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Papadatos v. National Tea Co.

JULY 26, 1974.

COULA PAPADATOS, PLAINTIFF-APPELLEE,

v.

NATIONAL TEA COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

A jury awarded plaintiff $10,000 for personal injuries sustained in a fall in defendant's parking lot adjacent to its store. On appeal, defendant contends the evidence failed to establish any negligence on its part and that the trial court should have directed a verdict in its favor or entered judgment notwithstanding the verdict.

It appears that plaintiff parked her car in defendant's lot on a late afternoon in May and, as she walked toward the store entrance, stepped on something round which caused her to twist her ankle and fall forward. She testified that the pavement was a combination of asphalt and pressed stone and that there was a large hole about 2 feet in circumference in the surface of the lot and on prior occasions she had observed that when automobiles drove through the hole, stones were thrown from the hole onto the pavement adjoining it.

Plaintiff further testified that she was about 2 feet from a manhole cover when she first started to slip, and she stumbled forward about 10 feet before falling. She did not see the object that she stepped on, nor did she know whether it was a stone, pebble or some other object. Neither could she say how the object happened to be there or how long it had been on the ground. She testified that it felt like a foreign object, a foreign stone, and that "It was more of a round object." After she fell, she looked back and saw papers, stones and glass in the area of her fall. Photographs taken 5 days later were identified as portraying the condition of the area at the time of the occurrence. They show the hole described by plaintiff and also that loose pieces of stone were in the hole and on portions of the pavement adjacent thereto.

Defendant's store manager testified that the lot was swept every Monday, Thursday and Friday morning. On other days, he would make morning and afternoon inspections and, if necessary, he would then have it swept. Plaintiff told him she had fallen, and he noticed she was bruised and had blood on her forehead. She pointed out the general area of her fall but did not point to any object as having caused her to slip. She told him that she must have fallen on a pebble, but he saw none in that area. The witness testified he could not recall whether there was a hole with stones in it in the parking lot on that day. He stated the lot was swept on the morning of the occurrence; however, he was impeached by an answer in his discovery deposition that he could not swear to the fact that the lot was swept on the day of the occurrence.

OPINION

Defendant contends that actionable negligence was not established because "plaintiff did not know what the object was, how long it had been there, the size of the object, whether the object was placed at the point plaintiff fell by defendant, a third person or by no one at all, or whether the object was related to defendant's operations." It argues that because plaintiff was unable to specify the reason for her fall that the trial court should have directed a verdict in its favor or entered judgment notwithstanding the verdict.

• 1 The standard applied in determining whether or not to grant a directed verdict or a judgment n.o.v. was set forth in the case of Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504:

"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

It was also enunciated in the Pedrick decision that a similar standard should determine when negligence and contributory negligence questions become questions of law rather than questions of fact.

"Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue." Pedrick, supra, at 503.

• 2 It is not questioned that plaintiff's status at the time of the injury was that of a business invitee. As such, defendant owed her the duty of maintaining the premises in a reasonably safe condition. (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47.) Where a business invitee is injured by slipping on a foreign substance, liability may be imposed if the article was there through the negligence of the proprietor or his servants. If there is no showing as to how the article got there, the proprietor can still be held liable if it appears that either he or his servants knew of its presence or that it had been there a sufficient length of time so that its presence should have been discovered in the exercise of ordinary care. Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434.

The basic question involved here concerns whether negligence was established by plaintiff in the absence of any testimony concerning the exact reason for her fall. The bulk of the cases dealing with this question involve falls on stairways or slippery floors inside business establishments. While these cases may not be exactly in point, they provide a rational basis to assist in determining here whether the trial court erred in denying defendant's motion for directed verdict and judgment n.o.v. For example, in Mraz v. Jewel Tea Company, Inc., 121 Ill. App.2d 209, 220-221, 257 N.E.2d 548, a directed verdict was sought by defendant, claiming that negligence could not be attributed to it merely by plaintiff's showing that she had been injured on its premises. In response thereto, the court noted:

"We find the evidence in the instant case was sufficient for the jury to reasonably infer that defendant's employees were the only possible source of the dropped lettuce leaf and that the question of actual or constructive notice was not material here. The lettuce was related to defendant's business, and the negligence was circumstantially proved by the testimony that the first time a customer actually came in contact with the parcel of groceries was when the Jewel employees had finished ringing up the bill and had finished packing it into bags, and then the customer was given the bags to take home or given his grocery cart to wheel out to his car. There is testimony that empty produce boxes, including `lettuce boxes,' were brought to the front ...


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