Culli v. Marathon Petroleum Co.

862 F.2d 119, 1988 WL 126519
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 9, 1988
DocketNo. 88-1046
StatusPublished
Cited by40 cases

This text of 862 F.2d 119 (Culli v. Marathon Petroleum Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Culli v. Marathon Petroleum Co., 862 F.2d 119, 1988 WL 126519 (7th Cir. 1988).

Opinion

WILL, Senior District Judge.

This is a slip and fall negligence case with federal jurisdiction based on diversity.1 Elizabeth and Gary Culli, plaintiffs-ap-pellees, brought an action against the owners and operators of a gas station, Marathon Petroleum Company and Cheker Oil/Western Division, defendants-appel[121]*121lants, based on Mrs. Culli’s physical injuries suffered as a result of her fall at the defendants’ station and Mr. Culli’s loss of consortium. The jury returned a verdict in favor of the plaintiffs and against both defendants, awarding $90,500.00.2 The defendants’ motions for judgment notwithstanding the verdict and a new trial were denied. The defendants appeal the denial of their motions but not the amount of the jury award. We affirm.

BACKGROUND

Marathon and Cheker owned and operated a twenty-four hour self-service gas station at the corner of Broadway and 22nd Street in Mt. Vernon, Illinois. The station was typically staffed by one person, an attendant, who would primarily stay inside running the cash register. The manager was generally present during some morning hours, sometimes by himself. Two attendants would usually be at the station together for a brief period, approximately thirty minutes, when one came to work to replace the other. In addition to operating the cash register, the attendant was responsible for replenishing supplies and maintaining the premises. At the station, the defendants sold gas, oil, transmission fluid, cigarettes, milk, hot food, sandwiches, candy, soda, clothing and other things. Testimony at trial established that the attendants’ priorities were to receive payments from customers, replenish inventory, maintain the inside of the store and, finally, maintain the outside area.

Mrs. Culli’s accident occurred on Saturday, August 4, 1984, a day on which the station was conducting a special soda sale. The station has three sets of islands which house gas pumps and soda cartons were stacked on pallets at the ends of the pump islands. Soda sales on August 4th and 5th totalled $1,139.42.

Mark Stover was the attendant on duty for the day shift on August 4th and no manager was on duty or present at the time in question.3 Stover did not sweep or clean the lot during the day but he removed empty wooden cartons from the stacks of soda on at least six occasions, primarily from the stacks at either end of the island closest to the store, as that was where most of the soda purchased was initially placed. Normally, the lot was swept during the night shift, sometime between 11:00 p.m. and 7:00 a.m., but the attendant during the evening prior to the accident (August 3rd) did not recall whether or not he had swept that night. The station manager did not maintain a set policy as to how often the outside area was to be cleaned. There was testimony from an employee that she asked Mark Jones, the station manager, to obtain more help because the station was understaffed and that he relayed such a request to his superiors, which went unheeded.

Stover did not see any type of spill in the pump area nor did anyone report any spills to him that day. There was testimony, however, that spills in general occurred once or twice during each shift, depending upon the day’s business. Mark Jones, the station manager, was aware of the daily spills. From inside the station, Stover and other attendants had a limited (obstructed) view of the outside area.

At approximately 4:45 p.m., on August 4th, Mrs. Culli drove her car up to the far side of the first set of islands closest to the store. She filled her gas tank and then crossed the pump island and went into the store to pay for her gas and purchase soda. She purchased five eight-pack cartons and [122]*122picked up two of them on the way out. On her return to her car, Mrs. Culli crossed back over the pump island a few feet from where she had crossed it on the way to the store. When she stepped off the island, she slipped and fell.

Mrs. Culli was attended to by Stover and Janice Moore, an attendant who had just arrived for the next shift (to replace Sto-ver). Moore called an ambulance. James Mullaney of the Litton Ambulance Service arrived to assist Mrs. Culli. He testified at trial that he noticed a slippery substance on Mrs. Culli’s shoes and on her calf. Mrs. Culli also testified that she noticed the slippery substance. Neither Mullaney nor Mrs. Culli could positively identify this substance and Stover and Moore testified that they did not notice any slippery substance on or near Mrs. Culli. Stover admitted at trial, however, that he did not investigate to see if there was any substance on the pavement or what might have caused Mrs. Culli’s fall.

In addition to the presence of a slippery substance on Mrs. Culli’s shoe and calf, Mr. Mullaney testified that he saw a spill or some substance in a pool approximately eight to ten inches in width and length which looked like a slippery film and appeared to be a product typically found at a gas station or pantry. According to Mulla-ney, the substance could have been oil or gasoline but he was not positive. It was a “clearish type of thing” which may have been mixed with dirt or some other substance because when he wiped it off it had a brownish tinge.

At trial, the plaintiffs did not establish how long the slippery substance was on the lot before Mrs. Culli fell. The defendants claim on appeal, as they did at trial, that they could not have had constructive notice of a dangerous condition, the slippery substance, as a matter of law without evidence establishing the identity of the substance and the length of time it was present.

Over the defendants’ objections, the plaintiffs were permitted to introduce evidence concerning the fact that the gas station did not always stock “oil dry,” a substance similar to and possibly mixed with cat litter which is used to clean up spills, e.g., oil and gas spills. The defendants claim that this testimony was prejudicial and irrelevant to establishing constructive notice.

There was testimony from several employees of the defendants with respect to how Mrs. Culli’s accident was investigated, photographed and reported. The plaintiffs apparently argue on appeal that there was something improper or dishonest with respect to how and when the defendants reported the accident and whether or not photographs of the scene of the accident were taken soon after Mrs. Culli’s fall and whether they were used to complete the accident report. There are no claims on appeal, however, that the introduction of any evidence or exhibits concerning the defendants’ accident report or photographs was improper. According to the plaintiffs, any concerns they had with respect to this evidence were brought out in the plaintiffs’ favor on cross-examination.

Mrs. Culli was treated for a compound fracture of her left ankle. She spent several days in a hospital and subsequently used a wheelchair and walker for a few months and later underwent physical therapy and other medical treatment. She returned to work on April 1, 1985.

The parties agree that the defendants’ liability is determined by Illinois law.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reyna Cruz v. Costco Wholesale Corporation
134 F.4th 984 (Seventh Circuit, 2025)
Oliva v. Menard, Inc.
N.D. Illinois, 2024
Ruda v. Jewel Food Stores, Inc.
2024 IL App (1st) 230582-U (Appellate Court of Illinois, 2024)
Delaney v. Menard, Inc.
N.D. Illinois, 2024
West v. Home Depot, The
N.D. Illinois, 2023
Dauber v. Menard, Inc.
N.D. Illinois, 2021
Tafoya-Cruz v. Temperance Beer Co. LLC
2020 IL App (1st) 190606 (Appellate Court of Illinois, 2020)
Munoz v. Menard, Inc.
N.D. Illinois, 2019
Schnepp v. Menard, Inc.
N.D. Illinois, 2019
Saccameno v. Ocwen Loan Servicing, LLC
372 F. Supp. 3d 609 (E.D. Illinois, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
862 F.2d 119, 1988 WL 126519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/culli-v-marathon-petroleum-co-ca7-1988.