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Sommese v. Maling Brothers

DECEMBER 13, 1965.




Appeal from the Circuit Court of Cook County; the Hon. JOHN J. LYONS, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. Defendant appeals from a $25,000 verdict and judgment awarded plaintiff, Mary Sommese, for personal injuries alleged to have been sustained when, on a rainy day, plaintiff, a prospective customer, fell in an entryway of defendant's store. In answer to a special interrogatory, the jury found plaintiff not guilty "of any contributory negligence which was a proximate cause of said occurrence."

Defendant's contentions are: (1) Defendant was not shown to be negligent. (2) Plaintiff was guilty of contributory negligence as a matter of law. (3) The verdict and answer to the interrogatory were against the manifest weight of the evidence. (4) Prejudicial trial errors were committed.

Plaintiff's action is based on the contention that defendant failed to provide a safe means of entrance for a business invitee and was negligent by one or more of the following acts: (a) It used a type of marble terrazzo flooring not suited for outdoor use. (b) It failed to use any abrasive in the terrazzo. (c) It failed to remove the accumulated water. (d) It failed to use rubber mats. (e) It failed to warn plaintiff that its entryway was dangerously slippery.

On February 27, 1958, plaintiff was 28 years of age. The kneecap of her left leg had been surgically removed less than three months previous. She was able to walk without assistance, do most of her own housework, and partake in recreational activities. She walked without a limp and suffered no pain or weakness of any kind. She was due to return to her employment within several days.

On the date in question, and after having had lunch with a friend, plaintiff walked into the south end of the "Harlem-Irving Plaza" and walked three and one-half blocks to defendant's store at the north end of the Plaza. It had been raining periodically throughout the day. During lunch it rained quite heavily, and while plaintiff was walking through the Plaza it was drizzling. Plaintiff was without a raincoat, umbrella, galoshes or rubbers. She was wearing shoes with a "stack heel" about an inch and one half to two inches. The soles of her shoes had been "roughed up" by her husband with light sandpaper.

When plaintiff arrived at Maling's, she took a look at the front windows. "I knew the shoes I wanted. . . . They were put on display in the window. . . . I saw the shoes and then I started into the store. So as I continued walking on in, my foot slipped, the right leg, out in front of me . . . and I went down with my left leg completely under my body and the right leg out in front of me. . . . I felt my right leg slipping and I had tried to brace myself against the left window . . . and I just couldn't reach it."

On cross-examination, she testified, "When I turned the corner and started up into this entryway, it was wet. I saw water when I was just starting to walk into the entryway. The water began right at the edge of the sidewalk more or less continuing on to about halfway. . . . When I turned the corner and walked in there, the water that I saw on the floor, to my knowledge, extended all the way across. . . . I was standing in water. I would say it covered the whole sole of my shoe. . . . I had no trouble seeing in there. . . . The water appeared to be the same consistency all over. . . . I was aware of the fact that there was another entryway to the store. I knew that when I came up to the front of the store. . . . I have no idea whether the water came from rain or whether it was tracked in. All I know, it was wet. . . . I was looking at the floor. I saw it was wet. It looked very glassy. I didn't know it was slippery." She saw no "depression or indentation in the entryway." The evidence indicates there was a slight incline from the door down to the sidewalk.

Plaintiff's expert witness stated that he had been in the architectural profession for fifteen years. He had examined the floor surface visually and by feeling it with his hands. He testified that "it is a known fact that terrazzo, upon becoming wet, is very slippery. And I would not have used this type of installation for this entryway, without the addition of an abrasive material added to the mortar mix." He also testified that he wetted the surface and rubbed it to see if he could detect any abrasive material. He stated, "If any abrasive material had been added it would have been apparent to my examination. . . . From that examination I could not tell that there was any abrasive material added." The witness further stated he had used that type of floor "for interior uses" since "upon becoming wet it becomes very slippery and it is hazardous. . . . Often mats are used on top of the terrazzo to prevent its hazardousness on a rainy day."

Five defense witnesses testified as to the occurrence and the floor condition at that time. A Cashier in the store, whose station was just inside the door of the south entryway, stated she did not see plaintiff fall. She saw plaintiff standing in front of the store by the corner of the window. When she next noticed plaintiff, she was lying on the ground with her head on the sidewalk and her feet partially in the entryway. She could not see any puddles or collection of water in the entrance. There were no indentations or depressions in the floor. It had rained that morning, and it was drizzling in the afternoon and the wind was blowing. The store had no rubber mat to put down in the entryway when wet.

Defendant's assistant manager testified that when he first saw plaintiff, she was lying on the sidewalk in front of the store. He did not recall seeing any puddles, large accumulations of water, indentations or depressions in the surface. A village employee testified that he was driving through the shopping center about noon and happened to see a woman standing near the showcase at Maling's and just falling down or dropping down by the case. "It was a little slippery and a little wet from the mist where the people would track in the water as they were walking in and out of the store there. As to whether there were any large accumulations or puddles of water, no, there was no water or anything in there. . . . The floor was a little misty. . . . I walked over those spots with the woman when I walked her into the store and I had to walk back out again. This was slippery." The Plaza maintenance engineer said, "To my knowledge there were no puddles." The Village Chief of Police said that he was called to the scene of the occurrence and did not see any puddles, accumulations of water, indentations or holes.

