APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
544 N.E.2d 28, 188 Ill. App. 3d 136, 135 Ill. Dec. 671 1989.IL.1291
Appeal from the Circuit Court of Massac County; the Hon. James R. Williamson, Judge, presiding.
JUSTICE HOWERTON delivered the opinion of the court. RARICK and GOLDENHERSH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON
We reverse the summary judgment entered for defendant by the circuit court of Massac County., Plaintiff sued defendant claiming she fell after slipping on grapes that were on the floor of defendant's grocery store., Defendant submitted an affidavit in support of its motion for summary judgment.
Plaintiff neither filed a counteraffidavit, nor presented any evidence in opposition to the motion for summary judgment and the affidavit, but stood on the allegations in her complaint.
Our threshold concern, therefore, is the effect that the affidavit in support of the motion for summary judgment has on the pleadings. If it supplies evidentiary facts which, if uncontradicted, would entitle defendant to judgment, then plaintiff cannot rely on her pleadings alone to raise issues of material fact. In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770, 458 N.E.2d 1065, 1068., Plaintiff's complaint alleged that defendant was negligent in:
(a) failing to clean up the grapes from the floor when defendant knew or should have known in the exercise of ordinary care that the grapes posed a hazard to its customers, including plaintiff;
(b) failing to warn customers, including plaintiff that the grapes were present and could be hazardous;
(c) failing to prebag grapes displayed for sale or to have an employee stationed at the produce counter to bag the grapes when defendant knew or should have known that unbagged grapes have a propensity to roll out of the display area and onto the floor, thus posing a danger to customers, including plaintiff;
(d) failing and omitting to display grapes offered for sale in such a manner as to prevent grapes from rolling from the display area onto the floor, thus posing a danger to customers, including plaintiff; and
(e) failing and omitting to place mats or rugs on the floor of the produce aisle when defendant knew or should have known that said mats or rugs were necessary to prevent rolling of grapes and/or to prevent grapes present on the floor from causing customers, including plaintiff, to slip and fall.
Michael Cathey's affidavit was presented by defendant to support its summary judgment motion. The affidavit said:
(a) he was defendant's employee;
(b) he had been working in the produce department the major portion of the day ...