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05/10/95 VIOLET M. WIND AND PAUL G. WIND v. HY-VEE

May 10, 1995

VIOLET M. WIND AND PAUL G. WIND, PLAINTIFFS-APPELLANTS,
v.
HY-VEE FOOD STORES, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 93 L 136. Honorable Susan B. Gende, Judge Presiding.

Present - Honorable Tom M. Lytton, Justice. Honorable Michael P. Mccuskey, Justice. Honorable William E. Holdridge, Justice.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

The plaintiffs, Paul and Violet Wind, brought this action to recover for injuries which occurred when Violet slipped and fell on a floor mat in a store owned by the defendant, Hy-Vee Food Stores, Inc. (Hy-Vee). The circuit court of Rock Island County instructed the jury on the burden of proof applicable when a condition on the defendant's premises causes the plaintiff's injury. The jury returned a verdict for Hy-Vee. The plaintiffs appeal, contending that the trial court should have instructed the jury to determine whether Hy-Vee's acts or omissions caused Violet's injuries. We agree. Therefore, we reverse and remand.

I. FACTS AND PROCEDURAL BACKGROUND

On the morning of November 23, 1991, the weather was snowy and wet in Rock Island. Consistent with its usual practice during inclement weather, Hy-Vee employees placed several floor mats near the main entrance of its Rock Island store before opening for business. The mats have rubber undersides and edges. They were placed at the entrance to prevent customers from tracking water into the store. Later that morning, the plaintiffs arrived at the store to shop. As they left the store, Violet was injured when she tripped on the edge of one of the mats and fell to the floor.

On May 14, 1993, the plaintiffs filed a two-count complaint against Hy-Vee. Count I sought damages for Violet's injuries. Count II sought damages for Paul's loss of Violet's services and consortium. The complaint alleged in pertinent part:

"7. That as a direct and proximate result of the negligent failure in placing and maintaining the floor mat of the defendant, its agents, servants and employees, plaintiff tripped and fell with great force and violence onto the floor, thereby incurring severe and permanent injuries.

8. That the defendant, by its agents and employees was guilty of one or more of the following careless and negligent acts or omissions:

(a) Failed to warn invitees of the presence of the curled up floor mat, which was improperly maintained.

(b) Failed to keep the premises in a safe condition for the invitees thereon.

(c) Failed to timely repair or remove the defective floor mat when they knew or should have known of the danger to the invitee, such as the plaintiff.

9. That when conducting the activities and business on the defendant's property, the defendant carelessly and negligently placed improperly maintained and defective mats on said premises, which caused the plaintiff to stumble and fall ***."

The cause proceeded to trial on May 2, 1994. Paul testified that he complained to Hy-Vee employees about the condition of the floor mats on two or three occasions prior to the accident. Paul said that portions of the mats' rubber edges were torn away on the occasions when he complained. He also said that the corners or edges of the mats were curled and raised away from the floor at times. He testified that he has never seen a mat fastened in any way to the floor at Hy-Vee's store. Paul said that after he registered his complaints, he sometimes saw Hy-Vee employees shift or straighten the mats. He said the mat on which Violet fell was missing portions of its edges and was raised up from the floor. Paul observed that no tape was on the mat and nothing secured the mat to the floor.

Flossie Martin testified she saw one mat at the store with its edges curled up from the floor. After she witnessed several people stumble over the mat's edges, she complained to a Hy-Vee employee. The mat was later removed. On several occasions prior to the accident, she saw mats which were wrinkled and buckled. Moreover, the mats often moved and shifted when people walked on them.

Violet testified she was walking normally throughout the store prior to the accident. When she stepped into the entrance, she looked down and saw her toe under one of the floor mats. She lost her balance as she tried to pull her foot from under ...


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