Defendant's expert witness testified that he was a Professor of Metallurgical Engineering since 1954. He examined the floor with a machine used for testing slipperiness. It is a pendulum which attempts to simulate the glancing blow struck against the floor by a human foot wearing a shoe. The pendulum is started at an angle of 45 degrees and, therefore, if it faced no resistance, would swing up to 45 degrees on the other side. He tested a terrazzo, vinyl tile, ceramic tile, oak tile and asphalt tile floor. He stated that "the figure we came up with on the unworn spot in the Maling's lobby when wet was an angle of 33 degrees. That is how far the pendulum swung on the upswing. The figures that I am giving you are the average of several tests on each floor. On the terrazzo floor the figure was 30 degrees. The figure for vinyl tile was 32 degrees and for ceramic tile was 26 degrees. The oak tile was 30 degrees. The asphalt tile was 35 degrees. These figures when taken together represent the relative slipperiness of each of these floors under circumstances under which I tested them. These figures represent the angle achieved on unworn wet surfaces for each of these types of floors."

Initially, defendant argues, "The law in Illinois has continually and consistently been that, upon a showing such as this, the defendant, as a matter of law, is entitled to a verdict." Defendant asserts that the trial court was in error in failing to enter judgment for the defendant, either by granting a motion for a directed verdict or by granting defendant's motion for judgment notwithstanding the verdict. This presents the single question whether there was, in the record, any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of her case. Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. (Garrett v. S.N. Nielsen Co., 49 Ill. App.2d 422, 426, 200 N.E.2d 81 (1964).) If there was a total failure to prove one or more of the essential elements of plaintiff's case, specifically, as contended by defendant, due care on her part or negligence on the part of the defendant, the motion should have been allowed. Statements made in Carter v. Winter, 32 Ill.2d 275, 204 N.E.2d 755 (1965), are in point (p 282):

"In determining whether defendants' motion for a directed verdict should have been allowed, all of the evidence, when viewed most favorably to plaintiff, must totally fail to establish one or more essential elements of the case. . . . That proof by plaintiff of his own exercise of due care is essential to recovery is elementary. . . . [p 283] In our judgment, plaintiff's own testimony . . . when viewed in the light of the rest of his testimony and that of the other witnesses, conclusively establishes his guilt of contributory negligence as a matter of law. One cannot knowingly expose himself to danger and subsequently recover damages for an injury which, by the employment of reasonable precaution and circumspection, he might have entirely avoided."

On this issue, defendant relies primarily on Murray v. Bedell Co., 256 Ill. App. 247 (1930); Clark v. Carson Pirie Scott & Co., 340 Ill. App. 260, 91 N.E.2d 452 (1950); Hartman v. Goldblatt Bros., Inc., 19 Ill. App.2d 563, 154 N.E.2d 872 (1958); and Brunet v. S.S. Kresge Co., 115 F.2d 713 (CA 7th).

Defendant also cites authorities from many other jurisdictions which are substantially in accord with the statements made in Murray v. Bedell Co., 256 Ill. App. 247, where, in reversing a plaintiff's jury verdict holding that a verdict should, as a matter of law, have been directed for the defendant, the court said (pp 249-251):

"The question appears to be whether or not, under such circumstances, a merchant is liable to an invitee upon such premises, where such invitee is caused to slip and fall by reason of mud and water upon the flooring of such a vestibule or entry. From the testimony of the plaintiff it is apparent that the danger, if any, was clearly evident to her, as well as the defendants, and that she was aware of the condition and of the possibility of sustaining a fall before she undertook to pass over and along the floor space of the vestibule. The condition described by the witnesses is one that is not only not unusual, but is customarily to be found on such days as described in the testimony, in vestibules of this character and the sidewalks and the premises surrounding entrances to public places. . . . In the case at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant. . . . We find that the facts show no such evidence of negligence on the part of the defendant as would be actionable at law."

In Hartman v. Goldblatt Bros., Inc., 19 Ill. App.2d 563, 154 N.E.2d 872, the court said (pp 566-68):

"Under these weather conditions is the owner of a store guilty of negligence merely from a wetness on the floor, when it does not involve any accumulation of water, ice, snow, or debris? The basis of recovery in personal injury cases is not merely that an injury was sustained, but that an injury was sustained because of the negligence of defendant. . . . Here there is neither allegation nor testimony that there were any hidden dangers. The wetness of concrete on which plaintiff slipped was plainly visible to all persons. . . . It is clear from the cases discussed above that the condition alleged and proved did not constitute negligence. There was no breach of duty which defendant owed, nor did the condition indicate any absence of care according to the circumstances."

In Brunet v. S.S. Kresge Co., 115 F.2d 713, the court said (p 715):

"It is obvious in the case at bar that nothing was hidden from appellee, that she was well aware of the slippery and wet condition of the stairway as she started to descend it. She stated that she took hold of the banister as she started down because she realized that there was a possibility of falling. She presumed that her own galoshes were wet as she entered the store, having walked through the ...

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