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Pavlik v. Wal-Mart Stores

June 28, 2001

JILL A. PAVLIK, PLAINTIFF-APPELLANT,
v.
WAL-MART STORES, INC., A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Hoffman

Not Released For Publication

JILL A. PAVLIK, PLAINTIFF-APPELLANT,
v.
WAL-MART STORES, INC., A DELAWARE CORPORATION, DEFENDANT-APPELLEE.

The opinion of the court was delivered by: Justice Hoffman

Appeal from the Circuit Court of Cook County.

Honorable Mary A. Mulhern, Judge Presiding.

 The plaintiff, Jill A. Pavlik, appeals from a summary judgment entered in favor of the defendant, Wal-Mart Stores, Inc., on her complaint seeking recovery under a premises liability theory, and from a subsequent order denying her motion for reconsideration. For the reasons which follow, we reverse and remand this cause to the circuit court for further proceedings.

The plaintiff filed the instant action seeking to recover damages for injuries she suffered on March 18, 1995, when she slipped and fell on a liquid substance while shopping at the defendant's store. The plaintiff alleged that, at the time she fell, she was lawfully on the defendant's premises as a customer; that the defendant had a duty to exercise ordinary care in the operation of its premises; and that it breached this duty because (1) its employee failed to wipe the liquid substance from the floor, (2) its employee spilled the liquid substance on the floor, but failed to clean the floor afterwards, and (3) it failed to warn the plaintiff that a liquid substance had been spilled on the floor. She further alleged that, as a proximate result of the defendant's negligence, she sustained serious and permanent personal injuries. The defendant answered the complaint, denying that it breached its duty to the plaintiff or that any of its employees were negligent.

The plaintiff testified in her deposition that, on the date in question, she and her father, Andrew Pavlik, were at the defendant's store in an aisle containing hair products. She walked to the end of the aisle, turned to her right to walk around the corner, and then slipped on a liquid substance and fell, landing on her right knee. According to the plaintiff, the substance on which she fell was hair conditioner. She testified that, after the fall, she observed a 12 to 14-inch wide puddle of conditioner and a conditioner bottle on the floor, but had no idea how the conditioner came to be on the floor or how long it had been there prior to her accident. There were no markings indicating that anyone had walked through the puddle of conditioner before the plaintiff's fall. Andrew Pavlik's deposition testimony substantially corroborated that of the plaintiff.

The defendant moved for summary judgment, asserting that, in light of the above deposition testimony, the plaintiff would not be able to establish negligence on its part because there was no evidence that an employee caused the conditioner to spill, or that the defendant knew of or should have discovered the presence of the spilled conditioner. In response, the plaintiff argued that a genuine issue of material fact existed as to the question of whether the defendant, through its employees, had knowledge of the spilled conditioner and should have cleaned it up prior to the accident. Specifically, she relied on her testimony that, after she fell, one of the defendant's employees, someone "like a store clerk," stated that the puddle of conditioner "should have been cleaned up before." Andrew Pavlik also testified that an employee remarked, in reference to the puddle,"oh, she was supposed to clean that up and she didn't." In its reply brief in support of the motion for summary judgment, the defendant argued that the deposition testimony regarding the post-occurrence statements of its employee constituted inadmissible hearsay and, therefore, could not be used to create a genuine issue of material fact defeating summary judgment.

After hearing oral argument, the trial court entered summary judgment in favor of the defendant, stating:

"in as much as the statement attributed to an unidentified employee of [defendant] that 'it [the puddle] should have been cleaned up before' is not admissible since it is hearsay, and there is no genuine issue of material fact regarding defendant's actual or constructive notice of said puddle."

Thereafter, the plaintiff filed a motion for reconsideration which the trial court denied. This appeal followed.

Summary judgment is to be granted only when the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). Since our review of the summary judgment entered in this action is de novo (In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993)), we have examined all of the pleadings and evidentiary material on file in their light most favorable to the plaintiff (Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1980)).

To recover on a negligence claim, the plaintiff must establish the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from that breach. Miller v. National Ass'n of Realtors, 271 Ill. App. 3d 653, 656, 648 N.E.2d 98 (1994). If the plaintiff cannot establish an element of her cause of action, summary judgment ...


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