8 Ill. App. 3d 334
Ill. App. Ct.
1972

Lead Opinion

Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Plаintiff seeks to recover for injuries sustained when she tripped and fell in defendant’s store at 221 South State Street, in Chicago. The case was tried by a jury and a verdict of $40,000 was returned. The trial court entered a judgment for defendant notwithstanding the verdict, and also entered an order granting a conditional new triаl pursuant to Ill. Rev. Stat. 1969, ch. 110, par. 68.1(6), which provides that the court must rule conditionally on other requested post-trial relief in the event its unconditional ruling on а portion of such requested relief is held erroneous. We proceed to consider whether the facts and the law support the judgment.

The accident occurred on July 5, 1968, at which time the plaintiff was 71 years old. She entered the store at the north entrance which had two sets of steel-framed glаss doors. One set was flush with the sidewalk and the other set opened into the store. The floor just inside the inner doors was covered by three 4x8 foot rugs apрroximately one-half inch thick, with rubber backing and edging. It is undisputed that the rugs were in excellent condition. They were laid side by side and butted together, covering sрace running eight feet back into the store.

The plaintiff testified that she walked east on the rugs, then turned south to go into the south end of the store, being cаreful to avoid contact with people leaving the store. In turning to the right, trying to step off the rug with her left foot, her right foot became caught in the rug, cаusing her to fall forward. She was then unable to move or look around to see what had tripped her. There were no witnesses to the actual fall. Twо store employees, Jack Leuzzi and James Campanella, who had gone to plaintiff’s assistance after the fall, were called by plaintiff аs witnesses. Leuzzi testified that plaintiff ‍‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌‌​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‌‌‍was lying face down on the floor, with the lower half of her body still on the rug at the south end of the entrance. In a pre-trial deposition Campanella had testified to the same effect, but when called by plaintiff as a witness he testified that he found her lying completely off the rug. Howard Thode, a private investigator employed by plaintiff, testified that when he examined the rugs after the accident he found a depression whеre the rugs were butted together which was “readily felt through his shoe, when the sole spanned across from one carpet to the other.” The defendant offered no evidence.

Plaintiff urges that it was error for the trial court to take the issues of negligence and proximate cause from the jury. Plaintiff also argues that the trial court infringed on her constitutional right to a trial by jury when it awarded a conditional new trial based on a preponderancе of the evidence standard, rather than the manifest weight thereof.

The case of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, established that directed verdicts and judgments notwithstanding the verdict will be entered if all the еvidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based оn that evidence could ever stand. On the other hand, the plaintiff must establish by a preponderance of the evidence that defendant was negligent and that such negligence was the proximate cause of the injury. McInturff v. Chicago Title & Trust Co., 102 Ill.App.2d 39.

Plaintiff’s theory is that the butting together of the rugs created an unreasоnably dangerous depression along the joined edges; that it was this depression that caused plaintiff to fall; and that sufficient evidence was adducеd to require the submission of the case to the jury. While plaintiff testified that her foot became caught in the rug, ‍‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌‌​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‌‌‍she admitted that she did not know what there was about the rug that caused the fall. No evidence was introduced showing that a depression existed at the time. The nearest approach to such evidence is the testimony of the investigator, Howard Thode, who stated that he inspected the rugs two weeks after the occurrence and found a dеpression.

The mere use of a floor covering on which an invitee falls is not evidence of negligence. (Robinson v. Southwestern Bell Tel. Co., 26 Ill.App.2d 139.) Plaintiff cites River v. Atlantic & Pacific Tea Co., 31 Ill.App.2d 232, for the рroposition that when positive evidence of defects is introduced and some direct evidence — however slight — exists that associates plаintiffs fall with that defect, the issue becomes one for the jury. The River case is not in point, since there the plaintiff and her husband actually saw the defect that caused her to fall. No such evidence was presented in the case before us.

In addition to showing that the depression actually existed and was unreasonably dangerous at the time of the fall, it must also be shown that it was the proximate cause of the injury. The only evidence introduced by the plaintiff on this phase of the case was that of the store employee, ‍‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌‌​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‌‌‍Jack Leuzzi, who testified that he found plaintiff lying on the floor with the lower pоrtion of her body still on the rugs. Plaintiff argues that from the proximity of her body to the alleged depression it is reasonable to infer that the cause of the fаll was the alleged depression.

In Celner v. Prather, 301 Ill.App. 224, the court said at page 227:

“Proof of a mere possibility is not sufficient. A theory cannot be said to be established by circumstantial evidence, unlеss the facts are of such a nature and so related, as to make it the only conclusion that could reasonably be drawn. It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty.”

While the plaintiff in the instant case оffers the depression theory as an explanation of the fall, this is merely a conclusion which is unsupported by any evidence. By her own admission she did not see or feel what caused the fall. The evidence that her body, after the fall, was in close proximity to the alleged depression is too ambiguous an inference upon which to predicate a causal connection.

In Robinson v. Southwestern Bell Tel. Co., 26 Ill.App.2d 139, the court had before it the question of whether the plaсement of a rubber mat, on which plaintiff caught her heel and fell, constituted negligence on the part of the defendant. In holding that no negligence hаd been shown, the court pointed out that the defendant had installed the mat for the purpose of improving safety on his premises and that rugs and mats were widely used for this purpose; ‍‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌‌​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‌‌‍that while thousands of people tread them safely, it is possible for someone to trip over almost anything, no matter hоw common its use. In the case before us the plaintiff is a woman of advanced age, and under the circumstances of this case, to assign one thеory over another as the cause of her falling would be sheer speculation. The trial court properly entered judgment for the defendant.

Wе need not consider the question raised with respect to the standard to be used in determining whether a new trial should be granted, as that issue has been rendеred moot, so far as this court is concerned, by our affirmance of the judgment n.o.v.

Judgment affirmed.

STAMOS, P. J., and LEIGHTON, J., concur.





Lead Opinion

OPINION ON REHEARING

Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Subsequent to our decision in this appeal, plaintiff filed a petitiоn for rehearing. We have carefully examined the brief which accompanied this petition and find the case of Holsman v. Darling State Street Corр., 6 Ill.App.2d 517, to be the only new matter to be put before this court. This case, not cited in plaintiff’s prior briefs, is distinguishable on its facts from the instant case. There, direсt evidence was introduced showing ‍‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌‌‌​‌‌​​‌‌‌​​​‌‌‌​‌​​‌‌​‌‌‌‌‌‌‌‍that the stairway upon which that plaintiff fell was in a deteriorated condition. In the instant cáse, the record does not reveal that a dangerous condition existed at the time and place of the occurrence.

Petition for rehearing denied.

STAMOS, P. J., and LEIGHTON, J., concur.