Newsom-Bogan v. WENDY'S, INC.

2011 IL App (1st) 092860, 953 N.E.2d 427, 352 Ill. Dec. 188
CourtAppellate Court of Illinois
DecidedJune 24, 2011
Docket1-09-2860
StatusPublished
Cited by15 cases

This text of 2011 IL App (1st) 092860 (Newsom-Bogan v. WENDY'S, INC.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newsom-Bogan v. WENDY'S, INC., 2011 IL App (1st) 092860, 953 N.E.2d 427, 352 Ill. Dec. 188 (Ill. Ct. App. 2011).

Opinion

953 N.E.2d 427 (2011)
352 Ill. Dec. 188

Mattie NEWSOM-BOGAN, Plaintiff-Appellant,
v.
WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., Defendant-Appellee.

No. 1-09-2860.

Appellate Court of Illinois, First District, Sixth Division.

June 24, 2011.

*428 Deutschman & Associates, P.C., Chicago (Jeffrey S. Deutschman), for Appellant.

Hinshaw & Culbertson, LLP, Chicago (Joshua G. Vincent, Kimberly A. Jansen, Robert J. Gibbons, of counsel), for Appellee.

*429 OPINION

Justice R. GORDON delivered the judgment of the court, with opinion.

¶ 1 This case involves a slip and fall at a restaurant that resulted in an operated knee and the grant of a summary judgment in favor of the restaurant.

¶ 2 Plaintiff Mattie Newsom-Bogan appeals from the granting of summary judgment to defendant, Wendy's Old Fashioned Hamburgers of New York, Inc., in her negligence action to recover monetary damages from her fall. On appeal, plaintiff contends that genuine issues of material fact exist regarding the cause of her fall and constructive notice to defendant. We reverse and remand.

¶ 3 BACKGROUND

¶ 4 On August 29, 2007, plaintiff filed a complaint seeking monetary damages for injuries incurred as a result of slipping and falling on the tile floor near a trash receptacle at defendant's restaurant at 3951 West 183rd Street in Hazel Crest, Illinois. Plaintiff alleges that defendant owed her a duty to use ordinary and reasonable care with respect to the restaurant premises. Defendant allegedly breached that duty by allowing the floor near the trash receptacle to become and remain in a dangerous condition when it knew or should have known of the dangerous condition and by failing to warn plaintiff of the dangerous condition.

¶ 5 In her discovery deposition, plaintiff, age 54, testified that at approximately 4:30 p.m. on November 28, 2006, she entered Wendy's restaurant. She observed only three or four other tables of customers. The weather conditions were dry and cold, and there had been no rain or snow that day. Plaintiff was wearing slip-on flat shoes with rubber soles. After she purchased her food, plaintiff sat down to eat and was in a position to observe the area around the trash receptacle where she eventually fell. After she finished her food, she stepped from the carpeting to the tile floor and her right foot slipped and caused her to fall sideways, landing on her left hip and right knee. The contents of her tray "went flying" and landed on the floor. Plaintiff attempted to get up from the floor, but was unable to do so because her hands were greasy and she was unable to brace herself. She described the grease as being "[t]he color of the floor" and did not recall any specific smell of the grease. When asked how much grease was on the floor, she answered: "What I felt was with my hands. That's all I could feel. My hands were slippery. I tried to push up, and my hands were greasy after touching the floor." Plaintiff did not check to see if the greasy substance on the floor was on her clothes. When asked about the cause of her fall, plaintiff testified:

"Q. At the time right after your fall, were you able to determine what caused your fall?
A. All I could recall is that I tried to push myself, tried to brace myself up, and my hands were greasy. I could not brace myself to get up off the floor.
Q. So was it your conclusion that you had slipped on the grease?
A. That's what I would assume it was. I mean, I could not—I couldn't balance myself to get up off the floor."

¶ 6 Eventually, two customers helped plaintiff into a chair and a male Wendy's employee came out to clean "the shake and tray and stuff" from where plaintiff fell. Tina Archer, an assistant manager at Wendy's, spoke with plaintiff. Plaintiff told Archer that she had fallen and showed Archer where the fall occurred. Plaintiff required medical assistance after experiencing pain in her leg and back, and Archer called for an ambulance. Plaintiff was *430 taken by ambulance to a hospital and eventually required surgery on her injured right knee.

¶ 7 Archer testified in her discovery deposition that on November 28, 2006, sometime after 4 p.m., she was notified by an employee that a customer had fallen. When plaintiff showed Archer where she fell, Archer did not observe anything on the floor. Archer filled out an incident report. Archer testified that plaintiff told her that she did not know how or why she fell, she "just fell." Archer testified that Wendy's training manual provides that every 15 minutes the most senior manager working must walk-through the restaurant to make sure everything is up to par. If the manager is unable to complete a walk-through, the task is to be delegated to another employee. If a customer notifies an employee of a food or drink spill, the area is to be mopped up immediately. If an employee notices food or any debris on the floor, it is to be picked up immediately.

¶ 8 On May 22, 2009, defendant filed a motion for summary judgment attaching portions of plaintiff's discovery deposition, arguing that it owed no duty to plaintiff to warn or make the area safe because it had neither actual nor constructive knowledge of any substance on the floor, and further argued that plaintiff had an obligation to show that the greasy substance caused her to fall and failed to satisfy that obligation when she stated that she did not know what caused her to fall.

¶ 9 In her response to defendant's motion for summary judgment, plaintiff attached an affidavit in which she stated that she was sitting at the table, eating her food for at least 20 minutes. During those 20 minutes, plaintiff could observe the area where she fell and did not observe any employees do a walk-through or a customer spill anything. A portion of Archer's discovery deposition was also attached.

¶ 10 The trial court granted defendant's motion for summary judgment "for the reasons set forth in open court." However, no transcript of the hearing or oral ruling was included in the record on appeal.

¶ 11 On appeal, plaintiff claims that the trial court erred in granting defendant's motion because she presented evidence of genuine issues of material fact as to whether there was a greasy substance on the floor that caused her to fall and evidence that defendant had constructive notice of the substance on the floor.

¶ 12 ANALYSIS

¶ 13 Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Margulis, 197 Ill.2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314 (2001). The purpose of summary judgment is not to try an issue of fact, but to determine if one exists. Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 31, 178 Ill.Dec.763, 605 N.E.2d 557 (1992). In considering a motion for summary judgment, the court must construe all the "`pleadings, depositions, admissions, exhibits, and affidavits on file in the case'" in favor of the nonmoving party. Richardson v. Bond Drug Co. of Illinois, 387 Ill.App.3d 881, 884, 327 Ill.Dec.240, 901 N.E.2d 973 (2009) (quoting Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec.305, 489 N.E.2d 867 (1986)).

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Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York, Inc.
2011 IL App (1st) 92860 (Appellate Court of Illinois, 2011)

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Bluebook (online)
2011 IL App (1st) 092860, 953 N.E.2d 427, 352 Ill. Dec. 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newsom-bogan-v-wendys-inc-illappct-2011.