APPEAL from the Circuit Court of Cook County; the Hon. JAMES
L. GRIFFIN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In this appeal from an award of damages for personal injury defendant asserts error in denial of its motion for directed verdict and its post-trial motions, in the rulings of the court on motions in limine, and in the giving of certain instructions.
Plaintiff and her husband were shopping in defendant's self-service store and, as she was pushing a shopping cart down an aisle, her foot slipped. She did not fall, but in attempting to regain her balance her body twisted in such manner that she injured her back. She looked for the cause of her slip and saw a Ben-Gay tube on the floor which had been crushed so that its contents were forced out of the bottom of the tube. The cap remained on the tube, but the ointment — which was described as being greasy and pasty — was spread over an area about one foot wide and three feet long on the floor. An empty Ben-Gay packaging container was on the floor near the tube, and packages of Ben-Gay were displayed on an adjoining shelf.
Neither plaintiff nor her husband had any knowledge as to how the substance reached the floor nor how long it had been there. Only one person was seen in the aisle before plaintiff slipped, and she was an unknown shopper coming from the opposite direction who had not yet reached the area where plaintiff slipped.
At the time of the occurrence, a full-time porter whose duty it was to keep the aisles clean and clear of debris was not working, but there was defense testimony that other employees had the responsibility to do so in his absence.
• 1 Defendant initially contends that its motion for directed verdict at the close of the evidence and its motion for judgment n.o.v. were improperly denied. It is undisputed that plaintiff's status at the time of the occurrence was that of a business invitee. Accordingly, defendant owed her the duty of maintaining the premises in a reasonably safe condition. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill.2d 153, 125 N.E.2d 47.) With regard to this duty, it was stated in Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill.2d 469, 474, 173 N.E.2d 443, 445:
"Where a business invitee is injured by slipping on a foreign substance on defendant's premises, and there is evidence tending to show that defendant or his servants knew or should have known of its presence, the issue of negligence will be submitted to the jury."
The rule was stated in Dunlap v. Marshall Field & Co. (1975), 27 Ill. App.3d 628, 327 N.E.2d 16, "that if a business invitee is injured by slipping on a foreign substance on defendant's premises and there is a basis in the evidence for an inference of defendant's or his servant's negligence, then the case must go to the jury. If the substance was on the floor through the act of a third person, or there is no showing of how it reached the floor, there must be evidence of sufficient notice to defendant of the presence of the substance so that defendant, in the exercise of ordinary care, would have discovered it." 27 Ill. App.3d 628, 631.
In the instant case, plaintiff agrees that she has not shown that defendant had actual notice of the substance on its floor, but she argues that the evidence of constructive notice was such that the court properly denied defendant's motions for directed verdict and for judgment n.o.v.
The applicable standard for determining the propriety of granting a directed verdict for a judgment n.o.v. was stated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, as follows:
"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."
In the case before us, there was testimony by plaintiff or her husband that the Ben-Gay tube was on the floor out of its package; that there was an empty Ben-Gay packaging container nearby; that the tube had been crushed in such manner that its contents were forced out of the bottom; that the contents were spread on the floor over an area about one foot wide and three feet long; that the contents were described as being greasy and pasty; that there were five or six footprints extending out from the ointment; that the footprints were greasy; that packaged Ben-Gay was displayed on a low shelf next to the area of substance on the floor; and that the packages were stacked on the shelf in an upright position — that is, resting on the small end of the package which from the photographic exhibits appears to be about one-sixth the size of the long side.
There was also testimony that it was the practice of defendant to move the packages on the display shelf from the back to the front when stacking; that the porter who was responsible for the cleanliness of the aisles was not working at the time; and ...