The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

Slip and Fall 101 – the “Classic Kimbrough Case”
By Daniel S. Porter

There are a number of duties a premises owner has to an invitee on its premises. Cases commonly known as “slip and falls” or “trip and falls” are the most common lawsuits involving the business owner and invitee relationship. Whether representing an individual plaintiff who is attempting to recover for injuries sustained as the result of a dangerous condition on a business premises or a business owner who is defending against such an action, awareness of the nuances of these cases is paramount. These matters can be ripe for summary judgment. Before taking a case for either party, here are some important things to know.

Illinois Premises Liability Act. The Illinois Premises Liability Act abolished the common law distinction between invitees and licensees as to the duty owed by an owner or occupier of a premises.1 Under the Act, the duty owed by a landlord is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.

Reasonable care under the Act requires a determination that an injury is reasonably foreseeable, which is determined pursuant to section 343A of the Restatement (Second) of Torts.2 Foreseeability is determined by whether the landowner: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and; (c) fails to exercise reasonable care to protect them against the danger.

To bring and prove a slip and fall claim, general principles of negligence apply. The plaintiff must prove: (1) that the defendant owed her a duty of care; (2) that the defendant breached that duty of care; and (3) that the breach of that duty proximately caused the plaintiff’s injury.3 Whether a duty is owed presents a question of law for the court to decide, while breach of duty and proximate cause present questions of fact for the jury to decide.4

Duty – the Open and Obvious Exception, and Exceptions to the Open and Obvious Exception. While the duty owed owners or occupiers is generally a question of fact, a defendant is generally held to have no duty to warn his invitees of, or otherwise protect them from, known or obviously dangerous conditions on his premises. Illinois courts recognize the open and obvious exception to the duty of care owed by possessors of land to invitees, as it is not foreseeable that an invitee will be injured when the condition is obvious or known. The open-and-obvious exception is outlined in section 343A of the Restatement.5 The focus is on the landowner’s knowledge or what the landowner should have known. With regard to open and obvious hazards, liability stems from the knowledge of the possessor of the premises, and what the possessor “ha[d] reason to expect” the invitee would do in the face of the hazard.6

There are two generally recognized exceptions to the open-and-obvious doctrine: the distraction exception and the deliberate-encounter exception.

Where a landowner knows or should know an entrant may be distracted upon encountering a hazardous condition that is open an obvious, foreseeability may be found and a duty imposed. The recognition of the distracted exception in Ward v  K Mart Corp. requires a court to look beyond whether a condition is open and obvious and examine whether a defendant should have foreseen that a plaintiff was or could be distracted or forgetful.7

The deliberate-encounter exception, provides that harm may also be reasonably anticipated when the possessor of land “has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”8 Under the deliberate-encounter exception, individuals will make deliberate choices to encounter hazards when faced with employment concerns, and those encounters are reasonably foreseeable by possessors of property.9 As with the distraction exception, the focus with the deliberate-encounter analysis is on what the landowner anticipates or should anticipate the entrant will do in the face of the hazard.

Breach – Notice of a Defective or Hazardous Condition. In order to demonstrate that a defendant breached its duty of maintaining the premises under its control in a reasonably safe condition, the plaintiff must show that (1) there was a dangerous condition on the premises and (2) that the property owner had actual or constructive knowledge of the condition.10 To prove constructive notice, a plaintiff must show that the hazardous condition existed for a sufficient amount of time or that, through the exercise of reasonable care, the defendant should have discovered the dangerous condition.11 However, where a defendant created the condition through its own negligence, a plaintiff does not need to show constructive or actual notice.12 Notice is generally a question of fact for the jury to decide.13

One way to establish constructive notice to survive summary judgment is through the use of cleaning procedures by the owner. In Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of N.Y., Inc., the plaintiff fell near a trash receptacle at a Wendy’s restaurant hurting her left hip and right knee.14 Plaintiff could not determine the cause of her fall, but noticed a greasy substance on the floor after her fall preventing her from getting up. Plaintiff told the Assistant Manager that she had fallen and showed the Assistant Manager where the fall occurred. At the Assistant Manager’s deposition, she testified that Wendy’s training manual provides that every 15 minutes, the most senior manager working must walk through the restaurant to make sure everything is up to par. If an employee notices food or any debris on the floor, it is to be picked up immediately.

On its motion for summary judgment, Wendy’s argued it did not breach a duty to plaintiff to warn or make the area safe because it did not have actual or constructive knowledge of any substance on the floor, and that plaintiff had an obligation to show the greasy substance caused her to fall which plaintiff did not meet.15 Denying Wendy’s motion for summary judgment, the court stated there were genuine issues of material fact as to whether the grease that plaintiff felt on the floor was also the proximate cause of her fall, and whether Wendy’s manager failed either to discover the spilled grease during the required walk-through or whether the manager failed to conduct the required walk-through.16 The court went on to say both of these issues determine the elements of constructive notice and proximate cause.17

Proximate Cause. Proximate cause is an essential element of a negligence claim that, if not proved, can completely derail a case on summary judgment. “The mere occurrence of an accident does not support an inference of negligence, and, absent positive and affirmative proof of causation, the plaintiff cannot sustain the burden of establishing the existence of a genuine issue of material fact.”18 Proximate cause includes two distinct requirements: cause in fact and legal cause.19 Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the injury or damage, whereas legal cause is established if an injury was foreseeable as the type of harm that a reasonable person would expect to see as a likely result of defendant’s conduct.20

The seminal case for proximate cause in Illinois is Kimbrough v. Jewel Companies, Inc.21 Courts frequently refer to slip and fall cases where the plaintiff cannot specifically identify what caused his/her fall as a “classic Kimbrough case” when ruling on a motion for summary judgment. In Kimbrough, plaintiff fell on a ramp as she left a Jewel store and although there were grease spots on the ramp, she did not know why she had fallen or even if she had slipped on the grease.22 The court held that because a causal connection had not been established between her fall and any condition under defendant’s control, summary judgment in favor of defendant was proper.23 Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant’s acts caused the injury.24 No liability can exist unless the defendant’s alleged negligence is the legal cause of the plaintiff’s injury and if the plaintiff fails to establish the element of proximate cause, she has not sustained her burden of making a prima facie case and summary judgment is proper.25 Plaintiff’s inability to identify the cause of her fall was the determinative factor. The lesson is that if the plaintiff cannot say what caused his/her fall, there is no way to tie the fall in with a duty imposed upon the property owner or occupier, and the case will be dismissed on summary judgment.

