Gilberg v. Toys R Us, Inc.

• Decision Date: 24 July 1984
• Docket Number: No. 83-1795,83-1795
• Parties: , 81 Ill.Dec. 825 Burton GILBERG, Plaintiff-Appellant, v. TOYS "R" US, INCORPORATED, an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 947

467 N.E.2d 947

126 Ill.App.3d 554, 81 Ill.Dec. 825

Burton GILBERG, Plaintiff-Appellant, v. TOYS "R" US, INCORPORATED, an Illinois Corporation,

Defendant-Appellee.

No. 83-1795.

Appellate Court of Illinois,

First District, Second Division.

July 24, 1984.

Berry & Gore, Ltd., Chicago (Alan M. Katz and Gregory R. Sun, Chicago, of counsel), for plaintiff-appellant.

E. Garnet Fay, O'Brien, Hanrahan, Wojcik & Fay, Chicago, for defendant-appellee.

HARTMAN, Presiding Justice:

Plaintiff slipped and fell on a 1' X 2' patch of ice in defendant's parking lot. His complaint claimed that defendant's tortious conduct in allowing ice to accumulate in a depression in the pavement was the proximate cause of his injuries. The circuit court denied plaintiff's request for a change of venue, found no evidence that the patch was an unnatural accumulation of ice and granted defendant's motion for summary judgment. Plaintiff appeals, claiming: (1) the change of venue was erroneously denied; (2) summary judgment was erroneously granted; (3) defendant breached its duty to warn plaintiff of the ice; and (4) the natural accumulation rule should be abolished in light of the adoption of comparative fault.

The pleadings, affidavits, depositions and photographs on file indicate plaintiff noticed no ice in the lot prior to his fall but thereafter noticed 3 to 5 percent of the lot was covered with ice patches. Defendant's assistant manager deposed that she noticed no ice during her morning inspection of the lot and may have instructed the patch to be salted after the accident. She received no other complaints about nor knew of any other similar accidents occurring in the lot. The day was bright and clear, and it had not snowed in the previous 24-hour period. No warning signs were posted regarding ice patches.

The only evidence of the source of the ice was plaintiff's averment that the ice accumulated in a depression and that there were no drains in the area. In defendant's assistant manager's deposition, she recalled water drains situated in the parking lot, but not whether any were nearby. She suggested a natural accumulation of melting snow may have formed the quarter-inch thick ice patch. The affidavit of a registered professional engineer stated that the grading plans for defendant's lot conformed with local engineering standards.

A hearing commenced on June 2, 1983 to consider defendant's motion for summary judgment. The circuit judge referred the parties to "selected citations," requested additional research and continued the hearing to June 16, 1983. At the subsequent hearing, plaintiff filed an emergency motion for change of venue asserting he would not receive a fair trial because of the judge's prejudice against his attorneys. That motion was denied and the summary judgment motion granted upon finding that there was no evidence regarding the origin of the ice, cause of the depression, defect in the design of the parking lot or notice to defendant that the condition existed.

Plaintiff argues that the circuit court erred in failing to grant a change in venue. (Ill.Rev.Stat.1983, ch. 110, par. 2-1001.) According to the circuit court's memorandum of its decision dated June 30, 1983, the summary judgment motion was initially heard on June 2, 1983. At that time the court referred "selected citations" to both counsel, asked them to find case law as to other questions and "made a substantial ruling or made a statement on its position on the merits * * * " of the case. For these reasons it considered plaintiff's petition "untimely." No transcript of the June 2, 1983 hearing has been submitted as part of the record on appeal and no contradiction of the court's recollection appears of record. Under these circumstances, the court's memorandum will be deemed accurate. Investors Shelter Corp. v. Chernick (1978), 58 Ill.App.3d 446, 16 Ill.Dec. 11, 374 N.E.2d 786.

Merely granting a continuance from June 2, 1983 to June 16, 1983, without more, could not constitute a substantial ruling in the case. (Ill.Rev.Stat.1983, ch. 110, par. 2-1001(c).) In denying the motion for the venue change here, however, the court asserted that it had indicated its attitude toward the summary judgment motion during the June 2, 1983 hearing, which is buttressed by its having referred the parties to "selected citations" and having requested additional research by the parties. Among the cases referred to counsel at that hearing was Walker v. Chicago Transit Authority (1980), 92 Ill.App.3d 120, 48 Ill.Dec. 115, 416 N.E.2d 10. The circuit court there was affirmed as having properly found as a matter of law that a puddle of water caused by a depression in a CTA station pavement was non-actionable in the absence of an affirmative showing that the subject accumulation of water was due to unnatural causes. An inference may be fairly drawn from the foregoing circumstances that the court did indeed reveal its probable disposition of the case at this hearing. The statute does not contemplate the transfer of venue where a hearing has commenced on a substantive issue in the case, the petitioning litigant had an opportunity to form an opinion that the court might be unfavorably disposed toward his cause, and such litigant thereafter charges the court with prejudice as the ground for a change of venue. (Hildebrand v. Hildebrand (1968), 41 Ill.2d 87, 90, 242 N.E.2d 145; Commissioners of Drainage Dist. No. 1 v. Goembel (1943), 383 Ill. 323, 328, 50 N.E.2d 444; In re Marriage of Pruitt (1981), 101 Ill.App.3d 755, 57 Ill.Dec. 182, 428 N.E.2d 732.) Under the facts presented in the case sub judice, the denial of plaintiff's petition was in conformity with law.

Elements necessary to be shown affirmatively in order to recover in slip and fall cases are that the accumulation of ice, snow or water is due to unnatural causes and that the property owner had actual or constructive knowledge of the condition. (Lapidus v. Hahn (1983), 115 Ill.App.3d 795, 71 Ill.Dec. 136, 450 N.E.2d 824; Wolter v. Chicago Melrose Park Associates (1979), 68 Ill.App.3d 1011, 25 Ill.Dec. 224, 386 N.E.2d 495.) A finding of an unnatural or aggravated natural condition must be based upon an identifiable cause of the ice formation. Lapidus v. Hahn, su...