2019 IL App (1st) 181337 No. 1-18-1337 Opinion filed August 14, 2019
THIRD DIVISION IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
DEBRA HASLETT, ) ) Appeal from the Circuit Court ) of Cook County, Illinois, Plaintiff-Appellant, ) County Department, ) Law Division. ) v. ) No. 15 L 8316 ) UNITED SKATES OF AMERICA, INC., ) The Honorable CHICAGO CITY SKATING, LLC, and MILTON ) John H. Ehrlich, TORRENCE, ) Judge Presiding. )
Defendants-Appellees.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 This appeal stems from a negligence cause of action filed by the plaintiff, Debra Haslett,
against the defendants United Skates of America, Inc. (United Skates), Chicago City Skating
LLC (Chicago Skating), and Milton Torrence, after she slipped and fell at a roller skating rink.
The plaintiff alleged that she was injured as a result of the defendants’ negligent failure to notice
and remove a piece of hard candy on the rink surface, which caused her to fall. The circuit court
entered summary judgment in favor of the defendants, holding that there was no evidence that
the defendants had any notice of the alleged hazard or that this hazard was the cause of the No. 1-18-1337
plaintiff’s fall. On appeal, the plaintiff argues that the trial court erred when it granted summary
judgment in favor of the defendants because there remain genuine issues of material fact as to
whether the defendants breached their duties to her and whether that breach proximately resulted
in her injuries. In this respect, the plaintiff contends that the trial court erred in refusing to draw
an adverse inference from the defendants’ responses to discovery, which failed to include a video
clip that the plaintiff believes would have shown the cause of her fall. The plaintiff also contends
that the trial court erred when it denied her leave to amend her complaint for a third time. For the
reasons that follow, we affirm.
¶2 BACKGROUND
¶3 The record below reveals the following undisputed facts and procedural history. On July
13, 2015, the plaintiff was a roller skating customer at the Dr. Martin Luther King Jr. Park and
Family Entertainment Center (the roller skating rink) in Chicago, which was co-owned,
managed, operated, and controlled by the defendants, United Skates and Chicago Skating. The
defendant, Torrence, was the assistant manager of the roller skating rink and an employee of
United Skates. On July 13, 2015, while roller skating, the plaintiff fell injuring her back.
¶4 On August 14, 2015, the plaintiff filed her original complaint against United Skates and
Torrence, alleging negligence, and violations of the Roller Skating Rink Safety Act (745 ILCS
72/1 et seq. (West 2014)). On October 15, 2015, she filed her first amended complaint, adding as
an additional defendant, Chicago Skating.
¶5 On February 16, 2016, the plaintiff filed the instant second amended complaint, alleging
only “negligence” against the three defendants. Therein, she alleged that on July 13, 2015, she
was a “business invitee” of the roller skating rink and that she fell as a proximate result of the
defendants’ breach of the following duties: (1) to reasonably inspect and monitor the skating
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surface to ensure that it was free from defects and foreign objects; (2) to have adequately trained
floor guards to direct and supervise skaters, watch for foreign objects that may have fallen on the
floor, and use reasonable care in their duties; (3) to maintain the skating surface in a reasonably
safe condition and clean and inspect the skating surface before each session; (4) to supervise and
operate the roller skating rink in a reasonably safe condition to ensure the floors were clean; (5)
to warn any participants of unforeseen dangers; and/or (6) to have adequate lighting necessary to
see any defects and foreign objects on the skating surface.
¶6 After the defendants filed their answer and affirmative defenses, alleging assumption of
risk and comparative negligence, the case proceeded with extensive discovery, during which,
inter alia, the following individuals were deposed: (1) the plaintiff; (2) the plaintiff’s grandson,
Elijah Goshay (Elijah); (3) the plaintiff’s granddaughter, Jada Goshay (Jada); (4) the plaintiff’s
husband, Charles Estes; (5) two of the plaintiff’s sisters, Juanita Cunningham and Patricia
Haslett (Haslett); (6) the defendant Torrence; (7) the general manager of the roller skating rink,
Tenesha Taylor; and (8) one of the roller skating rink floor guards, Kyle Barnett.
¶7 For purposes of brevity, we set forth only that deposition testimony relevant to the
disposition of this appeal.
¶8 The plaintiff testified that she has roller skated since she was five years old and that she is
an expert skater. The plaintiff averred that she was very familiar with the roller skating rink
because she skated there at least once a week for many years. On June 13, 2015, together with
two of her grandchildren, Elijah and Jada, the plaintiff attended her nephew’s kindergarten
graduation party at the roller skating rink. She brought and wore her own skates for the occasion.
Those skates had been purchased in 2013 and had no toe stops in the front because, as an expert
skater, the plaintiff could stop simply by sliding sideways.
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¶9 According to the plaintiff, when she arrived at the skating rink, she waited for the rink to
open. She saw no one on the rink floor and no one sweeping or cleaning it. When the next “all
skate” session was announced she was the first to enter the rink. There were two floor guards on
the floor. The plaintiff skated counterclockwise for about 10 minutes and completed at least one
turn before she “just all of a sudden fell” backwards seriously injuring her back. The plaintiff
stated that she did not run into anyone and was not shoved, pushed, or pulled from behind and
made no contact with any other skater before she fell.
