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04/18/89 Sylvia Palumbo Et Al., v. Frank's Nursery and Crafts

April 18, 1989

SYLVIA PALUMBO ET AL., PLAINTIFFS-APPELLANTS

v.

FRANK'S NURSERY AND CRAFTS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 1073, 182 Ill. App. 3d 283, 130 Ill. Dec. 744 1989.IL.540

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and EGAN,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO, Plaintiffs appeal from an order granting summary judgment in favor of defendant, arguing that there is an issue of material fact in the case. We affirm.

While shopping in defendant's store on December 2, 1983, Mrs. Palumbo (plaintiff) and her friend, Mrs. Martino, entered an aisle between two tables displaying poinsettias. Plaintiff claimed that as she took a step forward with her left foot, both feet went out from under her, causing a fracture of her left hip.

In her deposition, plaintiff testified that she did not see any kind of liquid substance or debris in the aisle where she fell at any time, either before or after her fall. Mrs. Martino, the only eyewitness to plaintiff's fall, testified in her deposition that she, too, did not see any liquid or debris on the floor either before or after the incident. Two post-occurrence witnesses, Trudy Meister and Cynthia Darzinskis, both employees of defendant, provided affidavits stating that they had examined the scene of the occurrence after the fall and found no liquid or debris on the floor. However, at the hospital plaintiff's husband noticed that her coat, which she had been wearing when she fell, was wet.

Trudy Meister testified at her deposition that the poinsettias were not watered on a regular schedule, but as needed. One of defendant's employees would bring a watering cart, approximately three feet by two feet large, into the aisle where the plants were located, and, using a house plant watering pipe, water the plants. The poinsettias were potted in plastic pots that had holes cut into the bottom and were wrapped with foil. There was no evidence as to when the poinsettias were last watered prior to plaintiff's fall.

In granting summary judgment in favor of defendant, the trial Judge stated that plaintiff had produced no evidence and therefore could only speculate as to the cause of her fall. She appeals from that order.

Opinion

Plaintiff claims that she has presented evidence which creates a genuine issue of material fact as to the proximate cause of her fall sufficient to defeat an award of summary judgment. She argues that she is not required to identify specifically the foreign substance or article which caused her fall, but only to produce evidence, either direct or circumstantial, which gives rise to a reasonable inference that her fall was caused in whole or in part by defendant's negligence. Defendant contends that there is no evidence of the existence of any foreign substance which may have contributed to or caused plaintiff's fall. It further contends that, if there had been any liquid or debris on the floor, there is no proof that it had either actual or constructive notice of its presence.

The parties agree that defendant owed plaintiff the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition. (Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 400 N.E.2d 544.) Our supreme court has discussed the rules of law applying in such a situation:

"[Liability] will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if it was placed there by the negligence of the proprietor or his servants, or, if there is no showing how the substance got on the premises, if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. [Citation.] Thus, where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive [citation]; whereas, if the substance is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material factor." Donoho v. O'Connell's, Inc. (1958), 13 Ill. 2d 113, 118, 148 N.E.2d 434.

In Donoho, plaintiff slipped and fell as she was walking past a "stand-up" table in defendant restaurant. After her fall she noticed a "partly smashed grilled onion" on the floor near the stand-up table, as well as a dark smear on the floor and on her shoe that looked like grease. A bus boy had cleaned the stand-up table shortly before plaintiff's fall. A jury returned a verdict for plaintiff, but the appellate court reversed this judgment and ...


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