Bailey v. Graham Enters., Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
• Citation: Bailey v. Graham Enters., Inc., 2019 IL App (1st) 181316, 138 N.E.3d 926, 435 Ill.Dec. 312 (Ill. App. 2019)
• Decision Date: 10 June 2019
• Docket Number: No. 1-18-1316,1-18-1316
• Parties: Cynthia BAILEY, Plaintiff-Appellant, v. GRAHAM ENTERPRISES, INC., a domestic corporation, and Red Crown Holdings, LLC, a limited liability company, Defendants-Appellees.

2019 IL App (1st) 181316

138 N.E.3d 926

435 Ill.Dec. 312

Cynthia BAILEY, Plaintiff-Appellant,

v.GRAHAM ENTERPRISES, INC., a domestic corporation, and Red Crown Holdings, LLC, a limited liability company, Defendants-Appellees.

No. 1-18-1316

Appellate Court of Illinois, First District.

Filed: June 10, 2019

Francis Patrick Murphy, of Corboy & Demetrio, P.C., of Chicago, for appellant.

Loretta M. Griffin, Ronald M. Aeschliman, and Ana Maria Downs, of Law Offices of Loretta M. Griffin, of Chicago, for appellees.

JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Cynthia Bailey sustained injuries to her left knee when she slipped and fell on a slush-covered handicap parking symbol in a gas station parking lot. She filed a personal injury action against defendants Graham Enterprises, Inc. and Red Crown Holdings, LLC claiming they were negligent and liable for her injuries. Defendants filed a motion for summary judgment arguing that plaintiff slipped on a natural accumulation of slush and under the natural accumulation rule, which holds that a property owner has no duty to remove natural accumulations of ice, snow or water from its property, plaintiff's claim failed as a matter of law.

¶ 2 In response to defendants' motion, plaintiff argued that the natural accumulation rule did not apply because she slipped on the paint atop the handicap symbol, which became unreasonably slippery when wet as a result of defendants' improper design, construction and maintenance of the symbol. Plaintiff attached to its response an expert witness affidavit.

¶ 3 Defendants moved the trial court to strike the affidavit and in their reply, reaffirmed that the natural accumulation rule precluded plaintiff's recovery as a matter of law. The trial court struck plaintiff's affidavit as inadmissible and granted summary judgment in favor of defendants after finding the evidence failed to establish a duty on the part of defendants to remove the natural accumulation of slush from their property.

¶ 4 Plaintiff appeals, and argues that the trial court erred when it struck her affidavit and entered summary judgment in favor of defendants. For the following reasons, we reverse.

¶ 5 BACKGROUND

¶ 6 On January 7, 2015, plaintiff went to a gas station located at 841 West Irving Park Road in Chicago. The parking lot had been plowed earlier that day and salt was used to melt the remaining snow. Upon exiting the gas station's store, plaintiff slipped and fell on a handicap symbol covered in slush. The symbol was painted on the asphalt ground to designate a handicap parking space directly in front of defendants' store. Plaintiff notified a gas station employee about her fall, who promptly reviewed video surveillance footage, took pictures of the handicap symbol and surrounding area, and prepared an incident report.

¶ 7 On July 1, 2016, plaintiff filed a lawsuit against defendants in the circuit court of Cook County claiming they were liable for her injuries. Plaintiff pleaded several claims sounding in negligence. Defendants answered the complaint and denied all material allegations thereby placing the parties at issue. Discovery commenced and concluded.

¶ 8 Defendants filed a motion for summary judgment pursuant to section 2-1005 of the Illinois Code of Civil Procedure ( 735 ILCS 5/2-1005 (West 2016) ), which allows a trial court to enter judgment short of trial when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In their motion, defendants argued that the evidence showed plaintiff slipped on a natural accumulation of slush and under the natural accumulation rule in Illinois, defendants had no legal duty to remove the slush from their property.

¶ 9 In her response to the motion, plaintiff argued that the natural accumulation rule did not apply because she slipped on the paint atop the handicap symbol, which became unreasonably slippery when wet as a result of defendants' improper design, construction and maintenance of the symbol. Plaintiff attached to her response a supporting affidavit pursuant to Illinois Supreme Court Rule 191(a) ( Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013)) ( Rule 191(a) ), which governs the use of affidavits in opposition to a motion for summary judgment.