¶ 10 The plaintiff averred that she fell because she rolled over a piece of hard candy. The
plaintiff, however, could not state how large the candy was, for how long that candy had been on
the rink floor before she tripped over it, where it came from, or how it got there. She
acknowledged that she never saw the candy before or after she fell but stated that she “felt
rolling over something.” The plaintiff admitted that she did not see any object that she could
have tripped over on the rink floor either before or after she fell, even though she had skated in
that same area when making her first circle around the rink. As the plaintiff averred, “the candy
had to be invisible.” When asked to explain how she knew that she fell over a piece of candy, the
plaintiff stated that after she had been taken to the hospital her sister told her that “this is what
they got off her skates.” The plaintiff acknowledged that at the time of her fall, no one told her
that she had tripped over a piece of candy, and she herself never looked at her skates to
determine whether there was anything stuck to them. The plaintiff also admitted that she never
told any of the rink employees that she rolled or fell over something while skating but averred
that she failed to do so because she was in too much pain. She also denied ever having told any
of the employees at the rink that she fell because a “boy cut her off” while skating.
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¶ 11 After falling, the plaintiff felt her back “break,” experience excruciating pain and was
unable to breathe. She lay on her stomach, calling for help and asking that her skates be taken
off. After a floor guard approached to help and take off her skates, the plaintiff was transported
to the hospital. The plaintiff’s mother retrieved the skates from the floor guard, put them in the
plaintiff’s bag, and returned them to the plaintiff’s house. The plaintiff did not see her skates
until at least three days later when she returned home from the hospital. She could not state
exactly when she inspected her skates but admitted that she did not inspect them immediately
upon her release home. Rather, sometime later, when she was moving things around her house,
she looked at the skates and noticed “red crumbled up” pieces of candy on the front wheels. The
plaintiff believed these came from hard red Jolly Rancher candy. She, however, did not take
photographs of the skates and had no personal knowledge as to how or when the candy pieces
got onto the wheels.
¶ 12 In his deposition, the plaintiff’s grandson, Elijah, testified that on July 13, 2015, he
attended the graduation party at the roller skating rink with his grandmother. Elijah was eating
pizza at one of the tables next to the roller skating rink floor, when he learned that the plaintiff
had fallen. He was facing away from the skating floor and did not see the plaintiff fall or
anything that may have caused her to fall. After he went onto to rink floor to help the plaintiff,
Elijah did not see any candy there. He also never heard anyone at the rink say anything about
candy causing the plaintiff’s fall. The first time he heard anything about candy was when he was
at the hospital where the plaintiff’s husband, Estes, told him that the plaintiff had fallen on
candy. Elijah admitted that he has no personal information or knowledge of the candy and does
not know what caused the plaintiff to fall.
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¶ 13 In her deposition, the plaintiff’s granddaughter, Jada, stated that, together with her
grandmother, on July 13, 2015, she attended the graduation party at the roller skating rink. She
was going to get a slushy and was looking for her brother, Elijah, when she learned that the
plaintiff had fallen. She did not see the plaintiff fall. She went onto the rink floor and saw the
plaintiff on the floor, and Elijah next to her trying to help. Jada did not see anything on the rink
surface that might have caused the plaintiff to fall and does not know what caused her to fall.
Jada vaguely recalled hearing that the plaintiff fell because she was “cut off by a boy while
skating.” However, she could not remember when or from whom she had heard this.
¶ 14 In his deposition, the plaintiff’s husband, Estes, testified that prior to the incident he had
skated many times at the roller skating rink with the plaintiff. He explained that the plaintiff’s
passion was roller skating and that she was an excellent skater who never fell. Estes
acknowledged that he did not attend the plaintiff’s nephew’s graduation party and was therefore
not present when the plaintiff fell. He learned of her fall from one of the plaintiff’s family
members who had telephoned to say that she had fallen on some candy or “something.” Estes
could not remember which family member had telephoned. After he learned of the accident,
Estes immediately went to the roller skating rink and then accompanied the plaintiff to the
hospital. He averred that the plaintiff was in excruciating pain and that at that time he was not
concerned with what had caused her to fall but rather with getting her immediate treatment. The
plaintiff later told Estes that she fell over something and that others had told her that it was a
piece of candy.
¶ 15 In her deposition, one of the plaintiff’s sisters, Cunningham, who hosted the graduation
party, testified that she was at the concession stand when she learned of the plaintiff’s fall. She
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did not see the fall and did not know what caused it. When Cunningham rushed onto the floor to
help the plaintiff, she did not see “any candy or anything on the floor.”
¶ 16 In her deposition, another one of the plaintiff’s sisters, Haslett, testified that she did not
attend the graduation party at the roller skating rink and therefore did not see the plaintiff fall.
She learned of the fall on that same afternoon, when a family member telephoned her to inform
her that the plaintiff was in the hospital. Haslett immediately went to the hospital to see her
sister. According to Haslett, at that time, the plaintiff told her that she fell because “some boy
grabbed her” and she “tripped.” Haslett was asked to watch several surveillance videos from the
roller skating rink and admitted that in those video clips she could not see anyone who grabbed
the plaintiff.
