OLINGER v. GREAT ATL. PAC. TEA CO

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Docket Number

No. 36038. Judgment affirmed.

Advocates

LISTEMAN AND BANDY, of East St. Louis, and R.K. PEEK, of Du Quoin, for appellant. OEHMKE, DUNHAM BOMAN, of East St. Louis, for appellees.

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Smart Summary

Factual and Procedural Background

Plaintiff Max Olinger sued defendants, The Great Atlantic and Pacific Tea Company and its store manager, Eddie Graves, for personal injuries sustained when he slipped and fell on the floor of defendants' store. The case was tried before a jury, which awarded plaintiff a verdict of $30,000. The trial court entered judgment on this verdict, but the Appellate Court reversed that judgment. Plaintiff was then granted leave by the Supreme Court of Illinois to appeal the Appellate Court's decision.

The incident occurred on August 22, 1956, when plaintiff entered the defendants’ self-service store and slipped on a reddish, oily substance on the floor near a notions counter displaying various merchandise, including bottles of Coldene, a red liquid cough medicine. Plaintiff described the substance as a thin oil with a pinkish or light red color and testified that some of it was on his shoes after the fall. Other witnesses described a small reddish semi-solid substance near the fall location, but no witness identified the substance by name. Plaintiff’s evidence included a witness who purchased Coldene from the store a few weeks after the incident and observed a bottle with some sticky liquid on the outside.

Legal Issues Presented

Whether, under the facts and circumstances most favorable to plaintiff, there was any evidence of negligence by defendants in maintaining the store premises that could properly be submitted to the jury.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Donoho v. O'Connell's, Inc., 13 Ill.2d 113	Standard for liability where a business invitee slips on a foreign substance; clarified evidentiary requirements for submitting negligence to the jury.	Used to frame the two propositions regarding negligence: (1) liability if the substance was placed by defendant or servants; (2) liability if defendant knew or should have known of the substance. The Court applied it to determine that plaintiff failed to establish the substance was related to defendants' business.
Davis v. South Side Elevated Railroad Co., 292 Ill. 378	Liability imposed if proprietor or servants caused the foreign substance or had notice of it.	Referenced as authority for requiring evidence that the substance was related to defendant’s operations or that defendant had notice to impose liability.
Pabst v. Hillmans, 293 Ill. App. 547	Liability principles for injuries caused by foreign substances on premises.	Listed as supporting authority for the general rule on proprietor liability.
Schmelzel v. Kroger Grocery and Baking Co., 342 Ill. App. 501	Insufficient evidence of negligence when only the presence of the substance and injury are shown without further proof.	Applied in holding that mere presence of a foreign substance without additional evidence is insufficient for submission to the jury.
Mueller v. Elm Park Hotel Co., 398 Ill. 60	Standard for submitting negligence questions to the jury.	Used to emphasize the court’s role in determining whether evidence supports submission of negligence to the jury.
Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153	Duty owed by proprietor to business invitees to maintain premises in reasonably safe condition.	Confirmed plaintiff’s status as a business invitee and the corresponding duty of care owed by defendants.
Antibus v. W.T. Grant Co., 297 Ill. App. 363	Directed verdict appropriate when no evidence shows substance was more likely dropped by defendant or servants than by third parties.	Supported the court’s conclusion that plaintiff’s evidence was insufficient to raise a jury question.
Michelson v. Mandel Brothers, Inc., 322 Ill. App. 691	Similar to Antibus, regarding directed verdict where evidence is lacking.	Referenced as part of the legal framework for assessing sufficiency of evidence to submit negligence to the jury.
Jones v. Kroger Grocery and Baking Co., 273 Ill. App. 183	Evidence of mere presence of foreign substance insufficient for negligence without other proof.	Applied to hold that plaintiff’s evidence was inadequate to establish negligence.

Court's Reasoning and Analysis

The Court began by recognizing plaintiff’s status as a business invitee, which imposes on defendants the duty to exercise ordinary care in maintaining the premises in a reasonably safe condition. The pivotal legal question was whether the evidence was sufficient to permit the issue of defendants’ negligence to be submitted to the jury.

The Court adopted the framework from Donoho v. O'Connell's, Inc., outlining two propositions: liability arises if the foreign substance was placed by the defendant or servants, or if the defendant knew or should have known of its presence. Since plaintiff did not contend that defendants had actual or constructive notice, the Court focused on whether the evidence showed that the substance was on the floor through defendants’ or their servants’ acts.

The Court held that there was no direct evidence showing how the substance came to be on the floor, nor was there any evidence identifying the substance as related to defendants’ business. The mere fact that defendants sold a red cough medicine (Coldene) and that the substance was reddish was deemed insufficient to establish a reasonable inference that the substance was Coldene or that it was dropped by defendants or their servants. Without this nexus, no inference of negligence could be drawn under the Donoho rule.

