2020 IL App (1st) 190606
Ill. App. Ct.2020Background
- On Sept. 25, 2015, Jorge Tafoya‑Cruz slipped and fell in the men’s restroom at Temperance Beer Company, sustaining serious back injuries. He sued Temperance for negligence (and his wife sued derivatively for loss of consortium).
- Tafoya‑Cruz had been drinking earlier (5–6 beers at a shop, then another at Temperance); surveillance showed him unsteady entering the restroom; he could not identify the liquid or how long it had been on the floor.
- Temperance employees (manager Geerts and bartenders Van Camp and Atkins) testified that the bar had a policy of periodic restroom checks (hourly; Geerts said he tries for ~30 minutes when busy), but no witness could say there was water on the floor before the fall; Van Camp checked the restroom about two hours before the fall and again after and did not see water.
- Temperance moved for summary judgment, arguing Tafoya‑Cruz could not prove actual or constructive notice of the wet condition; the trial court granted summary judgment for lack of evidence of how long the liquid had been present.
- Tafoya‑Cruz moved to reconsider, advancing for the first time a "recurring dangerous condition" theory (relying on cases about recurring incidents and patterns); the trial court denied the motion as presenting a new theory raised for the first time on reconsideration.
- The appellate court affirmed: (1) summary judgment was proper because plaintiff produced no evidence fixing the length of time the substance was on the floor (so no constructive notice), and (2) the recurring‑condition theory was forfeited when raised only on reconsideration; the court also rejected the notion that an employer’s internal inspection policy creates an independent legal duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice of wet floor | Tafoya‑Cruz argued the record permits an inference the liquid had been present long enough for Temperance to have discovered it. | Temperance argued no one saw the liquid before the fall and there is no evidence of how long it was present. | Summary judgment affirmed; no evidence established how long the substance existed, so no constructive notice. |
| Whether Temperance's internal restroom‑check practice created a legal duty | Tafoya‑Cruz relied on manager testimony about 30‑minute checks to argue a duty to inspect. | Temperance contended internal policies do not expand common‑law duties. | Court held internal policies do not create independent legal duties beyond common law. |
| Denial of motion to reconsider (recurring‑dangerous‑condition theory) | Tafoya‑Cruz argued recurring incidents of water/splashing supported constructive notice and cited cases on recurring conditions for first time in reconsideration. | Temperance argued the recurring‑condition theory was raised for the first time on reconsideration and thus forfeited. | Denial affirmed: theory was newly raised on reconsideration (forfeited) and court did not abuse discretion. |
Key Cases Cited
- Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469 (establishes standard for proprietor liability where foreign substance may have been placed by proprietor, third party, or unknown and explains requirement to show proprietor knew or should have known via sufficient time)
- Hayes v. Bailey, 80 Ill. App.3d 1027 (lack of evidence of how long water was on restroom floor supports directed verdict for defendant)
- Tomczak v. Planetsphere, Inc., 315 Ill. App.3d 1033 (affirming summary judgment where plaintiff could not fix time the hazardous water existed)
- Zuppardi v. Wal‑Mart Stores, Inc., 770 F.3d 644 (7th Cir.) (under Illinois law, length of time a dangerous substance existed is critical to proving constructive notice; recurring‑incident theory discussed)
- Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213 (duty is a legal question; internal rules do not by themselves create a legal duty)