ILLINOIS OFFICIAL REPORTS

Appellate Court

Caburnay v. Norwegian American Hospital, 2011 IL App (1st) 101740

Appellate Court

Caption

FERNANDO CABURNAY, Plaintiff-Appellant, v. NORWEGIAN

AMERICAN HOSPITAL, an Illinois Not-for-profit Corporation, and

PHOENIX ELEVATOR CONCEPTS, INC., an Illinois Corporation,

Defendants-Appellees.

 District & No. First District, Fifth Division

Docket No. 1-10-1740

Filed

Rehearing denied

December 23, 2011

February 22, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action alleging that the injuries plaintiff suffered when he fell on

a mat while waiting for an elevator in defendant hospital were caused

by a fold or buckle in the mat and that the hospital was negligent in

using and failing to secure the mat, summary judgment was improperly

entered for the hospital, because the deposition testimony, viewed in a

light most favorable to plaintiff, was sufficient to create an issue of

fact as to whether the hospital breached its duty of care to plaintiff;

however, summary judgment was properly entered for the hospital on

plaintiff’s spoliation of evidence claim alleging that the hospital

negligently failed to preserve the mat, because its presence would not

have been probative of whether a fold existed at the time of the fall.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05-L-013391; the

Hon. Mary A. Mulhern, Judge, presiding.

Judgment Reversed in part and affirmed in part.
Counsel on

Appeal

Michael Rathsack, of Chicago, for appellant.

David C. Hall, Timothy J. Shanley, and Hugh C. Griffin, all of Hall,

Prangle & Schoonveld, LLC, of Chicago, for appellees.

Panel JUSTICE J. GORDON delivered the judgment of the court, with

opinion.

Presiding Justice Epstein and Justice Howse concurred in the judgment

and opinion.

OPINION

¶ 1 On August 20, 2005, Dr. Fernando Caburnay tripped and fell while waiting for an

elevator in the lobby of Norwegian American Hospital (Norwegian), where he worked as an

anesthesiologist. Caburnay struck the back of his neck when he fell, rendering him

quadriplegic. At the time, the adjacent elevator was being serviced by Phoenix Elevator

Concepts (Phoenix). Caburnay sued both Phoenix and Norwegian, alleging that a fold or

buckle in the mat caused his fall, and that their negligence in using and failing to secure the

mat caused his injuries. Caburnay ultimately settled with Phoenix after Phoenix lost its

motion for summary judgment. Norwegian moved for summary judgment and prevailed.

Caburnay now appeals.

¶ 2 I. BACKGROUND

¶ 3 On the morning of August 20, 2005, Caburnay entered Norwegian’s lobby through the

emergency room doors and walked down a corridor toward an elevator bank containing two

elevators. He was carrying an umbrella in his right hand and a duffel bag over his left

shoulder. At the time, the right elevator was fully functional but the left was being repaired

by Phoenix. Norwegian had placed a single 6-foot by 10-foot rubber and fabric mat in front

of both elevators to protect its floors and to prevent slipping. That mat, or one similar, had

been used intermittently in front of the elevators for approximately six months.

¶ 4 As Caburnay approached the right elevator, he walked onto the mat, pushed the elevator

call button, and stepped backwards. As he did so, he fell backwards and the back of his head

and neck struck a couch adjacent to the elevator. Caburnay fractured his cervical spine,

instantly rendering him quadriplegic.

¶ 5 A Norwegian surveillance video indicates that immediately after Caburnay fell, several

Norwegian personnel came to Caburnay’s assistance. A backboard was placed on the mat

and Caburnay was placed upon it. Staff members wheeled a gurney onto the mat, lifted

Caburnay onto it, and carried him away. The video does not show Caburnay’s feet or the

-2-
portion of the mat underneath his feet. Caburnay did not look at the mat, either before or after

he fell, because he was looking at the elevator.

¶ 6 In November 2005, Caburnay sued both Norwegian and Phoenix, alleging that their

negligence in maintaining the area around the elevator caused him to “slip, trip and fall and

thereby injure himself.” Caburnay alleged, among other things, that Norwegian “failed to

properly, routinelyand adequatelyinspect the floor of the [elevator area] to ascertain whether

any dangerous and hazardous conditions existed” and “failed to place a clean and secured

floor mat.” Caburnay filed his second amended complaint in September 2008, in which he

additionally alleged that Norwegian “failed to place a level and secured floor mat on the

floor” and “improperly placed the floor mat so that it was subject to become hazardous,

movement, wrinkles and folds.” Caburnay additionally brought a claim of spoliation of

evidence against Norwegian for its failure to produce the mat.

¶ 7 Phoenix moved for summary judgment, based primarily on the deposition testimony of

Caburnay, arguing that there was insufficient evidence that a condition of the mat caused his

fall. This motion was denied and Phoenix subsequently settled with Caburnay.

¶ 8 After Caburnay filed his complaint, Norwegian served interrogatories upon him.

Caburnay objected to most questions on grounds that they were improper and were more

appropriate during a discovery deposition. When asked to “describe how the alleged

occurrence happened, giving all events in complete detail in the orderin which they occurred

which had any bearing whatsoever on the occurrence,” Caburnay answered:

“Objection, said interrogatory is improper because it is compound question, requests a

narrative answer and requests information that is most appropriately the subject of a

discovery deposition. Subject to objection, an oral interrogatory at plaintiff arrived at

Norwegian American Hospital and slipped and fell while attempting to enterthe elevator

in the lobby.”

¶ 9 On July 16, 2007, Caburnay, in a supplemental Rule 214 (Ill. S. Ct. R. 214 (eff. Jan 1,

1996)) request, requested the production of the mat at issue. Norwegian was unable to

produce the mat because it had been destroyed or lost and was not available for inspection.

The record indicates that at some time after the accident, Norwegian ceased using its own

mats and contracted the job of supplying floor mats to an outside vendor. Norwegian did,

however, ultimately produce a mat with a rubber non-slip backing which, despite being

smaller in size, was, according to its head of housekeeping, similar to the one at issue here.

¶ 10 After Phoenix settled, the case was assigned to a new judge for trial. On October 15,

2009, Norwegian moved for summary judgment on both the negligence and spoliation

claims, arguing that there was insufficient evidence to establish that a condition of the mat

caused Caburnay’s fall. In support of its motion, Norwegian included the depositions of

Caburnay himself as well as several Norwegian and Phoenix employees, including Sophie

Serrano, Rosa Cruz, Frank Krause, and Ben Gonzalez.

¶ 11 Caburnay was deposed twice in this case, first for purposes of discovery and again for

purposes of evidence. In his first deposition, taken in November 2006, Caburnay stated that

he reviewed Norwegian’s surveillance video the prior evening, but still recalled the events

on the day of his fall before watching that video. When asked by Norwegian’s counsel to tell

-3-
him what he remembered about what happened the morning of the fall, Caburnay responded

“I was walking down the aisle to the elevator door. Then Itouched the button for the elevator

to come down. Then I fell on my back.” When asked if he had a recollection of his feet

tripping over anything, Caburnay took a moment to “recall and remember” and then

answered “I feel the sole of my shoe got caught in a–it’s like a fold from the area rug.”

¶ 12 At the close of the deposition, Norwegian’s counsel again asked Caburnay about the

circumstances of his fall, and the following colloquy occurred:

“Q. You’re not certain the fold caused you to fall, isn’t that right?

MR. MEYER [Caburnay’s counsel]: Objection. I think that’s contrary to his

testimony.

MR. BLUMENSHINE [Caburnay’s counsel]: It’s also argumentative.

Q. You can answer.

A. That’s what my lawyer says.

Q. He just objected. You still have to answer the question.

MR. MEYER: You want to hear the question again? Would you read it back; Miss

Court Reporter.

(WHEREUPON, the Reporter read back the following: ‘Q. You’re not certain the

fold caused you to fall, isn’t that right?’)

A. I am certain.

Q. You are certain that it caused you to fall, right?

A. Correct.

Q. And that is based on not seeing it, true?

A. Correct.

Q. That’s all.

MR. MEYER: And you’re certain that the fold caused you to fall because you felt the

back of your left foot catch on that fold, correct?

A. Correct.”

¶ 13 An evidence deposition of Caburnay was taken in November 2007 in the event that he

did not survive his injuries. At that deposition, Caburnay again stated that he felt the sole of

his left shoe “get caught in some kind of fold in the mat,” but acknowledged that he never

saw any fold or ripple before falling. During that deposition, the following colloquy

occurred:

“Q. It’s your testimony that you fell because the back of your heel or your sole of the

shoe got caught on a flap in the carpet and that caused you to trip and fall backwards; is

that your testimony?

A. Correct.

Q. And although you never saw that flap or ripple at any time in the rug, as you are

here today, sir, that’s your assumption of what made you actually fall and trip

backwards?

-4-
A. Yes.”

¶ 14 Later in that deposition, Caburnay added that he felt the fold in the carpet in “the sole of

[his] left foot.”

¶ 15 Lielani Mindanao, an emergency room nurse, testified in her deposition that she was one

of the first to arrive after Caburnay fell. She stated that she looked for something that would

have caused Caburnay to fall, but was unable to find any bumps or buckles or anything else

in the carpet that may have caused him to do so. She also stated that Caburnay told her that

he “slipped on the floor,” but that he did not elaborate further. Following the fall, Mindanao

carried Caburnay’s bag to the emergency room and stated that its weight required her to”lean

to the other side” in order to keep her balance while doing so.

¶ 16 Jo Jo Abrahan, an emergency room technician at Norwegian, testified that he observed

the mat when he came to Caburnay’s assistance and that it looked flat to him. He also walked

across the mat several times while rendering assistance, but never felt anything in his feet.

¶ 17 Aura Vega, a member of Norwegian’s housekeeping staff, testified that she was cleaning

a washroom when she heard a call for help in the lobby. After the fall, she attempted to pick

up Caburnay’s bag, but it was too heavy for her to do so. She also stated that her duties

included making sure the mat was clean and lying flat, and she could not recall receiving any

complaints about folds or bumps in the mat prior to Caburnay’s fall.

¶ 18 Rosa Cruz, another member of Norwegian’s housekeeping staff, testified that in her 17

years working at Norwegian, she could not remember the mat in front of the elevators ever

buckling or moving. She also testified that the mat had “rubber on the bottom.”

¶ 19 Nicola Basile, an operating room technician who had worked at Norwegian for 36 years,

testified that he arrived at the hospital shortly after 7 a.m. on the morning of the accident. He

utilized the elevator in the main lobby minutes before Caburnay’s fall and did not notice any

problems with the mat, nor had he ever seen it bunch or curl up.

¶ 20 Ben Gonzalez, Norwegian’s manager of housekeeping from 1991 to 2005, testified that

the mat had been placed in front of the elevators at his direction to protect the floors because

Phoenix employees were constantly tracking grease throughout the lobby. He stated that the

mat had a rubber backing and similar mats were used frequently in the winter or when it was

raining. He stated that the mats in front of the elevators had been in use for approximately

five years and were often stored in a rolled-up state, which, he said, sometimes resulted in

waves or bubbles. He testified that the mats would be checked for waves or bubbles before

they were put down, and if any such waves or bubbles existed, he would have ordered the

edges of the mat taped to the floor in order to eliminate them.

¶ 21 Frank Krause, a Phoenix mechanic who worked on the out-of-service elevator in

Norwegian’s lobby for approximately three weeks, testified that on his first day at

Norwegian, he tripped on the mat in front of the elevators and spoke with Norwegian

personnel about either lengthening it or removing it because his equipment “would bunch

up the carpet up” and the mat would “get caught on the barricade and *** was constantly

getting moved around and disheveled.” Krause also recommended to Norwegian that it tape

the edges of the mat, and even did so himself twice, only to have the tape removed by

Norwegian’s housekeeping staff who needed to clean underneath.

-5-
¶ 22 On May 13, 2010, Caburnay filed his response to Norwegian’s motion for summary

judgment, in which he argued that his deposition testimony, combined with the testimony of

his experts, created an issue of material fact as to whether Norwegian was responsible for his

fall.

¶ 23 Caburnay relied on the testimony of two witnesses in his motion. The first, Gene Litwin,

Caburnay’s engineering expert, opined that Caburnay’s fall was caused by the mat being

untaped, stating that “[i]f they had taped it down with duct tape around the perimeter, Iwould

not have had any other problem with it, and we wouldn’t have the accident.” He also stated

that the mat created a foreseeably dangerous tripping hazard and that Caburnay likely caught

his heel on an irregularity in the mat. Litwin, however, admitted that there was “no evidence

*** that there was ever a tripping hazard [on the mat] prior to Dr. Caburnay’s fall” and that

someone could trip on a flat carpet or mat without any folds, ripples, or other defects.

¶ 24 Caburnay’s safety expert, Russell Kendzior, testified that floor mats like the one used by

Norwegian “buckle and curl all the time. *** Unless they’re mechanically fastened, taped

down, they buckle. They’re prone to buckling.” Kendzior opined that the mat buckled or

developed some type of elevation, causing Caburnay to trip, but could not state how long the

buckle existed. He further opined that the placement of the mat across both elevators was

unnecessary, but not negligent, and that the mat violated American National Standards

because the “mere placement” of a floor mat is a “potential tripping hazard.” Kendzior

admitted that someone could trip on a flattened mat if he or she did not lift his or her heel

high enough, but that it was unlikely.

¶ 25 The trial court granted summary judgment on both counts, finding that Norwegian was

not negligent in using a mat to cover the floor in front of the elevators, nor was there any

evidence that it knew the mat had a propensity to fold. The trial court further held, with

respect to the spoliation claim, that it was “dubious that [Norwegian] had the duty to preserve

the mat” because “no one blamed the mat for this fall until well after the litigation was

started” and because “production of the mat is not essential to [Caburnay] being able to prove

his case.” It is from this decision that Caburnay now appeals.

¶ 26 II. ANALYSIS

¶ 27 On appeal, Caburnay contends first that the trial court erred in granting Norwegian’s

motion for summary judgment as to his negligence claim because the evidence he provided

created a question of fact as to whether a condition of Norwegian’s mat caused his fall. He

also contends that the trial court erred in granting summary judgment in favor of Norwegian

on his spoliation claim because he adduced evidence that his inability to examine the mat

compromised his ability to prove his case. For the reasons that follow, we affirm in part and

reverse in part.

¶ 28 A. Caburnay’s Negligence Claim

¶ 29 Caburnay first contends that the evidence that he tripped on a fold or buckle in the mat,

coupled with testimony that the mat was negligently employed, created a question of fact that

should have resulted in a denial of Norwegian’s motion for summary judgment. We agree.

-6-
¶ 30 The granting of a motion for summary judgment is appropriate where “the pleadings,

affidavits, depositions, admissions, and exhibits on file, when viewed in the light most

favorable to the nonmovant, reveal that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Busch v. Graphic Color Corp.,

169 Ill. 2d 325, 333 (1996). “A defendant moving for summary judgment bears the initial

burden of coming forward with competent evidentiary material, which if uncontradicted,

entitles him to judgment as a matter of law.” Paul H. Schwendener, Inc. v. Jupiter Electric

Co., 358 Ill. App. 3d 65, 78 (2005). A defendant does not need to prove its case or disprove

its opponent’s case in order to prevail on its motion. A plaintiff, however, “must come forth

with some evidence that arguably would entitle him to recover at trial” in order to survive

such a motion. Keating v. 68th & Paxton L.L.C., 401 Ill. App. 3d 456, 472 (2010). We

review a trial court’s decision to grant summary judgment de novo. Jupiter Electric, 358 Ill.

App. 3d at 76.

¶ 31 Here, Caburnay contends that the evidence that he felt his foot catch on a fold or buckle

in the mat was sufficient to create a question of fact as to whether the mat caused his fall.

Norwegian, however, argues that summary judgment was proper because there was no

evidence of a fold in the carpet before Caburnay tripped and that “a fair reading” of

Caburnay’s deposition testimony demonstrates that he had no idea why he fell. For the

reasons that follow, we disagree with Norwegian.

¶ 32 In support, Norwegian refers to the colloquy in Caburnay’s evidence deposition, as fully

set forth in our statement of facts. There, Caburnay was asked “although you never saw that

flap or ripple at any time in the rug,*** that’s your assumption of what made you actually

fall and trip backwards?” Caburnay answered “[y]es.” Norwegian cites this answer as

evidence that he merely “assumed”or imagined the existence of a fold in the mat. The context

in which this answer was forthcoming, however, belies this contention. In the immediately

preceding question, Caburnay was asked whether he “fell because the back of [his] heel or

[his] sole of the shoe got caught on a flap in the carpet and that caused [him] to trip and fall

backwards.” Caburnay categorically stated that was correct. This answer is consistent with

every other answer Caburnay gave with respect to the cause of his fall. In his discovery

deposition, Caburnay indicated that he was “certain” that “the fold caused [him] to fall” and

that he physically felt “the sole of [his] shoe got caught in *** a fold from the rug.”

Similarly, later in his evidence deposition, Caburnay explicitly added that he felt the fold in

the carpet in “the sole of [his] left foot.” Norwegian, however, asserts that this testimony is

inconsistent because Caburnay first testified that he felt the sole of his shoe catch in the mat

and later testified that it was either his heel or the sole of the shoe that did so. Even if we

were to find this testimony inconsistent, such an inconsistency should affect Caburnay’s

credibility before a trier of fact, not subject him to summary judgment. See Allstate

Insurance Co. v. Tucker, 178 Ill. App. 3d 809, 813 (1989) (“an apparent inconsistent

statement” from a defendant was insufficient to justify summary judgment because “[i]t is

not within the province of the trial court to weigh these conflicting statements” when ruling

on motions for summary judgment).

¶ 33 When Caburnay testified that he felt his foot catch in the mat, he was not describing an

emotion, but a sensory perception, in the same way that a blind person would describe

-7-
something he or she was able to touch but not see. He never testified that it “felt as if” he

tripped on a fold or that it “seemed like” his foot caught a buckle in the carpet, but instead

unequivocally testified as to his sensory perceptions, describing the tangible, physical

sensation of his foot catching on a fold in the mat. Thus, it appears that his affirmative

answer to the question of what he assumed did not demonstrate that he was making an

assumption as to the cause of his fall, but merely indicated a tactile perception of a fold

without an accompanying visual perception,.

¶ 34 For this reason, the cases Norwegian cites in support of its claim are unpersuasive. It

relies on Barker and Brett in support of it’s contention that Caburnay was unable to

accurately determine the cause of his fall. In these cases, the plaintiffs had no sensory

perception of what caused their falls, but instead offered mere cerebral speculation as to their

causes. Thus, they are inapposite to the situation here because, as stated above, Caburnay

repeatedly and conclusively indicated that he fell only after tripping on a fold or bump in

Norwegian’s mat.

¶ 35 In Barker v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068 (1994), the plaintiff slipped

and fell on the defendant’s floor, but could not say why. She argued that she had often seen

water on the floor in the area where she fell, but did not see any on the day of the incident.

Despite not seeing where she fell, she “assumed” that the floor was wet because “[o]therwise

[she] wouldn’t have slipped.” (Internal quotation marks omitted.) Barker, 261 Ill. App. 3d

at 1070. The appellate court concluded that summary judgment was proper because the

plaintiff merely assumed that she must have slipped on water because she could not identify

any other cause, and thus could not identify the cause of her fall. Barker, 261 Ill. App. 3d at

1071.

¶ 36 Similarly, in Brett v. F.W. Woolworth Co., 8 Ill. App. 3d 334 (1972), the plaintiff fell

while walking on the defendant’s carpet, but was unable to say what caused her fall. The

appellate court affirmed summary judgment in favor of the defendant because the plaintiff

“did not see or feel what caused the fall,” and it was undisputed that the mat was in excellent

condition. (Emphasis added.) Brett, 8 Ill. App. 3d at 337. See also Koukoulomatis v. Disco

Wheels, Inc., 127 Ill. App. 3d 95 (1984) (summary judgment in favor of the defendant was

proper because plaintiff’s assumption that a fold in the defendant’s carpet caused her fall was

insufficient to create an issue of material fact).

¶ 37 Unlike these cases, here Caburnay repeatedly asserted that he physically felt his foot

catch on a tangible fold in Norwegian’s carpet, and Norwegian’s reliance on certain

statements made during his discovery deposition does not in any way reduce their effect.

Norwegian, however, contends that ultimately, Caburnay only asserted that his fall was

caused by a fold in Norwegian’s mat because his attorney instructed him to say so. This

contention is based on the following colloquy:

“Q. You’re not certain the fold caused you to fall, isn’t that right?

MR. MEYER [Caburnay’s counsel]: Objection. I think that’s contrary to his

testimony.

MR. BLUMENSHINE [Caburnay’s counsel]: It’s also argumentative.

Q. You can answer.

-8-
A. That’s what my lawyer says.

Q. He just objected. You still have to answer the question.

MR. MEYER: You want to hear the question again? Would you read it back; Miss

Court Reporter.

(WHEREUPON, the Reporter read back the following: ‘Q. You’re not certain the

fold caused you to fall, isn’t that right?’)

A. I am certain.”

¶ 38 Norwegian contends that Caburnay’s response of “[t]hat’s what my lawyer says”

indicates that he only said he was certain that he tripped on a fold in the mat because his

lawyer instructed him to do so. This interpretation is not the most plausible one. It seems far

more likely that this statement was made in response to an instruction from Norwegian’s

attorney, following an objection, that he could still answer the question, rather than as an

abrupt recantation of his earlier testimony. The question was then read back to Caburnay and

he responded, twice, that he was certain that a fold in the mat caused his fall. Thus, when

read in context, Caburnay’s statement “[t]hat’s what my lawyer says” would more cogently

be intended as a response to the statement of his attorney indicating that he could still answer

the question, notwithstanding his objection.

¶ 39 Norwegian further asserts that Caburnay’s failure to attribute his fall to a fold in the mat

immediately after it occurred proves that his statements amount to speculative guesses as to

the cause of his injuries. As stated above, Caburnay told the nurse that came to his aid after

the fall that he slipped, but did not elaborate further. He later told the emergency room doctor

that he “tripped,” but did not attribute it to a fold in the carpet. These statements, made in the

moments after a catastrophic injury, while vague or incomplete, are not sufficient to

constitute an admission on Caburnay’s part that he did not trip on a fold in the mat, nor are

they sufficient to preclude us from finding an issue of fact with respect to the cause of his

fall, especially when viewed in a light most favorable to Caburnay. Caburnay’s failure to

specifically mention the mat as a factor in causing his fall, immediately after or within close

proximity to its occurrence, would not amount to an admission by silence or omission

because Caburnaycould not have been reasonablyexpected to elaborate on the specific cause

of his fall just moments after being rendered quadriplegic. See People v. Zurita, 295 Ill. App.

3d 1072, 1077 (1998) (an “inconsistency may consist of the failure to speak of a matter

entirely when it is shown that the witness had an opportunity to make a statement and that

a person would reasonably be expected under the circumstances to do so”).

¶ 40 Furthermore, we refuse to accept Norwegian’s contention that Caburnay’s objections to

its interrogatories somehow constitute a failure on his part to “suggest[ ] that his fall was due

to a fold in [Norwegian’s] floor mat.” When asked to describe all the circumstances

regarding his fall, he answered, subject to an objection, that he “arrived at Norwegian

American Hospital and slipped and fell while attempting to enter the elevator in the lobby.”

While this response omits specificmention of the mat, it does not contradict Caburnay’s later

elaboration that he fell due to a fold in the mat. At most, these omissions would raise

questions regarding Caburnay’s credibility, an issue best resolved by a trier of fact, rather

than on summary judgment.

