Sommese v. Maling Bros., Inc.
Decision Date | 13 December 1965 |
Docket Number | Gen. No. 50286 |
Citation | 65 Ill.App.2d 223,213 N.E.2d 153 |
Parties | Mary SOMMESE, Plaintiff-Appellee, v. MALING BROTHERS, INC., a corporation, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Jacobs & McKenna, Chicago, Lloyd E. Williams, Jr., Barry L. Kroll, Chicago, of counsel, for appellant.
Gunther & Choka, Chicago, John M. Janewicz, Chicago, of counsel, for appellee.
Defendant appeals from a $25,000 verdict and judgment awarded plaintiff, Mary Sommese, for personal injuries alleged to have been sustained when, on a rainy day, plaintiff, a prospective customer, fell in an entryway of defendant's store. In answer to a special interrogatory, the jury found plaintiff not guilty 'of any contributory negligence which was a proximate cause of said occurrence.'
Defendant's contentions are: (1) Defendant was not shown to be negligent. (2) Plaintiff was guilty of contributory negligence as a matter of law. (3) The verdict and answer to the interrogatory were against the manifest weight of the evidence. (4) Prejudicial trial errors were committed.
Plaintiff's action is based on the contention that defendant failed to provide a safe means of entrance for a business invitee and was negligent by one or more of the following acts: (a) It used a type of marble terrazzo flooring not suited for outdoor use. (b) It failed to use any abrasive in the terrazzo. (c) It failed to remove the accumulated water. (d) It failed to use rubber mats. (e) It failed to warn plaintiff that its entryway was dangerously slippery.
On February 27, 1958, plaintiff was 28 years of age. The kneecap of her left leg had been surgically removed less than three months previous. She was able to walk without assistance, do most of her own housework, and partake in recreational activities. She walked without a limp and suffered no pain or weakness of any kind. She was due to return to her employment within several days.
On the date in question, and after having had lunch with a friend, plaintiff walked into the south end of the 'Harlem-Irving Plaza' and walked three and one-half blocks to defendant's store at the north end of the Plaza. It had been raining periodically throughout the day. During lunch it rained quite heavily, and while plaintiff was walking through the Plaza it was drizzling. Plaintiff was without a raincoat, umbrella, galoshes or rubbers. She was wearing shoes with a 'stack heel' about an inch and one-half to two inches. The soles of her shoes had been 'roughed up' by her husband with light sandpaper.
When plaintiff arrived at Maling's, she took a look at the front windows.
On cross-examination, she testified, She saw no 'depression or indentation in the entryway.' The evidence indicates there was a slight incline from the door down to the sidewalk.
Plaintiff's expert witness stated that he had been in the architectural profession for fifteen years. He had examined the floor surface visually and by feeling it with his hands. He testified that He also testified that he wetted the surface and rubbed it to see if he could detect any abrasive material. He stated, The witness further stated he had used that type of floor 'for interior uses' since
Five defense witnesses testified as to the occurrence and the floor condition at that time. A cashier in the store, whose station was just inside the door of the south entryway, stated she did not see plaintiff fall. She saw plaintiff standing in front of the store by the corner of the window. When she next noticed plaintiff, she was lying on the ground with her head on the sidewalk and her feet partially in the entryway. She could not see any puddles or collection of water in the entrance. There were no indentations or depressions in the floor. It had rained that morning, and it was drizzling in the afternoon and the wind was blowing. The store had no rubber mat to put down in the entryway when wet.
Defendant's assistant manager testified that when he first saw plaintiff, she was lying on the sidewalk in front of the store. He did not recall seeing any puddles, large accumulations of water, indentations or depressions in the surface. A village employee testified that he was driving through the shopping center about noon and happened to see a woman standing near the showcase at Maling's and just falling down or dropping down by the case. The Plaza maintenance engineer said, 'To my knowledge there were no puddles.' The Village Chief of Police said that he was called to the scene of the occurrence and did not see any puddles, accumulations of water, indentations or holes.
Defendant's expert witness testified that he was a Professor of Metallurgical Engineering since 1954. He examined the floor with a machine used for testing slipperiness. It is a pendulum which attempts to simulate the glancing blow struck against the floor by a human foot wearing a shoe. The pendulum is stated at an angle of 45 degrees and, therefore, if it faced no resistance, would swing up to 45 degrees on the other side. He tested a terrazzo, vinyl tile, ceramic tile, oak tile and asphalt tile floor. He that
Initially, defendant argues, 'The law in Illinois has continually and consistently been that, upon a showing such as this, the defendant, as a matter of law, is entitled to a verdict.' Defendant asserts that the trial court was in error in failing to enter judgment for the defendant, either by granting a motion for a directed verdict or by granting defendant's motion for judgment notwithstanding the verdict. This presents the single question whether there was, in the record, any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of her case. Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. (Garrett v. S. N. Nielsen Co., 49 Ill.App.2d 422, 426, 200 N.E.2d 81 (1964).) If there was a total failure to prove one or more of the essential elements of plaintiff's case, specifically, as contended by defendant, due care on her part or negligence on the part of the defendant, the motion should have been allowed. Statements made in Carter v. Winter, 32 Ill.2d 275, p. 282, 204 N.E.2d 755, p. 758 (1965), are in point:
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...823; Davis v. Hoeffken Bros., Inc., 60 Ill.App.2d 139, 208 N.E.2d 370. Plaintiff, relying primarily upon Sommese v. Maling Brothers, Inc., 65 Ill.App.2d 223, 213 N.E.2d 153, argues that Count I of the complaint states a cause of action. Defendants, Claude Lemay and Ernest Piper, d/b/a Speed......
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...(citing with approval a more detailed analysis of the distinction in the lower court at Sommese v. Maling Bros, Inc., 65 Ill. App. 2d 223, 232-37, 213 N.E.2d 153, 157-60 (Ill. App. Ct. 1965)). UPS argues that Scarelli's allegations are insufficient to support an inference that the construct......
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...fairly tends to support the cause of action so that the jury might reasonably have found for the plaintiff. Sommese v. Maling Brothers, Inc., 65 Ill.App.2d 223, 213 N.E.2d 153; Perkins v. Chicago Transit Authority, 60 Ill.App.2d 431, 208 N.E.2d We also conclude that it cannot be said that t......
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