Appeal from the Circuit Court of Du Page County. No. 95--L--1238. Honorable Edward R. Duncan, Jr., Judge, Presiding.
Released for Publication June 17, 1997.
The Honorable Justice Doyle delivered the opinion of the court. Geiger, P.j., concurs. Justice Rathje, dissenting.
The opinion of the court was delivered by: Doyle
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Ruby Peterson, brought this action against defendant, Aldi, Inc., alleging that, as a result of defendant's negligence, she was injured when she tripped and fell in one of defendant's grocery stores. The circuit court of Du Page County ruled that under section 2 of the Premises Liability Act (Act) (740 ILCS 130/2 (West Supp. 1995)), as amended effective March 9, 1995, defendant was entitled to summary judgment. Plaintiff filed a timely appeal from a subsequent trial court order granting summary judgment in favor of defendant based on that ruling.
On appeal, plaintiff generally contends that the trial court erred when it granted summary judgment in favor of defendant because there were genuine issues of material fact that precluded summary judgment. Plaintiff argues that a jury could have found that, under section 2 of the Act: (1) the condition on defendant's premises which caused her to trip and fall was not open and obvious; and (2) even if the condition was open and obvious, defendant nonetheless owed her a duty of care with respect to the condition.
At about 4 p.m. on April 5, 1995, plaintiff entered defendant's grocery store in Villa Park to purchase groceries. Plaintiff had previously shopped at the store once or twice. Plaintiff pushed a cart in front of her as she entered the store.
Inside the store, a turnstile directed entrants to the first of four parallel aisles. Plaintiff proceeded through the turnstile and down the first aisle toward the rear of the store. On the left side of the first aisle were shelves displaying various items. There was contradictory testimony as to whether there were also shelves displaying items on the right side of the first aisle or whether, instead, there were wooden pallets placed next to each other displaying items. As she went down the first aisle, plaintiff selected and placed several canned items in her cart.
Upon reaching the end of the first aisle, plaintiff saw a bin containing grapefruits. This bin was about six or seven feet to her right in the produce section. The produce section was at the rear of the store between the second and third aisles.
The shape of the grapefruit bin was round or octagonal. The grapefruit bin was about three to four feet high and about four to five feet across. The bin rested on a square wooden pallet which was about four inches high. The bin was about the same width as the pallet on which it rested. Other produce was displayed in the produce section in other bins on other pallets which abutted two sides of the grapefruit bin pallet.
The grapefruit bin was positioned more or less in the center of its pallet. The edges of the grapefruit bin were therefore about even with the edges of the pallet at the middle of each side of the pallet. Due to the roundish shape of the grapefruit bin, each of the corners of the pallet it rested on protruded beyond the edge of the grapefruit bin. Because other pallets were flush against two sides of the grapefruit bin pallet, only two sides and one corner of the grapefruit bin pallet were exposed to persons walking near the grapefruit bin.
After seeing the grapefruit bin, plaintiff pushed her cart over to the grapefruit bin and stopped her cart right next to it. Plaintiff turned so that her body faced the grapefruit bin, reached into the bin, and picked up a grapefruit. Plaintiff decided she wanted to look at other grape fruits on the other side of the bin and put the grapefruit she had picked up back into the bin. The grapefruit bin was too wide to reach across. Plaintiff therefore began to walk around the grapefruit bin to get to the other side of the bin. Leaving her cart, plaintiff turned to her left. As she was taking her first step, plaintiff's foot came into contact with the exposed corner of the grapefruit bin pallet, and plaintiff tripped and fell seriously injuring herself.
In her discovery deposition, plaintiff testified that she had no difficulty seeing as she walked around the store. Plaintiff stated that when she got to the end of the first aisle and saw the grapefruit bin she had no difficulty observing the bin because it was in "clear view."
However, plaintiff testified that she did not see the grapefruit bin pallet, which she referred to as the "support" or the "boards," before she tripped and fell on the pallet. Plaintiff testified that she saw the pallet for the first time only after she fell and was sitting on the floor. After she fell, plaintiff had no difficulty seeing the pallet which she stated extended out beyond the bottom of the grapefruit bin "about a foot." Plaintiff could not recall if there was anything that blocked her view of the exposed corner of the grapefruit bin pallet as she approached the grapefruit bin after first seeing it. Defendant's attorney asked plaintiff where she was looking as she took the step when she fell. Plaintiff responded, "I had just looked up and just started to turn to walk. I didn't even look down." Plaintiff acknowledged that if she had looked down, she would have been able to see the exposed corner of the grapefruit bin pallet.
During plaintiff's deposition, the following colloquy occurred between defendant's attorney and plaintiff:
"Q. Do you have any criticism of the display bin that was in the Aldi store that afternoon?
A. Yes, There was boards that jutted out from underneath it that I tripped over.
Q. What was improper about those?
A. Well, they were right out. A person could trip over them easily like I did if they hadn't noticed them.
Q. I take it that those wooden boards were observable when you looked at them that ...