Nickel v. Hollywood Casino-Aurora, Inc., No. 2-99-0707

2nd District, 6 June 2000

JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Josefine Nickel, appeals from the June 1, 1999, order of the circuit court of Kane County granting the defendant's motion for summary judgment on her complaint for personal injuries. On appeal, the plaintiff argues that the trial court misapplied the law and that questions of material fact still exist. We affirm.

On August 17, 1998, the plaintiff filed a negligence action against the defendant, Hollywood Casino-Aurora, Inc. As amended, the complaint alleged that, on August 20, 1996, the plaintiff entered the defendant's premises as a patron. Upon entering the casino, the plaintiff informed the defendant's employees that she had difficulty walking and standing due to her arthritis and a previously fractured hip. She therefore requested a wheelchair. The defendant's employees told her that no wheelchair was available. Instead, the plaintiff was given an upholstered metal stool. The stool had neither rubber nor nonslide caps at its ends. The complaint alleged that, as the plaintiff was attempting to seat herself on the stool, the metal legs of the stool slid out from under her, causing her to land on her buttocks "with great force."

The complaint alleged that the defendant had breached its duty to the plaintiff by failing to provide her with a safe seat to sit upon. The complaint alleged that, as a result of the fall, the plaintiff suffered a fracture to her left hip. The plaintiff sought damages in excess of $50,000.

On January 20, 1999, the defendant filed an answer to the plaintiff's complaint, denying all material allegations. On or about April 8, 1999, the defendant filed a motion for summary judgment. The defendant argued that it was not liable for the plaintiff's injuries because the plaintiff could not establish that the stool was defective or that the defendant had any notice that the stool was defective. In support of its motion, the defendant attached a copy of the deposition transcripts of the plaintiff and her daughter, Helga Rietz. The testimony of these depositions is summarized below.

The plaintiff testified that, upon entering the casino, she asked an employee of the defendant if there was a wheelchair available for her use. She was informed that none were available. The plaintiff then walked, with the aid of her cane, to an elevator. After exiting the elevator, she walked along the entrance hallway to the defendant's casino gaming area. While walking, the plaintiff observed a stool. The stool was about as high as her hip. As she approached the stool, she put her right hand on it. She then raised her right foot and attempted to sit down on the stool. As she was attempting to sit down, the stool slipped, causing her to fall. The plaintiff never actually sat on the stool and did not know whether or not she pushed the stool away from her with her right hand.

The plaintiff testified that she did not recall the color of the stool, how many legs the stool had, or whether the legs of the stool had wheels on them. She never saw the stool again after her fall. The plaintiff further testified that she did not know what caused the stool to slip away from her, and she did not know of any witnesses to her fall.

Helga Rietz testified that she had driven the plaintiff to the casino on the day in question. Rietz testified that she dropped the plaintiff off at the casino entrance and then went to look for a parking spot. Reitz stated that, upon entering the casino, she descended the stairs to the lower level and observed the plaintiff lying on the terrazzo floor. Several casino employees were surrounding the plaintiff. Rietz asked the plaintiff what had happened, and the plaintiff said something about a stool. Rietz testified that she did not see any stool or chair in the entrance hallway. Rietz then asked several casino employees about the stool. However, all of them informed her that the stool had been put away.

On April 26, 1999, the plaintiff filed her response to the defendant's motion for summary judgment. The plaintiff argued that she was not required to produce any evidence of a defect in the stool. Rather, she argued that she was entitled to invoke the doctrine of res ipsa loquitur because her fall from the stool was one that would have not ordinarily occurred in the absence of negligence. The plaintiff argued that the raising of this inference was sufficient to defeat the defendant's motion for summary judgment.

On June 1, 1999, the trial court granted the defendant's motion for summary judgment. The trial court found that the plaintiff had failed to allege or prove that the stool was defective, that the defendant had any knowledge that the stool was defective, or that the defendant was in any other way negligent. The trial court did not specifically address in its order whether the doctrine of res ipsa loquitur was applicable to the case at bar. On June 22, 1999, the plaintiff filed a timely notice of appeal.

On appeal, the plaintiff argues that the trial court misapplied the law in entering summary judgment for the defendant. The plaintiff argues that occupiers of land who use their land for business have a duty to maintain their premises, including their seating, in a safe condition for their patrons. The plaintiff contends, therefore, that the trial court erred in finding that the defendant's liability was conditioned upon its having notice of the alleged defect in the stool. The plaintiff additionally argues that the trial court erred in not applying the doctrine of res ipsa loquitur because the evidence in the case suggests that the plaintiff would have not been injured in the ordinary course of events but for the defendant's negligence. Furthermore, the plaintiff argues that several material questions of fact remained so as to preclude the entry of summary judgment in the defendant's favor.

At the outset, we note that the purpose of a motion for summary judgment is to determine whether a genuine issue of triable fact exists (Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)) and that such a motion should be granted only when "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 1998)). An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997). In addition, the existence of a duty is a question of law properly decided on a motion for summary judgment because, absent a legal duty, there can be no recovery in negligence as a matter of law. Hodges v. St. Clair County, 263 Ill. App. 3d 490, 492 (1994).

A duty to warn of a particular hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given. Hodges, 263 Ill. App. 3d at 492. The general rule is reflected in the Restatement (Second) of Torts, section 343, which was adopted in Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976):

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts