Nina Ponomar v. State of Illinois

OPINION

BURNS, J.

This cause coming before the Court on the Respondent’s Motion for Summary Judgment and the Court being fully advised in the premises, the Court finds as follows:

This case involves a slip-and-fall claim that occurred on May 15, 2009, at the Secretary of State’s office in Schaumburg, Illinois. The Claimant alleges that she slipped on an unnatural accumulation of water inside the facility due to the negligence of the Respondent, and that she suffered severe injuries to her wrist, ankle, knee and leg as a result. The issue before us here is whether any genuine issues of fact exist as to whether the accumulation of water at issue was unnatural, and as to whether the condition was open and obvious so as to absolve the Respondent of liability.

We find that the Claimant has presented sufficient evidence to permit a trier of fact to determine these issues and, therefore, that summary judgment is not warranted.

The Claimant’s Complaint alleges in part:

5. At the aforesaid time and place, the Defendant, State of Illinois, individually and/or by and through its agents, servants and/or employees maintained the aforementioned premises including the sidewalks, parking lots, entrances and exits to said premises in such a manner where the areas became and/or caused a slip hazard when they accumulated water.

6. On said date, place and time, Ponomar entered the facility and exercising due care proceeded to the line of patrons waiting to be served [sic] the Illinois Secretary of State’s personnel.

7. On said date, place and time, the pool of water was not visible to Ponomar as she entered the facility.

The Respondent took the discovery deposition of the Claimant on April 23, 2013.

On May 15, 2013, Respondent moved for summary judgment in this matter.

[*164] Respondent states that the Claimant testified that as she entered the building, she walked four to five feet beyond the doors to the help desk at the front of the office. (Motion for Summary Judgment, para. 5). Respondent further states that Claimant testified that after checking in at that desk, she headed toward the interior room by taking “three or four steps” to the left of the desk, where she fell in a liquid puddle that was on the floor. Id. The Claimant alleges she slipped in a hallway. (Complaint, para. 12).

Respondent argues that Claimant testified that what she slipped on “might have been rainwater.” (Motion for Summary Judgment, para. 7 citing Discovery Deposition of Respondent, 13:21-23). The transcript recorded the line of questioning by counsel for the Respondent as follows:

Q. Okay.

And if you know, I am not asking you to guess, but if you know, do you know what kind of liquid it was?

A. I think it’s water.

Q. Okay. Do you think it’s rainwater?

A. Maybe. I don’t know.

In Support of its Motion for Summary Judgment, Respondent argues that the water on the floor was most likely due to a naturally occurring event, namely the rainfall that was occurring at the time of her fall. (Motion for Summary Judgment, para. 9).

This Court must construe the evidence in a light most favorable to the non-moving party at the summary judgment stage, and a trial court may only grant summary judgment if the record shows that the movant’s right to relief is clear and free from doubt. Reed, 394 Ill.App.3d at 42 (internal citations omitted). Where no genuine issue of material fact exists as to one or more of the major issues in the case and the movant is entitled to judgment as a matter of law, summary judgment is appropriate. 735 ILCS 5/2-1005.

In support of its Motion for Summary Judgment, Respondent relies primarily on two cases: Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (1st Dist. 2009) and Lohan v. Walgreens Co., 140 Ill.App.3d 171 (1st Dist. 1986).

As explained by Reed, in cases involving injuries resulting from accumulations of ice, snow, or water, “[i]n order to withstand a motion for summary judgment, a plaintiff must come forward with sufficient evidentiary materials to permit the trier of fact to find that defendant was responsible for an unnatural accumulation of water, ice, or snow that caused plaintiff’s injuries.” Id. quoting Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill.App.3d 707, 710 (1999).

In Reed, the plaintiff admitted that it was raining on the day of the incident and that the water was tracked in from the outside. Reed, 394 Ill.App.3d at 43.

[*165] In Lohan, the court found that even assuming that plaintiff slipped because the floor was wet from tracked-in moisture, defendants as a matter of law were not liable for the natural accumulation. Lohan, 140 Ill.App.3d at 173.

As explained in Reed, property owners may be liable for injuries resulting from an accumulation of ice, water or snow if a plaintiff establishes that the means of ingress or egress was unsafe for any reason other than a natural accumulation of ice, water, or snow. Id. at 43. This burden is satisfied if he establishes that a defendant failed to meet his duty to properly illuminate the premises or to repair or give adequate warning of other known, dangerous conditions. Id.

Here, the Claimant has filed a Verified Complaint that alleges that the Respondent maintained the premises in a manner where the areas became and/or caused a slip hazard when they accumulated water. (Complaint, para. 5). The Claimant further alleges that there were no signs indicating that caution should be exercised due to wet floor. (Complaint, para. 9).

In her deposition, attached to Respondent’s Motion for Summary Judgment, Claimant stated that, on a rainy day, she entered Respondent’s facility, approached a Help Desk located several feet inside the facility, and then proceeded further into the facility down a hallway. (Motion for Summary Judgment, Ex. B, 11:16 - 12:12). When asked to describe the distance between the location where she fell and the front doors of the facility, Claimant stated that it was approximately thirty (30) feet. When asked to describe the size of the accumulation of water, Claimant described an area approximately four (4) feet by three (3) feet. (Id. at 53:12 - 53:17).

In its instant motion, Respondent did not dispute Claimant’s account with regard to the distances involved in the incident. Specifically, in its Statement of Undisputed Facts, Respondent recites, “As Claimant entered the building, she walked four to five feet beyond the doors to the help desk at the front of the Office. After checking in at the desk, she headed toward the interior room by taking ‘three or four steps’ to the left of the desk, where she fell in a puddle of liquid that was on the floor.” (Motion for Summary Judgment at ¶ 5 (internal citations omitted)). Most importantly, there is no indication, other than Respondent’s argument, that the water was rainwater and was therefore a natural accumulation.

These facts, as alleged, are in genuine dispute and are inherently material to the disposition of the case. The case law discussed above makes clear that a court, on summary judgment, may look to the location of the accumulation as tending to show whether the accumulation was natural. In Reed, it was plainly clear that the water seeping from a carpet laid at the threshold of the entryway was the result of natural weather conditions. Likewise, in Lohan, a wet surface in a common entrance vestibule was found to be naturally occurring.

Here, however, the facts are distinguishable. Claimant does not allege, as the plaintiffs in Reed and Lohan did, that she slipped and fell in or near the entryway. Claimant alleges that she fell a full thirty (30) feet inside the facility. Respondent provides nothing to counter Claimant’s factual assertion on this point. Respondent has provided the Court no diagrams or photographs of the facility to undermine Claimant’s representations nor has Respondent provided evidence, testimonial or otherwise, to demonstrate to the Court that the liquid was the result of the rain, as [*166] opposed to some other cause such as a water leak or spilt beverage. The Court cannot, given the alleged distance between the entrance and the location of Claimant’s fall, assume as a matter of law that the liquid was rainwater. This is particularly true when Claimant disputes that the water was the result of rain.

The Court’s finding comports with the standard that where there is doubt as to the movant’s right to relief, the evidence is to be construed in a light most favorable to the nonmovant. Under that standard and without evidence to support Respondent’s conclusory assertion, the Court cannot, as a matter of law, conclude that Claimant’s injury was the result of natural accumulation.

As for the Respondent’s argument that summary judgment should be granted because the condition was open and obvious, we find again that genuine issues of fact exist to preclude such a disposition at this stage. The Claimant argues for the distraction exception to the open and obvious condition. Without knowing more about the layout of the facility and the particular circumstances at the time of the alleged injury, we cannot say at this stage whether the Respondent should have reasonably anticipated that the Claimant would be distracted.

In summary, we find genuine issues of fact as to the source of the water and the openand-obvious nature of the condition. The Claimant will still have to prove her case, including whether the Respondent was on notice to the defective condition and to what extent, if any, the Claimant’s own conduct contributed to the injury. At this stage, however, we cannot find that the Respondent has met its burden to show that its right to relief is clear and free from doubt.

WHEREFORE, it is hereby ordered: the Respondent’s Motion for Summary Judgment is DENIED and the case is referred back to the Commissioner for a hearing.

OPINION

Claimant, Nina Ponomar, brings this claim against Respondent, the Office of the Secretary of State, for compensation for personal injuries sustained allegedly due to negligence on the part of Respondent. Respondent denies any liability in this claim.

