Handy v. Sears, Roebuck and Co.

• Decision Date: 05 May 1989
• Docket Number: No. 88-1773,88-1773
• Citation: 131 Ill.Dec. 471,182 Ill.App.3d 969,538 N.E.2d 846
• Parties: , 131 Ill.Dec. 471 Geneva HANDY, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 846

538 N.E.2d 846

182 Ill.App.3d 969, 131 Ill.Dec. 471

Geneva HANDY, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.

No. 88-1773.

Appellate Court of Illinois,

First District, Fifth Division.

May 5, 1989.

Morton Abt, Abt, Meyers and Kages, Chicago, for plaintiff-appellant.

Arnstein & Lehr, Chicago (Arthur L. Klein, Hal R. Morris and Nancy J. Montroy, of counsel), for defendant-appellee.

Justice COCCIA delivered the opinion of the court:

On September 19, 1985, plaintiff Geneva Handy filed a complaint in the circuit court of Cook County for injuries sustained when she slipped and fell while on the premises of defendant, Sears, Roebuck and Company (Sears). The complaint was dismissed on defendant's motion for summary judgment and plaintiff appeals.

While shopping at a Sears store on January 17, 1985, plaintiff slipped and fell on some water located within the store. Plaintiff's complaint alleged that the incident occurred as a result of defendant's negligence in maintaining the property and in allowing "an unusual accumulation of water and foreign material" to remain on the floor rendering that condition dangerous and hazardous.

Defendant filed a motion for summary judgment alleging that the evidence was uncontroverted in establishing that plaintiff's injuries occurred as a result of a natural accumulation of water which had been tracked into the store by customers. The circuit court granted the motion but gave plaintiff leave to take an additional deposition of one of the eyewitnesses. After the deposition was completed, plaintiff presented an oral motion to reconsider which the circuit court denied.

On appeal plaintiff argues that the circuit court erred in granting summary judgment because there was a genuine issue as to the source of the accumulated water. In her brief plaintiff advances for the first time several theories as to the possible sources of the water which she asserts would contradict defendant's theory of a natural accumulation caused by customers who tracked it into the store. However, this court's review is limited to those facts and theories presented in the circuit court, and plaintiff may not now raise new factual theories for this court to consider. See Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147, 324 N.E.2d 417, 420.

Defendant's motion for summary judgment was supported by two affidavits: one from an eyewitness stating that the water had been tracked inside defendant's store by customers, and another from an employee who placed plaintiff's fall at approximately 23 feet from an entrance and 10 feet from the walk-off mat at that entrance. Defendant's motion also included a written statement from a second eyewitness which corroborated the affidavit of the first eyewitness, a climatological report indicating there had been six inches of snow on the ground that day, and the transcripts of depositions taken of plaintiff and her daughter who had been with her at the time of the incident.

Plaintiff's response to the motion for summary judgment contained no counteraffidavits, but included certain passages from the transcripts described above.

It is well established in Illinois that a property owner has no liability for injuries which result from natural accumulations of water, snow or ice. (Lohan v. Walgreens Co. (1986), 140 Ill.App.3d 171, 173, 94 Ill.Dec. 680, 681, 488 N.E.2d 679, 680.) However, a property owner does have a duty and therefore may be liable where the injuries are a result of an unnatural or artificial accumulation, or a natural condition aggravated by the owner. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill.App.3d 533, 535, 116 Ill.Dec. 945, 946-47, 519 N.E.2d 1160, 1161-62.) In order to withstand a motion for summary judgment, a plaintiff must allege sufficient facts to permit the trier of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or snow which caused plaintiff's injuries. 166 Ill.App.3d 533, 535, 116 Ill.Dec. 945, 947, 519 N.E.2d 1160, 1162.

After reviewing the record, we find that plaintiff did not offer any facts which would have allowed the trier of fact to find that the water inside the store was an unnatural accumulation or a natural condition aggravated by the owner. (See Lohan v. Walgreens Co., 140 Ill.App.3d 171, 94 Ill.Dec. 680, 488 N.E.2d 679; Bernard v. Sears, Roebuck & Co., 166 Ill.App.3d 533, 116 Ill.Dec. 945, 519 N.E.2d 1160.) Further, in her response to the motion for summary judgment plaintiff offered no explanation for the source of the water, nor did she present evidence refuting the affidavits and statements of eyewitnesses stating that the water was tracked in by customers. (See Bernard v. Sears, Roebuck & Co., 166 Ill.App.3d 533, 536, 116 Ill.Dec. 945, 519 N.E.2d 1160, 1162-63.) The fact that plaintiff stated at her deposition that she had no idea where the water came from and that it looked like a spill did not create a triable...