The Court emphasized that a storekeeper is not an insurer of customers’ safety and that liability must be based on fault. Because plaintiff failed to present evidence, direct or inferential, of defendants’ negligence in maintaining the premises, the trial court erred in submitting the issue of negligence to the jury.

Holding and Implications

Judgment affirmed.

The Supreme Court of Illinois affirmed the Appellate Court’s reversal of the trial court’s judgment in favor of plaintiff. The direct effect is that plaintiff’s verdict was overturned and no liability was imposed on defendants. The Court did not establish any new precedent but reaffirmed the existing legal standard that liability for slipping on a foreign substance requires evidence linking the substance to the defendant’s negligence or knowledge, and that mere speculation or presence of a substance related to defendant’s business is insufficient to submit negligence to a jury.

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MAX OLINGER, Appellant, vs. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY et al., Appellees.

Mr. JUSTICE KLINGBIEL delivered the opinion of the court:

Plaintiff, Max Olinger, sued defendants, The Great Atlantic and Pacific Tea Company and its store manager, Eddie Graves, for personal injuries sustained when he slipped and fell on the floor of defendants' store. The cause was submitted to a jury and plaintiff was awarded a verdict of $30,000. The trial court entered judgment on the verdict, which judgment was reversed by the Appellate Court. ( 26 Ill. App.2d 88.) This court has granted plaintiff leave to appeal.

The issue in this cause, as was correctly stated by the Appellate Court, is whether, under the facts and circumstances most favorable to plaintiff, there was any evidence of negligence by defendants in the maintenance of the store premises which could properly be submitted to the jury. Donoho v. O'Connell's, Inc., 13 Ill.2d 113.

The facts, briefly stated, are as follows:

Early in the afternoon of August 22, 1956, plaintiff entered defendants' self-service chain store through the only customer entrance. He walked 20 to 25 feet in a southerly direction and then turned right into an aisle into the main portion of the store. As plaintiff turned to the right, he slipped and fell injuring his back.

Plaintiff testified that after he fell, he noticed a substance on the floor where he had slipped. It was described by him as a thin oil, pinkish or light red in color, covering a spot of 6 or 7 inches. He saw a skid mark 3 1/2 to 4 feet long through this substance. He tasted it and found it was sweetish in taste, abrasive, a little bit sticky. Plaintiff also testified that some of the substance was on his shoes after the fall.

Other witnesses testified that they observed a small spot of a semi-solid reddish substance near the place where plaintiff had fallen. They described the spot as being no larger than a small jelly bean, smaller than a dime, the size of a nickel, possibly a quarter. The ambulance driver testified that he observed a reddish, semi-solid substance, about the size of the end of his finger, on plaintiff's right shoe. No one testified as to the identity or name of the substance observed.

At or near the corner where plaintiff fell, there was a notions counter having 4 or 5 open shelves upon which merchandise, such as gauze, first aid items, tooth paste, tooth brushes, shaving cream, hair oil, and similar items, were displayed. There was evidence tending to show that on the day of plaintiff's fall, bottles of Coldene, a red liquid cough medicine, were on display on the notions counter. One of plaintiff's witnesses testified that the second week in September, two or three weeks after the occurrence in question, he went to defendants' store at plaintiff's request and purchased a bottle of Coldene from the notions counter. This witness also testified that at the time of that purchase there was another bottle of Coldene on display which looked like some of the liquid was out of it and was sticky on the outside.

The trial court ruled that the evidence warranted submission of the issue of defendants' negligence to the jury. In denying defendants' motions for directed verdict, the trial judge stated: "Well, there is no question but what, under the Fourth District Appellate Court law, this case isn't any good, but under the Supreme Court law, I think they have practically said if you fall down in a store the store is liable. Regardless of what my feelings are in the matter, I have to be guided by the Supreme Court." The Appellate Court disagreed, and reversed the judgment entered on the verdict in favor of plaintiff. We are thus confronted with the problem of ascertaining, from the evidence and inferences most favorable to plaintiff, whether the issue of defendants' negligence in the maintenance of the store premises should have been submitted to the jury. Mueller v. Elm Park Hotel Co., 398 Ill. 60.

It is not questioned that plaintiff's status, at the time of his injury, was that of a business invitee on defendants' premises. As such, defendants owed him the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition. ( Geraghty v. Burr Oak Lanes, Inc. 5 Ill.2d 153.) The applicability of this familiar rule provokes no challenge. Its actual application, however, raises the difficult question of the kind and quantity of evidence necessary to establish a breach of that duty.

