## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of New York, Inc. , 2011 IL App (1st) 092860

Appellate Court Caption MAT TIE NEWSOM-BO GAN, Plaintif f-Appe llant, v. WENDY’S OL

D FASHI ON ED HAMBURG ERS OF NEW Y ORK, I NC., DefendantAppellee.

District & No. First District, Sixth Division Docket No. 1–09–2860

Filed June 24, 2011

Held ( Note: Thi s syllab u s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions for th e convenience of the reader. ) In an action for the injur ies pla intiff suf fered w hen she f

ell in defendant’s fast-food restaurant, the trial cou r t erred in entering
summary judgment for defendant

where genuine issues of material fact existed as to whether

the grease plaintiff felt on the floor whe

re she f ell

was the proximate cause of her fall, whether the

store man ager f

ailed to discover the gre ase during the w alk-thro ugh requir ed by defendant’s training man ual f

or the re stauran

t, or whe ther the manage r failed to conduct the required walk-through.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 07 –L–91 19; the Hon. E liza beth M . Budz insk i, J udge, p resid ing.

Judgment Reversed and remanded.-2-

Counsel on Appeal Jeffrey S. Deutschman, of

Deutschman & Associates, P.C., of Chicago, for appe llant.

Hinshaw & Culbertson, LL P, of Chicago (Joshua G. Vincent, Kimberly A. Jansen, and Robert J. Gibbons, of counsel), for appellee.

Panel JUST IC E R. GORDON deliver ed the jud

gment of the cour t, with opinion. Justice McBride concurred in the judgment and opinion. Justice Cahill dissented in the judgment, with opinion.

OPINION

¶ 1 This case involves a slip and fall at a restaurant that resulted in an opera ted knee and

the grant o f a summar

y ju dgment in favor o f the re stauran t. ¶ 2 Plaintiff

Ma ttie Newsom-Bogan appeals fr om the granting of summary judgment

to defenda nt, Wendy ’s Old Fa shioned H amburg ers of Ne w York, I nc., in her negligence action
to recover monetary

damages from her fall. On appeal, plaintiff contends that g enuine issues of material fact exist regarding the c ause of her fall and constructive noticeto de fend ant. We reverse and remand.

¶ 3 BACKGROUND ¶ 4 On August 29, 2007, plaintiff filed a complaint seeking monetar y damages for injuries incurred as a res u lt of slipping and falling on the tile floor near a trash r eceptacle at defendant’s restaurant at 3951 West 183rd Street in Hazel Crest, Illinois. Plaintiff alleges that defendant owed her a duty to use ord

inary and rea sonable

care w ith respect to the restaurant premises

. Defendant allegedly breached that duty

by allowing the

floor n ear th e trash

rece ptacle

to become and remain in a danger ous condition when it knew or should hav e known of the dangerous condition and by failing to wa

rn plaintiff

of the dangerous condition. ¶ 5 In her discovery deposition, plaintiff, age 54, testified that at ap proximatel

y 4: 30 p.m. on November

28, 2006, she entere d Wendy ’s resta urant. She observed only three or four other tables of customers. The weather conditions were dry and cold, and ther

e had be en no rain

or snow that day. Plaintiff was we aring slip-on flat shoes with rubber s ol es. After she purchased

her food, plaintiff

sat down to

eat and w as in

a position to observe the area around the trash receptacle where she eventually fe

ll. After she finished her food, she stepped from the carpeting to the tile floor and her rig ht foot slipped and caused h er to fa ll sidewa ys, landing on her left hip and right knee. The contents of he r tray “ went flying ” and landed on the floor. Pla

intiff at tempted to

get up f rom the floor, but was unable to do so because her-3-

hands were greasy

and she was unable to brace herself . She described the grease a s being “[t]he color of

the floor ” and did not reca

ll any specific smell of the grease. When asked how much gr ea se wa s o n t he fl oo r, sh e a ns we re d: “W ha t I f el t w as wi th my h ands. That’s a ll I could feel. My ha

nds were slippery . I tried to push up, and my hands we re 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 f all, plaintiff testified: “Q. At the time right after your fall, were you able to determine what caused y our fall?
A. All I could recall is that I tried to pus h m yself, tried to bra ce myself up, a

nd my hands were

greasy . I could not brace my self to get up off the floor. Q. So was it your conclusion that y ou had slipped on the grease?
A. That’s what I

