APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
544 N.E.2d 1325, 189 Ill. App. 3d 125, 136 Ill. Dec. 550 1989.IL.1611
Appeal from the Circuit Court of Christian County; the Hon. Joseph L. Fribley, Judge, presiding.
JUSTICE GOLDENHERSH delivered the opinion of the court. HARRISON and RARICK, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH
Plaintiff, Dorothy Staten, appeals from an order of the circuit court of Christian County granting defendant Pamida, Inc.'s motion for directed verdict. In this cause, plaintiff raises a single issue for review, namely, whether the trial court erred in directing a verdict in favor of defendant at the close of plaintiff's evidence. We reverse and remand.
The incident in question occurred on October 21, 1982, at defendant's place of business, a self-help discount department store, located in Taylorville. Plaintiff, age 51 on the date in question, went to defendant's store, along with her husband, now deceased, in order to purchase painting supplies to paint their bedroom. Plaintiff had been to defendant's store on "several" other occasions. Upon entering the store, plaintiff and her husband went to the back of the store where the paint supplies were located. Plaintiff observed one-gallon cans of paint stacked upon shelves against the back wall. On top of these cans, the highest of which was above her eye level, plaintiff observed paint pans and roller sets. Plaintiff was only 5 foot, 2 inches tall, and her husband was even shorter, so she attempted to get the attention of a store clerk to assist her in retrieving the pan and roller set. When the store clerk did not stop to assist plaintiff and her husband, plaintiff attempted to reach above the stacked paint cans for the pan and roller by standing on her tiptoes and stretching for the set. At this time, a gallon of paint fell down and struck plaintiff on the left foot. Plaintiff then lost her balance and fell to the floor. Plaintiff has no idea where the can came from, as she did not see it fall. She also testified that she did not drop the paint can. There are no other witnesses to this accident.
Bruce Pearson, assistant manager at the Pamida store in Taylorville on the date of this occurrence, has no independent recollection of this accident. He received a report of the incident as part of his duties. Bruce Pearson testified that the general method of stacking paint cans was to stack the paint two cans high on shelves which did not contain a front border commonly referred to as a "lip." He testified that the shelves on which the paint was displayed were 72 inches high. He further testified that there was a separate display for paint pans and rollers located in an aisle near the middle of the store in what is referred to by the store as a "gondola." The shelves contained in this gondola were 54 inches high. This system of display was set up by the Pamida home office in Omaha, Nebraska. Pearson also testified that while it was not store policy to stack the pans and rollers on top of the paint cans, he had seen this done by other Pamida employees with excess pans and rollers that would not fit on the gondola. He was not sure if any pans and rollers were stacked on top of the paint on October 21, 1982, because he had not checked that display on that day. He also noted that in his 11 years of employment with defendant, he had not witnessed or heard of any similar incidents in which paint cans fell from the shelves and injured a patron., Plaintiff's amended complaint alleges in paragraph 6:
"efendant, by and through its agents and servants, was then and there guilty of one or more of the following negligent acts or omissions:
(a) Negligently and carelessly designing a merchandising display system which created an unreasonable risk of falling objects hazardous to the safety of patrons.
(b) Negligently and carelessly maintaining and permitting said display system to remain on the premises which constituted a hazard to the safety of the Plaintiff.
(c) Negligently and carelessly failing to inspect the premises for said defect which constituted a hazard to the safety of the patrons.
(d) Knowing of the presence of said defect on the premises, negligently or carelessly failing to warn the Plaintiff of said defect which constituted a hazard to the safety of patrons."
Both parties agree that defendant owed plaintiff, an invitee, the duty of reasonable care, and defendant concedes that plaintiff suffered injuries as a result of this incident; however, the parties disagree concerning whether defendant breached the duty owed to plaintiff and whether it was established that any ...