On May 15, 2009, Claimant visited the Secretary of State Driver License Facility in Schaumburg, Illinois. It was raining that day. Claimant entered the facility and approached the help desk located approximately ten feet inside from the entrance door. At the help desk, she was given a ticket with a number. Claimant testified that she walked “17 steps” from the help desk toward the interior of the facility when she slipped and fell on the floor because of a puddle of water. The floor was tile. Immediately, staff members came and mopped up the water. At the time of the fall, Claimant did not notice the condition of the floor because she was looking up for her number on the ticket.

Respondent’s witness, Victoria Auerbach, the facility manager, was not present when Claimant fell at the facility. However, she testified that there were always numerous mats on the floor at the facility. A conspicuous sign was in place outside the facility warning visitors that food or drink is not allowed in the facility. It was the practice of staff to clean up any spills [*167] immediately when they became aware of them or to notify management of any spills. Finally, she typically does not see issues with people tracking water into the facility when it is raining.

Because of the fall, Claimant injured her right ankle and foot. She refused medical treatment at the time of the fall. Claimant first sought medical treatment on June 5, 2009. Claimant’s last medical treatment was on July 14, 2009. From her first visit to her last, Claimant received a soft cast, medication and crutches. By her last visit, Claimant was expected to have a full recovery.

PROCEDURAL HISTORY

On November 14, 2014, this Court denied Respondent’s motion for summary judgment because genuine issues of fact remained to be determined. Specifically, what was the source of the water and the open and obvious nature of the condition, whether Claimant is entitled to rely on the distraction exception to the open and obvious condition, if the condition existed, and, finally, whether Respondent was on notice of the defective condition.

LEGAL ANALYSIS

Claimant has no doubt suffered damages. However, simply sustaining damages is not enough to hold the State liable. The State must also be negligent in relation to Claimant. For Claimant to prevail against the State for negligence, she must prove the State owed her a duty to protect her from harm, and that duty was breached by a negligent act or omission, and that such negligence was the proximate cause of injuries. Zemel v. State of Illinois, 58 Ill. Ct. Cl. 214 (2006). In addition, Claimant must show that the State had actual or constructive notice of the dangerous condition. Carlson v. Board of Regents, 47 Ill. Ct. Cl. 171 (1994).

The evidence is inconclusive as to the source of the water on the floor of the facility. Claimant did not present any evidence as to the source of the water. Claimant does acknowledge that the water was an open and obvious danger. Based on the testimony of Ms. Auerbach, Claimant does not argue that the water was tracked in from the outside. Instead, Claimant argues that the water came from an employee of Respondent and, therefore, the notice requirement in Carlson, supra., would be met. However, this is conjecture as no proof was submitted as to the source of the water, much less whether an employee created the puddle.

Respondent argues that the water was tracked into the facility by visitors from the outside. If this were true, the water would be a natural accumulation of water which would shield Respondent from liability. Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39, 42-43 (1st Dist. 2009) (holding that under Illinois law it is well-settled that property owners as well as business operators are not liable for injuries resulting from the natural accumulation of ice, snow, or water that is tracked inside the premises from the outside); see also Lohan v. Walgreens Co., 140 Ill.App.3d 171, 175 (1st Dist. 1986) (holding that defendant has no duty to remove water tracked into its store, regardless of whether the defendant had rainy-day procedures in place). Respondent would also have no duty to warn of such a condition. Id.

[*168] Regardless of the source of the water, Claimant argues that she is entitled to rely on the distraction to the open and obvious doctrine. The open and obvious doctrine provides that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them.” Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶14. The distraction exception essentially holds that even an open-and-obvious condition may still be unreasonably dangerous if the landowner should have foreseen that people would fail to notice or protect themselves against the condition because they had become distracted. Id. at ¶27. However, the distraction exception is predicated on the owner having notice of the condition. No evidence was presented in this claim that Respondent had prior notice of the puddle. Thus, the claim fails.

In conclusion, Claimant has failed to prove her claim by a preponderance of the evidence and, therefore, the claim is denied.

IT IS HEREBY ORDERED that this claim is hereby DENIED.