¶ 17 In his deposition, the defendant, Torrence, testified that on the day of the incident, he was
the assistant manager of the roller skating rink. He was employed by the defendant United Skates
but paid by the defendant Chicago Skating. Torrence was trained in the Roller Skating
Association standards and agreed that under those standards the skating surface must be clean
and free of debris at all times. He also agreed that floor guards are responsible, inter alia, for
monitoring the skating floor and making sure that the floor is free from debris both before and
during any skating session. Torrence stated, however, that a floor guard is responsible for
picking up only those items that he or she sees on the rink floor.
¶ 18 According to Torrence, on July 13, 2015, before the plaintiff fell, the roller skating rink
had been swept and checked to make sure it was clear of debris. At the time of the plaintiff’s fall,
Torrence was in the front office. After learning of the fall, he went onto the skating rink floor,
which had already been cleared of other skaters by the deejay. As he approached the scene, he
saw the plaintiff lying on her stomach, surrounded by family members, complaining of severe
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pain. One of the floor guards, Barnett, was assisting the plaintiff in removing her skates.
Torrence immediately inspected the area for any debris but found the floor to be clean, dry, and
devoid of any foreign objects. Torrence asked the plaintiff’s family members to help him fill out
an incident report by writing down the plaintiff’s name and contact information on the form. He
then spoke to the plaintiff to determine what had happened. The plaintiff told Torrence that a
young boy had cut her off. Torrence included this information in his incident report. He
acknowledged that the plaintiff never signed the incident report and that the report itself notes
that her signature is missing because she was “in too much pain to sign.”
¶ 19 Torrence acknowledged that he did not inspect the plaintiff’s skates but explained that
she was wearing her own skates, which were her own personal property. In addition, Torrence
stated that he had no reason to inspect the skates because the plaintiff never told him that she had
tripped over anything, let alone on a piece of candy. In addition, no employee told him anything
about seeing any candy on the floor either before or after the plaintiff fell, and no foreign objects
were removed from the floor on that day.
¶ 20 Torrence acknowledged that the roller skating rink sells candy but did not know if it sold
hard candy. Torrence also acknowledged that patrons are permitted to bring their own cakes and
party favor bags, which may or may not include hard candy. He testified, however, that the rink
has a strict policy forbidding any food and beverages on the skating floor. Torrence identified a
photograph of a large sign that was posted inside the roller skating rink building on the date of
the plaintiff’s fall, which informed customers that: “All food and beverages must be kept in the
concession seating area.” According to Torrence, both rink security and the floor guards were
responsible for enforcing this rule.
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¶ 21 In her deposition, Taylor averred that on the date of the plaintiff’s fall, she was the
general manager at the roller skating rink and had worked at the rink for 10 years. She was
employed by United Skates but her paychecks were issued by Chicago Skating. She supervised
the assistant manager, Torrence; the deejays, Bruce Shaw and Charles Robinson; and all of the
floor guards, including Barnett. Taylor explained that the deejays were responsible for rink floor
safety because they controlled the floor. In addition to playing music, the deejays acted as floor
guards and directly supervised the remaining floor guards inside the rink.
¶ 22 Taylor acknowledged that the defendants were responsible for maintaining a safe and
clean floor surface free from foreign objects. In this regard, she averred that the floor was swept
daily before and after every skating session and then inspected by the assistant manager after
each sweep and before each session. In addition, patrons were not allowed to bring items onto
the floor that could be easily dropped and were forbidden from chewing gum in the entire
facility. According to Taylor, if by any chance items were dropped onto the floor during a
skating session, the floor guards and the deejay were responsible for removing them as soon as
the items were observed.
¶ 23 On the date of the plaintiff’s fall, Taylor was not inside the roller skating rink building
and therefore did not witness the fall. Any knowledge and opinion that she could give regarding
the fall was based on her later review of the roller skating rink’s surveillance videos of the
incident. Taylor acknowledged that she personally compiled seven video clips that were
produced by the defendants during discovery and that those clips were obtained from somewhere
between five and seven rink cameras that were operational that day. She testified that the
cameras ran 24 hours a day but that she compiled only those videos that related to the plaintiff’s
fall. She also acknowledged that none of the video clips she compiled contain the footage of the
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moment immediately preceding the plaintiff’s fall, which could have shown the cause of that fall.
Taylor explained, however, that the far right camera across from the deejay booth, closest to the
plaintiff’s fall, was broken that day. She also averred that there may have been angles of the rink
floor that could not be captured by any of the rink floor cameras even if operational. Taylor, who
no longer worked for the roller skating rink, did not know for how long video surveillance
footage was kept and whether the footage of the entire day from all of the cameras was still
available.
¶ 24 Taylor testified that based on her review of the seven video clips, prior to the 3:30 p.m.
skating session, the floor was swept by Shaw at about 3:15 p.m. After that, Torrence would have
walked the floor to inspect it. In Taylor’s opinion, during the skating session, the floor was safe
because there were three floor guards including the deejay, Robinson, who were inspecting the
floor at all times.
