{ "id": 2865713, "name": "Gladys Louise Dunlap et al., Plaintiffs-Appellants, v. Marshall Field & Company, Defendant-Appellee", "name_abbreviation": "Dunlap v. Marshall Field & Co.", "decision_date": "1975-04-03", "docket_number": "No. 59692", "first_page": "628", "last_page": "634", "citations": [ { "type": "official", "cite": "27 Ill. App. 3d 628" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "256 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill.App.2d 68", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583504, 1583482 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0068-02", "/ill-app-2d/120/0068-01" ] }, { "cite": "295 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 Ill.App.3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5393432 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0818-01" ] }, { "cite": "104 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "411 Ill. 368", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312919 ], "opinion_index": 0, "case_paths": [ "/ill/411/0368-01" ] }, { "cite": "175 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill.2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2730514 ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0469-01" ] }, { "cite": "236 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill.App.2d 179", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2478760 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0179-01" ] }, { "cite": "148 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "337 Mass. 768", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3848707, 3847309, 3848094 ], "opinion_index": 0, "case_paths": [ "/mass/337/0768-03", "/mass/337/0768-02", "/mass/337/0768-01" ] }, { "cite": "454 P.2d 852", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2117491, 2117501 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/or/253/0416-01", "/or/253/0370-01" ] }, { "cite": "253 Or. 370", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2117501 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/or/253/0370-01" ] }, { "cite": "306 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill.App.3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2516262 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0445-01" ] }, { "cite": "173 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "148 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "13 Ill.2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2774344 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0113-01" ] }, { "cite": "186 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill.App.2d 83", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5256637 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/38/0083-01" ] } ], "analysis": { "cardinality": 740, "char_count": 13575, "ocr_confidence": 0.762, "pagerank": { "raw": 2.1699355176880477e-07, "percentile": 0.7709240963469299 }, "sha256": "ed3d920b5c5ecedc0e9e11ff888cfa20e389ce49e0470eace5753bff52a66aaf", "simhash": "1:ab2618abfb44e488", "word_count": 2242 }, "last_updated": "2023-07-14T15:22:05.356803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gladys Louise Dunlap et al., Plaintiffs-Appellants, v. Marshall Field & Company, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE McNAMARA\ndelivered the opinion of the court:\nGladys Dunlap and her husband Leonard brought an action in the circuit court of Cook County against Marshall Field & Company for personal injuries allegedly sustained when the plaintiff-wife slipped on a discarded lollipop stick while shopping in defendant\u2019s downtown store. At the close of plaintiffs\u2019 evidence the trial court granted defendant\u2019s motion for a directed verdict, denied plaintiffs\u2019 post-trial motion, and entered judgment accordingly. Plaintiffs appeal.\nWith reference to the circumstances of the injury, Mrs. Dunlap was the only witness on her own behalf. On August 26, 1968, plaintiff, 68 years of age, was shopping in defendant\u2019s budget basement store. She had purchased shoes and was walking down the aisle to the candy department when she heard a loud voice from behind say \u201cwatch the truck.\u201d Looking around, she saw a young man \u201ca colored boy, but very light skin, very attractive, deep featured and quite young\u201d pushing a canvas refuse cart. At that time the cart was 4 feet behind her and approaching. \u201cfast.\u201d Mrs. Dunlap thought the aisle was too narrow to accommodate both her and the passing cart so she- turned left into an intersecting aisle and continued walking. After three or four steps , in the second aisle plaintiff felt her left leg roll on a small object similar to a kitchen match. The unnatural movement caused her to lose her balance and fall to the ground.\nAfter the fall, two unidentified men \u201cjerked\u201d plaintiff up from the floor and left her standing on one foot holding on to a counter. From this position- she noticed a candy stick in the aisle, retrieved it and placed it into the bag containing her shoes. At the trial, over defendant\u2019s objection, the candy stick, dirty and flattened, was received- into evidence. The basement candy counter was approximately 18 feet from the location of the occurrence.\nMrs. Dunlap testified that her injuries caused excruciating pain and rendered her unable to walk without assistance. Despite this fact, plaintiff did not consult a physician until 10 months after the occurrence. At that time an orthopedic surgeon found that plaintiff was suffering from a fractured hip and hospitalized her for surgery and corrective treatment.: - In the physician\u2019s opinion, the injury resulted from a severe fall and at the time of his diagnosis the age of the fracture was 9 to 12 months.\nIn 1970 plaintiffs filed a pro se complaint against defendant alleging negligent maintenance of the store premises and negligent operation of the refuse cart. In the complaint, plaintiffs alleged that due to defendant\u2019s negligence a \u201cforeign object\u201d extended and protruded into a certain aisle and'that defendant negligently operated a refuse truck in said aisle. The complaint further charged that Mrs. Dunlap \u201cwas pushed and tripped\u201d and caused to \u201cstumble and fall.\u201d Later the \u201cpush and trip\u201d allegation was modified and plaintiffs maintained that Mrs. Dunlap \u201cwas forced to jump aside.\u201d Three years later an amended complaint was filed by trial counsel. This last complaint set forth additional charges of negligence- deleted the \u201cjump aside\u201d allegation, and identified the foreign object as a lollipop stick.\nAt the close of plaintiffs\u2019 evidence the trial court ruled that a prima facie case of negligence had not been established and granted defendant\u2019s motion for a directed verdict. On review we must ascertain, from the evidence and inferences most favorable to plaintiffs, whether the issue of defendant\u2019s negligence in maintaining the premises or operating the cart should have been submitted to the jury.\nSince Mrs. Dunlap was a business invitee on defendant\u2019s premises, defendant owed her the duty to exercise ordinary care in maintaining the premises in a reasonable safe condiction. Burns v. Goldammer (1962), 38 Ill.App.2d 83, 186 N.E.2d 97.\nThe rule in Illinois is that if a business invitee is injured by slipping on a foreign substance on defendant\u2019s premises and there is a basis in the evidence for an inference of defendant's or his servants\u2019 negligence, then the case must go to the jury. If the substance was on the floor through the act of a third person, or there is no showing of how it reached the floor, there must be evidence of sufficient notice to defendant of the presence of the substance so that defendant, in the exercise of ordinary care, would have discovered it. See Donoho v. O\u2019Connell\u2019s Inc. (1958), 13 Ill.2d 113, 148 N.E.2d 434; Olinger v. Great Atlantic & Pacific Tea Co. (1961), 2 Ill.2d 469, 173 N.E.2d 443.\nPlaintiffs suggest as a third basis for liability that when the evidence shows that the injury was caused by a regular and recurring dangerous condition which defendant was bound to foresee, the constructive notice requirement is satisfied and the issue of defendant\u2019s negligent maintenance of the premises must be submitted to the jury. While this principle has been recognized as valid (Perminas v. Montgomery Ward & Company (1973), 16 Ill.App.3d 445, 306 N.E.2d 750, rev\u2019d on other grounds, 60 111,2d 469), it is not dispositive of the issue in this case as plaintiffs have failed to establish the theory by any evidence.\nPlaintiffs argue that lollipop sticks discarded in aisles near the candy counter created a recurring dangerous condition which defendant was bound to foresee. They argue that defendant, by selling lollipops in the budget basement, was bound to foresee its customers would most likely be children and that children would consume the candy on the premises and heedlessly dispose of the stick by dropping it on the floor. Plaintiffs\u2019 argument is unacceptable because of a complete failure of proof to support it. There was no evidence that lollipops were regularly consumed on the premises or that improper disposal, by children, or anyone else, was a recurring incident giving rise to a dangerous condition that defendant was'bound to foresee. Furthermore, plaintiffs offered no evidence to show that the candy stick upon which Mrs. Dunlap slipped was in fact of the type used in defendant\u2019s candy. When plaintiff\u2019s attorney examined defendant\u2019s candy-counter employee under section 60 he did. not show her the stick or otherwise attempt to show that it was of the type found in lollipops sold in the store. Under these circumstances we find plaintiffs\u2019 claim of a foreseeable condition of danger to be without merit.\nHaving failed to show that the stick was part of a dangerous and foreseeable condition, plaintiffs were required to adduce evidence sufficient to support a finding that the stick was in the aisle through the acts of defendant or his agents or that defendant or his agents knew or should have known of its presence. There was no evidence that the stick was in the aisle through the negligent acts of defendant or its employees and plaintiffs do not argue otherwise. Plaintiffs do assert, however, that the evidence was sufficient to support a reasonable inference that the stick was in the aisle\" for a period of time sufficient to charge defendant with constructive notice of its presence. The sole evidence tending to show that the candy stick had remained on the floor for a considerable length of tim\u00e9 was its flattened and dirty condition. When the stick was offered in evidence Mrs. Dunlap testified that it was in the same condition as when she picked it up after the accident, some 6 years earlier.\nOrdinarily the wilted, tom or dirty condition of an object upon which the injured party slipped does not provide basis for an inference that it had remained on the floor for a length of time sufficient to charge defendant with constructive notice of its presence. (Pavlik v. Albertson\u2019s, Inc. (1969), 253 Or. 370, 454 P.2d 852; Rioux v. McClellan Stores Co. (1958), 337 Mass. 768, 148 N.E.2d 361.) The condition of the object is deemed inconclusive as it might have been dirty before it was dropped, become dirty after only a few moments on the floor, or been dirtied and flattened by the shoe of the individual who slipped on it.\nIn Burns v. Goldammer, supra, relied on by plaintiffs, the court considered what evidence was sufficient to charge defendant with constructive notice of foreign matter present on a bowling alley approach lane. In light of the extra-hazardous situation foreign matter in that location posed, the' court held that defendant could be charged with constructive notice even if the substance was present on the floor only a short time. Therefore, evidence such as the dirty condition of the gum could show that the substance was present long enough to charge defendant with constructive notice. The Burns court makes it clear that its holding was an exception to the general rule and should not apply to foreign naatter found in the common passageways of a retail store. The reasoning and result in Burns have no application to the present case. The condition of the candy stick was not sufficient to support an inference of constructive notice and the trial court properly so held.\nPlaintiffs also contend that the trial court erred in holding that there was no evidence of negligence on the part of defendant\u2019s employee in the operation of the refuse cart and in refusing to submit that issue to the jury.\nDefendant owed Mrs. Dunlap, a business invitee, the duty to exercise ordinary care for her safety. Defendant was required to exercise care to guard against any reasonably foreseeable rise of harm which might flow from its conduct. The essential element of negligence is the exposure of another to an unreasonable risk of harm. (Beccue v. Rockford Park District (1968), 94 Ill.App.2d 179, 236 N.E.2d 105.) Applying this definition to the facts of this case, we find no proof that the action of defendant\u2019s employee amounted to. a breach of the ordinary care owed. It was uncontroverted that the car was some 4 feet behind plaintiff when defendant\u2019s employee gave a loud clear vrarning of its approach. Mrs. Dunlap\u2019s testimony revealed .that she had an opportunity to judge the size of the cart and to note the physical characteristics of the clerk. An intersecting aisle was two steps away, and by turning into it Mrs. Dunlap easily removed herself from any hazard the cart may have posed. She testified that the lighting in the store was normal.\nDefendant is not an insurer of the safety of plaintiff simply because she was on his premises as a business invitee. (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill.2d 469, 175 N.E.2d 445.) In view of the clear warning, the position of the cart at the time it was given and the close proximity of an intersecting aisle, we do not believe that the action of defendant\u2019s employee exposed Mrs. Dunlap to an unreasonable risk of harm. Viewing the. evidence in light most favorable to plaintiff, we must conclude that there was no showing that defendant breached the ordinary care owed. There was no evidence upon which the jury could reasonably have found negligence.\nIn Count III of the amended complaint plaintiffs alleged.that the presence of the candy stick and. the movement of the cart constitute' a public nuisance under section 221(5) of the Illinois Nuisance Act (Ill. Rev. Stat. 1967, ch. 100\u00bd, par. 26(5)) and that such nuisance proximately caused Mrs. Dunlap\u2019s injuries. Defendant denied these allegations, and the court directed a verdict in its favor on this count. Plaintiffs now' contend that by failing to make a motion to strike Count III defendant has conceded the legal sufficiency of the count and has. implicitly admitted the applicability of the nuisance statute. In our view, the argument lacks merit.\nAlthough defects in a complaint containing an incomplete statement of a good cause of action may be waived, the question of whether a complaint absolutely fails to state a ground of liability is never waived merely by filing an answer. (Wagner v. Kepler (1951), 411 Ill. 368, 104 N.E.2d 231.) Moreover, the sufficiency of plaintiffs\u2019 nuisance count is not a decisive issue in determining whether the directed verdict was proper. Whether the evid\u00e9nce, viewed most favorably to plaintiffs, was sufficient to require submission of the case to the jury is our concern. Our review of the record indicates that plaintiffs failed to show defendant was responsible for or had notice of the candy stick in the aisle of the store. Further, plaintiffs failed to establish that the cart was operated in an unsafe or improper manner. Thus the proof did not establish that defendant created a public nuisance as defined in the statute. Since plaintiffs failed to prove the essential elements of their cause of action, the trial court properly refused to submit tire nuisance count to the jury.\nAnother reason for sustaining the action of the trial court is plaintiffs\u2019 failure to file an abstract or excerpts from the record. This failure would warrant the dismissal of the appeal. Frederick Chusid & Co. v. Collins Tuttle & Co. (1973), 10 Ill.App.3d 818, 295 N.E.2d 74; Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App.2d 68, 256 N.E.2d 71.\nFor the reasons stated, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMcGLOON, P. J., and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE McNAMARA" } ], "attorneys": [ "David Alswang, of Chicago, for appellants.", "Lord, Bissell, & Brook, of Chicago (Richard C. Valentine, Richard E. Mueller and Hugh C. Griffin, of counsel), for appellee." ], "corrections": "", "head_matter": "Gladys Louise Dunlap et al., Plaintiffs-Appellants, v. Marshall Field & Company, Defendant-Appellee.\n(No. 59692;\nFirst District (3rd Division)\nApril 3, 1975.\nRehearing denied May 15, 1975.\nDavid Alswang, of Chicago, for appellants.\nLord, Bissell, & Brook, of Chicago (Richard C. Valentine, Richard E. Mueller and Hugh C. Griffin, of counsel), for appellee." }, "file_name": "0628-01", "first_page_order": 654, "last_page_order": 660 }