{ "id": 2488833, "name": "BETTY JO WILSON et al., Plaintiffs-Appellants, v. GORSKI'S FOOD FAIR et al., Defendants-Appellees", "name_abbreviation": "Wilson v. Gorski's Food Fair", "decision_date": "1990-03-30", "docket_number": "No. 1-88-3481", "first_page": "612", "last_page": "618", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 612" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "350 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5381965 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0637-01" ] }, { "cite": "407 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3185325 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0142-01" ] }, { "cite": "381 N.E.2d 1389", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 1030", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3330815 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/1030-01" ] }, { "cite": "519 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "1161" }, { "page": "1161" }, { "page": "1161" } ], "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5074540 ], "weight": 5, "pin_cites": [ { "page": "534" }, { "page": "534" }, { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0533-01" ] }, { "cite": "488 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3533176 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0171-01" ] }, { "cite": "365 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366549 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0999-01" ] } ], "analysis": { "cardinality": 561, "char_count": 12879, "ocr_confidence": 0.762, "pagerank": { "raw": 1.7279466912429263e-07, "percentile": 0.7049387821452139 }, "sha256": "fbe2c1f4da1c9d2bf086b5203c62a833eb905b2ca5e8b60e18cbe9c1a00fcc76", "simhash": "1:3fbed5cc4b6b26d5", "word_count": 2126 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BETTY JO WILSON et al., Plaintiffs-Appellants, v. GORSKI\u2019S FOOD FAIR et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiffs appeal from the entry of summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141005) in defendants\u2019 favor. We address the following two issues: (1) whether a genuine issue of material fact existed that plaintiff Betty Jo Wilson\u2019s injury was the result of either an unnatural accumulation of water or defendants\u2019 aggravation of a natural accumulation; and (2) whether a genuine issue of material fact existed that defendants voluntarily assumed a duty of care. We affirm.\nIn their amended complaint, plaintiffs Betty Jo Wilson and her husband James Wilson sought recovery against defendants for negligence, wilful and wanton conduct, and loss of consortium. A fourth count was subsequently dismissed with prejudice and is not involved in this appeal. Plaintiffs alleged that on December 16, 1982, Mrs. Wilson fell on the wet floor inside defendants\u2019 store and sustained personal injuries.\nDefendants, Gorski\u2019s Food Fair, Joan Nolte, and Joseph Gorski, filed an answer denying the allegations of the negligence and loss of consortium counts of plaintiffs\u2019 original complaint. They filed a motion to dismiss the wilful and wanton count which was denied. There is no indication from the record that defendants filed an answer to the wilful and wanton count after their motion to dismiss was denied. Subsequently, defendants filed an amended answer to plaintiffs\u2019 amended complaint and stated that their previous answer to the wilful and wanton count would stand. That previous answer, however, is not in the record. Plaintiffs did not raise this as an issue in the trial court or on appeal.\nPlaintiffs\u2019 interrogatories asked whether defendants had a \u201cmaintenance or safety program,\u201d and defendant Gorski\u2019s Food Fair responded that such a program was in effect on the day Mrs. Wilson was injured. Gorski\u2019s Food Fair explained that \u201c[o]n snow or rain days, a mop and bucket is [sic] kept near the front of the store. A bagger periodically mops in the entrance to prevent any water from getting into the store. *** A large 3\u2019 x 10\u2019 mat is maintained in the entrance of the store to collect any moisture from the outside.\u201d In response to another interrogatory, Gorski\u2019s Food Fair stated that Craig Lindl was responsible for the maintenance program on the day Mrs. Wilson was injured.\nMrs. Wilson was deposed and testified that on the day in question, it was raining periodically outside and the pavement was wet. When she entered the store, she wiped her feet on a cloth mat, took two steps off the mat and fell. She testified the floor was wet with water. As she was lying on the floor after she fell, she noticed that when someone would step on the mat, water ran out from the mat. When asked whether she fell because of \u201cwater squeezing out of the rug as people walked by,\u201d she answered, \u201cI walked through the puddle, and down I went, that\u2019s right.\u201d\nDefendants moved for summary judgment, relying on Mrs. Wilson\u2019s deposition testimony that she fell in rainwater which was tracked inside defendants\u2019 store.