Snow, Ice, and the Natural Accumulation Rule: Slip and fall cases frequently arise as the result of wintery conditions such a snow and ice. Under what is called the “natural accumulation rule,” a property owner is not liable for injury sustained by an invitee in a fall on any icy sidewalk or parking lot maintained by the property owner for the use of his customers where the accumulation is a natural one and not one caused or aggravated by the property owner.26 A landowner has no duty to remove the tracks of persons who have walked through natural accumulations of slush, snow, and water.27 Further, a landowner does not have a duty to continuously remove tracks left by customers who have walked through natural accumulations. 28 A mat that becomes saturated in a store’s entry way due to tracked-in moisture neither transforms the moisture into an unnatural accumulation nor aggravates the natural accumulation.29

On the other hand, a property owner may be liable for injury sustained by an invitee who falls and is injured as a result of snow and ice that did not accumulate as a result of natural causes but as the result of the property owner’s conduct in creating an unnatural or artificial accumulation of snow and ice.30 Although there is no duty to remove natural accumulations of snow and ice from one’s premises, a voluntary undertaking to remove such snow and ice may be the basis of liability if the removal is performed negligently.31 However, mere removal of snow, which may leave a natural ice formation remaining on the premises, does not of itself constitute negligence.

Comparative Negligence. As in most negligence situations, comparative negligence and contributory negligence are viable defenses to be brought by a property owner or occupier. Comparative negligence occurs when the plaintiff was careless or had a part in creating the dangerous situation that caused the fall and their amount of fault was less than 50 percent. Compensation is then calculated based off of the percentage of fault. Comparative negligence may also be involved in a case where someone chooses to wear improper clothing, such as high heel shoes, or using equipment that may contribute to the accident.

Conclusion. From the discussion above, evaluating a slip and fall case from either side can be boiled down to three simple but important questions: (1) what made the plaintiff fall; (2) how did it get there; and (3) how long was it there? If a plaintiff cannot answer all three of these questions and there are no other witnesses or evidence that can answer them, the case is ripe for summary judgment. Though there are many other components to slip and fall cases, these three questions get at the heart of the matter and can give you a basic roadmap for evaluating these cases in the future.

1. 740 ILCS 130/2
2. Restatement (Second) of Torts §343A, at 218 (1965).
3. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 421 (2004); Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010).
4. Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011)
5. Restatement (Second) of Torts §343A, at 218 (1965).
6. LaFever v. Kemlite Co., 185 Ill. 2d at 392 (1998), quoting Restatement (Second) of Torts, §343A, Comment f, at 220 (1965), and citing R. Ferrell, Emerging Trends in Premises Liability Law: Ohio’s Latest Modification Continues to Chip Away at Bedrock Principles, 21 Ohio N.U.L. Rev. 1121, 1137 (1995).
7. Ward v. K Mart Corp., 136 Ill. 2d 132 (1990).
8. LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts §343A, Comment f, at 220 (1965).
9. Id.
10. Gilberg v. Toys “R” Us, Inc., 126 Ill. App. 3d 554, 557 (1st Dist. 1984).
11. Smolek v. K.W. Landscaping, 266 Ill. App. 3d 226, 228-29 (2d Dist. 1994).
12. Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 715 (4th Dist. 1998).
13. Russell v. Village of Lake Villa, 335 Ill. App. 3d 990, 997 (2d Dist. 2002).
14. Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of N.Y., Inc., 2011 IL App (1st) 092860, ¶ 5
15. Id. at ¶ 8
16. Id. at ¶ 27
17. Id.
18. Vertin v. Mau, 2014 IL App (3d) 130246, 380 Ill. Dec. 488, 8 N.E.3d 658.
19. People v. Johnson, 392 Ill. App. 3d 127, 131 (4th Dist. 2009).
20. Id. at 131.
21. Kimbrough v. Jewel Companies, Inc., 92 Ill. App. 3d 813 (1st Dist. 1981)
22. Id. at 817-18
23. Id.
24. Id. at 817.
25. Id.
26. Timmons v. Turski, 103 Ill. App. 3d 36 (5th Dist. 1981).
27. Stypinski v. First Chicago Building Corp., 214 Ill. App. 3d 714 (1st Dist. 1991).
28. Lohan v. Walgreens Company, 140 Ill. App. 3d 171 (1st Dist. 1986).
29. Swartz v. Sears, Roebuck and Company, 264 Ill. App. 3d 254 (1st Dist. 1993).
30. Smalling v. La Salle National Bank, 104 Ill. App. 3d 894 (4th Dist. 1982).
31. DeMario v. Sears, Roebuck & Co., 6 Ill. App. 3d 46 (1st Dist. 1972).

Dan Porter is an associate at Momkus McCluskey Roberts, LLC representing clients in commercial litigation, civil litigation and family law. Prior to joining Momkus, Dan worked for two years as a Staff Attorney for the judiciary at the 18th Judicial Circuit Court. Dan graduated magna cum laude from Northern Illinois University College of Law in 2013.

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