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Kathleen Kleiber v. Freeport Farm and Fleet

December 2, 2010

KATHLEEN KLEIBER,
PLAINTIFF-APPELLANT,
v.
FREEPORT FARM AND FLEET, INC., A/K/A FARM AND FLEET OF MORTON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois No. 08-L-119 Honorable Scott A. Shore, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the opinion of the court:

Plaintiff, Kathleen Kleiber, brought suit against defendant, Freeport Farm & Fleet, Inc., also known as Farm & Fleet of Morton, for injuries she sustained when she fell and broke her leg on defendant's property. The trial court granted defendant's motion for summary judgment. Plaintiff appeals. We affirm the trial court's ruling.

FACTS

On May 2, 2008, plaintiff and her husband were shopping at the Farm and Fleet store (the store) in Morton, Illinois, and were starting to load bags of topsoil into their vehicle from a pallet located outside the front of the store. To obtain the bags of topsoil, plaintiff and her husband walked across an empty wooden pallet that was lying on the ground. After plaintiff picked up a bag of topsoil and turned to go back across the pallet to the vehicle, her foot went through one of the holes (slats) in the pallet. As a result, plaintiff twisted her leg, fell, and was injured. Plaintiff filed a complaint for damages in this case in September of 2008. The complaint was based upon premises liability.

Defendant filed a motion for summary judgment, alleging that: (1) plaintiff could not offer evidence that her fall and injuries were caused by a defect on defendant's property, (2) plaintiff's own contributory fault caused her fall and injuries; and (3) defendant owned no duty to plaintiff because the alleged dangerous condition was open and obvious. Defendant's motion was supported by a memorandum of law and by the deposition testimony of plaintiff and her husband.

Of relevance to this appeal, plaintiff testified in her deposition that on May 2, 2008, at about 11 a.m., she and her husband, Michael, went to the Farm & Fleet store in Morton, Illinois, to get some bags of topsoil. Plaintiff and her husband had purchased topsoil at that location in the past. The weather that day was overcast and cloudy and it had rained earlier that morning. The topsoil was located outside in front of the store on pallets. Plaintiff and her husband pulled the truck that they were driving in front of the store to load the topsoil with the intention of paying for it after it was loaded. Plaintiff did not speak to anyone from the store before trying to load the topsoil and did not request any assistance in loading the topsoil. An empty pallet was on the ground in front of the pallet containing topsoil, which was back by the store building. Plaintiff walked across the empty pallet, picked up a bag of topsoil by the edges from about waist high, and turned to her right to go back to the truck. As plaintiff took her first step back toward the truck, her foot went into one of the holes in the pallet and she fell.

During her deposition, plaintiff was specifically asked about the location of the pallet in relation to the store. The following conversation ensued:

"Q. Could you access the back pallet from either side?

MR DAVIS [plaintiff's attorney]: Do you understand the question?

A. Yes, I do. I'm -- I'm trying to think. I -- I walked directly to the bags.

Q. Over the empty pallet?

A. Yes.

Q. Okay. And my question is, could you access the back pallet from either side?

A. I don't believe so.

Q. Okay. And what prevented you from accessing the back pallet where the topsoil was stacked?

A. Because it was by the door -- the doors on the side. And--

Q. Well, let me ask it this way. Maybe I can ask a better question. As you're standing looking at the building --

A. Yes.

Q. -- okay -- the pallet that the topsoil is stacked is immediately adjacent or next to the building?

A. Yes.

Q. And in front of the pallet where there's soil stacked --

A. Yes.

Q. -- there's an empty pallet?

A. Yes.

Q. And in front of the empty pallet is where you've parked your pickup?

A. Yes.

Q. Okay. As you're standing looking at the building and looking at the pallet of topsoil, was there anything immediately to the right of the pallet of topsoil that prevented you from obtaining the topsoil in the pallet?

A. Another pallet.

Q. And what was on that pallet, do ...


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