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Newcomm v. Jul

SEPTEMBER 22, 1971.

THOMAS NEWCOMM, PLAINTIFF-APPELLEE,

v.

GERDA JUL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Whiteside County; the Hon. JOHN L. POOLE, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff-Appellee, Thomas Newcomm, brought this action in the Circuit Court of Whiteside County against Gerda Jul, Defendant-Appellant, seeking damage for personal injuries resulting from a fall on a sidewalk on the premises operated by the defendant as a restaurant. Judgment for $15,000 in favor of plaintiff was entered on the verdict of a jury and defendant's post trial motions were denied.

On February 10, 1967, Thomas Newcomm, the plaintiff and his wife, together with Mr. & Mrs. Keel and their three children, were on route from Chicago to Iowa. At about 8:30 P.M. they stopped for dinner at Jul's Danish Farm Restaurant operated by defendant, located near Rock Falls. The night was cold and dark. Mr. Keel parked the car in the restaurant's parking lot and the group proceeded into the restaurant and ate.

The main or front door of the restaurant opens onto a patio occupying the area between the doorway and the parking lot, a distance of about twenty five feet. After finishing their meal Mr. Keel drove the car to that portion of the parking lot adjoining the patio or walkway and the group proceeded to re-enter the car. Newcomm first carried the younger of the Keel children (two years old) to the car handing him over to his parents and then returned to the restaurant and carried the four and a half year old son of the Keels to the car. As he neared the car he "slipped and fell" onto his back with the child he was carrying on top of him. No report or mention of the incident was made to the defendant, her employees or agents at the time. Defendant was not advised of the incident until some 10 months later when this action was filed.

The complaint based on defendant's duty as owner of business premises to provide reasonably safe conditions for invitees thereon, particularly alleged defendant provided inadequate or insufficient lighting and also permitted or caused an unnatural accumulation of ice or snow on the premises. Thereafter the complaint was amended by eliminating any reference to unnatural accumulation of ice or snow and the sole issue submitted to the jury was the alleged insufficiency of the lighting.

Defendant's first assignment of error is that the court erred in denying her motion for directed verdict at the close of the evidence and her motion for judgment notwithstanding the verdict after the jury's verdict had been returned.

The evidence presented by plaintiff consisted principally of his testimony and that of his wife. According to plaintiff there were patches of ice or snow on the patio which he noticed as they were going to the restaurant. He stated that he could feel the patches through his shoes and as he approached the door of the restaurant a light above the door shown on the area around the mat revealing the area to be covered about fifty percent with patches of ice or snow, the remaining concrete area being clear. As the patio neared the parking lot the lighting was such that according to plaintiff, he could not see the patches of ice on the patio and being unable to see the patches of ice or snow he slipped on one causing his fall and subsequent substantial injury.

Mrs. Newcomm's testimony was generally to the same effect as that of her husband concerning lighting, patches of snow and physical surroundings. She did not see her husband fall since she was in the car at the time but did state that when she went to see what was wrong the area in which her husband fell was dark.

The evidence of defendant described the lighting conditions in effect at the time mainly the light over the door of their restaurant, the light from the windows and the lights stationed about the parking lot. Witnesses were also presented who testified that the lighting at or about the place of the mishap was sufficient so that a pebble, coin or other small object on the patio could be distinguished if one's eyes were focused on the area.

In contending Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, requires judgment in her favor as a matter of law defendant argues the claimed insufficient lighting was not the proximate cause of plaintiff's injuries. According to defendant the only reasonable inferences which can be drawn from the evidence are that plaintiff's injuries were caused by a natural accumulation of ice or snow or plaintiff's failure to exercise due care in regard to such natural accumulation of ice or snow. On the other hand plaintiff claims there is ample evidence that the area was dark and that such darkness and absence of sufficient illumination can be deemed a proximate cause of the injuries.

Although the parties have generally discussed the application of the Pedrick rule in terms of proximate causation we must initially concern ourselves with the more basic question of the existence of any duty owed by plaintiff to defendant.

The court in Byrne v. Catholic Bishop of Chicago, 131 Ill. App.2d 356, 266 N.E.2d 708, observed, "A property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner. Kelly v. Huyvaert, 323 Ill. App. 643, 56 N.E.2d 638. However, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate from natural causes, but as a result of the property owner doing something which causes an unnatural or artificial accumulation of the ice and snow. Fitz Simons v. National Tea Co., 29 Ill. App.2d 306, 173 N.E.2d 534." The court in the Byrne case then proceeds to discuss other cases involving falls on ice and snow and concludes with approval of the trial court's action holding defendant not liable as a matter of law.

• 1, 2 If liability of a business owner may not be predicated on falls resulting from natural accumulations of ice or snow it follows the business owner is not required to warn of the presence of natural accumulations of ice or snow. The duty of warning against a particular condition or hazard co-exists with the corresponding liability for the consequences or hazards of the condition if no appropriate warning is given.

As applied to the case at bar both plaintiff and his wife testified there were patches of ice or snow on the patio ranging from one fourth inch to one inch thick. Furthermore plaintiff testified that he slipped on a patch of ice or snow albeit because he could not and did not see it. Although the original complaint included charges of negligence based on defendant's unnatural or artificial accumulation of ice or snow, such allegations found no support in the evidence either of plaintiff or defendant. During a conference on instructions which took place during a recess as plaintiff was presenting the rebuttal phase of his case, plaintiff moved to amend ...


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