Newsom-Bogan v. WENDY'S, INC.
953 N.E.2d 427
Ill. App. Ct.2011Background
- Slip-and-fall case at Wendy's Old Fashioned Hamburgers in Hazel Crest, Illinois; plaintiff alleges duty of ordinary care breached by dangerous floor near a trash receptacle.
- Plaintiff suffered an operative knee injury requiring surgery after slipping from a grease-lubricated floor transitioning from carpet to tile.
- Defendant moved for summary judgment arguing no actual or constructive knowledge of any grease and lack of proof that grease caused the fall.
- Plaintiff relied on deposition and an affidavit noting lack of observed inspections and lay observations of the grease.
- Trial court granted summary judgment; appellate court reverses and remands for trial on disputed issues of causation and constructive notice.
- Issues of material fact remain as to whether grease caused the fall and whether defendant had constructive notice through its walk-through policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a grease substance on the floor causing the fall? | Newsom argues a triable issue exists on causation. | Wendy's contends no evidence grease caused the fall. | No summary judgment; triable issue on causation. |
| Did Wendy's have constructive notice of the grease? | Plaintiff asserts lack of timely walk-through inspection showed constructive notice. | Defendant argues no notice proven; could not prove timing. | Triable issue on constructive notice. |
| Did defendant owe a duty and breach it by failure to warn or maintain premises? | Premises not reasonably safe due to grease. | No duty breach shown without knowledge or notice. | Weigh by juror; issues are material. |
Key Cases Cited
- Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill.App.3d 789 (Ill. App. 1st Dept. 1999) (grease example supports causation inference where floor condition observed by plaintiff)
- Bellerive v. Hilton Hotels Corp., 245 Ill.App.3d 933 (Ill. App. 1st Dist. 1993) (fact-finder may infer causation from worn, hazardous conditions and lighting defects)
- Canzoneri v. Village of Franklin Park, 161 Ill.App.3d 33 (Ill. App. 1st Dist. 1987) (plaintiff may prove cause by inference from substances on ground)
- Pavlik v. Wal-Mart Stores, Inc., 323 Ill.App.3d 1060 (Ill. App. 1st Dist. 2001) (elements of negligence; constructive notice admissible)
- Thompson v. Economy Super Marts, Inc., 221 Ill.App.3d 263 (Ill. App. 1st Dist. 1991) (constructive notice requires substance present long enough to be discovered)
- Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469 (1940) (establishes duty to maintain premises in reasonably safe condition)
- Hayes v. Bailey, 80 Ill.App.3d 1027 (Ill. App. 1st Dist. 1980) (constructive notice framework for spill on floor)
- Donoho v. O'Connell's, Inc., 13 Ill.2d 113 (1958) (general duty to maintain premises safely)