-9-
¶ 41 Norwegian further contends that it is entitled to summary judgment because Caburnay

did not make specific reference to a fold in the carpet in his initial complaint or his

interrogatories. While a party cannot contradict a prior admission in order to create an issue

of material fact, we do not find in Caburnay’s failure to specifically mention the fold, an

admission that no such fold existed. See Commonwealth Eastern Mortgage Co. v. Williams,

163 Ill. App. 3d 103, 109 (1987). While Caburnay did not specifically state that a fold in the

mat caused him to fall in his complaint, he did generally allege in his complaint that

Norwegian’s failure to use a “secured floor mat” caused his fall, which is entirely consistent

with his deposition testimony. Thus, when viewed in a light most favorable to him, the

evidence could well have allowed a jury to conclude that a fold in the mat caused Caburnay’s

fall.

¶ 42 Having determined that an issue of fact exists with respect to whether the existence of

a fold caused Caburnay’s fall, we must next determine whether the presence of the fold in

the mat was grounds for liability. Norwegian contends that it cannot be held liable, regardless

of whether Caburnay proceeds under a premises liability theory or an ordinary negligence

theory.

¶ 43 Norwegian contends that under either a premises liability theory or a general negligence

theory, it cannot be held liable. Under a premises liability theory, Norwegian could be held

liable only if it (1) should have known the mat was unsafe and could have discovered it

through the exercise of reasonable care, (2) should have expected Caburnay would not

discover the danger, and (3) failed to exercise care to protect Caburnay against that danger.

Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 434 (1990) (quoting

Restatement (Second) of Torts § 343 (1965)). Our courts have interpreted this to mean that

“there is no liability for [landowners] for dangerous or defective conditions on the premises

in the absence of the landowner’s actual or constructive knowledge [of those conditions].”

(Emphasis added.) Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038 (2000).

¶ 44 Caburnay does not purport to predicate Norwegian’s liability under a premises liability

theory. Norwegian contends, and Caburnay does not dispute, that it had no actual or

constructive notice of the fold in the mat which allegedly caused Caburnay’s fall. Therefore,

although there may very well be evidence of Norwegian’s prior notice of the mat’s tendency

to fold, we need not address this issue further.

¶ 45 Instead Caburnay asserts that Norwegian is liable under a general negligence theory for

placing a mat that was prone to buckling on the floor in front of the elevators. Under a

general negligence theory of liability, Norwegian’s prior notice of the fold would be

irrelevant if Caburnay can show that it created the dangerous condition in the first place by

using a mat which could buckle. Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 715

(1998). While a plaintiff generally must prove a defendant’s actual or constructive notice of

a dangerous condition in order to establish liability (Genaust v. Illinois Power Co., 62 Ill. 2d

456, 468 (1976)), our courts have held that when a defendant creates that dangerous

condition, that defendant’s notice becomes irrelevant. Bernal v. City of Hoopeston, 307 Ill.

App. 3d 766, 772 (1999) (“when an affirmative act of a [defendant] causes a dangerous

condition, no actual or constructive notice of said condition is required” (emphasis omitted)

(internal quotation marks omitted)). All he must prove is that the defendant negligently

-10-
created the dangerous condition on its premises. Reed v. Wal-Mart Stores, Inc., 298 Ill. App.

3d 712, 715 (1998). Thus, Caburnaycan avoid the notice requirement only if he can establish

that the mat was negligently placed in front of the elevator by Norwegian. Gentry v. Shop ‘n

Save Warehouse Foods, Inc., 708 F. Supp. 2d 733, 737 (C.D. Ill. 2010) (“Plaintiffs can avoid

the notice requirement only if they can establish that the mats were negligently placed on the

floors by the agents of the Defendant, not merely by showing that they were placed by the

agents of the Defendant.”).

¶ 46 To prevail on a claim of negligence, Caburnay must prove the existence of a duty on the

part of Norwegian, and present some evidence showing Norwegian’s breach of that duty, and

demonstrate injury proximately resulting from that breach. Wojdyla v. City of Park Ridge,

209 Ill. App. 3d 290, 293 (1991).

¶ 47 Our courts have held that in the absence of any evidence indicating a mat was in anything

less than excellent condition, “[t]he mere use of a floor covering on which an invitee falls

is no evidence of negligence.” Brett v. F.W. Woolworth Co., 8 Ill. App. 3d 334, 336-37

(1972). In circumstances where “the evidence fails to show any damages or defective

condition of the [mat],” a defendant’s use of such mats “is perfectly reasonable, and the fact

that a person trips on one of them is [not] evidence of negligence.” Robinson v. Southwestern

Bell Telephone Co., 26 Ill. App. 2d 139, 146 (1960). However, “the condition of the mat and

the mannerin which it was placed on the floor may constitute negligent placement of the mat

on the floor.” Johnson v. United States, 1999 U.S. Dist. LEXIS 9819, at *10 (N.D. Ill. June

23, 1999). A plaintiff can establish negligent use of a floor mat if he can show that those

mats are defective or negligently installed. Wind v. Hy-Vee Food Stores, Inc., 272 Ill. App.

