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07/05/96 ROSALIE WOLF v. DOMINICK'S FINER FOODS

July 5, 1996

ROSALIE WOLF, PLAINTIFF-APPELLANT,
v.
DOMINICK'S FINER FOODS, INC., DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County. The Honorable Jacqueline P. Cox, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

Two days before the applicable statute of limitations was to expire, the plaintiff, Rosalie Wolf, filed a complaint against the defendant, Dominick's Finer Foods, Inc. She alleged that, as a result of the defendant's negligence, she was injured when she fell in the defendant's store located at 5747 Dempster in Morton Grove. On December 14, 1993, the defendant filed a motion to dismiss the complaint on the basis that the plaintiff had indicated during discovery that her fall was at the defendant's store at 6931 Dempster in Morton Grove. Judge Kenneth Gillis denied this motion and granted the plaintiff leave to file an amended complaint, in which she alleged that she fell in the store at 6931 Dempster. Judge Jacqueline Cox dismissed the plaintiff's amended complaint pursuant to the defendant's motion to dismiss this complaint.

Before filing a complaint, the plaintiff's counsel sent the defendant two notices of attorney's lien. The first of these notices was dated July 24, 1989, and stated that the plaintiff's counsel had been retained to represent the plaintiff in a personal injury suit involving the defendant's maintenance of its store at 5747 Dempster in Morton Grove. A cover letter also listed 5747 Dempster as the location of the accident. The plaintiff's counsel sent the defendant a subsequent notice of attorney's lien in August 1989. This later notice listed the location of the store where the plaintiff was injured as 6931 Dempster, but the cover letter to the notice again listed the location of the accident as 5747 Dempster. The first notice of lien was signed, but the second notice of lien was unsigned.

The plaintiff filed a complaint against the defendant on March 1, 1991. In this complaint, she alleged that the defendant owned and operated a store at 5747 Dempster in Morton Grove. On March 3, 1989, the plaintiff was "legally and lawfully in and upon the premises located at 5747 West Dempster Street, Morton Grove, Illinois." The defendant breached its duty to act with reasonable care with regard to the plaintiff's safety by failing to maintain its premises in a safe condition, by failing to warn the plaintiff of an accumulation of debris on the floor which created a slippery condition and by failing to clean the floor. As a result of the defendant's negligence, the plaintiff was injured.

In its answer to the complaint, the defendant asserted that it had insufficient knowledge to respond to the plaintiff's allegation that she was legally on the premises at 5747 Dempster. The defendant did not attach an affidavit to its answer to support its claim of lack of knowledge.

The interrogatories the plaintiff sent the defendant on June 19, 1991, did not indicate that the address of the accident was anything other than that alleged in the complaint:

"2. Did the defendant: (a) own, (b) occupy, (c) lease, (d) manage and/or control the premises at the time of the occurrence as alleged in the plaintiff[']s complaint; if so, specify which of the above is applicable for what period of time.

5. Please state the name and address of the person, firm or corporation which had the responsibility or duty for the maintenance of the premises at the time and place of the plaintiff's alleged occurrence.

11. Did you or any agent or employee of the defendant *** make any examination or inspection of the place or area where the plaintiff alleges that the occurrence happened ***.

15. Was the place where the alleged occurrence happened regularly or otherwise patrolled or supervised by you or any agent or employee of the defendant ***." (Emphasis added.)

The plaintiff's request for production also referred to the "alleged occurrence," and a pretrial memorandum filed on August 30, 1991, listed the location of the accident as 5747 West Dempster.

In the plaintiff's answers to the defendant's interrogatories in September 1991, however, the plaintiff stated that the location of the store where she fell was at the intersection of Waukegan and Dempster Roads. Her response did not contain the address of this store, but it is undisputed that the address of the Dominick's store at that location is 6931 Dempster. Nevertheless, in March 1992, the plaintiff sent the defendant a supplemental interrogatory, in which she asked for the name and address of the ...


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