Milevski v. Ingalls Mem'l Hosp.

JUSTICE GORDON delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County. No. 16 L 08302 The Honorable Kathy M. Flanagan, Judge Presiding. JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.

OPINION

¶ 1 The instant appeal arises from the trial court's grant of summary judgment in favor of defendant Ingalls Memorial Hospital (Ingalls) in connection with a negligence lawsuit filed by plaintiffs Tome and Angela Milevski after plaintiff Tome Milevski was injured while working for Siemens Medical Solutions USA, Inc. (Siemens), at Ingalls. For the reasons that follow, we affirm the trial court's grant of summary judgment.

¶ 2 BACKGROUND

¶ 3 On August 13, 2015, plaintiff, Tome Milevski, and his wife, Angela Milevski, filed a two-count complaint against defendant, Ingalls, alleging that on January 20, 2015, plaintiff for plaintiff's safety. Since Ingalls owned the property on which plaintiff was injured and controlled the worksite, plaintiff argued that the duty to keep the workplace safe fell on Ingalls. Plaintiff further argued that he was not required to show actual or constructive notice where the defective condition was related to Ingalls' business and there was some evidence that Ingalls or its agents caused the condition. Finally, plaintiff claimed that if the work area had been inspected, the condition of the flooring would have been discoverable, meaning that Ingalls had not acted with reasonable care in failing to inspect the workplace. ¶ 23 On October 16, 2017, the trial court entered an order denying plaintiff's motion to reconsider, reiterating its earlier findings that, while Ingalls may have owed plaintiff a duty of care, there was no evidence to support Ingalls' actual or constructive notice of the broken or defective condition of the flooring, nor was there evidence of a causal connection between any act or omission on the part of Ingalls and the condition of the floor or plaintiff's injury. ¶ 24 Plaintiff timely filed a notice of appeal, and this appeal follows.

As the alleged fall and injury occurred to plaintiff Tome Milevski, we refer to Tome Milevski as the singular "plaintiff" for clarity. The second count of the complaint was for loss of consortium on behalf of plaintiff's wife Angela and was based on the same factual allegations.

Siemens is not a party to the instant appeal. --------

¶ 25 ANALYSIS

¶ 26 On appeal, plaintiff argues that the trial court erred in granting summary judgment in Ingalls' favor. A trial court is permitted to grant summary judgment only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2016). The trial court must view these documents and exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial court's decision to grant a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means we perform ¶ 32 The supreme court reversed the appellate court's judgment, finding that the negligence issue was properly submitted to the jury. Donoho, 13 Ill. 2d at 125. In its analysis, the supreme court noted that "where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive [citation]; whereas, if the substance is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material factor. [Citation.]" Donoho, 13 Ill. 2d at 118. The supreme court further noted that the plaintiff made two arguments: first, that evidence was introduced establishing that the onion was on the floor through the negligence of the defendant's servants and, second, that even if it was dropped by a third person, it was on the floor for a sufficient period of time for its presence to have been discovered by the exercise of ordinary care. Donoho, 13 Ill. 2d at 118-19. ¶ 33 With respect to the first argument, the supreme court reviewed the law pertaining to the issue and found that certain patterns were apparent. First, when the foreign substance was unrelated to the proprietor's operations, notice was required, "since under such circumstances no inference could be drawn that the substance was more likely to have been dropped by defendant's servants than by third persons." Donoho, 13 Ill. 2d at 119. Second, even where the foreign substance was related to the proprietor's operations, where there was no further evidence as to how the substance came to be on the floor, notice was required. See Donoho, 13 Ill. 2d at 120-21. Finally,

"[w]here, 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, 13 Ill. 2d at 122.

Reviewing the evidence presented at trial, the supreme court found that there was evidence that the foreign substance was closely related to the restaurant's business and that the circumstances surrounding her fall—including the location of the onion, the bus boy's cleaning practices, the fact that no one ate in the area after the bus boy cleared it, and the smear on the sole of the plaintiff's shoe—could lead to the reasonable inference that it was more likely that the onion was on the floor through the act of the restaurant's servant rather than by the acts of any customer. Donoho, 13 Ill. 2d at 124-25. ¶ 34 We find the facts and holding of Donoho to be completely inapposite to the factual situation present in the case at bar. Plaintiff merely argues that the Donoho rule applies because (1) the raised flooring was Ingalls' property and related to Ingalls' business and (2) there was no evidence that plaintiff or Siemens caused the damage to the floor. However, these assertions are not sufficient to remove the issue of notice from the analysis. As Ingalls notes in its brief, the Donoho rule has been generally applied in situations where a foreign object has been left on the floor of a business' premises. See Donoho, 13 Ill. 2d at 124 (grilled onion on floor of restaurant); Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 716 (1998) (board from wooden pallet placed in pathway of store); Wind v. Hy-Vee Food Stores, Inc., 272 Ill. App. 3d 149, 156 (1995) (floor mat not fastened to floor of store). Additionally, even where it has been applied to a condition, as opposed to a dropped object, the rule has still been interpreted to require that the business owner created the condition. See Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 668 (2000) (plaintiff struck by a sliding door at store that was not properly placed). In the case at bar, however, plaintiff's injury was not caused by a foreign object dropped on the flooring, nor is there any evidence that Ingalls engaged in any action that created the condition. Plaintiff does not explain why the Donoho court's analysis is applicable in the absence of these facts. Accordingly, we find plaintiff's reliance on Donoho unpersuasive and find the lack of notice dispositive to the instant appeal. ¶ 35 Since we have determined that summary judgment was properly granted based on the lack of notice to Ingalls, we have no need to consider whether plaintiff established the remaining elements of his negligence claim.

¶ 36 CONCLUSION

¶ 37 Summary judgment was properly granted in favor of Ingalls and against plaintiff because there was no evidence that Ingalls had either actual or constructive notice of any defects in the raised flooring prior to plaintiff's fall. ¶ 38 Affirmed.