Fitz Simons v. National Tea Co.

• Decision Date: 23 February 1961
• Docket Number: No. 11422,11422
• Citation: 173 N.E.2d 534,29 Ill.App.2d 306
• Parties: Jean T. FITZ SIMONS, Appellee, v. NATIONAL TEA COMPANY, a corporation, and Milwaukee-Golf Development Corporation (National Tea Company, a corporation, Appellant). *
• Court: United States Appellate Court of Illinois

Page 534

173 N.E.2d 534

29 Ill.App.2d 306

Jean T. FITZ SIMONS, Appellee, v. NATIONAL TEA COMPANY, a corporation, and Milwaukee-Golf Development Corporation (National Tea Company, a corporation, Appellant). ^*

No. 11422.

Appellate Court of Illinois, Second District, Second Division.

Feb. 23, 1961.

Rehearing Denied April 15, 1961.

Eckert, Caldwell & Gleason, Woodstock, for appellant.

Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, for appellee.

CROW, Presiding Justice.

This action was brought to recover damages for personal injuries sustained by the plaintiff, Jean T. Fitz Simons, when she fell on some ice in the parking lot at a shopping center at Libertyville, Illinois, February 13, 1958. The action was originally commenced against National Tea Company and Milwaukee-Golf Development Corporation, as the defendants. At the close of the plaintiff's evidence the defendants moved for a directed verdict. The Court sustained the motion of the defendant Milwaukee-Golf Development Corporation. The motions of the defendant National Tea Company then and at the close of all the evidence for a directed verdict were overruled. A verdict was returned finding the defendant National Tea Company guilty and assessing the plaintiff's damages at $7,500. Judgment was entered on the verdict. Thereafter the defendant National Tea Company filed a post trial motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. Those motions were overruled. The defendant National Tea Company appeals.

The plaintiff, age 50, was a registered nurse, employed at the Lake Forest Hospital as administrative supervisor. The defendant Milwaukee-Golf Development Corporation was the owner of a shopping center on the northeast corner of Milwaukee Avenue and Hurlburt Court in Libertyville. The shopping center consists of one large building housing six separate stores, each of which is leased by Milwaukee-Golf Development Corporation to a different type business. All of the stores were at the eastern edge of the shopping center. On the west and north sides of the building was a parking lot, with a black top surface, which was used by all tenants of the shopping center and the potential customers of all the various stores. The defendant National Tea Company's store was at the northwest corner of the building.

The lease of the National Tea Company and the leases of the other tenants provided that each should have 'community parking in accordance with' plat attached to each lease. No specific area of the parking lot was assigned to any particular tenant. The lease of the defendant provided, in part '* * * the lessor, * * * demises and leases to the lessee the premises located at Libertyville, Illinois approximately 85'X150' irreg., including * * * rights of way, * * *. The demised premises include parking space--community parking in accordance with plot plan attached hereto. It is further agreed * * * that in event the parking lot area herein demised is not completed in its entirety and ready for use on the day of lessee's store opening, a rental credit of Ten Dollars ($10.00) per day is hereby granted and allowed by the lessor to the lessee until such parking lot area is completed and usable. To have and to hold the same, unto the lessee * * *. In consideration of the demise and leasing of the premises aforesaid by lessor, the lessee covenants, * * * to pay to the lessor, as rental for said demised premises, during said term, * * *'. No specific provision was made in any of the leases for snow removal in the parking lot. A sign above the main entrance to the defendant's store, bearing the word 'National', said 'free parking while shopping.' There was another sign at the northwest corner of the parking lot with the same legend.

The occurrence took place about 5:40 p. m., February 13, 1958. It was dark. Jean T. Fitz Simons, riding in an automobile driven by her husband, David R. Fitz Simons, rode into the parking lot. The car was parked at the north edge of the lot approximately 50 feet from the front door of the defendant National Tea Company's store. The plaintiff intended to purchase groceries at the store. The artificial lighting was good. The parking area where the cars parked was covered with ice. The weather was clear and cold. The last snowfall of any consequence was on January 20th or 21st, 1958 when there had been a very heavy snowfall. Following that the defendant National Tea Company had had a snow plow push the snow located in the parking lot north and west of its store into two large piles at the east end of the parking lot. There was a drain at the west end of the north side of the lot. There were days of alternate thawing and freezing between January 21st and February 13th when some of that snow would melt and drain across the lot to the drain at the west end and freeze in places. The ice along the north edge of the parking lot was rough and dark. It had ridges made by wheels of automobiles. The plaintiff did not recall being at the shopping center between the January snowfall and the accident.