¶ 25 When Taylor returned to the roller skating rink at around 5 p.m. the session had already
ended. She inspected the rink floor before the next session and saw no evidence of any candy on
the floor. From what she read in the incident report and the employee statements, neither the
plaintiff nor anyone else mentioned seeing candy on the floor or related the plaintiff’s fall to any
candy. In addition, Taylor did not observe any candy on the surveillance videos of the fall.
¶ 26 She acknowledged that in viewing those videos, she also could not see anyone bumping
into or grabbing the plaintiff before she fell. Taylor opined, however, that based on the video
footage, and the backwards angle of the plaintiff’s fall, the plaintiff could not have fallen over
candy. Taylor also affirmatively stated that the rink does not sell any hard candy, including Jolly
Ranchers.
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¶ 27 In his deposition, Barnett testified that he was one of the floor guards at the rink on the
day that the plaintiff fell. He acknowledged that, as a floor guard, he was trained to make sure
that the rink floor was clean at all times. While on the floor, he would routinely check for debris
and if he saw anything would immediately remove it.
¶ 28 Barnett testified that he did not see the plaintiff fall because his back was turned to her as
he was making sure that several smaller children were closer to the middle of the rink. When
Barnett turned around, he noticed “people surrounding someone who was lying down on the
floor” and immediately approached to assist. Barnett immediately approached the plaintiff,
unlaced her skates, and briefly inspected the floor around her. He asked the plaintiff what had
caused her fall, and she stated that “a kid had caused her to fall.” Barnett averred that the plaintiff
never told him that she rolled over a piece of candy. At Torrence’s instruction, Barnett wrote a
statement detailing his interaction with the plaintiff. He denied that Torrence told him what to
write in that statement and averred that he only wrote down what the plaintiff reported.
¶ 29 Barnett further testified that the rink floor was clean and in good repair at the time of the
plaintiff’s fall. It was swept before the beginning of the skating session. As a floor guard, during
the skating session Barnett was on constant lookout for candy and other objects on the floor but
saw nothing that could have caused the plaintiff to fall. Although many skaters skated in the area
of the plaintiff’s fall, no one fell over or complained about any foreign object, including candy,
there, and Barnett saw none.
¶ 30 Barnett further explained that the skating rink does not sell hard candy, including Jolly
Ranchers, and that it explicitly prohibits customers from taking hard candy and gum onto the
rink floor.
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¶ 31 After discovery, the defendants filed a motion for summary judgment arguing that there
was no evidence that they had been negligent in any way that caused the plaintiff to fall. In
particular, they argued (1) that no witness had testified to personal knowledge of hard candy
anywhere at the rink and (2) that there was no evidence that the defendants had actual or
constructive notice of any such hazard. They further maintained that there was no evidence that
their employees were to blame for placing any such hazard on the rink floor and emphasized that
the plaintiff presented no evidence as to how long any such hazard might have been there. In
addition, the defendants argued that there was no evidence to suggest that Torrence owed any
duty to the plaintiff in any individual capacity or that he had breached that duty.
¶ 32 The trial court sua sponte granted the motion for summary judgment before that motion
was fully briefed by all of the parties. Upon the plaintiff’s objection, the court vacated its order,
and gave the plaintiff time to file her response.
¶ 33 In her response to the motion for summary judgment, the plaintiff argued that the
defendants’ employees had not adequately watched the surface of the rink floor. She maintained
that another patron must have dropped a piece of hard candy onto the rink floor and that the
defendants had been negligent in failing to notice or remove it. The plaintiff also argued, for the
first time, that the defendants’ response to her discovery request for production had been
incomplete, in that they had not produced video footage for the entire day that she fell, including
video footage of the minutes preceding her fall, which could have conclusively established the
reason for that fall. She contended that this incomplete production called for an adverse
inference.
¶ 34 On March 2, 2018, the trial court granted the defendants’ motion for summary judgment.
In doing so, the trial court found that there was no evidence that the defendants had actual or
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constructive notice of “any type of defect on the floor, whether it be a piece of candy or anything
else.” As the court stated:
“The plaintiff hasn’t provided any other information to indicate that there was something
there and that someone had complained about it, for example to the proprietor prior to
[the plaintiff’s] fall, which would be necessary to establish some sort of actual notice on
their part.”
¶ 35 The court further held that even if there had been a piece of candy that caused the
plaintiff to fall, there was no evidence that the defendants had constructive notice of it.
Emphasizing the plaintiff’s own description of the candy as “invisible,” the court noted that there
was no evidence of how long it had been on the rink surface and held that without evidence that
it had been there long enough for the defendants to do something about it, the plaintiff could not
prove constructive notice.
¶ 36 The plaintiff filed motions to reconsider and for leave to file a third amended complaint,
both of which were denied. The plaintiff now appeals.
¶ 37 ANALYSIS
¶ 38 On appeal, the plaintiff first contends that the trial court erred when it granted summary
judgment in favor of the defendants. Summary judgment is proper where “the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” 735 ILCS 5/2-1005(c) (West 2016); see also Epple v. LQ Management, LLC,
2019 IL App (1st) 180853, ¶ 14; Carlson v. Chicago Transit Authority, 2014 IL App (1st)
122463, ¶ 21; Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556
(2007). In determining whether the moving party is entitled to summary judgment, the court
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must construe the pleadings and evidentiary material in the record in the light most favorable to
the nonmoving party and strictly against the moving party. Epple, 2019 IL App (1st) 180853,
¶ 14; see also Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002). A genuine issue of
material fact exists where the facts are in dispute or where reasonable minds could draw different
inferences from the undisputed facts. Morrissey v. Arlington Park Racecourse, LLC, 404 Ill.