would ass um e it was. I mean, I could not–I couldn’t balance myself to ge

t up off the floor.” ¶ 6 Ev en tu al ly, two custom ers help ed plaint

i ff int o a chair and a male Wendy ’s employee

came out to clean “the shake and tray and stuff” from where plaintiff fell. Tina Arc her , a n assistantmanager at Wendy ’s, spoke with plaintiff. Plaintiff told Archer that she had fallen andshowed A

rcher w here the fall occurred. Pl aintiff r equired medical a ss istance after experiencing pain in he r leg and back, and Arche r called for an ambulance. Plaintiff was taken by ambulance

to a hospital and eventually r equired surgery

on her injured right

knee. ¶ 7 Archer

testified in her discovery

deposition that on No vember 2 8, 2006, so metime after 4 p.m., she was notified by an e mployee that a c

ustomer had fallen. When plaintiff showed Archer where she fell, Archer di d not observe any thing on the floor. Archer filled out an incident report. Archer testified

that plaintiff told her that she did not know how or why she fell, she “just fell.” Archer testified that Wendy ’s training manual provides tha t ever y 15 minutes the most senior manager working must walk throug h the restaurant

to make sure everything

is up to par . If t

he manager is una

ble to complete

a walk-t hrough , the task

is to be delegated to another

employee. I

f a customer notifies an employ ee of a f ood or drink spill, th e ar ea i s t o be mo ppe d up im med iat ely. If an employee

notices food or any

debris on the fl oo r, it is to be pi ck ed up im me di at el y. ¶ 8 On May 22, 2009, def endant fileda motion for summary judgment attaching portions of plaintiff’s discovery de

position, arguing that it owed no duty to plaintiff to warn or make the

area safe because it had neither actual nor constructive knowledge of any substance on the floor, and further argued that plaintiff had an obligation to show that the greasy substance caused her to fall and failed to satisfy that obligation when she stated that she did not know what ca used her to fall. ¶ 9 In her response to defe ndant’s motion f or summary judgment, plaintiff attached an affida vit in which she stated that she was sitting at the table, eating he r food for at least 20 minutes. During those 20 minutes, plaintiff could observe the area where she fell and

did not observe any employ

ees do a walk-through or a customer spill anything. A portion of Ar cher’s discovery de

position was also attached. ¶ 10 The trial courtgranted defendant’s motion for summary judgment “for the reasons set forth in open court.” However, no transcript of the hearing or oral ruling wa s included in the-4-

record on appea l. ¶ 11 On appea l, plaintiff claims that the trial court erred in granting defendan t’s motio n because she presented evidence of g enuine issues of materialfact as to whether there was a greas y substance on the floor that caused her to fall and evidence tha t defendant had constructive notice of the substance on the floor.

¶ 12 ANA LYSIS ¶ 13 Summary

judgmen t is prope r where there is no genuine iss ue of mat erial fact and the moving party is entitled to judgment a s a matter of law. Morrisv. Margul is , 197 Ill. 2d 28, 35 (2001). The purpose of summary judgment is not to try an issue of fact, but to determine if one exists. Frye v. Medicare-Glaser Corp. , 153 Ill . 2d 26 , 31 (1 992). In consi derin g a motion for summa

ry judgmen t, the courtmust constr

ue all the “ ‘plea dings, d eposition s, admissions
, exhibits, and affidavits on file in the case’ ” in favor of t he no nm ov in g p ar ty. Richardson v. Bond Drug Co. of Illin ois , 387 Ill. App. 3d 881, 884 (2009 ) (quo ting Purtill

v. Hess , 111 I

ll. 2d 2 29, 240 (19 86) ). If the plaintiff cannot establish each element of his or her cause of action, summary judgme nt for defendant is proper. Walla ce v. Ale xian Broth ers Medical Center , 389 Ill. App. 3d 1081, 1085 (2009). Summary judgment is a dra stic means of ending litigation and should be granted only when the right of the moving party is free from doubt. LoyolaAcademy v. S&S Roof Maintenanc e, Inc. , 146 I ll. 2d 263, 271 (1 992) . We review the trial court’s grant of summary judgment de novo. Morris , 197 Ill. 2d at 35. ¶ 14 To recover on a neglig ence claim ona “fall d own” ca se, the pl aintiff m ust estab lishthe existence of a duty owed by the defendant, a breach of that duty , andan injury proximatel

