## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Caburn ay v. N

orwegian A m erican Hospital, 2011 IL App (1st) 101740

Appellate Court Caption FERNAN DO CABURNAY, Plaintiff-Appellant, v. NORWEGI AN AMERI CAN HOSPI TAL
, an I llinois Not-for -prof i t C o rporation, and PHOENIX EL E VATOR CONCEPTS, I NC., an I llinois Corporation, Def endants-A

ppellees.

District & N o. First District, F ifth Division Docke t No. 1-10-1740

Filed Rehea ringdenied Dec ember 23, 2011
Fe bruar y 22, 2012

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an ac tion alleg ing that the injuries plaintiff suffe red when he f ell on a mat while wa iting for

an ele vator in def

endant hospital we re c aused by a fold or buc kle in the mat and that the hospital wa s neg lige nt in using a nd failingto secure the mat, summary judgme nt was improper ly
enter ed for

the hospital, beca

use the de position t estimony , viewed in a light most favor able to plaintiff, wa s sufficient to cr eate an issue of fac t as to whether

the hospital brea ched its duty of ca re to plaintiff; howeve r, summary

judgme nt was prope rly

enter ed for

the hospital on plaintiff’s spoliation of evidenc e cla im alleg ing that the hospital
neg lige ntly

failed to pre serve the mat, bec ause its pre sence would not have be en probative of whe ther a fold exist ed at the time of the fa ll.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 05-L -013391; the Hon. Mary

A. Mulhern, Judge , presiding

.

J udg ment Reverse d in part and a ffirme d in part.Counsel on

Appea l Michae l Rathsack, of Chica g o, for a ppellant.

David C. Hall, Timothy

J . Shanley , and Hugh C. Griffin, all of H all, Prang le & Schoonveld, L L C, of Chicag o, for a ppellees.

Panel J USTI CE J . GORDON de livered the judgme nt of the cour t, with opinion. Presiding Justice Epstein and Just ice How se conc urre d in the judgme nt and opinion.

OP INION

¶ 1 On August 20, 2005, Dr. Fe rnando Caburnay tripped and fell while wai t i n g fo r an elevator in the lobby of Norwe g ian Americ an Hospital (Norw eg ian), wher e he worke d as an anesthe siologist. Caburnay struck t h e back of his neck when he fell, rende ring him quadripleg ic. At t h e t ime, the adjac ent elevator was being service d by Phoenix Elevator Concepts (Phoenix ). Caburnay sued both Phoenix and No rwe g ian, alleg ing that a fold or buckle in the mat cause d his fall, and that their neg lige nce in using and failing to secur e the
mat cause d his injuries. Caburnay ultimately settled with Ph o en i x af t er Phoenix lost its motion for summary judgme nt. Norwe g ian moved for summary judgme nt and preva i led. Caburnay now appe als.

¶ 2 I . BA CKGROUND ¶ 3 On the morningof August 20, 2005, Caburnay enter ed Norwe g ian’s lobby throug h the

emer g ency room doors and walked down a corr idor toward an elevator bank containing two elevators. He was car

rying an umbrella in his ri g ht hand and a duffe l bag over his left shoulder. At the time, the rig ht elevator was fully functional but the left was being repa ired by Phoenix

. Norwe g ian had place d a single 6-foot by 10-foot rubber and fabr ic mat in front of both elevators to protect its floors and to pr event slipping. That mat, or one similar, had been use d intermittently

in front of the e levators f or appr ox imately

six months. ¶ 4 As Caburnay approa ched the rig ht elevator, he walked onto the mat, pushed the elevator call button, and stepped backw ards. As he did so, he fell backw ards and the back of his head and neck struck a couch adjac ent to the elevat o r. C ab u rnay fra cture d his cer vical spine, instantly rende ringhim quadripleg ic. ¶ 5 A Norwe g ian surveillance video indicates that immediately afte r Caburnay fell, seve ral Norwe g ian personne l ca me to Caburnay ’s assistance

. A backboa rd was place d on the mat and Caburnay was place d upon it. Staff members whee led a gurney onto the mat, lifted Caburnay onto it, and car ried him awa

y

. The video does not show Caburnay ’s fee t or the

-2-portion of the mat underne ath his fee t. Caburnay did not look at the mat, either befor e or afte r

he fe ll, because he wa s looking a t the elevator. ¶ 6 In November 2005, Caburnay sued b o t h No rw egi an an d Phoenix
, alleg ing that their
neg lige nce in maintaining the are a around the elevator cause d him to “slip, trip and fall and there by injure himself.” Caburnay alleg ed, among other things, that Norwe g ian “fa iled to proper ly
, routinely and adequately inspect the floor of the [elevator are a] to asce rtain whether
any dang erous and hazardous conditions exis ted” and “fa iled to place a clea n and secur ed floor mat.” Caburnay filed his se cond ame nded complaint in September 2008, in which he additionally alleg ed that Norwe g ian “fa iled to place a level and secured floor mat on the floor” and “improper ly place d the floor mat so that it was subject to b ec o m e hazardous, movement, wrinkles and folds.” Caburnay additionally brought a claim of spolia t i on of evidenc e ag ainst Norwe g ian for its fa ilure to produce the mat. ¶ 7 Phoenix moved for summary judgme nt, based primarily on the deposition testimony of Caburnay
, arguing that there was insufficient evidenc e that a condition of the mat cause d his fall. This motion was denied a nd Phoenix subsequently

settled with Caburnay

. ¶ 8 Af

t er C aburna

y filed his complaint, Norwe g ian serve d i n t er ro gat o ri es up o n h i m

. Caburnay objected to most qu es t i ons on g rounds that they wer e improper and wer e more appropr iate during a discovery deposition. When asked to “desc ri b e h o w the alleg ed

occur renc e happene d, g iving all events in complete detail in the order in which they occur red which had a

ny bear ing whatsoeve r on the oc curr ence ,” Caburna y answe red: “Objec tion, said interrog atory is improper bec ause it is compound questi on, reque sts a

narr ative answe r and reque sts information that is most appropr iately the subject of a discovery deposition. Subject to objection, an oral interrog atory at plain t i ff arr ived at Norwe g ian Americ an Hospital and slipped and fell while attempting to enter the elevator in the lobby .” ¶ 9 On J uly 16, 2007, Caburnay
, in a suppl emental Rul e 214 (I ll. S. Ct. R. 214 (ef f. J an 1, 1996)) reque st, reque s t ed t h e production of the mat at issue. Norwe g ian was unable to produce the mat beca

use it ha d been destroy ed or lost and was not available for inspection. The recor d indicates that at s om e t i m e af ter the acc ident, Norwe g ian ceased using it s own mats and contra cted the job of s up p l y i ng floor mats to an outside vendor. Norwe g ian did, howeve r, ultimately produce a mat with a rubber non-slip backing whi ch
, d espi te being smaller in siz e, was, acc ording to its head of housekee ping, simil ar to the one at issue here

. ¶ 10 After Phoenix settled, the case was assig ned to a n ew j u d ge for trial. On October 15, 2009, Norwe g ian moved for summ ary judgme nt on both the neg lige nce and spoliation claims, arguing that there w as insufficie nt evidence to e stablish that a condition of the mat

cause d Caburnay ’s fall. In support of i ts motion, Norwe g ian included the depositions of Caburnay himself as we ll as sever al Norw eg ian and Phoenix employ ees, inc luding Sophi e Serra no, Rosa Cruz, Frank K

rause , and B en Gonzalez. ¶ 11 Caburnay was deposed t wice i n t h i s case , first for purposes of di scover y and aga in for
purposes of evidenc e. In his first deposition, taken in November 2006, Caburnay stated that he revie wed Norwe g ian’s surve illance video the prior eve ning, but still reca lled the events

on the day of his fall befor e watching that video. When asked by Norwe g ian’s counsel to tell

-3-him what he reme mbere d about what happene d the morning of the fall, Caburnay responde d

“I was walking down the aisle to the elevator door. Then I touched the button for the elevator to come down. Then I fell o n my back.” When asked if he had a rec ollection of his fee t tripping over any

thing, Caburn ay t o o k a moment to “re call and reme mber” and then

answe red “ Ifee l the sole of my shoe g ot caught in a–it’s like a fold fr om the are a rug .” ¶ 12 At t h e close of the deposition, Norwe g ian’s counsel ag ain asked Caburnay about th e circ umstances of

his fall, and the f

ollowing c olloquy

occur red: “Q. You’ re not c erta in the fold ca used you to fall, isn’t that rig ht?
MR. MEYER [C aburna y ’s counsel]: Objection. I t h i n k t h at’s contra ry to his testimony

. MR. BLUMENSHI

NE [Caburnay ’s counse l] : I t’s also arg umentative. Q. You ca

n answe r. A. That’s what my

lawyer sa

y s. Q. He just objec ted. You still have to answe r the que stion.
MR. MEYE R: You w ant to hear the question ag ain? Would y ou rea d it ba ck; Miss Court Reporter. (WHEREUPON, the Reporter rea d back the following : ‘Q

. You’re not cer tain the fold ca used you to fall, isn’t that rig ht? ’)
A. I am ce rtain. Q. You ar e ce rtain that it cause d y ou to fall, rig ht?
A. Corre ct. Q. And that is based on not se eingit, true?
A. Corre ct. Q. That’s a ll.
MR. MEYER: And y ou’re cer tain that the fold cause d y ou to fall beca use y ou felt the back of your left f

oot catch on that fold, corr ect?
A. Corre ct.” ¶ 13 An evidenc e deposition of C aburna y was taken in November 2007 in the event that he did not survive his injuries. At that deposition, Caburnay ag ain stated that he felt the sole of his left shoe “g et caug ht in some kind of fold in the m at,” but acknowledg ed that he never

saw any fold or ripple befor e fall i n g. During that deposition, the following colloquy

occur red: “Q. I t’s y our testimony that y ou fell beca use the back of your heel or y our sole of the shoe g ot caught on a flap in the car pet and that cause d y ou to trip and fall backw ards; is that y our testimony ?
A. Corre ct. Q. And althoug h y ou never saw that flap or ripple at any time in the rug , as you are here today
, sir, that’s y our assumption of what m ad e y ou actua lly fall and trip backw ards?

-4-A. Yes.”

¶ 14 L ater in that deposition, Caburnay added that he felt the fold in the car pet in “the sole of [hi s] l eft foot.” ¶ 15 L ielani Mindanao, an emer g ency room nurse, testified in her deposition that she was one of the first to arr ive afte r Caburnay fell. She stated that she looked for something that would have cause d Caburnay to fall, but was unable to find any bumps or buckles or any thing else in the car pet that may have cause d him to do so. She also stated that Caburnay told her that he “slipped on the floor,” but that he did not elabor ate further

. Following the fall, Mindanao

car ried Caburnay ’s bag to the emer g ency room and stated that its weig ht require d her to”lean to the other side” in order to ke ep her balanc e while doingso. ¶ 16 J o J o Abra

han, an emer g ency room technicia n at Norwe g ian, testified that he obser ved the mat when he came to Caburnay ’s assistance and that it looked flat to him. He also walked

acr oss the mat sever al times while rende ringassistance , but never felt any thing in his fee t. ¶ 17 Aura Veg a, a member of Norwe g ian’s housekee ping staff, testified that she was c leaning

a washroom when she hear d 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 clea n and lying flat, and she could not rec all rec eiving any complaints about folds or bumps in the mat prior to Caburna y ’s fa ll. ¶ 18 Rosa Cruz, another member of Norwe g ian’s housekee ping staff, testified that in her 17
y ear s working at Norwe g ian, she could not r emember the mat in front of the elevators ever buckling or moving . She also testified that the mat ha d “rubbe r on the bottom.” ¶ 19 Nicola Ba sile, an operating room technicia n who had worke d at Norwe g ian for 36 y ear s, testified that he arr ived at the hospital shortly afte r 7 a.m. on the morning of the acc ident. He utiliz ed the elevator in the main lobby minutes befor e Caburnay ’s fall and did not notice any problems with the mat, nor ha d he eve r see n it bunch or cur l up. ¶ 20 Be n Gonzalez, Norwe g ian’s manag er of housekee ping from 1991 to 2005, testified that the mat had been place d in front of the elevators at his direc tion to protec t the floors beca use Phoenix employ ees wer e constantly trac king g rea se throug hout the lobby

. He stated that the
mat had a rubber backing and simil ar mats wer e used fre quently in the winter or when it was raining

. He stated that the m ats in front of the elevators had bee n in use for approximately five y ear s and we re often s tored in a rolled-up state, which, he said, sometimes resulted in

wave s or bubbles. He testified that the mats would be chec ked for wave s or bubbles befor e they wer e put down, and if any such waves or bubbles ex i s t ed
, he would have ordere d the edg es of the mat taped to the floor in or der to e liminate them. ¶ 21 Fr ank Kra

use, a Phoenix mecha

nic wh o wo rk ed o n t h e o u t -o f- s er v i ce elevator in Norwe g ian’s lobby for ap p ro x i mately three wee ks, testified that on his first day at Norwe g ian, he tripped on the mat in front of the elevat o rs and spoke with Norwe g ian
personne l about either leng thening it or removing it beca use his equipment “would bunch
up t h e ca rp et up ” and the mat would “g et caught on the barr icade and *** was constantly
g etting moved around and disheveled.” Kra use also rec ommended to Norwe g ian that it tape the edg es of the mat, and even did so himse l f t wi ce , o nly to have the tape remove d by Norwe g ian’s houseke epingstaff who neede d to clean unde rneath.

-5-¶ 22 On May 13, 2010, Caburnay filed h i s re s p o n s e to Norwe g ian’s motion for summary

judgme nt, in which he argued that his deposition testimony
, combined with the testimony of his experts, cre ated an issue of materia l fac t as to whether Norwe g ian was responsible for his fall. ¶ 23 Caburnay relied on the testimony of two witnesses in his motion. The first, Gene L itwin, Caburnay ’s eng ineer ing expert, opined that Caburnay ’s fall wa s ca u s ed by the mat being untaped, stating that “[i] f they had taped it down with duct tape around the perimete r, I would
not have had any other problem with it, and we wouldn’t have the acc ident.” He also stated that the mat cre ated a fore seea bly dang erous tripping hazard and that Caburnay likely caught his heel on an irregularity in the mat. L itwin, howeve r, admitted that there was “no evidenc e *** that there was ever a tripping hazard [on the mat] prior to Dr. Caburnay ’s fall” and that

someone c ould trip on a flat ca rpet or mat without any

folds, ripples, or other

defe cts. ¶ 24 Caburnay ’s safe ty expert, Russell Kendzior, testified that floor mats like the one used by Norwe g ian “b u ck l e and curl all the t ime. *** Unless t hey ’re mecha nically fastene d, taped down, they buckle. They ’re p rone to buckling .” Kendzior opined that the mat buckled or develope d some ty

pe of elevation, causing Caburnay to trip, but could not state how long the buckle exis ted. He further opined that the place ment of the m at ac ross both elevators was

unnece ssary , but not neg lige nt, and that the mat violated Americ an National St an dards beca use the “mer e place ment” of a floor mat is a “potential tripping h az ar d

. ” Kendz ior admitted that someone could trip on a flattened m at i f he or she did no t l i ft h i s or her heel high e noug h, but that it was unlikely

. ¶ 25 The trial court g rante d summary judgme nt on both c ounts, f inding that Norwe g ian was
not neg lige nt in using a mat t o cover the floor in front of the elevators, nor was there any evidenc e that it knew the mat had a propensity to fold. The trial court further held, with
respe ct to the spoliation claim, that it was “dubious that [Norweg ian] had the duty to prese rve the mat” beca

use “no one blamed the mat for this fall until well afte r the l itigation was started” and beca

use “produc tion of the mat is not essential to [C aburna y] being able to prove his case.” I t is from this decision that Caburnay now appe als.

¶ 26 I I . ANALYSI S ¶ 27 On appea l, Caburnay contends first that the trial court err ed in g ranting N o rw egi an ’s motion for summary judgme nt as to his neg lige nce claim beca use the evidenc e he provided

cre ated a question of fac t a s to whether a condition of Norwe g ian’s mat cause d his f all. He also contends that the trial court err ed in g ranting summary judgme nt in favor of Norwe g ian

on his spoliation claim beca use he adduce d evidenc e t h at his inability to examine the mat compromised his ability to prove his case

. For the rea sons that follow, we aff irm in part and

reve rse in par

t.

¶ 28 A. Caburna y ’s Neg lige nce Claim ¶ 29 Caburnay first contends that the evidenc e that he tripped on a fold or buckle in the mat, coupled with testimony that the mat was neg lige ntly employ ed, cre ated a question of fac t that should ha ve resulted in a denial of Norwe g ian’s motion for summary judgme nt. We ag ree

.