The plaintiff was wearing pumps with walking heels. She looked and was aware of the ice as she opened the right side front door of the car and stepped out. She closed the door, put her right hand on the car for support and proceeded to step forward south toward the store entrance of the defendant National Tea Company. She took three or four steps. She got to the rear of the car, to the area where the melting snow had accumulated into ice most heavily, and in attempting to walk over an incline formed by the accumulated ice she suddenly slipped on the ice and fell. It was rough, rutted ice. At the time she fell she was still supporting herself with her right hand on the car. She felt extreme pain in her left hand. Her husband did some shopping at the defendant's store after the injury.

She sustained fractures of both bones of the left forearm approximately one inch above the wrist joint. She was treated at the hospital by her attending physician, Dr. John J. Milroy, and as an outpatient for eight months. The fractures healed. But, in the opinion of the plaintiff's physician, the plaintiff sustained permanent injuries to the effect that there was a deformity of the radius, protrusion of the tip of the ulna, limitations of five degrees in extension and fifteen degrees in flexion of the left wrist, a weakness of grip, the back of her left hand and forearm continued to ache and she had a sharp shooting pain in the forearm if she over-extended her wrist, and there is or would be some traumatic arthritis. She was unable to work for about four weeks. She worked with the arm in a cast for about three weeks. The arm was then in a sling for about two weeks. Thereafter it was still painful, limited in its use, and somewhat of a handicap in her work and in certain personal matters such as dressing, etc.

The testimony of the defendant National Tea Company's manager was, in part, to the effect that he had been instructed by his Company to have the north and west area of the parking lot in front of its store plowed whenever it was needed, and he did so. That is the area where the plaintiff fell. There is no evidence of the owner-landlord's plowing that area. The defendant had attempted to clear the accumulated snow from the area of the parking lot used by its patrons on the day following the heavy snow in January. In doing so it had had a great deal of snow piled at the east end of the lot. The parking lot sloped from the south towards the north, to a point about midway in the lot, and was flat from the middle to the north edge, and it also sloped from the east towards the west, the entire length of the lot. Between the date of that snow plowing and the day of the accident there were alternating thaws and freezes and the two large piles of snow at the east end of the lot would melt and drain down towards the west where the drain was located. The defendant's store manager admitted that ice accumulated in the path of that melting snow, that it was on some of this ice that the plaintiff fell, that it could have been there 2 or 3 days, and it looked slippery and was about 2 inches thick. He did not recall putting any salt or cinders in the area where the plaintiff fell between the January snow and the accident.

It is the theory of the defendant National Tea Company that it was not in possession or control of the parking lot; it violated no duty it owed to the plaintiff; it was not guilty of any negligence toward the plaintiff and none was shown by the evidence; the verdict is contrary to the law and the evidence and the trial court erred in refusing to direct a verdict for it and in overruling its motion for judgment notwithstanding the verdict; the plaintiff was not in the exercise of ordinary care for her own safety and the injuries were the proximate result of her own negligence and not of any negligence on the part of the defendant; the court erred in overruling the defendant's motion to withdraw a juror when the plaintiff, while testifying, volunteered she had had her right breast removed in 1955 because of a cancerous condition; and the verdict is so excessive as to show sympathy, passion, prejudice or improper motive and cannot be justified by the evidence.

The plaintiff's theory is she was a business invitee of the defendant National Tea Company at the time she fell in the parking lot provided by the defendant for the use of its patrons; the parking lot was not a common area retained by the landlord, as that term is used in the law, but was leased to the defendant and over which, with reference to ice and snow removal, the defendant lessee exercised control and maintenance; the ice on which the plaintiff fell did not accumulate from natural causes, but as a result of the defendant lessee's negligence in piling snow in an area of the parking lot where it was caused alternately to melt and freeze and form ice...