Bailey v. Graham Enterprises, Inc.
138 N.E.3d 926
Ill. App. Ct.2019Background
- On Jan. 7, 2015, Cynthia Bailey slipped and fell exiting a gas-station store, landing on a slush-covered painted handicap parking symbol and injuring her left knee. Surveillance, photographs, and an incident report were made that day.
- Bailey sued the property owners (Graham Enterprises, Inc. and Red Crown Holdings, LLC) for negligence, alleging the painted symbol became unreasonably slippery when wet due to improper design/maintenance.
- Defendants moved for summary judgment invoking Illinois’ natural-accumulation rule (no duty to remove naturally accumulated snow/ice/slush). They argued Bailey slipped on natural slush, extinguishing liability.
- Bailey opposed with an expert affidavit (Daniel Robson) who inspected the scene, reviewed evidence and product literature, recreated a painted test symbol using the same paint/additive, measured coefficients of friction, and opined the painted symbol was slipperier when wet and that the slip-resistant additive needed frequent refreshing.
- Trial court struck Robson’s affidavit in full as inadmissible (finding inadequate foundation for the test) and granted summary judgment for defendants. Bailey appealed.
- The appellate court reversed: it held portions of Robson’s affidavit met Rule 191(a) and that genuine factual disputes remained about whether the painted symbol’s composition/maintenance rendered it unreasonably slippery when wet (making summary judgment improper).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly struck plaintiff's expert affidavit under Ill. S. Ct. R. 191(a) | Robson's affidavit was based on his review, testing, and attached product/documents and therefore met Rule 191(a) | Affidavit was speculative, lacked foundation (didn't prove exact mixing/conditions), so inadmissible | Court: Trial court erred to strike the affidavit in its entirety; portions met Rule 191(a) and should have been preserved |
| Whether natural-accumulation rule bars recovery | Bailey: She slipped on painted symbol whose slipperiness when wet was caused by maintenance/design (exception to natural-accumulation rule) | Defendants: Plaintiff slipped on natural slush; landowner has no duty to remove natural accumulations | Court: Analysis on natural-accumulation unnecessary; key is whether painted surface was unreasonably slippery when wet — factual dispute exists precluding summary judgment |
| Whether defendants had notice or created the dangerous condition | Bailey: Evidence shows painting/maintenance practices and product warnings; creating/maintaining the painted surface could establish notice or creation of condition | Defendants: No actual/constructive notice; natural condition only | Court: Notice and breach are factual questions for jury; creation by defendant would obviate need to prove notice |
| Whether summary judgment was appropriate | Bailey: Expert and record facts create triable issues about surface composition, maintenance intervals, and slipperiness when wet | Defendants: No material facts; natural accumulation rule disposes of claim | Court: Summary judgment improper; material factual disputes remain |
Key Cases Cited
- Loyola Academy v. S & S Roof Maintenance, 146 Ill.2d 263 (trial-court summary-judgment standard and caution against disposing of cases when doubt exists)
- Robidoux v. Oliphant, 201 Ill.2d 324 (plaintiff need not prove case at summary-judgment stage; nonmoving party must present factual basis to survive)
- Krywin v. Chicago Transit Authority, 238 Ill.2d 215 (natural-accumulation rule — no duty to remove natural ice/snow/water)
- Bloom v. Bistro Restaurant Ltd. P’ship, 304 Ill. App.3d 707 (exception to natural-accumulation rule where defective construction or improper maintenance produces unnatural condition)
- Ward v. K Mart Corp., 136 Ill.2d 132 (elements of negligence: duty, breach, proximate cause)
- Buscaglia v. United States, 25 F.3d 530 (7th Cir.) (survival of slip-and-fall theory where floor composition combined with water caused the fall)
- Oliphant v. ... (see Robidoux), 201 Ill.2d 336 (affidavit requirements and Rule 191(a) standards)