3d 149, 156 (1995). In Wind, the appellate court reversed a jury verdict for the defendantstore owner, finding that the jury should have been instructed on a general negligence theory

because the evidence indicated that the mat the plaintiff tripped on was poorly maintained

and was not fastened to the floor. Wind, 272 Ill. App. 3d at 156. Unlike Wind, in Robinson

the court reversed a judgment in favor of the plaintiff, finding that she could not establish

defendant’s negligence after she admitted that the mat was in excellent condition and was

free from debris and rips, and was unable to precisely determine what caused her to trip and

fall. Robinson, 26 Ill. App. 2d at 141-42.

¶ 48 Here, Caburnay does not dispute the holding in Robinson that the ordinary use of a safe

mat is not negligent, but instead maintains that case is inapposite because the mat he tripped

on, like that in Wind, was defective in that it was prone to buckling and not taped down, and

therefore Norwegian’s use of that mat was negligent. The deposition testimony of Frank

Krause, a Phoenix mechanic, supports Caburnay’s position. He testified that the mat in

question had repeatedly buckled because it was not secured to the floor with tape. He stated

that the mat would “bunch up” and become “disheveled” as a result of the work being done

on the adjacent elevator, and suggested the mat should have been taped down in order to

prevent folds from occurring. Krause’s testimony indicates that he actually taped the mat to

the floor, but that the tape was repeatedly removed by Norwegian employees so that they

could clean the floor underneath it.

¶ 49 Krause’s testimony was reinforced by Caburnay’s experts, as well as by Ben Gonzalez,

Norwegian’s manager of housekeeping. Caburnay’s experts opined that the mat was unsafe

-11-
because it was not secured to the floor with tape, despite being prone to buckling. Gene

Litwin testified that if the mat had been taped to the floor, the fold would not have existed

and Caburnay would not have fallen. Similarly, Russell Kendzior opined that floor mats

“buckle and curl all the time” unless they are taped to the floor. Gonzalez further testified

that the mats, like the one at issue here, had developed waves or bubbles in the past after

being stored in a rolled up state, and would have to be taped down in order to eliminate those

waves or bubbles. It is undisputed that the mat in question was not taped down on the

morning of Caburnay’s fall. Moreover, we also take note of Caburnay’s contention that if the

mat was properly used and maintained, his fall would not have occurred. He asserts that the

fact that the mat buckled in the first place demonstrates that it was not an ordinary mat with

a proper backing, but instead was faulty, and therefore should have been taped down.

¶ 50 Thus, when viewed in a light most favorable to Caburnay, the deposition testimony of

Caburnay, Krause, and Gonzalez is sufficient to create an issue of fact as to whether there

was a breach of Norwegian’s duty of care to Caburnay to properly use a safe and secure mat,

by placing a mat that was prone to buckling in front of the elevator without securing it, thus

causing him to fall. See Newsom-Bogan v. Wendy’sOldFashioned Hamburgers of N.Y., Inc.,

2011 IL App (1st) 092860.

¶ 51 We believe the trial court’s reliance upon Gentry, a federal district court case, was

misplaced as that case is distinguishable from the case at bar. There, the plaintiff slipped and

fell after catching her toe on a floor mat in the defendant’s store. Witnesses observed a

buckle in the mat in the place where the plaintiff fell, but no buckle was seen prior to the fall.

Gentry, 708 F. Supp. 2d at 733. The plaintiff sued under a general negligence theory, alleging

that the defendant essentially failed to properly maintain the floor mats on its premises.

Gentry, 708 F. Supp. 2d at 736. The defendant moved for summary judgment, which the trial

court granted, finding that the plaintiff did not allege any specific facts which could support

a finding that the defendant breached a duty. Specifically, the court stated that “the Plaintiffs’

allegations of negligence are verygeneralized. There is no specific act of alleged wrongdoing

or unreasonable behavior, leaving it unclear how the Defendant breached their duty.” Gentry,

708 F. Supp. 2d at 738.

¶ 52 Unlike the plaintiff in Gentry, here Caburnay has alleged specific facts regarding how

and why the mat was improperly placed. As discussed above, Caburnay’s deposition

testimony indicates that a fold or buckle existed in the mat at the time of the fall as evidenced

by the fact that he felt his foot catch on it, and the testimony of Krause and Gonzalez,

coupled with the expert opinions of Litwick and Kenzidor, were sufficient to create a

question of fact as to whether Norwegian negligently placed the mat in question in front of

the elevator, causing Caburnay to fall. Therefore, summary judgment in favor of Norwegian

on this issue was improper.

¶ 53 B. Caburnay’s Spoliation Claim

¶ 54 Caburnay next contends that summary judgment in favor of Norwegian was improper on

hisspoliation claim because Norwegian negligentlyfailed to preserve the mat, compromising

his ability to prove his case. We disagree.

-12-
¶ 55 With respect to claims of spoliation, our Illinois Supreme Court has held:

“The general rule is that there is no duty to preserve evidence; however, a duty to

preserve evidence may arise through an agreement, a contract, a statute [citation] or

another special circumstance. Moreover, a defendant may voluntarily assume a duty by

affirmative conduct. [Citation.] In any of the foregoing instances, a defendant owes a

duty of due care to preserve evidence if a reasonable person in the defendant’s position

should have foreseen that the evidence was material to a potential civil action.” Boyd v.

