Lubin v. Goldblatt Bros. Inc., Gen. No. 48476

• Citation: 186 N.E.2d 64,37 Ill.App.2d 437
• Decision Date: 29 October 1962
• Docket Number: Gen. No. 48476
• Parties: Fay LUBIN, Plaintiff-Appellee, v. GOLDBLATT BROS. INC., a Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 64

186 N.E.2d 64

37 Ill.App.2d 437

Fay LUBIN, Plaintiff-Appellee, v. GOLDBLATT BROS. INC., a Corporation, Defendant-Appellant.

Gen. No. 48476.

Appellate Court of Illinois, First District, First Division.

Oct. 29, 1962.

Rehearing Denied Nov. 15, 1962.

Young & Hickey, Chicago (Vincent M. Clark, Chicago, of counsel), for plaintiff-appellee.

Lord, Bissell & Brook, Chicago, for defendant-appellant.

BURMAN, Presiding Justice.

This is an action commenced by plaintiff, Fay Lubin, to recover damages for injuries sustained by her when she fell in defendant's premises. After a trial before the court without a jury, judgment was entered for plaintiff in the amount of $40,000 and defendant appeals.

Defendant contends the finding of negligence against it is contrary to the law and to the evidence and that plaintiff failed to prove she exercised reasonable care for her own safety. Alternatively, defendant contends that if the verdict is affirmed, the amount of damages should be reduced as grossly excessive.

From the testimony it appears that on July 11, 1960, the plaintiff, then about seventy years of age, was about to leave defendant's store when she slipped and fell in the foyer between some sales counters and the revolving exit door. The accident occurred between 12:30 and 2:00 o'clock P.M. a short time after the store was open for business. Plaintiff testified she was familiar with the store and said this was her customary place of going in and out. She stated that the slippery condition of the floor was the cause of her fall.

There were no eye witnesses to the occurrence. Ronald Kerman, employed by defendant, heard someone cry out and was the first person to reach the scene. He found plaintiff on the floor in the foyer inside the Broadway entrance directly in front of the revolving door. When plaintiff told him she could not get up he called Mrs. Jean Ross in Personnel and the latter called Charles W. Baker, the store supervisor. The plaintiff complained of an injury to her leg. After a phone call, the fire department personnel and two policemen arrived. Plaintiff was placed in a wheel chair and then taken to Weiss Memorial Hospital.

With respect to the condition of the floor in the area where plaintiff fell, the evidence showed that the floor was composed of asphalt tile, was clean except for buffing marks, and there was no dirt, debris, or foreign material present. It had been swept the night before with an oil cloth mop and buffed with a fiber pad on the morning of the occurrence. The standing maintenance care consisted of waxing the floor about every two months. The porter in charge of waxing the floor could not recall the last time it had been waxed prior to the accident.

At the point where plaintiff fell, the floor sloped from a distance of one foot from the nearest counter, which was less than six feet from the revolving door, and extended to the center of the revolving door. The slope measured 5/8ths of an inch per foot. This converts to a three degree siope.

The amended complaint charged the defendant with the following acts of negligence:

(1) Permitting the floor of the store to be waxed and polished and in a slippery condition;

(2) Failing to warn the plaintiff that the floor was in a slippery and dangerous condition;

(3) Applying wax to the floor at a point where there was a substantial grade in the level of the floor as a result of which the floor at the point where the grade was located became extremely slippery; and

(4) Permitting the floor to be in a dangerous and slippery condition at a point where there was a substantial grade or change in level of the floor which grade or change in level was unexpected and not readily visible.

The answer denied all charges of negligence and affirmatively alleged that the floor was surfaced with the type of flooring customarily used in department stores and that the flooring was cleaned and dressed in the customary manner. The plaintiff's reply was a general denial of the affirmative allegations. The case was tried without a jury and the trial judge found in favor of the defendant, Broadland Building Corporation, the owner of the building, and against the defendant, Goldblatt Bros., Inc., the lessee. The damages were assessed at $40,000.

Defendant maintains there is no evidence whatsoever of any negligence by the defendant in its floor and maintenance procedures. A court of review will consider the evidence taken in the light most favorable to the plaintiff inasmuch as a reviewing court is not authorized to disturb the findings of the trial judge unless the judgment is against the manifest weight of the evidence and an opposite conclusion is clearly evident. Vasic v. Chicago Transit Authority, 33 Ill.App.2d 11, 180 N.E.2d 347.