¶ 10 In the affidavit, expert witness Daniel Robson ("Robson") stated that, based on his review of the deposition testimony of the witnesses, the video tape of plaintiff's fall, the incident report prepared by defendants' employee and the photographs taken of the handicap symbol on January 7, 2015, the "root cause of [plaintiff's] fall was that she slipped on the handicap parking symbol which was contaminated with slush." He further concluded that the slush "on the smooth painted surface caused a sudden and unexpected change in the co-efficient of friction of the surface of the painted symbol to a value which was unreasonably dangerous for the public asphalt parking lot, causing [plaintiff] to slip, fall and be injured." Robson's conclusions were based in part on certain testing he performed. Robson outlined the testing procedure and results in the affidavit.

¶ 11 Robson attested that he inspected the scene of the incident on November 16, 2017 and later chose a test site that had "some similar areas of asphalt texture" and the "same slope as [defendant's] lot." He purchased "Sherwin-Williams Pro-Park Traffic Paint" and "H&C SharkGrip Slip Resistant Additive," both of which according to Robison were materials used by defendants' painting contractor, Craig Phillips, to paint the handicap symbol in defendants' parking lot. He reviewed the "product data sheets, directions and warnings" for each product and concluded that, "according to the data," the slip-resistant additive would "have to be refreshed every ninety (90) days since [it] is walked off by pedestrian and motor vehicle traffic."

¶ 12 Robson painted a handicap symbol on the test parking lot ("Test Symbol") on March 29, 2018 and tested the dry and wet "co-efficient of friction values" of the Test symbol with a slip tester. He determined that the "wet values of the tested locations demonstrate that the painted handicap symbol was slipperier than the unpainted asphalt" and those values fell below what was "widely accepted to be a reasonably slip resistant condition under normal walking conditions." Robson stated that given "wear and slush conditions" on January 7, 2015, the wet values of the handicap symbol in defendant's parking lot would have been "lower" than the wet values of the Test Symbol on March 29, 2018. Robson concluded: "[t]his means that the [defendant's] handicap symbol had a lower co-efficient of friction value equating to greater slipperiness than a dry symbol."

¶ 13 Defendants moved to strike the affidavit arguing that it was speculative and lacked foundation. Defendants contended that Robson failed to state in his affidavit whether he "actually mixed the SharkGrip with the Sherwin-Williams paint" and overall, relied "on guess and speculation regarding the co-efficient of friction on the area of parking lot where plaintiff fell at the time she fell." In their reply, defendants reaffirmed that the evidence showed plaintiff slipped on a natural accumulation of slush which they had no duty to remove.

¶ 14 In a written order entered on May 30, 2018, the trial court struck plaintiff's affidavit and entered summary judgment in favor of defendants and against plaintiff.

The trial court found Robson's affidavit inadmissible and concluded that in absence of the affidavit, "all we are left with is a natural accumulation of slush for which the Defendant's owed no duty to remove."

¶ 15 The trial court found the affidavit failed to provide "any basis upon which to make a "meaningful comparison" between the Test Symbol and the handicap symbol in defendants' parking lot. The trial court pointed to Robson's failure to attest to mixing the paint and "SharkGrip" additive in the same way defendants' mixed the materials as failing to establish the foundation necessary to demonstrate that the composition of the Test Symbol was similar to the handicap symbol in defendant's parking lot.

¶ 16 Plaintiff appeals, and seeks a reversal of the trial court's judgment on the basis that it erred when it struck her affidavit and granted summary judgment in favor of defendants.

¶ 17 ANALYSIS

¶ 18 The issues on appeal are whether the trial court erred when it struck plaintiff's affidavit and entered summary judgment in favor of defendants.

¶ 19 Summary judgment is appropriate 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 (West 2016). Although summary judgment is encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. Loyola Academy v. S & S Roof Maintenance, Inc. , 146 Ill. 2d 263, 271, 166 Ill.Dec. 882, 586 N.E.2d 1211 (1992).

¶ 20 The purpose of summary judgment is not to try a question of fact, but to determine if one exists. Robidoux v. Oliphant , 201 Ill. 2d 324, 335, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002). A plaintiff is not required to prove his case at the summary judgment stage, but in order to survive a motion for summary judgment the nonmoving party must present a factual basis that would arguably entitle the party to a judgment. Id. We review the trial court's decision to grant summary judgment de novo , and construe all evidence in the record strictly against the moving party and liberally in favor of the nonmoving party. Hastings v. Jefco Equipment Co. , 2013 IL App (1st) 121568, ¶ 4, 374 Ill.Dec. 96, 994 N.E.2d 1033.

¶ 21 An affidavit submitted in the summary judgment context, such as the affidavit plaintiff submitted...