y resulting from that breach. Pavlik v. Wal-Mart Stores, Inc. , 323 Ill. App. 3d 1060, 10 63 (2001) (citi ng Miller v. National Ass ’n of Real tors , 271 I

ll. App . 3d 653 , 65 6 (1 994 )). If the plaintiff cannot es tablish a ny element of he r cause of action, summary judgment for the defendant is proper. Pavlik
, 323 Ill. App. 3 d at 10 63 (ci ting Pyne v. Witmer , 129 I ll. 2d 351, 358 (1989)). ¶ 15 A business owner b reaches its d uty to an i nvit ee who s lips on a fo reign substance if: (1) the su bs ta nc e w as pl ac ed th er e b y the neg ligence of the proprietor; (2) its servant kne w of its presence; or

(3) the substance was there a sufficie nt lengt h of time so

that, in the

exercise of or dinary ca

r e, its presences should have been discovered, i.e. , the proprietor had constructive notice of

th e subst ance. Pavlik , 323 Ill . App. 3d at 1 063 (q uoti ng Hayes v. Bailey
, 80 Ill. App. 3d 1027, 1030 (1980)); see also Olinger v. Great Atlantic & Pacific Tea Co. , 21 Ill. 2d 469 (1961). ¶ 16 A defendant

owes a bu siness invitee on hi s premise s a duty to “exercis[e] ordinary

care in maintaining the prem

is es in a reasonably

safe condition.” Donoho v. O’Connell’s, Inc.
, 13 Ill . 2d 113, 11 8 (1958); Thompson v. Economy Super Marts, Inc. , 221 Ill. App. 3d 263, 265 (1991). Wh

ere a bu siness invitee is injured by slipping and fa lling on the premises and there is no way of showing how the substance became located on the floor, liability may be imposed if the defendant

or its employees had c onstructive notice of its presence. Thompson
, 221 Ill. App. 3d at 265. Constructive notice exists if the substance w as t here for a long enough time periodthat the exercise of ordinary care would have made

it known. Thompson
,-5-

221 Ill. App. 3d at 265. L iability cannot be based on guess, speculation, or conjecture a s to the cause of the injury

. Bermudez v. Martinez Trucking , 343 Ill. App. 3d 25, 30 (2003). Proximate

cause can only be estab lished if it is reasonably certain the defendant’s acts caused the plaintiff’s injury. Bermudez , 343 Ill. App. 3d at 25 (quoting Salinas v. Werton
, 161 I ll. App. 3d 510, 514 (1987)). ¶ 17 First, plaintiff argue s that ther

e is a ge nuine issue of ma

terial fact as to whet

her the substance on the floor caused her inj ur y. I n support o f her ar

gument, plaintiff

cites to Wiegman v. Hitch-Inn Post of Libertyville, Inc. , 308 Ill. App. 3d 789 (1999), Bellerive v. Hilton Hotels Corp. , 245 Ill. App. 3d 933 (1993), and Canzoneri v. Village of Franklin P

ark
, 161 Ill. App. 3d 33 (1987). ¶ 18 In Wiegman , the pla intiff fell at the bottom of the staircase near the pool area of t h e defendant’s hotel. Wiegman , 308 I ll. App. 3d

at 792. Th

is c ourt aff

irme d the trial court’s denial of the defendant’s motion for a directed verdi ct and motion notwithstanding the judgmen t. Wiegman , 308 Ill. App. 3d at 798. This court foundthat altho ugh the plaintiff did
notknow what caused her fall, the fact that the pla intiff hadfallen directly in the wate r on the floor, noticed her

dress was wet and had two witnesse s testify ing that there wa s water a

ll aroundher was sufficient to allow a jury to conclude

the water caused her fall. Wiegman , 308 Ill. App. 3d at 798. ¶ 19 As in Wiegman , plaintif f did not know what c ause d her fall, but no ticed a greas y substance on her

hands that was so slippery, she was unabl e to get up wit hout help. Alth ough there were no witnesses who observed the gr ease on the floor, plaintiff’s testimony on her discovery deposition is sufficient to create a triable issue of fact as to the ca

use of the fall. Defendant’s written ma

nual is s ufficient to create a duty to inspect every

15 minutes, and when plaintiff testified that she observed no one inspecting the are a for 20 minutes, that testimony is sufficient to crea te a triable issue of fact as to constructive notice. ¶ 20 In Bellerive , the plaintif f fell while walk