We agree with defendant that a storekeeper who conducts a business to which the public is invited is not the insurer of his customer's safety. Liability must be founded on fault. Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469, 173 N.E.2d 443. Also, a storekeeper may wax his floors in the customary manner without incurring liability unless he is shown to have been negligent in the materials he uses or in the manner of applying them. Smith v. Pioneer Trust & Savings Bank, 13 Ill.App.2d 424, 142 N.E.2d 181 (Abstr.); Dixon v. Hart, 344 Ill.App. 432, 101 N.E.2d 282.

Defendant contends that evidence to the effect that the floor was 'slick,' 'slippery,' 'buffed,' and 'shiny' does not establish that the defendant was negligent or that a dangerous condition existed. Many decisions supporting this contention have been called to our attention, including the following: Turner v. Chicago Housing Authority, 11 Ill.App.2d 160, 136 N.E.2d 543; Dixon v. Hart, 344 Ill.App. 432, 101 N.E.2d 282; Scoville v. Smith Bldg. Co., 334 Ill.App. 262, 78 N.E.2d 858; Stephens v. Sears Roebuck & Co., 7 Cir., 212 F.2d 260 and Elias v. Heller, 23 Misc.2d 201, 201 N.Y.S.2d 382. But in none of these cases are the facts or surrounding circumstances similar to those found in the case at bar.

In Turner the construction and maintenance of a stairway were involved. There the plaintiff testified that the 'metal nosing on the stairs was 'worn and they were smooth, shiny, slippery,' * * *.' The Appellate Court, in holding that it was error to deny a directed verdict, stated that 'the testimony to the effect that the one-half inch metal stair nosing was 'shiny' and 'slippery' clearly did not establish that the stairway, if properly used, was in an unreasonably dangerous and unsafe condition,' and pointed out that there was no evidence that the metal nosing itself, or any part of the stairs had been noticeably worn. In Dixon and Scoville the alleged negligence consisted solely of the plaintiff's testimony that the floor was slick. The Court said, in Dixon, that 'in Illinois * * * as a general proposition the mere treating of a floor with a substance that gives it a polished surface is not negligence per se.' 344 Ill.App. at p. 435, 101 N.E.2d at p. 284. In Stephens recovery was sought for a fall allegedly caused when plaintiff hit a greasy or slick spot. The Circuit Court of Appeals held plaintiff failed to establish a dangerous condition since there was no description by her or anyone else as to the appearance of the alleged spot. In Elias, the New York Court said '[t]he fact that a floor is slippery by reason of its smoothness or being 'highly polished' does not give rise to a cause of action, absent competent proof of negligent application of the wax or polish.' 201 N.Y.S.2d at p. 383.

None of the above cited cases involved a floor that sloped 3 degrees and upon which an oil cloth mop was used to clean it on the morning of the occurrence. In Dixon v. Hart, 344 Ill.App. 432, 101 N.E.2d 282, the court enumerated some of the positive acts of negligence which would justify recovery. Among those mentioned was the application of wax to a floor with a substantial incline. 344 Ill.App. at p. 435, 101 N.E.2d at p. 283.

In the instant case, a lieutenant of the fire department testified that he came to the store in response to a call and found plaintiff in a wheel chair and that in examining the floor where he was told the fall occurred, he testified, 'I ran my foot over it. I noticed that it was slippery due to recent cleaning.' Another fireman testified he examined the flooring in the aisles in addition to the floor on the slope where Mrs. Lubin fell. He found the entire area to be uniformly highly buffed and slippery. Further, a police patrolman who arrived at the scene made an examination of the floor and found it to be smooth and slippery.

In a well reasoned opinion, which we think involved the same factual question before this court, the Circuit Court of Appeals, in Burg v. Great Atlantic & Pacific Tea Company, 256 F.2d 613 (C.A. 7, 1958), reversed on order of the District Court directing a verdict for defendant. The court said:

'Admittedly, the waxing of floors is too common a practice to constitute negligence in the absence of evidence tending to show some positive negligent act or omission. In the instant case the wax was applied to asphalt tile on an incline. The trial court discounted the incline as being too slight, admitting that if the slope had been steeper it might have constituted actionable negligence to wax its surface. Such a determination, that is, whether a three-degree incline is so substantial that an application of wax on its surface evidences a lack of reasonable care on the part of the store owner, is, however, a factual determination which should be left to the jury.' 256 F.2d at p. 615.

Thus the Burg case does not hold that applying wax to an incline was negligence per se, but does hold as we do here, that this was a question of fact to be determined by the trier of facts. The facts here support a finding of negligence. The incline was immediately in front of the revolving exit door, an area where a customer would...