App. 3d 711, 724 (2010); see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107,
114 (1995). However, “[m]ere speculation, conjecture, or guess is insufficient to withstand
summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The
party moving for summary judgment bears the initial burden of proof and may meet it either “by
affirmatively showing that some element of the case must be resolved in [her] favor or by
establishing that there is an absence of evidence to support the nonmoving party’s case.”
(Internal quotation marks omitted.) Epple, 2019 IL App (1st) 180853, ¶ 15. Our review of the
trial court’s entry of summary judgment is de novo, and we may affirm on any basis appearing in
the record, whether or not the trial court relied on that basis or its reasoning was correct. See
Epple, 2019 IL App (1st) 180853, ¶¶ 14-15; see also Ragan v. Columbia Mutual Insurance Co.,
183 Ill. 2d 342, 349 (1998); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d
90, 102 (1992).
¶ 39 Where, as here, a plaintiff seeks recovery based on a defendant’s alleged negligence, the
plaintiff must establish (1) the existence of a duty owed by the defendant, (2) a breach of that
duty, and (3) an injury proximately caused by that breach. Newsom-Bogan v. Wendy’s Old
Fashioned Hamburgers of New York, Inc., 2011 IL App (1st) 092860, ¶ 14. The defendants here
do not dispute that, as business owners, they owe a duty to its patrons, as business invitees, “ ‘to
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exercise ordinary care in maintaining their property in a reasonably safe condition.’ ” See
Milevski v. Ingalls Memorial Hospital, 2018 IL App (1st) 172898, ¶ 29. 1
¶ 40 Illinois follows section 343 of the Restatement (Second) of Torts (Restatement). Genaust
v. Illinois Power Co., 62 Ill. 2d 456, 486 (1976). According to the Restatement, a possessor of
land has a duty to remand or warn of a dangerous condition on its property if (1) the condition
presents an unreasonable risk of harm to people on the property, (2) the defendant knew or in the
exercise of ordinary care should have known both of the condition and the risk, and (3) the
defendant could have reasonably expected that people on the property would not realize the
danger or would fail to protect themselves against such a danger. Restatement (Second) of Torts
§ 343 (1965).
¶ 41 Accordingly, our courts have repeatedly held that a business owner breaches its duty to
an invitee who slips on a foreign object in three circumstances: (1) where the object was placed
there by the negligence of the proprietor; (2) his servants knew of its presence; or (3) the object
was there a sufficient length of time so that, in the exercise of ordinary care, its presence should
have been discovered (i.e., the proprietor had constructive notice of the object). Milevski, 2018
IL App (1st) 172898, ¶ 29 (citing Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060, 1063
(2001)); see also Hayes v. Bailey, 80 Ill. App. 3d 1027, 1030 (1980); Olinger v. Great Atlantic &
Pacific Tea Co., 21 Ill. 2d 469, 474 (1961). In addition, “[l]iability cannot be based on guess,
speculation, or conjecture as to the cause of the injury.” Newsom-Bogan, 2011 IL App (1st)
092860, ¶ 16.
1 We note that in her brief the plaintiff argues that, for various reasons, the duty of care imposed on roller skating rinks should be heightened and, among other things, include failure to anticipate negligent acts and dangerous activities of third parties. While we disagree with this proposition, we need not delve into it any further since for the reasons that shall be articulated in detail, regardless of the level of duty owed, we find that summary judgment was proper because the plaintiff here failed to establish both breach of any such duty and proximate causation. - 15 - No. 1-18-1337
¶ 42 In the present case, after a review of the record, we conclude that the trial court properly
granted summary judgment in favor of the defendants because the plaintiff failed to demonstrate
that the defendants breached their duty to her and that any such breach proximately caused her
injury.
¶ 43 In this respect, we first note that despite her repeated claims that she fell over a piece of
hard candy, the plaintiff failed to present any evidence whatsoever of the existence or presence
of any such hazard on the rink floor. It is well settled that at a bare minimum, a plaintiff who
claims to have been injured by a hazard on the defendant’s premises must prove the existence of
the hazard itself. See Barker v. Eagle Food Centers, Inc., 261 Ill. App. 3d 1068, 1072 (1994). In
the present case, not one witness testified to seeing hard candy or any other kind of hazard on the
rink floor either before or after the plaintiff fell. Nor did any witness testify to seeing hard candy
anywhere else in the facility on the day of the incident. While the plaintiff contends that, once at
the hospital, one of her sisters told her that she fell over a piece of hard candy, the record reveals
that neither of her sisters testified to that effect. Even if they had, however, such testimony
regarding what they would have told the plaintiff unmistakably would have constituted
inadmissible hearsay, which may not be offered in opposition to summary judgment. See
Kellman v. Twin Orchard Country Club, 202 Ill. App. 3d 968, 973-74 (1990) (holding that the
plaintiff’s affidavit regarding the decedent’s statements about slipping on the shower floor and
the slippery condition of that floor, which had caused his injury, were inadmissible hearsay
where the plaintiff had no personal knowledge of the cause of the decedent’s fall, requiring the
entry of summary judgment in favor of the defendants); see also Johnson v. Owens-Corning
Fiberglass Corp., 284 Ill. App. 3d 669, 679 (1996) (holding that the plaintiff’s interrogatory
answer was inadmissible hearsay that could not defeat a motion for summary judgment).