\nIn response to defendants\u2019 motion for summary judgment, plaintiffs filed Mrs. Wilson\u2019s four-sentence affidavit, which stated the water she fell in came from the mat which was \u201cwaterlogged,\u201d that she fell in an \u201cunnatural accumulation\u201d of water, and that she fell inside the store not in the vestibule.\nDefendants moved to strike the affidavit, arguing it contained conclusions rather than facts which is prohibited under Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)). However, defendants did not seek a ruling on the motion at the hearing and there was no indication otherwise in the record that the trial judge ruled on the motion to strike.\nOn October 25, 1988, the trial judge granted defendants\u2019 motion for summary judgment, and plaintiffs filed a timely notice of appeal.\nOpinion\nSummary judgment should be granted if the pleadings, affidavits, and depositions reveal there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2\u20141005(c).) The evidence presented must be construed strictly against the movant and liberally in favor of the opponent. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80.) To avoid summary judgment, plaintiff must present some factual basis that would arguably entitle him to judgment in his favor. Chisolm, 47 Ill. App. 3d 999, 365 N.E.2d 80.\nA landowner is not liable for injuries resulting from the natural accumulation of ice, snow, or water that are tracked inside his premises. (Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 488 N.E.2d 679.) There may be liability if the injuries resulted from an unnatural accumulation of ice, snow, or water or from a natural condition which was aggravated by the landowner. Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160.\nInitially, plaintiffs contend that under the facts presented, defendants are liable because either the accumulation of water on the mat was unnatural or the mat aggravated a natural accumulation of water. Plaintiffs rely on Mrs. Wilson\u2019s deposition testimony that after she fell, she noticed that when someone walked on the mat, water would come out of the mat. Plaintiffs also rely on her affidavit where she stated that the mat was \u201cwaterlogged.\u201d We note that defendants\u2019 failure to obtain a ruling on their motion to strike Mrs. Wilson\u2019s affidavit resulted in a waiver of that objection on appeal. Oak Trust & Savings Bank v. Annerino (1978), 64 Ill. App. 3d 1030, 381 N.E.2d 1389.\nWe reject plaintiffs\u2019 contention that the water on the mat was an unnatural accumulation or that the mat aggravated the water\u2019s natural accumulation. Plaintiffs do not cite case law that supports liability under similar circumstances. However, this case falls directly in line with Bernard (166 Ill. App. 3d 533, 519 N.E.2d 1160), and Lohan (140 Ill. App. 3d 171, 488 N.E.2d 679), where summary judgments granted in favor of defendants were upheld on appeal under facts similar to the case at bar.\nIn Bernard, plaintiffs, a husband and wife, sought recovery for injuries the wife sustained inside defendant\u2019s store. Before entering the store, the wife noticed \u201ca lot of snow\u201d outside. (Bernard, 166 Ill. App. 3d at 534, 519 N.E.2d at 1161.) Inside the store she walked the length of a rug which was saturated with water and \u201csquish[ed]\u201d when stepped on. (Bernard, 166 Ill. App. 3d at 534, 519 N.E.2d at 1161.) She walked one or two steps off the rug and fell. She testified at her deposition that she \u201cimagined\u201d the water was tracked in from outside. (Bernard, 166 Ill. App. 3d at 534, 519 N.E.2d at 1161.) In an affidavit, she stated that she had no direct knowledge of the source of the water. Summary judgment was granted in defendant\u2019s favor and was affirmed on appeal. The court noted that there was no evidence presented that the water was an unnatural accumulation or developed unnaturally as a result of defendant\u2019s actions. Plaintiffs also argued that defendant\u2019s use of the rug created a dangerous condition. The court rejected that argument because no evidence was presented regarding the condition or effect of the rug.\nPlaintiffs attempt to distinguish Bernard by claiming that in this case, some evidence was presented as to the condition of the mat. Plaintiffs point to Mrs. Wilson\u2019s deposition testimony that the mat was so saturated with water, that water came out when the mat was stepped on. Also, in an affidavit Mrs. Wilson stated that the mat was \u201cwaterlogged.\u201d Similarly in Bernard, some evidence was presented that the rug was so saturated with water it \u201csquish[ed]\u201d when stepped on. There is no significant factual distinction between the two cases that would justify departing from the holding in Bernard.\nIn Lohan, plaintiff fell inside a common entrance of defendants\u2019 stores on a rainy day. Rubber mats were placed inside the entrance-way, but they were wet as was the floor. Plaintiff stepped off the mat and fell. This court affirmed entry of summary judgment in defendants\u2019 favor because, as a matter of law, defendants could not be liable for a natural accumulation of tracked-in water that caused plaintiff\u2019s injury.