In the recent case of Donoho v. O'Connell's, Inc., 13 Ill.2d 113, we carefully reviewed and re-examined the case law of both this and other jurisdictions pertaining to the liability of owners and proprietors for injuries to business invitees caused by slipping on foreign substances on their floors. Therefore we consider it unnecessary to repeat the factual analysis of the many cases on this subject which appeared in the Donoho opinion. But, in view of certain statements of the trial judge and the parties in this case, we do feel compelled to again outline the general principles of law which are involved here.

Where a business invitee is injured by slipping on a foreign substance on the premises, liability may be imposed if the substance was placed there by the negligence of the proprietor or his servants, or, if the substance was on the premises through acts of third persons or there is no showing how it got there, liability may be imposed if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. Davis v. South Side Elevated Railroad Co., 292 Ill. 378; Pabst v. Hillmans, 293 Ill. App. 547; Schmelzel v. Kroger Grocery and Baking Co., 342 Ill. App. 501; Annotation, 61 A.L.R.2d 6 et seq.

For purposes of deciding whether a given case should have been submitted to the jury, the above authorities may be reduced to two more specific propositions.

1. Where a business invitee is injured by slipping on a foreign substance on defendant's premises, and there is evidence tending to show that the substance was on the floor through the acts of defendant or his servants, the issue of negligence will be submitted to the jury.

2. Where a business invitee is injured by slipping on a foreign substance on defendant's premises, and there is evidence tending to show that defendant or his servants knew or should have known of its presence, the issue of negligence will be submitted to the jury.

We are not here concerned with the second proposition relating to notice since plaintiff has made no contention here or in the Appellate Court that the evidence tended to establish actual or constructive notice to defendants.

Plaintiff contends instead that sufficient evidence was introduced to establish that the substance on which he slipped was on the floor through the act of defendants or their servants and, therefore, the trial court was correct in submitting the issue of defendants' negligence to the jury.

In adjudging this contention we are confronted with the question of the quantity of proof required under the first proposition stated above. If, of course, there is direct evidence that the foreign substance was on the floor through the acts of defendant or his servants, the issue of negligence is a question of fact for the jury. Frequently, however, there is no direct evidence as to how the foreign substance got on the premises. The question then is — what circumstantial evidence is sufficient to sustain a reasonable inference that the substance was there through the act of defendant or his servants. It is this facet of the problem to which the Donoho decision specifically applies.

Where, in such case, the foreign substance was unrelated to the proprietor's operations and there is no proof of actual or constructive notice, defendant is entitled to a directed verdict, since there is no evidence from which it could be reasonably inferred that the substance was more likely to have been dropped by defendant's servants than by third persons. ( Davis v. South Side Elevated Railroad Co., 292 Ill. 378; Antibus v. W.T. Grant Co., 297 Ill. App. 363; Michelson v. Mandel Brothers, Inc. 322 Ill. App. 691.) Likewise, even where there is proof that the foreign substance was related to defendant's business, but no further evidence is offered other than the presence of the substance and the occurrence of the injury, defendant is entitled to a directed verdict, such evidence being insufficient to support the necessary inference. Jones v. Kroger Grocery and Baking Co., 273 Ill. App. 183; Schmelzel v. Kroger Grocery and Baking Co., 342 Ill. App. 501.

"Where, however, in addition to the fact that the substance on the floor was a product sold or related to defendant's operations, the plaintiff offers some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises, courts have generally allowed the negligence issue to go to the jury, without requiring defendant's knowledge or constructive notice." Donoho v. O'Connell's, Inc., 13 Ill.2d 113 at 122.

In the instant case, there is no direct evidence as to how the foreign substance came to be on defendants' floor. Moreover, there is not even any evidence as to what that substance was. No one testified that the substance was Coldene. The best that can be said of plaintiff's evidence is that plaintiff slipped on a reddish substance and defendant sold red cough medicine called Coldene. Only by the wildest speculation could it be concluded from these facts that the substance on which plaintiff slipped was Coldene. Since the evidence failed to establish that the substance was related to defendants' operations, no inference could be drawn that the substance was more likely to have been dropped by defendants' servants under the Donoho rule. Having failed to show that the substance was related to defendants' business, it is unnecessary for us to decide whether plaintiff offered other evidence which would permit an application of the Donoho rule.

We firmly adhere to the rule that a storekeeper is not the insurer of his customer's safety. Liability must be founded on fault, and where, as here, there is no evidence, direct or inferential, of negligence by defendants in the maintenance of the store premises, liability may not be imposed.

The trial court erred in submitting the negligence issue to the jury. The decision of the Appellate Court reversing the judgment for plaintiff is affirmed.

Judgment affirmed.