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¶ 44 While it is true, as the plaintiff points out, that the presence of a hazardous condition may
be proven by circumstantial evidence (see Barker, 261 Ill. App. 3d at 1072), here, the sole
circumstantial evidence offered by the plaintiff is her assertion that at some point after she left
the hospital, at least three days after her injury, she inspected her roller skates and discovered
that the front wheels contained “red crumbled up” pieces of Jolly Rancher candy. Even taking, as
we must, this evidence in the light most favorable to the plaintiff, we are not persuaded that a
jury could reasonably infer from it that there was candy on the roller skating rink floor at the
time and place of the plaintiff’s fall or, for that matter, that her fall resulted from any contact
with that candy. Because in her own deposition, the plaintiff admitted that she wore her own
roller skates to the rink and that she did not inspect those skates for at least three days after her
fall, we have no way of knowing when or how the crumbled pieces of candy got onto her skates
and whether or not they had anything to do with her fall. Accordingly, in this instance, “ ‘[t]he
mere possibility of a causal connection’ ” offered by the plaintiff’s circumstantial evidence is
“ ‘insufficient to raise the requisite inference of fact.’ ” Barker, 261 Ill. App. 3d at 1072 (quoting
Housh v. Swanson, 203 Ill. App. 3d 377, 381 (1990)).
¶ 45 In coming to this conclusion, we find the decision in Barker, 261 Ill. App. 3d 1068,
instructive. In that case, the plaintiff claimed that water on the floor of the defendant’s business
had caused her to slip and fall. Barker, 261 Ill. App. 3d at 1070. While she had not seen any
water on the floor and could not produce any evidence that she slipped on the floor, she claimed
that because her fall had occurred in the defendant’s produce section and the produce department
regularly sprayed their fruits and vegetables, she must have slipped and fallen over water.
Barker, 261 Ill. App. 3d at 1072. The court disagreed, holding that this was insufficient to create
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a question of fact as to whether the hazardous condition existed and whether it caused the
plaintiff to fall. Barker, 261 Ill. App. 3d at 1072. As the court explained:
“Even if plaintiff had proved that a spraying system was used by defendant and
sometimes caused wetness on the floor, we are not persuaded that a jury could reasonably
infer that the floor was wet at the time and place of plaintiff’s fall or that the fall in fact
resulted from plaintiff’s contact with that wetness.” Barker, 261 Ill. App. 3d at 1072.
¶ 46 In coming to this decision, the court in Barker applied the principles set forth in
Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813 (1981). See Barker, 261 Ill. App. 3d at 1071
(relying on Kimbrough). In that case, the plaintiff claimed that she slipped on grease spots on an
exit ramp outside of the defendant’s store. Kimbrough, 92 Ill. App. 3d at 816. While she did
claim to have seen spots of the grease on the ramp, she admitted that she had no idea why she
fell. Kimbrough, 92 Ill. App. 3d at 816. Under these facts, the court found that she could not
prove that any hazardous condition on the defendant’s premises had proximately caused her
injury. Kimbrough, 92 Ill. App. 3d at 818.
¶ 47 Applying the principles articulated in Barker and Kimbrough, it is apparent that the
plaintiff’s testimony in this case even more egregiously fails to establish either the presence of a
dangerous condition on the rink floor, or that any such hazard proximately caused her injury. As
already detailed above, not a single witness testified to personal knowledge of any hard candy
either in the facility or anywhere on the rink floor on the date of the plaintiff’s injury. No one
saw the plaintiff fall or roll over candy, and no one saw or complained of any candy in the
vicinity of her fall, or anywhere else on the rink floor, either before or after her accident. Under
these circumstances, we find that the plaintiff failed to establish the existence of a hazardous
condition on the premises, or any factual issue as to such a condition, so as to permit the grant of
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summary judgment in favor of the defendants. See Barker, 261 Ill. App. 3d at 1072; Kimbrough,
92 Ill. App. 3d at 818; see also Palumbo v. Frank’s Nursery & Crafts, Inc., 182 Ill. App. 3d 283,
288 (1989) (holding that the plaintiff, a customer, could not recover damages from the defendant
on the basis of evidence that she slipped and fell while walking down an aisle between shelves of
flowers, and that later that day, she noticed that her coat was wet, in view of testimony of
eyewitnesses that they did not see any liquid or debris on the floor either before or after the
incident and evidence that the floor was subsequently examined and contained no liquid or
debris).
¶ 48 Regardless, even if we were to find that there remains a genuine issue of fact as to
whether there was any hard candy on the roller skating rink floor at the time of the plaintiff’s
fall, for the reasons that follow, we would nonetheless find that summary judgment for the
defendants was proper because the plaintiff failed to establish that the defendants had notice of
the hazard.
