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02/03/94 MICHELLE RENEE JOHNSON v. NATIONAL SUPER

February 3, 1994

MICHELLE RENEE JOHNSON, PLAINTIFF-APPELLEE,
v.
NATIONAL SUPER MARKETS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 90-L-1506. Honorable P.J. O'Neill, Judge Presiding.

Maag, Chapman, Welch

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

The plaintiff, Michelle Johnson, brought this action to recover for injuries she sustained when she slipped and fell on ice in a parking lot owned by the defendant, National Super Markets, Inc. A jury trial was held from September 14 through September 16, 1992. At the close of the plaintiff's case and at the close of all of the evidence, the defendant moved for a directed verdict. The circuit court denied both motions. The jury returned a verdict in favor of the plaintiff in the amount of $42,507.25 but reduced it to $21,253.63, which represents the jury's allocation of plaintiff's negligence in the amount of 50%. The circuit court entered judgment on the verdict. The defendant filed a motion for judgment notwithstanding the verdict, and it was denied. The defendant appeals. We affirm.

On January 5, 1989, Barbara Johnson, the plaintiff's mother, drove to the defendant's grocery store to pay her telephone bill. The plaintiff, Barbara's adult daughter, went with her. The temperature was in the twenties, and the plaintiff could see that it was drizzling rain when she and her mother drove into the defendant's parking lot. She noticed that snow was piled 10 to 15 feet high around the light posts. Because Barbara is disabled, the plaintiff went inside of the store to pay the telephone bill. As the plaintiff exited the passenger side door of her mother's vehicle, she glanced and saw a black puddle of water approximately two feet in diameter which was located about two feet from the passenger side door of her mother's vehicle. The plaintiff testified that the water from the puddle was coming from a pile of snow around a light post, which was located two feet from the front passenger side of their vehicle. The plaintiff walked around the puddle.

According to the plaintiff, immediately after she entered the defendant's grocery store, the weather changed from drizzling rain to pouring rain. The plaintiff noticed that the line in which she needed to be to pay the telephone bill was very long. Instead of standing in line, she walked around the store and looked at various items. When the line shortened, she paid the bill.

Approximately 15 to 20 minutes after the plaintiff entered the store, she came outside. She walked to her mother's vehicle with her head down, looking at the pavement. As she approached the puddle on the passenger side of her mother's vehicle, she decided to step over it rather than walk around it as she had previously done. As the plaintiff attempted to step over the puddle, she initially lifted her right foot, and subsequently, her left foot went up, and she slipped and fell onto her buttocks. The plaintiff was approximately two feet from the car door when she fell. She said that she could feel ice underneath of her body after she fell, and that as she looked at the puddle, she could see "glazey stuff." She likened its appearance to the manner in which water appears when it refreezes. The plaintiff also stated that she had slivers of frozen material on the back of her clothing after she removed herself from the puddle.

Blanche Woll, a frequent patron of the defendant's store, testified that she was at the defendant's store on January 5, 1989, and that the defendant's parking lot was "very treacherous." Woll said that the snow had been plowed up around the light posts higher than five feet. She said that the cars would make the snow "slushy" by driving over it. Overnight, the slush would refreeze. Woll did not park beside the light posts because she knew that "even though the temperature didn't get above freezing, * * * sometimes a little would melt and it would run down and then * * * refreeze and then it was a * * * more clear, slick ice." Woll also stated that the parking lot area sloped toward the store. Approximately 45 minutes after entering the store, Woll left the store and started to walk toward her car. She stated that the temperature was in the high teens, and that it had not yet started to rain. As she exited the defendant's grocery store, she saw the plaintiff fall "pretty hard" on the ice. Woll testified that the ice on which the plaintiff fell was a "clear, slicker type of ice than * * * the other [that] had been chewed up and refrozen because it was rougher and it was dirty."

Barbara's testimony was almost indistinguishable from the plaintiff's testimony regarding the weather conditions and the circumstances surrounding the fall. She stated that she walked around the back of her car to help her daughter after she fell; however, she was not able to help her. She said that the pavement was slick and she could feel ice underneath of her feet even though she could not actually see the ice. Barbara stated that the snow from the pile was streaming along the pavement, forming a puddle on the passenger side of her vehicle in the area that her daughter had fallen.

Ron Hoover is the owner of the lawn care service that provided snow plowing for National during the fall and winter of 1988. In fact, Hoover plowed the snow that fell prior to January 5, 1989. He piled the snow around the light posts on the defendant's parking lot. Hoover stated that the snow around the light posts would melt and drain down the slope of the lot toward the entrance of the store. He said that every grade on the parking lot sloped down toward the building, and that he did not believe that the parking lot contained drains. Although Hoover said that he believed that the proper way to plow the snow on the defendant's parking lot was to push it on the sides of the building, the only instruction that the store manager gave him was "don't put it by the sides of the building." Hoover testified that if the snow had been placed on the sides of the building, it would have allowed the snow to drain to the back of the building. This would have avoided the drainage from the snow collecting in the parking lot area.

The defendant contends that the trial court erred in failing to grant its motions for directed verdict and judgment n.o.v.

The correct standard for the trial court to apply in ruling on a motion for a directed verdict or for a judgment n.o.v. was set forth in Pedrick v. Peoria & Eastern Ry. 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."

(See Thompson v. County of Cook (1993), 154 Ill. 2d 374, 382, 609 N.E.2d 290, 293.) Therefore, the court will consider the evidence and the inferences to be drawn therefrom in the light most favorable to the nonmovant and will not pass upon the credibility of the witnesses or decide what weight to assign their testimony, as these matters are typically within the province of the jury. ( Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 121-22, 576 N.E.2d 918, 939, appeal denied (1991), 142 Ill. 2d 655, 584 N.E.2d 130.) Furthermore, a judgment n.o.v. may not be granted merely because a jury veredict is against the manifest weight of the evidence. ( Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36.) If there is any evidence, together with inferences which may be drawn therefrom, which demonstrates a substantial factual dispute or if the ...


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