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02/16/88 Clarice Bernard Et Al., v. Sears

February 16, 1988

CLARICE BERNARD ET AL., PLAINTIFFS-APPELLANTS

v.

SEARS, ROEBUCK & COMPANY, DEFENDANT-APPELLEE (MILWAUKEE GOLF DEVELOPMENT CORPORATION ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

519 N.E.2d 1160, 166 Ill. App. 3d 533, 116 Ill. Dec. 945 1988.IL.217

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

The plaintiffs, Clarice and Roy Bernard, appeal from the judgment of the circuit court of Cook County which granted summary judgment in favor of the defendant Sears, Roebuck & Company, pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005). Defendants Milwaukee Golf Development Corporation and Golf Mill Management Company are not parties to this appeal. We affirm.

On December 29, 1983, Clarice Bernard (Mrs. Bernard) went to the Golf Mill Shopping Center in Niles, Illinois. She noticed that there was "a lot of snow in the parking lot." When she entered the Sears Roebuck Store and went into the vestibule, she observed that the floor was "all water." She went through the interior doors into the store and stepped onto a rug which extended approximately 20 feet into the store. She walked the length of the rug, which she stated was so saturated with water that "you could hear it squish when you stepped on it." When she reached the end of the rug, she took a step or two onto the bare floor, her foot slipped and she allegedly fell, sustaining the injuries which are the basis of this complaint.

Mrs. Bernard filed a negligence action against Sears, Roebuck & Company, Milwaukee Golf Development Corporation, and Golf Mill Management Company on December 20, 1985. Her husband, Roy Bernard, joined in the action, seeking damages for loss of consortium.

In her deposition, Mrs. Bernard stated that she imagined that the water on which she slipped was "tracked in" from outside. Mr. Bernard also testified that he presumed that the water on which his wife slipped was "tracked in."

Following the depositions, Sears moved for summary judgment on the basis that under well-settled law, it was not liable for injuries caused by accumulations of snow, ice or water tracked into a store from natural accumulations outside of the store. Plaintiffs responded to Sears' motion by filing affidavits asserting that Mr. and Mrs. Bernard had no direct knowledge of the source of the water on which Mrs. Bernard slipped. The trial court granted Sears' motion and plaintiffs appealed. The sole question on review is whether the entry of summary judgment against plaintiffs was proper.

Summary judgment is proper if the pleadings, exhibits, affidavits and depositions on file disclose no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 975, 452 N.E.2d 649, appeal denied (1983), 96 Ill. 2d 560.) Upon review of the trial court's entry of summary judgment, the appellate court must determine whether the trial court was correct in ruling that no genuine issue of material fact was raised and whether entry of judgment was correct as a matter of law. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938, 453 N.E.2d 1153.) Summary judgment should be granted "only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto." Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.

Under Illinois law, a landowner has no liability for injuries resulting from natural accumulations of ice, snow or water tracked onto its premises. (Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173, 488 N.E.2d 679; Thompson v. Tormike, Inc. (1984), 127 Ill. App. 3d 674, 676, 469 N.E.2d 453.) However, a landowner does have a duty and, therefore, may be liable, where injuries occur as a result of an unnatural or artificial accumulation of ice and snow or a natural condition aggravated by the owner. (Thompson v. Tormike, Inc. (1984), 127 Ill. App. 3d 674, 676, 469 N.E.2d 453; Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 486, 448 N.E.2d 1042.) In order to withstand a motion for summary judgment, a plaintiff must allege sufficient facts to permit the trier of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or snow which caused the plaintiff's injuries. Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 229, 497 N.E.2d 1331; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031.

Here, the undisputed facts are that the parking lot outside the store was full of snow, the floor of the vestibule was wet and the rug inside the interior door to the store was wet. Mrs. Bernard testified that after taking a few steps off the rug, she fell and was injured. Both plaintiffs stated in depositions that they assumed the water was tracked in from the outside.

On appeal, plaintiffs' position is that their deposition testimony regarding the source of the water consisted of statements of opinion and therefore cannot be the basis for defeating their recovery. Plaintiffs point out that they filed affidavits stating that ...


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