-6-¶ 30 The g ranting of a motion for summary judgme nt is ap p ro p ri ate wher e “the plea dings,

aff idavits, depositions, admissions, and exhibi ts on file, when viewed in the light most favor able to the nonmovant, reve al that there is no g enuine issue as to any materia l fac t and that the movant is e ntitled to judgment as a matter of la

w.” Busch v. Graphic Color Corp.
, 169 I ll. 2d 325, 333 (1996). “A defe ndant moving for summary judgme nt bear s the initial burden of coming forwa

rd with competent evidentiar y materia l, which if uncontra dicted, entitles him to judgme nt a s a matter of law.” Paul H. Schwende ner, Inc. v. Jupiter Electric Co.
, 358 I ll. App. 3d 65, 78 (2005). A defe ndant does not need to prove its case or disprove its opponent’s case in order to preva il on its motion. A plaintiff, howeve r, “must come forth with some evidenc e t hat arg uably would entitle him to rec over at trial” in order to survive such a m otion. Keating v. 68th & Paxton L.L.C

. , 401 I ll. App. 3d 456, 472 (2010). We revie w a trial court’s decision to g rant summary judgme nt de novo

. Jupiter Electric
, 358 I ll. App. 3d at 76. ¶ 31 Her e, Caburnay contends that the evidenc e that he felt his foot catc h on a fold or buckle in the mat was s ufficie nt to cre ate a question of fac t as to whether the mat cause d his fall. Norwe g ian, howeve r, argues t h at s u m mary judgme nt was proper beca use there was no evidenc e of a fold in t he car pet befor e Caburnay tripped and that “a fair rea ding” of Caburnay ’s deposition testimony demonstrates that he h ad no idea why he fell. For the

rea sons that follow, we disag ree with Norwe g ian. ¶ 32 In support, Norwe g ian ref ers to the colloquy in Caburnay ’s evidenc e deposition, as fully
set forth in our statement of fac ts. There
, Caburnay was asked “althoug h y ou never saw that flap or ripple at any time in the rug,*** that’s y our assumpt ion of wh at made y ou actua lly fall an d t ri p backw ards? ” Caburnay answe red “[y ]es.” Norwe g ian cites this answe r as evidenc e that he mere ly “assumed” or imag ined the exis tence of a fold in the mat. The context in which this a

nswer was forthcoming
, howeve r, belies this c ontention. In the immediately
prec eding question, Caburnay was asked whether he “f ell beca use the ba ck of [his] heel or [hi s] sole of the shoe g ot caught on a flap in the car pet and that cause d [hi m] to trip and fall backw ards.” Caburnay cate g orica lly stated that was corr ect. This a nswer is consistent with

ever y other answe r C ab u rnay g ave with respe ct to the cause of his fall. In his discovery deposition, Caburnay indicated that he was “ce rtain” that “the fold cause d [hi m] to fall” and that he phy sically felt “the sole of [hi s] shoe got caught in *** a fold from the rug .” Simi larly
, later in his evidenc e deposition, Caburnay expli citly added that he felt the fold in the car pet in “the sole of [hi s] left foot.” Norwe g ian, howeve r, asser ts that this testimony is inconsistent beca

use Caburnay first testified that he felt the sole of his shoe catc h in the mat and later testified that it was either his heel o r t h e s o l e o f t h e shoe that did so. Even if we

wer e to find this testimony inconsistent, such an in co n s i s t ency should aff ect Caburnay ’s

cre dibilit y befor e a trier o f fact, not subject him to summary judgme nt. See Allstate Insurance Co. v. Tucker
, 178 I ll. App. 3d 809, 813 (1989) (“a n appar ent inconsistent statement” f

rom a de fenda

nt was insufficie nt to justify summary judgme nt beca use “[i] t is
not within the province of the trial court to weigh these conflicting statements” when ruling on motions for summary

judgme nt). ¶ 33 When Ca

burnay testified that he felt his f oot c atch in the mat, he was not descr ibing an emotion, but a sensory perc eption, in the same way that a blind person would d es cr ibe

-7-something he o r s h e was able to touch but not see. He never testified that it “fe lt as if ” he tripped on a fold or t hat i t “ seem ed li ke ” his foot caught a buckle in the carpet, but instead unequivoca lly testified as to his sensory perc eptions, descr ibing the t an gible, phy sical sensation of his foot catc hing on a fold in the mat. Thus, i t ap p ea rs that his aff irmative

answe r to the question of what he assumed did not demonstrate that he was m ak ing an

as s u m ption as to the cause of his fall, but mere ly indicated a tactile perc eption of a fold without an acc ompany

ing visua l perc eption,. ¶ 34 For this rea son, the case s Norwe gi an cites in support of its claim are unpersua sive. I t relies on Barker and Brett in support of i t ’s contention that Caburnay was unable to

acc urate ly d et er m i n e the cause of his fall. In these case s, the plaintiffs had no sensory perc eption of what cause d their falls, but instead offe red mere cer ebra l specula tion as to their

cause s. Thus, they are inapposite to t h e situation here beca use, as stated above, Caburnay
repe atedly and conclusively ind i ca t ed t h at he fell only afte r tripping on a fold or bump in Norwe g ian’s mat. ¶ 35 In Barker v. Eagle Food Centers, Inc.
, 261 I ll. App. 3d 1068 (1994), the plaintiff slipped and fell on the defe ndant’s floor, but could not say why

. She argued that she had often seen water on the floor in the a

rea wher e she f

ell, but did not see a

ny on the day

of the incide nt. Despite not seeing wher e she fell, she “assumed” that the floor was wet beca use “[o] therwise [she] wouldn’t have slipped.” (Interna l quotation marks omitted.) Barker , 261 I ll. App. 3d
at 1070. The appellate court conclude d that summary judgme nt was p ro p er beca use the plaintiff mere ly assumed that she must have slipped on water beca use she could not identify
any other cause , and thus could not identify the cause of her fall. Barker
, 261 I ll. App. 3d at 1071. ¶ 36 Simi larly
, in Brett v. F.W

