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Bailey v. Graham Enterprises, Inc.

Court of Appeals of Illinois, First District

June 10, 2019

CYNTHIA BAILEY, Plaintiff-Appellant,
v.
GRAHAM ENTERPRISES, INC., a domestic corporation, and RED CROWN HOLDINGS, LLC, a limited liability company, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County, Law Division. No. 16 L 006564 Honorable Kathy M. Flanagan, Judge Presiding.

          GRIFFIN, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion.

          OPINION

          GRIFFIN, JUSTICE.

         ¶ 1 Plaintiff Cynthia Bailey sustained injuries to her left knee when she slipped and fell on a slush-covered handicap parking symbol in a gas station parking lot. She filed a personal injury action against defendants Graham Enterprises, Inc. and Red Crown Holdings, LLC claiming they were negligent and liable for her injuries. Defendants filed a motion for summary judgment arguing that plaintiff slipped on a natural accumulation of slush and under the natural accumulation rule, which holds that a property owner has no duty to remove natural accumulations of ice, snow or water from its property, plaintiff's claim failed as a matter of law.

         ¶ 2 In response to defendants' motion, plaintiff argued that the natural accumulation rule did not apply because she slipped on the paint atop the handicap symbol, which became unreasonably slippery when wet as a result of defendants' improper design, construction and maintenance of the symbol. Plaintiff attached to its response an expert witness affidavit.

         ¶ 3 Defendants moved the trial court to strike the affidavit and in their reply, reaffirmed that the natural accumulation rule precluded plaintiff's recovery as a matter of law. The trial court struck plaintiff's affidavit as inadmissible and granted summary judgment in favor of defendants after finding the evidence failed to establish a duty on the part of defendants to remove the natural accumulation of slush from their property.

         ¶ 4 Plaintiff appeals, and argues that the trial court erred when it struck her affidavit and entered summary judgment in favor of defendants. For the following reasons, we reverse.

         ¶ 5 BACKGROUND

         ¶ 6 On January 7, 2015, plaintiff went to a gas station located at 841 West Irving Park Road in Chicago. The parking lot had been plowed earlier that day and salt was used to melt the remaining snow. Upon exiting the gas station's store, plaintiff slipped and fell on a handicap symbol covered in slush. The symbol was painted on the asphalt ground to designate a handicap parking space directly in front of defendants' store. Plaintiff notified a gas station employee about her fall, who promptly reviewed video surveillance footage, took pictures of the handicap symbol and surrounding area, and prepared an incident report.

         ¶ 7 On July 1, 2016, plaintiff filed a lawsuit against defendants in the circuit court of Cook County claiming they were liable for her injuries. Plaintiff pleaded several claims sounding in negligence. Defendants answered the complaint and denied all material allegations thereby placing the parties at issue. Discovery commenced and concluded.

         ¶ 8 Defendants filed a motion for summary judgment pursuant to section 2-1005 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1005 (West 2016)), which allows a trial court to enter judgment short of trial when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In their motion, defendants argued that the evidence showed plaintiff slipped on a natural accumulation of slush and under the natural accumulation rule in Illinois, defendants had no legal duty to remove the slush from their property.

         ¶ 9 In her response to the motion, plaintiff argued that the natural accumulation rule did not apply because she slipped on the paint atop the handicap symbol, which became unreasonably slippery when wet as a result of defendants' improper design, construction and maintenance of the symbol. Plaintiff attached to her response a supporting affidavit pursuant to Illinois Supreme Court Rule 191(a) (Ill. S.Ct. R. 191(a) (eff. Jan. 4, 2013)) (Rule 191(a)), which governs the use of affidavits in opposition to a motion for summary judgment.

         ¶ 10 In the affidavit, expert witness Daniel Robson ("Robson") stated that, based on his review of the deposition testimony of the witnesses, the video tape of plaintiff's fall, the incident report prepared by defendants' employee and the photographs taken of the handicap symbol on January 7, 2015, the "root cause of [plaintiff's] fall was that she slipped on the handicap parking symbol which was contaminated with slush." He further concluded that the slush "on the smooth painted surface caused a sudden and unexpected change in the co-efficient of friction of the surface of the painted symbol to a value which was unreasonably dangerous for the public asphalt parking lot, causing [plaintiff] to slip, fall and be injured." Robson's conclusions were based in part on certain testing he performed. Robson outlined the testing procedure and results in the affidavit.

         ¶ 11 Robson attested that he inspected the scene of the incident on November 16, 2017 and later chose a test site that had "some similar areas of asphalt texture" and the "same slope as [defendant's] lot." He purchased "Sherwin-Williams Pro-Park Traffic Paint" and "H&C SharkGrip Slip Resistant Additive," both of which according to Robison were materials used by defendants' painting contractor, Craig Phillips, to paint the handicap symbol in defendants' parking lot. He reviewed the "product data sheets, directions and warnings" for each product and concluded that, "according to the data," the slip-resistant additive would ...


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