¶ 49 In this respect, at the outset, we disagree with the plaintiff’s position that because her
claim is for negligence, rather than premises liability, she need not prove that the defendants had
notice of the hazardous condition. Our courts have repeatedly held that a plaintiff need not prove
notice only when she can show that the hazardous condition was created or placed on the
premises by the defendants. Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 715 (1998);
Caburnay v. Norwegian American Hospital, 2011 IL App (1st) 101740, ¶ 45; see also Illinois
Pattern Jury Instructions, Civil, No. 120.00 (2011) (“[c]ase law departs from the ‘notice’
requirement of Restatement § 343 when the plaintiff shows, through direct or circumstantial
evidence, that the dangerous condition arose from the defendant’s acts or as part of his
business”). The plaintiff can establish that the hazardous condition was created by the defendants
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by showing that such a condition “is related to the defendant’s business” and by offering “some
slight evidence that the defendant or his servants, rather than a customer, placed the [hazardous
object/condition] on the floor.” Wind v. Hy-Vee Food Stores, Inc., 272 Ill. App. 3d 149, 155
(1995).
¶ 50 In the present case, there is no evidence whatsoever that the hard candy is related to the
defendants’ business or that either the defendants or one of its employees placed that candy on
the roller rink floor. The plaintiff provided no testimony that hard candy came from either the
defendants’ facility or any of the roller rink’s employees. In fact, at least two roller rink
employees testified that the roller rink did not sell hard candy. In addition, all of the rink
employees agreed that food (including candy and chewing gum) were strictly prohibited on the
rink floor and that patrons were explicitly admonished of this rule with signs posted inside of the
building.
¶ 51 The plaintiff herself concedes as much, instead arguing that the defendants were
responsible for candy brought into the building by other patrons. In this respect, the plaintiff
points out that Torres admitted that for birthday parties and other special occasions, the roller
skating rink permitted patrons to bring party favors into the building, which could contain hard
candy, and that some such piece of hard candy must have found itself onto the rink floor on the
date of the plaintiff’s injury. Contrary to the plaintiff’s position, however, no evidence
whatsoever was presented that any hard candy was brought into the building on the day of the
plaintiff’s fall or, for that matter, that once inside it was the defendants or their servants, rather
than the patrons or the plaintiff herself, that spilled the hard candy onto the rink floor. See Wind,
272 Ill. App. 3d at 155 (to avoid the notice requirement, the plaintiff must present “some slight
evidence that the defendant or his servants, rather than a customer, placed the [hazardous
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object/condition] on the floor”). As such, there can be no dispute of material fact as to whether
the hazard was created by the defendants.
¶ 52 Without any such evidence, the defendants can only be held liable if they knew of the
hazard’s presence, i.e., had either actual or constructive notice of the hard candy. See Tomczak v.
Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038 (2000) (stating that if “the landowner did not
create the condition, the plaintiff must be required to establish that the landowner knew or should
have known of the defect”). In this case, there is no evidence of actual notice. Actual notice will
be found where there is evidence that the defendant or its employee had been notified of the
dangerous condition prior to the plaintiff’s slip and fall. See e.g., Pavlik, 323 Ill. App. 3d at 1064
(holding that the defendant had actual notice where the plaintiff was told by an employee that
spilled the conditioner that the conditioner should have been cleaned up, and where her father
was told by another employee that a clerk was supposed to clean it up but did not). Here, there is
no testimony in the record suggesting that any employee was aware of candy, or any other
foreign object, on the rink floor prior to the plaintiff’s fall. What is more, the plaintiff herself
testified that the candy must have been “invisible” because she did not see it either before or
after her fall.
¶ 53 There is similarly no evidence of constructive notice. “Constructive notice can only be
shown where the dangerous condition is shown to exist for a sufficient length of time to impute
knowledge of its existence to the defendants.” Ishoo v. General Growth Properties, Inc., 2012 IL
App (1st) 110919, ¶ 28. The evidence presented in this case did not show that the alleged hard
candy was present for any particular length of time. No employee of the defendant testified to
being aware of the hard candy prior to the plaintiff’s fall. And neither did the plaintiff nor any of
her family members. In fact, as already articulated above, no one testified to seeing hard candy
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anywhere in the facility on the date of the plaintiff’s accident, let alone on the rink floor surface.
Instead, the rink employees unequivocally testified that hard candy was strictly prohibited on that
floor and that patrons were advised of this prohibition with signs posted inside the building.
Under this record, the plaintiff cannot even establish that the alleged hazard (i.e., the hard candy)
was on the rink floor, let alone that it remained there for a sufficient amount of time so as to
impute knowledge of its existence to the defendants. See Ishoo, 2012 IL App (1st) 110919, ¶ 28;
see also Hayes, 80 Ill. App. 3d at 1030 (“[I]t is incumbent upon the plaintiff to establish that the
foreign substance was on the floor long enough to constitute constructive notice to the
proprietor.”).
¶ 54 Since no genuine issue of material fact exists regarding either the defendants’ creation or
knowledge of any hazardous condition, we find no error in the trial court’s grant of summary
judgment in favor of the defendants.
