had been bowling and waited for his brother and two friends to finish the game. The four of them left and went directly to the plaintiff's home. The plaintiff's wife immediately called their family doctor who told them to come to his office in Kincaid. His wife drove him to the office of his doctor who hospitalized him immediately.

Eva Guidani, plaintiff's wife, testified that she saw her husband's bowling shoes either when he returned that day at around 5:00 p.m. or after he was taken to the hospital at 8:00 p.m., and that the sole of the left shoe was damp at that time. Alfred Guidani, plaintiff's brother, testified that he had used the men's rest room forty-five minutes to one hour before bowling the last game at which time he noticed moisture on the floor in two locations. He testified that there was a pool of water about three inches in diameter near the wash basin and a pool, which was more or less a spattering, about six or seven inches from the two urinals and directly between them. Defendant Dominic Fassero testified on cross-examination that he had used the rest room two or three times on the date of the accident and did not notice whether the floor was wet or dry. None of the other witnesses had direct knowledge whether or not there was moisture on the floor of the men's rest room on the date of the accident.

Gerald Melzer, whose duties consisted of pin setting, cleaning up and repairing bowling machines for the defendant, testified that he dry-mopped the floor of the toilet on the morning of the accident but did not move the matting in front of the two urinals or clean under the matting. He said that the whole toilet was cleaned every Friday morning and at that time the matting was taken out and hosed down. On other mornings of the week the cleaning consisted of merely dry-mopping the floor of the rest room everywhere but under the matting.

Dominic Fassero, a son of one of the defendants, testified that he was employed at defendants' bowling alley as a pinsetter and general maintenance man; that he was familiar with the matting in front of the two urinals on the day in question; that it was always a problem in any bowling establishment to erect or build anything to keep a bowler from getting any kind of deposit on his shoe, especially his left shoe because that was the shoe that had to slide. He said that he built up the steel matting so that it was an inch or two higher to keep the bowlers from standing in anything that might be spilled or "any foreign material got, you know, near the urinals." He also said that the matting was taken out, hosed down, and a disinfectant and deodorant used on it every Friday morning and that on all other mornings the floor of the rest room was dry-mopped without moving the matting.

The appellant contends that the trial court erred in granting the post-trial motion of defendants because there was sufficient evidence to sustain the plaintiff's complaint. On the other hand, defendants contend the trial court was correct in its ruling.

Defendants first contend that the alleged condition does not constitute a dangerous condition within the meaning of the law of negligence because the condition shown was too trivial to constitute a dangerous or substantial defect in the premises, saying: "While the law may require the owner of property to guard against dangerous conditions on their premises, such as would cause invitees to slip, trip and fall, the law does not require an owner, at his peril, to make sure and certain that no particles or moisture or dust come into contact with the bottoms of the feet of his invitees when such conditions are so trivial they could not constitute a trap or pitfall or dangerous condition which might cause a person's feet to go out from under them or the like." Defendants' own evidence seems to prove the opposite of this contention, for the son of one of the defendants, an employee of their establishment, testified: "Well, it is always a problem in any bowling establishment to erect or build anything to keep the bowler from getting any kind of a deposit on his shoe, especially his left shoe, for sliding conditions, so we had the steel matting that came from the old lanes uptown, so I got the idea to build this up to keep the bowlers from standing in anything that might be spilled or foreign matter got, you know, near the urinals."

[8-11] Since the plaintiff was a business invitee, the defendants owed him the duty to use ordinary care to keep the premises reasonably safe for his use. (See Illinois Pattern Jury Instructions, No. 120.00, page 339 and cases cited therein. Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434.) Liability will be imposed on a proprietor of a business establishment where it appears that the proprietor or his servants knew of the presence of a foreign substance on the premises or that the substance was there a sufficient length of time so that in the exercise of reasonable care its presence should have been discovered. (Donoho v. O'Connell's, Inc., supra; Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47.) See also Savaiano v. 12th Street Store, 330 Ill. App. 248, 70 N.E.2d 744, wherein the court held that it was a question for the jury to determine whether the presence of a slippery substance on a stairway for a period of ten or fifteen minutes was sufficient time for defendant to have discovered the defective condition. What constitutes ordinary care depends upon the circumstances which call for its use. (Sims v. Chicago Transit Authority, 4 Ill.2d 60, 122 N.E.2d 221 at 224.) To put it another way, the greater the danger, the greater the care required to meet it. Certainly the duties of the defendants were proportioned to the perils inherent in the conduct of their business.

Since the exercise of due care depends upon the circumstances calling for its use, is the duty of the operator of a bowling alley any different from that of a retail store which caters to the casual visitor, clad in street clothes? In the case of Burns v. Goldammer, 38 Ill. App.2d 83, 186 N.E.2d 97, the court recognized that the danger encountered in a bowling ...


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