. W oolworth Co.
, 8 I ll. App. 3d 334 (1972), the p l ai n t i ff fell while walk i n g on the defe ndant’s car pet, but was unable to say what cause d her fall. The appellate court a ffirme d summary judgme nt in favor of the defe ndant bec ause the plaintiff “did not see or feel what cause d the fall,” and it was undisputed that the mat was in excellent condition. ( Emphasis added.) Brett
, 8 I ll. App. 3d at 337. See also Koukoulomatis v

. Disco W heels, Inc

. , 127 I ll. App. 3d 95 (1984) (summary judgme nt in favor of the de fenda

nt was proper beca

use plaintiff’s assumption that a fold in the defe ndant’s car pet cause d her fall was insufficient to cr eate an issue of material fa ct). ¶ 37 Un l i k e t h es e case s, here Caburnay repe atedly asser ted that he phy sically felt his foot
catc h on a tang ible fold in Norwe g ian’s car pet, and Norwe g ian’s relianc e o n certain
statements made during his discovery deposi tion does not in any way reduc e their eff ect. Norwe g ian, howeve r, contends that ultimately
, Caburnay only asser ted that his fall was

ca u s ed by a fold in Norwe g ian’s mat beca use his attorney instructed him to say s o

. T h i s contention is based on the f ollowing c olloquy : “Q. You’ re not c erta in the fold ca used you to fall, isn’t that rig ht?
MR. MEYE R [ C ab u rnay ’s counsel]: Objection. I think that’s contra ry to his testimony

. MR. BLUMENSHI

NE [Caburnay ’s counse l] : I t’s also arg umentative. Q. You ca

n answe r.

-8-A. That’s what my lawyer sa

y s. Q. He just objec ted. You still have to answe r the que stion.
MR. MEYER: You want to hear the question ag ain? Would you rea d it ba ck; Miss Court Reporter. (WHEREUPON, t h e R eporte r rea d back the following : ‘Q. You’re not cer tain the fold ca used you to fall, isn’t that rig ht? ’)
A. I am ce rtain.” ¶ 38 Norwe g ian contends that Caburnay ’s response of “[t] hat ’s wh at m y l aw y er s ay s” indicates that he o n l y s aid he was cer tain that he tripped on a fold in the mat beca use his lawy er instructed him to do so. This interpre tation is not the most plausible one. I t seems far

more likely that this s t at em ent was made in response to an instruction from Norwe g ian’s attorney , following an objection, that he could still answe r the question, rathe r than as an abrupt rec antation of his ear lier testimony

. The question was then rea d back to Caburnay and he responde d, twice, that he was cer tain that a fold in the m at ca u s ed his fall. Thus, when

rea d in context, Caburnay ’s statement “[t] hat’s what my lawy er say s” would more cog ently be intended as a response to the statement of his attorney indicating that he could still answe r the question, notwithstanding his objec tion. ¶ 39 Norwe g ian further asser ts that Caburnay ’s failure to attribute his fall to a fold in the mat immediately afte r it occur red proves that his statements amount to speculative g uesses as to the cause of his injuries. As stated above, Caburnay told the nurse that came to his aid afte r the fall that he slipped, but did not elabor ate further

. He later told the emer g ency room doctor that he “tripped,” but did not attribute it to a fold in the car pet. These statements, made in the

m o m en t s afte r a cata strophic injury
, while vague or incomplete, are not sufficie nt t o constitute an admission on Caburnay ’s part that he did not tr ip on a fold in the mat, nor are they suffici en t t o p re clude us from finding an issue of fact wit h respe ct t o the cause of his fall, espec ially when viewed in a light most favor able to C ab u rnay

. Caburnay ’s failure to specific ally mention the mat as a fac tor in causing his fall, immediately afte r or within close proxi mity to its occur

renc e, would not amount to an admi ssion by silence or omission beca use Caburnay could not have bee n rea sonably expected to elabor ate on the specific cause of his fall just moments afte r being rende red quadripleg ic. See People v. Zurita , 295 I ll. App. 3d 1072, 1077 (1998) (an “inconsistency may consist of t h e failure to speak of a matter entirely when it is shown that the wit ness had an opportunit y to make a statement and that
a per son would rea sonably be expected unde r the c ircumstance s to do so”). ¶ 40 Fur

thermore
, we ref

use to acc ept Norwe g ian’s contention that Caburnay ’s objections to its interrog atories somehow constitute a failure on his part to “sug g est[ ] that his fall was due
t o a fold in [Norweg ian’s] floor mat.” When asked to descr ibe all the circ umsta n ce s reg ar d i n g his fall, he answe red, subject to an objection, that he “ar rived at Norwe g ian Americ an Hospital and slipped and fell while attempting to enter the elevator in the lobby .” Whil e this response omits specific mention of the mat, it does not contra dict Caburnay ’s later elabor ation that he fell due to a fold in the mat. At most, these omissions would raise questions reg arding Caburnay ’s cre dibilit y , an issue best resol v ed b y a t rier of fac t, rathe r than on summary

judgme nt.

