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Heider v. DJG Pizza, Inc.

Court of Appeals of Illinois, First District, First Division

June 10, 2019

MICHAEL L. HEIDER, Plaintiff-Appellant,
DJG PIZZA, INC., d/b/a J.L.'S PIZZA & SPORTS BAR, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County. No. 17 L 2330 Honorable Patricia Sheahan Judge Presiding.

          MIKVA, PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.



         ¶ 1 While exiting the defendant's bar and restaurant the plaintiff in this case slipped and fell on a patch of wet concrete, suffering a broken leg that required multiple surgeries and that continues to cause him pain and limited mobility. The circuit court granted defendant's motion for summary judgment on plaintiff's negligence claim, concluding that plaintiff failed to present any evidence regarding how the floor in that area came to be wet or establishing that defendant had actual or constructive notice of a dangerous condition on its property. For the reasons that follow, we reverse.

         ¶ 2 I. BACKGROUND

         ¶ 3 Plaintiff Michael Heider fell on March 13, 2015, at J.L.'s Pizza & Sports Bar (JL's Pizza), a sports bar located in Palatine, Illinois. JL's Pizza has 5500 square feet of interior space and, at the time of the incident, had about 16 customer tables. JL's Pizza has only one main entrance, with an exterior door leading to a vestibule and an interior door leading to the bar and restaurant area. The floor of the bar by the interior door is cement painted with Epoxy.

         ¶ 4 David Gagner, the owner of JL's Pizza, testified at his deposition that a floor mat measuring approximately two feet by four feet with a carpeted top and nonskid rubber backing was positioned somewhere near the interior door on the day of Mr. Heider's accident, . Mr. Gagner did not purchase this mat; it was present when he purchased JL's Pizza, and he had not moved the mat prior to Mr. Heider's fall. Mr. Gagner explained that he had in fact purchased the business only one day before the incident, on March 12, and was the sole owner. He was not affiliated in any way with the prior establishment, which had operated for some time under another name, and had no prior experience running a bar or restaurant.

         ¶ 5 Mr. Gagner testified that, after the bar closed on March 12, the area near the mat was swept and vacuumed but not mopped. Mr. Gagner could not recall whether he had lifted the mat and inspected it prior to the incident. According to him, JL's Pizza had no written rules, regulations, policies, or work procedures regarding floor maintenance at the time of the incident.

         ¶ 6 Three employees were present at JL's Pizza on March 13: Mr. Gagner, a bartender, and a server. The bartender and server were employees of the previous management who continued working for a few days just to assist Mr. Gagner during the transition period. There were also approximately 50 customers present the day of the incident.

         ¶ 7 Mr. Heider testified at his deposition that on March 13, 2015, he was working as a school bus driver and met some coworkers at JL's Pizza shortly after 3 p.m., when his shift ended that day. Two of those coworkers-Charles Brace and Richard Butterly-arrived at the bar shortly after Mr. Heider did and were also deposed in this case. All three testified that they had been to JL's Pizza on a few other occasions.

         ¶ 8 According to Mr. Gagner, Mr. Heider, Mr. Brace, and Mr. Butterly, the weather on March 13, 2015, was sunny and clear. Mr. Heider, Mr. Brace, and Mr. Butterly did not see any puddles as they walked up to the entrance of JL's Pizza. They did not notice the positioning of the floor mat or any dampness in the area. In fact, none of the three remembered if a mat was even there when he entered the bar.

         ¶ 9 Mr. Heider, Mr. Brace, and Mr. Butterly were seated together with their other coworkers at a table that, according to Mr. Heider and Mr. Butterly, was about 10 to12 feet from the entryway. Each of the men was able to see the entranceway from where he was seated, although Mr. Butterly did not have a direct view of the front door and Mr. Heider said he could see one corner of the door from where he was seated. Mr. Butterly was unable to recall whether Mr. Heider left the table at any point, but Mr. Brace stated that he never saw Mr. Heider get up from the table. Mr. Heider stated he only left the table when he decided to go home for the day, shortly after 5 p.m. This timing was corroborated by Mr. Butterly.

         ¶ 10 Mr. Heider testified that he did not observe any JL's Pizza employee mopping or cleaning the bar's entryway or inspecting it during the approximately 1 hour and 40 minutes that he was seated in the bar. He noticed some customers moving in and out of the bar but did not see anyone spill anything. Mr. Butterly and Mr. Brace testified that they also did not notice anyone spill anything or any employee of JL's Pizza mopping near the entryway.

         ¶ 11 Mr. Heider testified that he had two 12-ounce bottles of beer while he was at JL's Pizza and had eaten a sandwich for lunch earlier that day. He stated that he was not intoxicated when he got up to go home. Mr. Gagner, Mr. Brace, and Mr. Butterly also testified that Mr. Heider did not appear to be intoxicated at any time.

         ¶ 12 According to Mr. Heider, it was still quite bright outside, and the lighting in the entryway was good when he stood up to go home. Mr. Heider could see the concrete floor of the entryway as he walked from the table to the door, and he was looking straight ahead as he walked out. He did not turn around to say good-bye to anyone. He did not look down at the floor. As Mr. Heider walked closer to the door, his right foot slid forward and his left foot slid back behind him. He stated that it was "kind of, like a splits *** I felt my back leg snap, and I went down." Mr. Heider was certain that he slipped on the cement floor and not on the mat. When he fell, he stated that his buttocks were on the mat and his legs were sticking directly across the doorway. Mr. Heider believes he slipped on water because when he landed on the floor he was wet and the floor, although there was no puddle, appeared damp. The mat was also wet. As he propped himself up on it, he had to keep wiping his hands on his jeans.

         ¶ 13 This was the first time Mr. Heider had noticed the mat. He said it was at an angle and only a corner of it was in front of the doorway. According to him, it looked as if someone or something had pushed the mat away from the doorway and "squeegeed" water onto the floor. Mr. Heider acknowledged that he just assumed this was the case and did not know for sure. Mr. Heider testified that he had not noticed any dampness when he first walked into JL's Pizza. He did not know how or when the water got on the floor. At first he thought it had been tracked in by ...

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