ing down the stairs of the defendant’s hotel. Bellerive , 245 Ill. App. 3d at 934. The plaintiff testified that she fe lt her foot was not level when she stepped from the third to the second step and that she noticed t he steps w ere old and appe ared “w orn,” not level, a nd the ar ea was not well lit. Bellerive , 245 Ill. App. 3d at 934. This court found that although theplaintiff was not sure which step caused her fall, the testimony was sufficient to create an issue of materia l fact as to whether

the worn steps were the cause of her fall. Bellerive , 245 Ill. App. 3d at 937. ¶ 21 The appellate court stated in Bellerive that “[t]he

court ma y dr aw rea sonable

inferences from the undisputed facts, but where reaso nable persons could draw divergent infe rences from undisputed facts, the issue should be decided by a trier of fact and the motion denied.” Bellerive
, 245 Ill. App. 3d at 935-36(citi ng Loyola Academy , 146 Ill. 2d at 271-72 ). “While the court may dra

w inferences from undisputed facts, the court should not grant a motion for summary judgme

ntunless tho se fact s are susceptible of only a single inference, and, if the facts permit more than one conclusion or inference, including one unfa vorable to the moving
pa rt y, a summary judgment should be denied.” Bell erive , 24 5 Il l. App. 3d at 936 (citing Gardner v. Navistar International Transportation Corp. , 213 Ill. App. 3d 242, 252 (1991), and Beverly Bank v. Alsip Bank
, 106 Ill. App. 3d 1012, 1017 (1982)). While a plaintiff need-6-

notprove he

r case d uring su mmary judgmen t, she must p

resent s ome evide

ntiary facts to support the elements of her cause of action. Bellerive , 245 Ill. App. 3d at 936 (citing Gardner , 213 Ill. App. 3d at 250). ¶ 22 As in Bellerive , when pla intiff not iced the greas y su

bst ance on h er hands that was so

s lipp ery she was unable to get up without help, and assumed she slipped and fe ll on the grease, that was enoug

h to create a triable issue of fact as to construc tive notice. ¶ 23 In Canzoneri , the plaintiff wa s walking on a public

sidewalk when she stepped on a

piece of broken si dewalk

and fell to the ground. Canzoneri , 161 Ill. App. 3d at 35. In reversing

the grant of summary judgme

nt for defendant, this court found that the plaintiff knew what caused her fall, as evidenced by

her deposition in which she repeatedly stated that the broken sidewalk was th e cause , and s he den ied sl ippi ng, tripping or stepping in a hole. Canzoneri
, 161 Ill. App. 3d at 39. ¶ 24 As in Canzoneri , plaintiff concluded from the grease on her hands that she slipped on the
greas e and tha

t the gr ease wa s the cau se of her fall. ¶ 25 Although all of these ca ses are

distingu ishable a nd diffe rent from the facts in the present
case, plaintiff

’s testimo ny i s suffici ent to cr eate a t riable issue of f act as to constructive notice and the c ause of t

he fall th at would p

reclude summary judgmen t.

¶ 26 CONCLUSION ¶ 27 In sum, there are two issues of material fact

precluding summary judgme nt: (1) whether the grease that plaintiff felt on the flo or was also the proximate cause of her fall; and (2) whether the Wendy’s manag er failed either to discover the spilled gre ase during the required walk- throu gh or whether the manager f ailed to conduct the required walk-through. See 735 IL CS 5/2–1005(c) (West 2008). Both of these issues are “g enuine” since they determine the elementsof proximate cause and constructive notice. 735 I LCS 5/2–1005(c) (West 2008). T hus, summary judgme

nt in this case is not appropriate and reversal of the trial court i s warranted. ¶ 28 Reversed and remanded.

¶ 29 JUS TICE CAH ILL, dissent ing: ¶ 30 This is, in my judgment, a “notice ” case, and plaintiff’s deposition fails to e stablish

that Wendy’s had constructive notice of a spill on therestaurant floor. Before she submitted her affida vit, plaintiff

testifie d at her d

eposition that she d idnot “have any

information from any source as to how long this greasy substance was on the ground.” ¶ 31 D efense couns el sub seque ntly aske d, “Di d you ever w ith your o wn eyes see anything, a n y substance?” Plaintiff answered “No.” ¶ 32 From

this depos ition testim

ony , I be lie ve plaintiff has failed to estab lishconstructive notice. I would af firm summa

ry judgmen t for def endant.