-9-¶ 41 Norwe g ian further contends that it is entitled to summary judgme nt beca use C aburna

y did not make specific ref ere nce to a fold in the car pet in h i s i n itial complaint or his interrog atories. Whil e a party cannot contra dict a prior admission in order to cre ate an issue of materia l fac t, we do not find in Ca burnay ’s failure to specific ally mention the fold, an admission that no such fold exis ted. See Commonwealth Eastern Mortgage Co. v. W illiams
, 163 I ll. App. 3d 103, 109 (1987). Whil e Caburnay did not specific ally state that a fold in the
mat cause d him to fall in his complaint, he did g ener ally alleg e in h i s complaint that Norwe g ian’s failure to use a “sec ured floor mat” cause d his fall, which is entirely consistent with his deposition testimony

. Thus, when view ed i n a light most favor able to him, the evidenc e could well have allowed a jury to conclude that a fold in the mat cause d Caburnay ’s fall. ¶ 42 Having deter

mined that an is sue of fac t exis ts with respe ct t o wh ether the ex istence of a fold caused Caburnay ’s fall, we must next deter mine whether the presence of t he fold in the mat was g rounds for liability

. Norwe g ian contends that it cannot be held liable, reg ardle ss of whether Cab u rn ay proce eds under a premises liability theory or an ordinary neg lige nce theory

. ¶ 43 Norwe g ian contends that under either a premises liability theory or a g ener al neg lige nce theory
, it cannot be held liable. Under a premises liability theory
, Norwe g ian could be held liable only if it (1) sho u ld have known the mat was unsafe and could have discovere d it throug h the exercise o f re as onable car e, (2) should have expected Caburnay would not discover the dang er, and (3) failed to exercise car e to protec t Caburnay ag ainst that dang er. Deibert v. Bauer Brothers Construction Co

. , 141 I ll. 2d 430, 434 (1990) (quoting Restatement (Second) of Torts § 343 (1965))

. Our courts have interpre ted this to mean that “ther e is no liability for [l andowne rs] for dang erous or defe ctive conditions on the premises in the absenc e of the landowner ’s actual or constructive knowledge [of those conditions] .” (Emphasis adde d.) Tomczak v . Planetsphere, I nc. , 315 I ll. App. 3d 1033, 1038 (2000). ¶ 44 Caburnay does not purport to pr edicate Norwe g ian’s liability under a premises liability theory

. Norwe g ian contends, and Caburn ay does not dispute, that it had no actua l or constructive notice of the fold in the mat which alleg edly cause d Caburnay ’s fall. There fore
, althoug h there may very well be evidenc e of Norwe g ian’s prior notice of the mat’s tendenc y to fold, we ne ed not addr ess this issue further. ¶ 45 Instead Caburnay asser ts that Norwe g ian is liable under a g ener al neg lige nce theory for placing a m at that was prone to buckling on the floor in front of the elevators. Under a g ener al neg lige nce theory of liability
, Norwe g ian’s prior n o t i ce of the fold would be irrele vant if Caburnay can show that it cre ated the dang erous condition in the first place by using a mat wh i ch could buckle. Ree d v. W al-Mart Stores, Inc.
, 298 I ll. App. 3d 712, 715 (1998). Whil e a plaintiff g ener ally must prove a defe ndant’s actua l or constructive notice of

a dang erous condition in order to establish liability ( Genaust v. Illinois Power Co.
, 62 I ll. 2d 456, 468 (1976))
, our courts hav e held that when a defe ndant cre ates that dang erous condition, that defe ndant’s notice become s irrele vant. Bernal v. City of Hoopeston
, 307 I ll. App. 3d 766, 772 (1999) (“when an af firmative act of a [defendant] cause s a dang erous condition, no actua l or constructive notice of said condition is require d” (empha sis omitted) (interna l quotation marks omitted)). All he m u st prove is that the defe ndant neg lige ntly

-10-cre ated the dang erous condition on its premises. Ree d v. W al-Mart Stores, Inc.
, 298 I ll. App. 3d 712, 715 (1998). Thus, Caburnay can avoid the notice require ment only if he can establish that the mat was neg lige ntly place d in front of the elevator by Norwe g ian. Gentry v. Shop ‘n Save W arehouse Foods, Inc.
, 708 F. Supp. 2d 733, 737 (C.D. I ll. 2010) (“Plaintiffs can avoid the notice require ment only if they can establish that the mats wer e negligently place d on the floors by the age nts of t he Defenda nt, not mere ly b y showing that they wer e placed by the
ag ents of the De fenda

nt.”). ¶ 46 To preva il on a claim of neg lige nce, Caburnay must prove the exis tence of a duty on the part of Norwe g ian, and prese nt some evidenc e showing Norwe g ian’s brea ch of that duty
, and demonstrate injury proxi mately resulting from that brea ch. W ojdyla v. C ity of Park Ridge
, 209 I ll. App. 3d 290, 293 (1991). ¶ 47 Our courts have held that in the absenc e of any evidenc e indicating a mat was in a ny thing less than ex cellent co n d i t i o n, “[t] he mere use of a floor covering on which an invitee falls i s n o ev idence of neg lige nce.” Brett v. F.W

. W oolworth Co.
, 8 I ll. App. 3d 334, 3 3 6 -3 7 (1972). In circ umstances wher e “the evidenc e fails to sho w an y d am ag es or defe ctive condition of the [m at],” a defe ndant’s use of such mats “is perf ectly rea sonable, and the fac t that a person trips on one of them is [not ] evidenc e of neg lige nce.” Robinson v. Southwestern Bell Telephone Co.
, 26 I ll. App. 2d 139, 146 (1960). Howeve r, “the condition of the mat and the manner in which it was place d on the floor may constitute neg lige nt place ment of the mat

on the floor.” Johnson v. United States
, 1999 U.S. Dist. L EXI S 9819, at *10 (N.D. I ll. J une 2 3, 1999). A plaintiff can establish neg lige nt use of a floor mat if he can show that tho s e mats are defe ctive or neg lige ntly installed. W ind v