\nThe facts in the present case are virtually identical to Bernard and Lohan. Here, plaintiff fell in rainwater that was tracked inside defendants\u2019 store. Lohan established that such tracked-in water is a natural accumulation for which a landowner is not liable. In this case, plaintiffs argue that the water on the mat is transformed into an unnatural accumulation; however, there is no legal basis for such a finding. The rainwater on the mat was still a natural accumulation of water because the evidence showed it was tracked in from outside. Plaintiffs also argue that the mat aggravated a natural accumulation of water in the store because the mat was saturated with tracked-in water. There is no evidence to support plaintiffs\u2019 claim that the mat aggravated the tracked-in water.\nPlaintiffs also argue that defendants voluntarily assumed a duty to remove the water as evidenced by defendant Gorski\u2019s Food Fair\u2019s answers to interrogatories. If a landowner voluntarily assumed a duty to remove a natural accumulation of snow, ice, or water, he is held to a standard of ordinary care. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.) In this case, defendant Gorski\u2019s Food Fair admitted that on the day of Mrs. Wilson\u2019s injury, it had a maintenance program in effect under which on rainy days the floor would be mopped periodically and mats would be placed in the entrance of the store. Plaintiffs argue evidence was presented that defendants did not mop adequately and did not maintain the mat.\nPlaintiffs, however, did not allege this in their amended complaint or raise this as an argument in their response to defendants\u2019 motion for summary judgment. At oral argument on the motion, plaintiffs\u2019 attorney merely stated that defendants \u201cassumed a duty when he or she placed this runner on the floor to do so non-negligently.\u201d From the record, plaintiffs never directed the trial court\u2019s attention to defendant Gorski\u2019s Food Fair\u2019s answer to interrogatories. At oral argument in this court, plaintiffs conceded that the issue was not presented below. Contentions not raised in the trial court are waived on appeal (Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637, 350 N.E.2d 242), and therefore, plaintiffs have waived this argument.\nDespite plaintiffs\u2019 waiver of this argument, we note that there was no evidence presented that defendants voluntarily assumed a duty to remove tracked-in water. Plaintiffs\u2019 argument is dependent on finding that defendants\u2019 \u201cmaintenance or safety program\u201d was a voluntary undertaking and was performed negligently. Defendants admitted that on rainy days, they mopped periodically and put mats in the entranceway. Plaintiffs do not dispute the statement in Lohan that \u201cwhere the accumulation is a natural one there is no duty to continue a voluntary undertaking to remove it.\u201d (Lohan, 140 Ill. App. 3d at 175, 488 N.E.2d at 682.) Despite defendants\u2019 past performance of mopping and putting mats down, they had no duty to continue such action. There is no evidence that defendants mopped the floor on the day of Mrs. Wilson\u2019s injury; however, they placed mats near the entranceway. The mat became saturated with tracked-in water; however, defendants were not under a duty to continuously remove the water. There is no other evidence to support plaintiffs\u2019 claim that defendants\u2019 use of the mat was negligent. Further, we note that Mrs. Wilson did not fall on the mat, but she fell after she took two steps off the mat.\nLastly, we reject plaintiffs\u2019 argument that this court should depart from the long-standing rule that a landowner has no liability for injuries resulting from a natural accumulation of snow, ice, or water on his property.\nFor these reasons, the trial court\u2019s entry of summary judgment in defendants\u2019 favor was proper.\nAffirmed.\nMURRAY and GORDON, JJ., concur.\nNoan Nolte was not named as a defendant in plaintiffs\u2019 original or amended complaints. It appears that Joan Nolte may have been incorrectly sued as Joan Gorski.\nJustice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and has listened to the tape of oral argument.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "John C. Lorenzen, of John J. Henely, Ltd., of Chicago, for appellants.", "Brydges, Riseborough, Morris, Franke & Miller, of Chicago (John W. Norris and Darrell S. Dudzik, of counsel), for appellees." ], "corrections": "", "head_matter": "BETTY JO WILSON et al., Plaintiffs-Appellants, v. GORSKI\u2019S FOOD FAIR et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201488\u20143481\nOpinion filed March 30, 1990.\nJohn C. Lorenzen, of John J. Henely, Ltd., of Chicago, for appellants.\nBrydges, Riseborough, Morris, Franke & Miller, of Chicago (John W. Norris and Darrell S. Dudzik, of counsel), for appellees." }, "file_name": "0612-01", "first_page_order": 634, "last_page_order": 640 }