Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, Illinois, County
Department, Law Division. No. 15 L 8316 The Honorable John H.
Ehrlich, Judge Presiding.
Attorneys for Appellant: John Xydakis, of Chicago, for
Attorneys for Appellee: Robert Marc Chemers, David M.
Bennett, and Scott L. Howie, of Pretzel & Stouffer,
Chtrd., of Chicago, for appellees.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of
the court, with opinion. Justices Howse and Cobbs concurred
in the judgment and opinion.
FITZGERALD SMITH, PRESIDING JUSTICE.
1 This appeal stems from a negligence cause of action filed
by the plaintiff, Debra Haslett, against the defendants
United Skates of America, Inc. (United Skates), Chicago City
Skating LLC (Chicago Skating), and Milton Torrence, after she
slipped and fell at a roller skating rink. The plaintiff
alleged that she was injured as a result of the
defendants' negligent failure to notice and remove a
piece of hard candy on the rink surface, which caused her to
fall. The circuit court entered summary judgment in favor of
the defendants, holding that there was no evidence that the
defendants had any notice of the alleged hazard or that this
hazard was the cause of the plaintiff's fall. On appeal,
the plaintiff argues that the trial court erred when it
granted summary judgment in favor of the defendants because
there remain genuine issues of material fact as to whether
the defendants breached their duties to her and whether that
breach proximately resulted in her injuries. In this respect,
the plaintiff contends that the trial court erred in refusing
to draw an adverse inference from the defendants'
responses to discovery, which failed to include a video clip
that the plaintiff believes would have shown the cause of her
fall. The plaintiff also contends that the trial court erred
when it denied her leave to amend her complaint for a third
time. For the reasons that follow, we affirm.
3 The record below reveals the following undisputed facts and
procedural history. On July 13, 2015, the plaintiff was a
roller skating customer at the Dr. Martin Luther King Jr.
Park and Family Entertainment Center (the roller skating
rink) in Chicago, which was co-owned, managed, operated, and
controlled by the defendants, United Skates and Chicago
Skating. The defendant, Torrence, was the assistant manager
of the roller skating rink and an employee of United Skates.
On July 13, 2015, while roller skating, the plaintiff fell
injuring her back.
4 On August 14, 2015, the plaintiff filed her original
complaint against United Skates and Torrence, alleging
negligence, and violations of the Roller Skating Rink Safety
Act (745 ILCS 72/1 et seq. (West 2014)). On October
15, 2015, she filed her first amended complaint, adding as an
additional defendant, Chicago Skating.
5 On February 16, 2016, the plaintiff filed the instant
second amended complaint, alleging only
"negligence" against the three defendants. Therein,
she alleged that on July 13, 2015, she was a "business
invitee" of the roller skating rink and that she fell as
a proximate result of the defendants' breach of the
following duties: (1) to reasonably inspect and monitor the
skating surface to ensure that it was free from defects and
foreign objects; (2) to have adequately trained floor guards
to direct and supervise skaters, watch for foreign objects
that may have fallen on the floor, and use reasonable care in
their duties; (3) to maintain the skating surface in a
reasonably safe condition and clean and inspect the skating
surface before each session; (4) to supervise and operate the
roller skating rink in a reasonably safe condition to ensure
the floors were clean; (5) to warn any participants of
unforeseen dangers; and/or (6) to have adequate lighting
necessary to see any defects and foreign objects on the
6 After the defendants filed their answer and affirmative
defenses, alleging assumption of risk and comparative
negligence, the case proceeded with extensive discovery,
during which, inter alia, the following individuals
were deposed: (1) the plaintiff; (2) the plaintiff's
grandson, Elijah Goshay (Elijah); (3) the plaintiff's
granddaughter, Jada Goshay (Jada); (4) the plaintiff's
husband, Charles Estes; (5) two of the plaintiff's
sisters, Juanita Cunningham and Patricia Haslett (Haslett);
(6) the defendant Torrence; (7) the general manager of the
roller skating rink, Tenesha Taylor; and (8) one of the
roller skating rink floor guards, Kyle Barnett.
7 For purposes of brevity, we set forth only that deposition
testimony relevant to the disposition of this appeal.
8 The plaintiff testified that she has roller skated since
she was five years old and that she is an expert skater. The
plaintiff averred that she was very familiar with the roller
skating rink because she skated there at least once a week
for many years. On June 13, 2015, together with two of her
grandchildren, Elijah and Jada, the plaintiff attended her
nephew's kindergarten graduation party at the roller
skating rink. She brought and wore her own skates for the
occasion. Those skates had been purchased in 2013 and had no
toe stops in the front because, as an expert skater, the
plaintiff could stop simply by sliding sideways.
9 According to the plaintiff, when she arrived at the skating
rink, she waited for the rink to open. She saw no one on the
rink floor and no one sweeping or cleaning it. When the next
"all skate" session was announced she was the first
to enter the rink. There were two floor guards on the floor.
The plaintiff skated counterclockwise for about 10 minutes
and completed at least one turn before she "just all of
a sudden fell" backwards seriously injuring her back.
The plaintiff stated that she did not run into anyone and was
not shoved, pushed, or pulled from behind and made no contact
with any other skater before she fell.