. Hy- Vee Food Stores, Inc.
, 272 I ll. App. 3d 149, 156 (1995). I n W ind
, the appellate court reve rs ed a j u ry verdic t for the defe ndantstore owner , finding that the jury should have been instructed on a g ener al neg lige nce theory beca use the evidence indicated that the m at t he plainti ff tripped on was poorly maintained and wa s not f

astene d to the floor. W

ind , 272 I ll. App. 3d at 156. Unlike W ind , in Robinson the court reve rsed a judgme nt in favor of t he plainti ff, fin d i n g t h at s h e could not establish defe ndant’s neglig ence af t er s he admitt ed that the m at was in excellent condition and was fre e from debris and rips, and was unable to prec isely deter mine what cause d her to trip and fall. Robinson , 26 I ll. App. 2d at 141-42. ¶ 48 Her e, Caburnay does not dispute the holding in Robinson that the ordinary use of a safe
mat is not neg lige nt, but instead maintains that case is inapposite beca use the mat he tripped
on, like that in W

ind
, was defe ctive in that it was prone to buckling and not taped down, and there fore Norwe g ian’s use of that mat was neg lige nt. Th e d ep o s i t ion testimony of Fr ank Kr au s e, a P hoenix mecha nic, supports Caburnay ’s position. He testified that the mat in question had repe atedly buckled beca use it was not secur ed to the floor with tape. He stated that the mat would “bunch up” and become “disheve led” as a result of the work being done

on the adjac ent elevator, and s u gges t ed the mat should have been taped down in order to preve nt folds from occur

ring

. Kra use’s testimony indicates that he actua lly taped the mat to the floor, but that the tape was repe atedly remove d by Norwe g ian employ ees so that they could clea

n the floor unde rneath it. ¶ 49 Kra

use’s testimony was reinfor ced by Caburnay ’s experts, as well as by Be n Gonzalez, Norwe g ian’s manag er of housekee ping. Caburnay ’s experts opined that the mat was unsafe

-11-beca use it wa s n ot secur ed to the floor with tape, despite being prone to buckling

. Gene L itwin testified that if the mat had be en tape d to the floor, the fold would not have exi sted and Caburnay would not hav e fallen. Simi larly
, Russell Kendzior opined that floor mats “b u ck l e and curl all the t ime” unless they are taped to the floor. Gonzalez further testi fi ed that the mats, like the one at issue here
, had develope d wave s or b u b b l es i n t he past afte r being stored in a rolled up state, and would have to be taped down in order to eliminate those

wave s or b u b b l es

. I t is undisputed that the mat in question was not taped down on the morning of Caburnay ’s fall. Moreove r, we also take note of Caburnay ’s contention that if the
mat was proper ly used and maintained, his fall would not have occur red. He asser

ts that the fac t that the mat buckled in the first place demonstrates that it was not an ordinary mat with
a prope r bac king, but instea d was fa ulty , and ther efor e should have been ta ped down. ¶ 50 Thus, when viewed in a li g ht most favor able to Caburnay
, the depo s i t i o n testimony of Caburnay
, Kra

use, and Gonzalez i s s ufficie nt to cre ate an issue of fact as to whether there

was a brea ch of Norwe g ian’s duty of car e to Caburnay to proper ly use a safe and secur e mat, by placing a mat that was prone to buckling in front of the elevator without secur ing it, thus causing him to fall. See Newsom-Bogan v. W en d y ’ s O ld F ashioned Hamburgers of

N.Y

., Inc.
, 2011 I LApp (1st) 092860. ¶ 51 W e b el i ev e t h e t rial court’s relianc e upon Gentry
, a fede ral district court case , wa s misplaced as that case is distinguishable from the case at bar. There
, the plaintiff slipped and fell afte r catc hing her toe on a floor mat in the defe ndan t ’s s tore. Wit nesses observe d a buckle in the mat in the place wher e the plaintiff fell, but no buckle was seen prior to the fall. Gentry
, 708 F. Supp. 2d at 733. The plaintiff sued under a g ener al neg lige nce theory
, alleg ing that the d efendant essentially failed to proper ly maintain the floor mats on its premises. Gentry
, 708 F. Supp. 2d at 736. The defe ndant moved for summary judgme nt, which the trial
court g rante d, finding that the plaintiff did not alleg e any specific fac ts which could support

a finding that the defe ndant brea ched a duty

. Specifica lly
, the court stated that “the Plaintiffs’ alleg ations of neg lige nce are very g ener alized. There is no specific act of alleg ed wrong doing

or unrea sonable behavior
, leaving it unclea r h ow the Def

endant brea ched their duty .” Gentry
, 708 F. Supp. 2d at 738. ¶ 52 Un l i k e the plaintiff in Gentry
, here Caburnay has alleg ed specific fac ts reg ardinghow and wh y t h e mat was improperly place d. As discussed above, Caburnay ’s deposition testimony indicates that a fold or buckle exis ted in the mat at the time of the fall as evidenc ed by the fac t that he felt his foot catc h on it, and the testimony of Kra us e and Gonzalez, coupled with the expert opinions o f L i t wi ck and Kenzidor, wer e sufficie nt to cre ate a question of fac t a s to whether Norwe g ian neg lige ntly place d the mat in que stion in front of the elevator, causing Caburnay to fall. There fore
, summary judgme nt in favor of Norwe g ian on this iss ue wa s improper.

¶ 53 B. Cabur nay ’s Spoliation C laim ¶ 54 Caburnay next contends that summary judgme nt in favor of Norwe g ian was improper on h is s p o li a ti o n claim beca

use Norwe g ian neg lige ntly failed to prese rve the mat, comprom is in g his ability to prove his ca se. We disag ree

.