¶ 55 The plaintiff nonetheless asserts that there remains an issue of fact as to constructive
notice because the seven videos produced by the defendants establish that the floor guards failed
to monitor the rink floor in contravention of both industry standards and their own policies. In
this respect, the plaintiff points out that instead of the mandatory three floor guards monitoring
the floor for foreign objects at all times, the videos show Barnett in the middle of the skating
floor and another floor guard doing tricks, not paying attention to the floor, and then moving
outside to help a young child onto the floor. Contrary to the plaintiff’s position, however, any
such evidence regarding alleged violations of standards of practice does not create an issue of
material fact as to notice, where, as here, none of the seven videos show any candy or other
foreign object on the rink floor and are instead consistent with the testimony of all of the deposed
witnesses, including the plaintiff, that they did not observe any such hazard.
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¶ 56 In this vein, we further find unavailing the plaintiff’s assertion that had the defendants
produced video surveillance for the entire day of the plaintiff’s fall, we would have had
conclusive evidence of the presence of hard candy on the roller rink surface and her slipping on
it. In this respect, the plaintiff argues that in ruling on the defendants’ motion for summary
judgment, the trial court should have made an adverse inference on the basis of the defendants’
alleged failure to produce this video surveillance. For the reasons that follow, we disagree
¶ 57 “An unfavorable evidentiary presumption arises if a party, without reasonable excuse,
fails to produce evidence which is under his [or her] control.” Berlinger’s, Inc. v. Beef’s Finest,
Inc., 57 Ill. App. 3d 319, 325 (1978). Whether a party’s failure to produce evidence under such
circumstances may be used as an adverse inference against that party is an evidentiary matter,
within the discretion of the trial court. Simmons v. University of Chicago Hospitals & Clinics,
162 Ill. 2d 1, 7 (1994) (citing Schaffner v. Chicago & North Western Transportation Co., 129 Ill.
2d 1, 22 (1989)). “An abuse of discretion will be found only where no reasonable person would
take the view adopted by the trial court.” Keefe-Shea Joint Venture v. City of Evanston, 364 Ill.
App. 3d 48, 61 (2005).
¶ 58 In the present case, contrary to the plaintiff’s position, there is no evidence anywhere in
the record that the defendants refused to supply the plaintiff with any videos in their possession.
The record reveals that to the plaintiff’s request for “all surveillance video, photographs, [and]
other electronic media for the day of the [s]ubject [o]ccurrence,” the defendants produced seven
videos, depicting the plaintiff roller skating before her fall, her actual fall (but not the footage
immediately preceding it), and the rink floor after the fall and up until the plaintiff was
transported out of the rink. In her deposition, the rink’s general manager testified that she
personally compiled all seven videos and that these were all of the videos that she could find
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relating to the plaintiff’s fall. She explained that, on the date of the incident, the far right camera
across from the deejay booth and closest to the plaintiff’s fall was broken. In addition, she stated
that there may have been angles of the rink floor that could not be captured by any of the rink
floor cameras, even when fully functional. The plaintiff made no effort to determine if any
additional footage existed, much less to move to compel any further production of such footage.
Nor was any such motion ever granted. Instead, the plaintiff waited until discovery closed and
the defendants moved for summary judgment to argue that the response to her production request
was inadequate and therefore required an adverse inference in her favor. Under such a record, we
cannot agree with the plaintiff that the defendants failed to produce more video footage, let alone
that they did so without a reasonable excuse. See Berlinger’s, 57 Ill. App. 3d at 325. As such, we
find no abuse of discretion in the trial court’s decision not to apply an adverse inference against
the defendants. See Keefe-Shea Joint Venture, 364 Ill. App. 3d at 61.
¶ 59 In her final ditch effort to avoid the dismissal of her cause of action, the plaintiff argues
that the trial court abused its discretion in refusing her request to amend her complaint for a
fourth time. In this regard, the plaintiff makes a one sentence argument, noting that her proposed
third amended complaint was timely, would not have prejudiced or surprised the defendants
because it concerned the same transaction and occurrence as her prior second amended
complaint, and further provided “more specificity and detail of [the defendants’] negligence.”
We disagree.
¶ 60 Regardless of the paucity of this argument, after a review of the proposed amendment, for
the reasons already articulated above, namely the plaintiff’s inability to establish the existence of
any hazard that proximately caused her to fall or any knowledge of the hazard by the defendants,
we find no abuse of discretion in the trial court’s decision not to permit further amendment of the
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complaint. See Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 331 (2008)
(“ ‘Whether to allow an amendment of a complaint is a matter within the sound discretion of the
trial court, and, absent an abuse of that discretion, the court’s determination will not be
overturned on review.’ ”).
¶ 61 CONCLUSION
¶ 62 For all of the aforementioned reasons, we affirm the judgment of the circuit court.
¶ 63 Affirmed.
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No. 1-18-1337
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-L-8316; the Hon. John H. Erlich, Judge, presiding.
Attorneys John Xydakis, of Chicago, for appellant. for Appellant:
Attorneys Robert Marc Chemers, David M. Bennett, and Scott L. Howie, for of Pretzel & Stouffer, Chtrd., of Chicago, for appellees. Appellee:
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