Lucker v. Arlington Park Race Track Corp.
| Decision Date | 14 April 1986 |
| Docket Number | No. 85-1367,85-1367 |
| Parties | , 97 Ill.Dec. 100 William LUCKER, Plaintiff-Appellant, v. ARLINGTON PARK RACE TRACK CORPORATION, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Baker & McKenzie (Francis D. Morriseey, Thomas R. Nelson, Richard H. Donohue and Karen Kies, of counsel), Chicago, for defendant-appellee.
Peter Bianco, Jr., Bianco & Szygowski, Chicago, for plaintiff-appellant.
The plaintiff, William Lucker, appeals from the trial court's directed verdict for the defendant, Arlington Park Race Track Corporation (Arlington Park), in his negligence action to recover damages for personal injuries. The plaintiff, while employed by a third party as a carpenter to set up exhibit booths for an exhibition held on defendant's premises, slipped, fell and injured his back. At the close of plaintiff's case in chief, the trial court granted defendant's motion for a directed verdict on the issue of liability, and subsequently denied plaintiff's "motion to reconsider and for new trial." This appeal followed.
The issue on appeal is whether the trial court was correct in directing a verdict for Arlington Park, that is, did the evidence, when viewed in a light most favorable to William Lucker, so overwhelmingly favor Arlington Park that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504; see also, Hollembaek v. Dominick's Finer Foods, Inc. (1985), 137 Ill.App.3d 773, 92 Ill.Dec. 382, 484 N.E.2d 1237.) In order to determine whether the directed verdict for the defendant was proper, we must review the evidence introduced by the plaintiff on the issue of defendant's negligence.
One of plaintiff's co-workers, Howard Newhouse, testified that he saw the plaintiff fall, but that it happened very fast. He also observed the condition of the floor in the area where the plaintiff fell, and it was Newhouse's impression that the floor appeared to have been painted a glossy battleship gray since he last worked at the track. He noticed that the floor was "slippery."
The plaintiff, William Lucker, also testified as to the condition of the surface upon which he slipped. Lucker testified that the floor "looked freshly painted," had a "high gloss," and was "slippery under foot." Regarding his fall, the plaintiff said that both feet went out from under him at once as if he had stepped onto either "a sheet of glass or an ice rink." Lucker made no reference to any foreign substance being on the floor during his direct examination, but on cross-examination, when he was confronted with a statement he made approximately one month after the accident, he admitted that he had previously said that a waxed paper cup was under his foot when he slipped. On redirect, the plaintiff stated that someone else actually told him about the cup.
Two other witnesses testified on behalf of the plaintiff. Frank Garret testified that it was Arlington Park's duty to clean the premises at the time Lucker slipped and fell, and Samuel David Ramenofsky testified as an expert on the issue of plaintiff's lost earning capacity. There was no other testimony or other evidence introduced on behalf of the plaintiff.
A plaintiff in a negligence action is entitled to recover only by proving each element of the action, i.e., the existence of a duty, a breach of that duty, an injury proximately resulting from the breach and damages. Failure to prove any of the essential elements authorizes a directed verdict for the defendant. (Clinton v. Commonwealth Edison Co. (1976), 36 Ill.App.3d 1064, 1067-68, 344 N.E.2d 509.) In Illinois, the mere waxing or oiling of a floor is not negligence per se, and in order to demonstrate negligence, the evidence must show that the waxing or oiling was not properly performed. (Dixon v. Hart (1951), 344 Ill.App. 432, 101 N.E.2d 282; Johnson v. Central Tile & Terrazzo Co. (1965), 59 Ill.App.2d 262, 207 N.E.2d 160; Mack v. Woman's Club of Aurora (1940), 303 Ill.App. 217, 24 N.E.2d 898.) The court in Dixon, in discussing the waxing or treating of floors by business establishments, stated that "a store owner may treat his floors with wax or oil or other substance in the customary manner without incurring liability unless he is shown to be negligent in the materials he uses or in the manner of applying them." (Emphasis added.) (344 Ill.App. 432, 436, 101 N.E.2d 282.) Thus, testimony that a floor is slick, slippery or polished is insufficient to establish negligence because it does not give the trier of fact a basis for balancing the defendant's conduct against the requisite standard of care. This type of "subjective verbal characterization," i.e., that a floor is slick, slippery or polished, does not, as the Dixon court stated, permit a jury to "fairly and intelligently weigh the owner's conduct in the care of its floors and its causal relationship to plaintiff's fall." (344 Ill.App. 432, 438, 101 N.E.2d 282.) The court said that these descriptions are hopelessly lacking in precision of meaning and do not furnish a jury any evidence of provative value. We agree.
In the case before this court, the only evidence concerning the issue of defendant's negligence is Lucker's and Newhouse's subjective verbal characterizations of the floor as slippery, which without more, is insufficient to withstand a motion for a directed verdict on the issue of negligence. The plaintiff here presented no evidence that the type of paint used was improper for use on concrete floors, or that Arlington Park was negligent in its selection. There was no evidence that a flat finish paint would be more appropriate for concrete floors than a glossy finish paint, nor did the plaintiff present any evidence that the paint was improperly applied or that it was improper to paint a concrete floor. William Lucker did testify that heavy crates were easier to move around than normal, but his testimony is again merely a subjective observation of the witness which is not evidence that the defendant was negligent in the...
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