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Mattie Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York

June 24, 2011

MATTIE NEWSOM-BOGAN,
PLAINTIFF-APPELLANT,
v.
WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC.,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 07 L 9119 Honorable Elizabeth M. Budzinski, Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. JUSTICE McBRIDE concurred in the judgment and opinion.

JUSTICE CAHILL dissented in the judgment, with opinion.

OPINION

This case involves a slip and fall at a restaurant that resulted in an operated knee and the grant of a summary judgment in favor of the restaurant.

Plaintiff Mattie Newsom-Bogan appeals from the granting of summary judgment to defendant, Wendy's Old Fashioned Hamburgers of New York, Inc., in her negligence action to recover monetary damages from her fall. On appeal, plaintiff contends that genuine issues of material fact exist regarding the cause of her fall and constructive notice to defendant. We reverse and remand.

BACKGROUND

On August 29, 2007, plaintiff filed a complaint seeking monetary damages for injuries incurred as a result of slipping and falling on the tile floor near a trash receptacle at defendant's restaurant at 3951 West 183rd Street in Hazel Crest, Illinois. Plaintiff alleges that defendant owed her a duty to use ordinary and reasonable care with respect to the restaurant premises. Defendant allegedly breached that duty by allowing the floor near the trash receptacle to become and remain in a dangerous condition when it knew or should have known of the dangerous condition and by failing to warn plaintiff of the dangerous condition.

In her discovery deposition, plaintiff, age 54, testified that at approximately 4:30 p.m. on November 28, 2006, she entered Wendy's restaurant. She observed only three or four other tables of customers. The weather conditions were dry and cold, and there had been no rain or snow that day. Plaintiff was wearing slip-on flat shoes with rubber soles. After she purchased her food, plaintiff sat down to eat and was in a position to observe the area around the trash receptacle where she eventually fell. After she finished her food, she stepped from the carpeting to the tile floor and her right foot slipped and caused her to fall sideways, landing on her left hip and right knee. The contents of her tray "went flying" and landed on the floor. Plaintiff attempted to get up from the floor, but was unable to do so because her hands were greasy and she was unable to brace herself. She described the grease as being "[t]he color of the floor" and did not recall any specific smell of the grease. When asked how much grease was on the floor, she answered: "What I felt was with my hands. That's all I could feel. My hands were slippery. I tried to push up, and my hands were greasy after touching the floor." Plaintiff did not check to see if the greasy substance on the floor was on her clothes. When asked about the cause of her fall, plaintiff testified:

"Q. At the time right after your fall, were you able to determine what caused your fall?

A. All I could recall is that I tried to push myself, tried to brace myself up, and my hands were greasy. I could not brace myself to get up off the floor.

Q. So was it your conclusion that you had slipped on the grease?

A. That's what I would assume it was. I mean, I could not -- I couldn't balance myself to get up off the floor."

Eventually, two customers helped plaintiff into a chair and a male Wendy's employee came out to clean "the shake and tray and stuff" from where plaintiff fell. Tina Archer, an assistant manager at Wendy's, spoke with plaintiff. Plaintiff told Archer that she had fallen and showed Archer where the fall occurred. Plaintiff required medical assistance after experiencing pain in her leg and back, and Archer called for an ...


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