Travelers Insurance Co., 166 Ill. 2d 188, 195 (1995).

¶ 56 In order to determine whether such a duty existed, we must engage in a two pronged

inquiry to “first determine whethersuch a duty arises by agreement, contract, statute, special

circumstance, or voluntary undertaking” and “then determine whether that duty extends to

the evidence at issue–i.e., whether a reasonable person should have foreseen that the

evidence was material to a potential civil action.” Dardeen v. Kuehling, 213 Ill. 2d 329, 336

(2004). If a plaintiff fails to satisfy both prongs, then no duty to preserve evidence exists.

Dardeen, 213 Ill. 2d at 336. If he is able to establish a duty, a plaintiff must still demonstrate

“that the loss or destruction of the evidence caused [him] to be unable to prove an underlying

suit.” (Emphasis omitted.) Boyd, 166 Ill. 2d at 196.

¶ 57 Here, Caburnay has presented no evidence of an agreement, contract, statute, special

circumstance, or voluntary undertaking which would have imposed a duty to retain the mat.

The evidence demonstrates that neither Caburnay nor any of the Norwegian employees who

came to his aid specifically mentioned that the carpet was instrumental in Caburnay’s fall,

although, as discussed above, Caburnay’s failure was not sufficient to contradict the mat’s

role in his fall as was later determined in the pleadings and deposition testimony. Caburnay

did not allege that the mat may have been responsible for his fall until filing his complaint

approximately 31⁄2 months after his fall, and even then, he only alleged that his fall was a

result of Norwegian’s failure to “place a clean and secured floor mat,” not a fold or buckle

in the mat. Finally, Caburnay did not request the preservation of the mat until February 17,

2007, nearly two years after his fall.

¶ 58 Unlike the cases relied upon by Caburnay, here it was not readily apparent that the

missing mat was integral to Caburnay’s injuries. In Jones, Boyd, and Jackson, upon which

Caburnayrelies, the defendants were either explicitlyplaced on earlynotice before spoliation

occurred or voluntarily assumed a duty to retain the evidence and then failed to do so. See

Jones v. O’Brien Tire &Battery Service Center, Inc., 374 Ill. App. 3d 918 (2007) (insurance

adjuster failed to preserve the wheel assembly that fell off the insured’s vehicle and caused

the accident given the possibility of future litigation); Boyd, 166 Ill. 2d 188 (insurer who took

possession of the propane heater which exploded and injured the plaintiff should have

preserved it given its potential role in any litigation arising from those injuries); Jackson v.

Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1 (1997) (the hospital’s loss of

the plaintiff’s X-rays that it had segregated into a special file after receiving notice of

litigation gave rise to a potential spoliation claim).

¶ 59 Here, neither the fall itself nor any witness implicated the mat until 31⁄2 months after it

occurred. Thus unlike the plaintiffs in these cases, here Caburnay is unable to establish that

-13-
Norwegian owed him a duty to preserve the mat.

¶ 60 Even if we were to assume that Norwegian owed Caburnay a duty to preserve the mat,

at least with respect to the presence of the fold in the mat, Caburnay is still unable to

demonstrate “that the loss or destruction of the evidence caused [him] to be unable to prove

an underlying lawsuit” because the presence of the rug would have had no bearing on the

existence of a fold. (Emphasis omitted.) Boyd, 166 Ill. 2d at 196. As the trial court correctly

stated:

“[Caburnay] believes he was certain that he tripped on a fold, and so whether or not the

mat was produced is beside the point. If the mat was produced three months later or six

months later, its production would not be probative of whether a fold was in that mat at

or before the time of Dr. Caburnay’s fall. Moreover, *** Russell Kendzior said he had

enough information to render an opinion that [Norwegian] was negligent. *** [I]f the

mat were produced, it would still not be probative of whether or not the condition of the

mat *** existed at the time of this fall.”

¶ 61 The evidence shows that the mat was subject to heavy foot traffic, as well as a gurney,

immediately following the accident. Even if it had been produced months later upon the

filing of Caburnay’s suit, it would not have been probative of whether a fold existed at the

time of Caburnay’s fall. Furthermore, with respect to the mat’s rubber backing, the only

evidence that the mat lacked a proper, nondefective rubber backing was inferential based

upon the existence of the fold in the mat itself. In any event, the sufficiency of this is

immaterial because, for the reasons discussed earlier, Caburnay has nevertheless failed to

establish Norwegian had a duty to preserve the mat and thus, summary judgment in favor of

Norwegian was proper on Caburnay’s spoliation claim.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, we reverse the decision of the trial court granting summary

judgment in favor of Norwegian on Caburnay’s negligence claim and affirm its grant of

summary judgment in favor of Norwegian on Caburnay’s spoliation claim.

¶ 64 Reversed in part and affirmed in part.

-14-