-12-¶ 55 Wit h respe ct to claims of spoliation, our I llinois Supreme Court has he ld: “The g ener al rule is that there is no duty to prese rve evi d en ce ; h o we v er, a duty to prese rve evidenc e may arise throug h an agree ment, a contract, a statute [citation] or another specia l circ umstance. Moreove r, a defe ndant may voluntarily assume a duty by aff irmative conduct. [C itation.] In any of the fore g oing instances, a defe ndant owes a duty of due car e to pr eser ve evidenc e if a rea sonable person in the defe ndant’s position should have fore seen that the evidenc e was materia l to a potential civil action.” Boyd v. Travelers InsuranceCo. , 166 I ll. 2d 188, 195 (1995). ¶ 56 In order to deter mine whether such a duty ex i s t ed
, we m u s t eng ag e in a two prong ed inquiry to “first deter

mine whether such a duty arises by ag ree ment, contra ct, statute, specia l circ umstance, or

voluntary

undertaking” and “the n deter mine whether

that duty extends to the evidenc e at issue–i.e., whether a rea sonable p er s o n should have fore seen that the evidenc e was materia l to a potential civil action.” Dardee n v. Kuehling
, 213 I ll. 2d 329, 336 (2004). I f a plaintiff fails to satisfy both prong s, then no duty to preserv e ev idence exis ts. Dardee n , 213 I ll. 2d at 336. I f he is able to establish a duty
, a plaintiff must still demonstrate “that the loss or destruction of the evidenc e cause d [hi m] to be unable to prove an underlying suit.” (Emphasis omitted.) Boyd , 166 I ll. 2d at 196. ¶ 57 Her e, Caburnay has prese nted no evidenc e of an ag ree ment , co n t rac t, statute, specia l circ umstance, or voluntary undertaking which would have imposed a duty to reta in the mat. The evidenc e demonstrates that neither Caburnay nor any of the Norwe g ian employ ees who

came to his aid specifica lly mentioned that the carpe t was inst rumental in Caburnay ’s fall, althoug h, as discussed above, Ca burnay ’s fa ilure wa s not sufficient to contra dict the mat’s role in his fall as was later deter mined in the pleading s and deposition testimony

. Caburnay did not alleg e that the mat may have be en re sponsible for his fall until filing his complaint approximately 31⁄2 months afte r his fall, and even then, he only alleg ed that his fall was a result of Nor

weg ian’s fa ilure to “plac e a clea n and secur ed floor mat,” not a fold or buckle in the mat. Finally
, Caburnay did not reque st the prese rvation of the mat until F ebrua ry 17, 2007, near ly

two y ear s after

his fall. ¶ 58 Un l i k e t he case s relied upon by Caburnay
, here it was not rea dily appar en t t h at t h e missing mat was integ ral to Caburna y ’s injuries. I

n Jones
, Boyd , and Jack

son , upon which Cabu r n a y relies, the defe ndants wer e either expli citly place d on ear ly notice befor e spoliation

occur red or voluntarily assumed a duty to reta in the evidence and then failed to do so. See Jones v. O’Brien Tire & Battery Servic e Center, Inc.
, 374 I ll. App. 3d 918 (2007) (insuranc e adjuster failed to prese rve the whee l assembly that fell off the insured’s vehicle and cause d the acc ident g iven the possibili ty of future litigation); Boyd
, 166 I ll. 2d 188 (insurer who took possession of the propane heate r which ex p l o d ed and injured the plaintiff should have
prese rved it g iven its potential role in any litigation arising from those injuries); Jack son v. Michae l Ree

se Hospital & Medic al Center
, 294 I ll. App. 3d 1 (1997) (the hospital’s loss of the plaintiff’s X-ra

y s that it had seg reg ated into a specia l file afte r rec ei v i n g notice of litigation g ave r ise to a potential spoliation claim). ¶ 59 Her e, neith er the fall i tself nor any witness implicated t he mat until 31⁄2 months afte r it

occur red. Thus unlike the plaintiffs in these case s, here Caburnay is unable to establish that

-13-Norwe g ian owed him a duty to preser ve the mat. ¶ 60 Even if we wer e to assume that Nor weg ian owed Ca

burnay a duty to prese rve the mat,
at least with respe ct to the prese nce of the fold in the mat, Caburnay is s t ill unable to demonstrate “that the loss or destruction of the evidenc e cause d [hi m] to be unable to prove

an underlying lawsuit” beca use the prese nce of the rug would have had no bear ing on the exis tence of a fold. (Emphasis omitted.) Boyd
, 166 I ll. 2d at 196. As the trial court corr ectly stated: “[Caburnay ] believes he was cer tain that he tripped on a fold, and so whether or not the
mat was produce d is beside the point. I f the mat was produce d three months later or six months later, its production would not be probative of whether a fold was in that mat at or bef ore the time of Dr. Ca

burnay ’s fa ll. Moreover , *** Russell Kendzior said he had
enoug h information to rende r an opinion that [Norweg ian] was neg li gent. *** [I ]f the
mat wer e produce d, it would still not be probative of whether or not the condition of the mat *** exis ted at the time of this fa ll.” ¶ 61 The evidence shows that the mat was subjec t to heavy foot traff ic, as well as a gurne y , immediately following the acc ident. Even if it had been produce d months later upo n the filing of Caburnay ’s suit, it would nothave be en probative of whe ther a fold exist ed at the time of Caburnay ’s fall. Fur thermore
, with respe ct to the mat’s ru b b er backing
, the only eviden ce that the mat lacke d a proper , nondefe ctive rubber backing was infere ntial based
upon the exis tence of the fold in the m at i t s el f. I n any event, the sufficie ncy of this is immaterial beca

use, for the rea sons discussed ear lier, Caburnay h as never theless failed to establish Norwe g ian had a duty to prese rve the mat and thus, summary judgme nt in favor of Norwe g ian was pr oper on Cabur nay ’s spoliation claim.

¶ 62 I I I . CONCL USI ON ¶ 63 For the fore g oing rea sons, we reve rs e the decision of the trial court g rantingsummary judgme nt in favor of Norwe g ian on Caburnay ’s n egl i gen ce claim and aff irm its g rant of
summary judgme nt in favor of

Norwe g ian on Caburna

y ’s spoliation claim.

¶ 64 Reverse d in part and a ffirme d in part.

-14-