10 The plaintiff averred that she fell because she rolled
over a piece of hard candy. The plaintiff, however, could not
state how large the candy was, for how long that candy had
been on the rink floor before she tripped over it, where it
came from, or how it got there. She acknowledged that she
never saw the candy before or after she fell but stated that
she "felt rolling over something." The plaintiff
admitted that she did not see any object that she could have
tripped over on the rink floor either before or after she
fell, even though she had skated in that same area when
making her first circle around the rink. As the plaintiff
averred, "the candy had to be invisible." When
asked to explain how she knew that she fell over a piece of
candy, the plaintiff stated that after she had been taken to
the hospital her sister told her that "this is what they
got off her skates." The plaintiff acknowledged that at
the time of her fall, no one told her that she had tripped
over a piece of candy, and she herself never looked at her
skates to determine whether there was anything stuck to them.
The plaintiff also admitted that she never told any of the
rink employees that she rolled or fell over something while
skating but averred that she failed to do so because she was
in too much pain. She also denied ever having told any of the
employees at the rink that she fell because a "boy cut
her off" while skating.
11 After falling, the plaintiff felt her back
"break," experience excruciating pain and was
unable to breathe. She lay on her stomach, calling for help
and asking that her skates be taken off. After a floor guard
approached to help and take off her skates, the plaintiff was
transported to the hospital. The plaintiff's mother
retrieved the skates from the floor guard, put them in the
plaintiff's bag, and returned them to the plaintiff's
house. The plaintiff did not see her skates until at least
three days later when she returned home from the hospital.
She could not state exactly when she inspected her skates but
admitted that she did not inspect them immediately upon her
release home. Rather, sometime later, when she was moving
things around her house, she looked at the skates and noticed
"red crumbled up" pieces of candy on the front
wheels. The plaintiff believed these came from hard red Jolly
Rancher candy. She, however, did not take photographs of the
skates and had no personal knowledge as to how or when the
candy pieces got onto the wheels.
12 In his deposition, the plaintiff's grandson, Elijah,
testified that on July 13, 2015, he attended the graduation
party at the roller skating rink with his grandmother. Elijah
was eating pizza at one of the tables next to the roller
skating rink floor, when he learned that the plaintiff had
fallen. He was facing away from the skating floor and did not
see the plaintiff fall or anything that may have caused her
to fall. After he went onto to rink floor to help the
plaintiff, Elijah did not see any candy there. He also never
heard anyone at the rink say anything about candy causing the
plaintiff's fall. The first time he heard anything about
candy was when he was at the hospital where the
plaintiff's husband, Estes, told him that the plaintiff
had fallen on candy. Elijah admitted that he has no personal
information or knowledge of the candy and does not know what
caused the plaintiff to fall.
13 In her deposition, the plaintiff's granddaughter,
Jada, stated that, together with her grandmother, on July 13,
2015, she attended the graduation party at the roller skating
rink. She was going to get a slushy and was looking for her
brother, Elijah, when she learned that the plaintiff had
fallen. She did not see the plaintiff fall. She went onto the
rink floor and saw the plaintiff on the floor, and Elijah
next to her trying to help. Jada did not see anything on the
rink surface that might have caused the plaintiff to fall and
does not know what caused her to fall. Jada vaguely recalled
hearing that the plaintiff fell because she was "cut off
by a boy while skating." However, she could not remember
when or from whom she had heard this.
14 In his deposition, the plaintiff's husband, Estes,
testified that prior to the incident he had skated many times
at the roller skating rink with the plaintiff. He explained
that the plaintiff's passion was roller skating and that
she was an excellent skater who never fell. Estes
acknowledged that he did not attend the plaintiff's
nephew's graduation party and was therefore not present
when the plaintiff fell. He learned of her fall from one of
the plaintiff's family members who had telephoned to say
that she had fallen on some candy or "something."
Estes could not remember which family member had telephoned.
After he learned of the accident, Estes immediately went to
the roller skating rink and then accompanied the plaintiff to
the hospital. He averred that the plaintiff was in
excruciating pain and that at that time he was not concerned
with what had caused her to fall but rather with getting her
immediate treatment. The plaintiff later told Estes that she
fell over something and that others had told her that it was
a piece of candy.
15 In her deposition, one of the plaintiff's sisters,
Cunningham, who hosted the graduation party, testified that
she was at the concession stand when she learned of the
plaintiff's fall. She did not see the fall and did not
know what caused it. When Cunningham rushed onto the floor to
help the plaintiff, she did not see "any candy or
anything on the floor."
16 In her deposition, another one of the plaintiff's
sisters, Haslett, testified that she did not attend the
graduation party at the roller skating rink and therefore did
not see the plaintiff fall. She learned of the fall on that
same afternoon, when a family member telephoned her to inform
her that the plaintiff was in the hospital. Haslett
immediately went to the hospital to see her sister. According
to Haslett, at that time, the plaintiff told her that she
fell because "some boy grabbed her" and she
"tripped." Haslett was asked to watch several
surveillance videos from the roller skating rink and admitted
that in those video clips she could not see anyone who
grabbed the plaintiff.
17 In his deposition, the defendant, Torrence, testified that
on the day of the incident, he was the assistant manager of
the roller skating rink. He was employed by the defendant
United Skates but paid by the defendant Chicago Skating.
Torrence was trained in the Roller Skating Association
standards and agreed that under those standards the skating
surface must be clean and free of debris at all times. He
also agreed that floor guards are responsible, inter
alia, for monitoring the skating floor and making sure
that the floor is free from debris both before and ...