Opinion
No. 2-12-0569
02-25-2013
CASSANDRA BARTON and LARRY BARTON, Plaintiffs-Appellants, v. WAUCONDA COMMUNITY UNIT SCHOOL DISTRICT No. 118, Defendant and Third-Party Plaintiff-Appellee (Wauconda Park District, Third-Party Defendant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Lake County.
No. 10-L-519
Honorable
Christopher C. Starck,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Zenoff and Hudson concurred in the judgment.
ORDER
¶ 1 Held: Defendant school district lacked notice of condition that allegedly caused plaintiff's fall and therefore was entitled to summary judgment on premises liability claim, but general negligence claim was not subject to that defense and therefore summary judgment on general negligence claim would be reversed. ¶ 2 On March 7, 2012, the circuit court of Lake County entered an order striking all but one of the opinions expressed by the expert witness retained by the plaintiffs, Cassandra and Larry Barton. The same order denied the motions for summary judgment filed by the defendant, the Wauconda Community Unit School District No. 118 (School District), and the third-party defendant, the Wauconda Park District (Park District). Subsequently, on May 9, 2012, the trial court reconsidered its March 2012 order and entered summary judgment in favor of the School District. The plaintiffs appeal from both of these rulings. We affirm in part and reverse in part.
¶ 3 I. BACKGROUND
¶ 4 The following facts are drawn from the evidence (depositions and other exhibits) submitted in connection with the motions for summary judgment. ¶ 5 On August 25, 2009, Cassandra Barton was working as a "club coordinator" for a before- and after-school program operated by the Park District. The program was located at the Wauconda Grade School, which was owned and operated by the School District. The program was conducted primarily in the all-purpose room of the school. The school kitchen abutted one side of the all-purpose room. Inside the kitchen, the walls were lined with counters, sinks, stoves, and other appliances. In addition, there were counters and appliances laid out in a line down the middle of the kitchen, dividing the kitchen into two "aisles" that ran the length of the kitchen and met at each end. The door from the all-purpose room into the kitchen was located near what would be the left end of the kitchen (looking into the kitchen from the doorway). ¶ 6 Barton arrived at the school at 3 p.m. on that date. She and a club counselor for the program, Cassie Peters, set up the teacher table in the all-purpose room. According to Barton, Peters went into the kitchen and got juice from the walk-in refrigerator, which was located in a space to the left of the door from the all-purpose room. (Peters testified that she did not recall whether she went in the kitchen that day, and never saw a wet spot on the floor that day.) Barton set out snacks for the children and then went into the kitchen to get some paper towels. To get to the paper towel holder, she turned right after entering the kitchen and began to walk down one of the "aisles" toward the other (right) end of the kitchen. Her path took her in front of a stand-alone refrigerator located in the center row of appliances and counters in the kitchen. After Barton walked into the kitchen, turned to her right and took a step, her right foot slid forward. She fell, landing hard on her right side with her left leg underneath her. She was injured as a result, and has since undergone back surgery and hip surgery. No one else was in the kitchen at the time of the fall. Peters did not see her fall. ¶ 7 Barton fell in front of the stand-alone refrigerator. Barton testified that she slipped in a puddle of liquid—"water or some kind of clear substance"—that was "coming out from the bottom of the refrigerator." After the fall, her hands and right leg, and the right side and back of her clothes were wet from the liquid. She could both see and feel that her clothes were wet. When she was trying to get up, she saw clear liquid around her measuring maybe four feet by one foot, lying across the kitchen "aisle" where she had been walking. She did not see the puddle until after she fell. She got up and continued to the sink, where she got paper towels, and returned to the all-purpose room. Peters and Barton agree that Barton told Peters that Barton had slipped in some water. Barton then used about two feet of paper towels to dry herself off, and the paper towels were very damp when she was done. The liquid that she wiped off was an odorless, clear liquid that did not stain her clothes, similar to water. After drying herself off, Barton called her supervisor and reported the fall. The incident form completed by the supervisor stated that Barton slipped on "water on the floor." ¶ 8 When asked for further details about the source of the liquid she had seen coming from the bottom of the refrigerator, Barton agreed that she had never inspected the area or the refrigerator itself to determine "the origin of the water" or "from what part of the refrigerator, if any, the water emanated from." The following colloquy then occurred:
"Q. In fact, you don't even know whether the water came from the refrigerator, correct?Barton testified that, on the day of her fall, there were no mats on the kitchen floor where she fell. In fact, she had not noticed any mats on the floor since the school year had started (one or two weeks before her accident). Christopher Boyko, the School District's building and grounds supervisor, testified that generally mats were placed on the kitchen floor. ¶ 9 Boyko also stated that the stand-alone refrigerator in the kitchen was a used unit that had been put into the kitchen in July 2009, about one month before Barton's fall, replacing the refrigerator that had been there before. The unit that was installed in July 2009 had been donated to the School District years before, and Boyko had no idea how old it was. There was no drainage hookup or water to the unit. There had never been any problems with the refrigerator, and there were never any routine maintenance checks. Boyko testified that, in the time since he had begun working for the School District, there had never been any problems with the drain under this particular refrigerator. ¶ 10 School District employee Wilfred LaMarche was a janitor at the school. He mopped the kitchen once every day, using hot water because it dries fast. There were floor mats on the kitchen floor, and he would either roll them to one side or pick them up and put them in the sink while he swept and mopped, depending on the size of the mat. When he was done cleaning the floor he would replace the mats. There were at least three drains in the kitchen floor, one of which was underneath the stand-alone refrigerator. The drains were covered with metal grills, and the floor right around the drain sloped "noticeably" toward the drain. Pieces of food or other sediment could get stuck in the drain covers, so he took it upon himself to clean them every Friday. There was a gap of about five or six inches between the floor and the bottom of the refrigerator, and he could get a mop under the refrigerator. ¶ 11 LaMarche testified that he began mopping the kitchen each day around 1:10 p.m., after lunch was done being served. This timetable was contradicted by Terry Szmergalski, one of the employees of Arbor Management, the company that supplied the lunches for the school. Szmergalski testified that LaMarche cleaned the all-purpose room before he cleaned the kitchen, and he was typically still cleaning the all-purpose room at 1:15 p.m. each day when she left work. Similarly, LaMarche stated that, on the day of Barton's fall, he finished mopping the kitchen at 2 p.m. However, Janice Shmerl, another Arbor Management employee, testified that she left at 2 p.m. each day and that LaMarche was generally only doing the preliminary sweeping or beginning to mop the kitchen floor by the time she left. Shmerl had never noticed any problems with water coming out of the bottom of any of the refrigerators in the kitchen or with the drain under the refrigerator being blocked or overflowing. She had seen a drip pan under the refrigerator before the day when Barton fell. ¶ 12 Eliseo Jaimes was the head custodian at the school, and instructed LaMarche on how to clean the kitchen, which involved sweeping the floor, mopping the floor, and emptying the garbage. Jaimes did not know how often the floor drain under the refrigerator was cleaned. Jaimes stated that, as a general matter, all "coolers" (refrigerators) leak, and he had even heard water running in the one in his own home. However, he had never seen the stand-alone refrigerator at this school leak. That refrigerator was still in the kitchen, and to Jaimes' knowledge there had not been any problems with it. ¶ 13 Barton and her husband filed suit against the School District in May 2010, asserting claims based on premises liability and loss of consortium. (Although the plaintiffs named other defendants as well, they voluntarily dismissed those defendants after receiving evidence that they were part of the School District.) The trial court entered a pretrial scheduling order and the parties commenced discovery. In January 2011, the School District moved to amend the pretrial scheduling order on the ground that there were a significant number of physicians who had treated Barton and more time was needed to complete their depositions. In March 2011, the School District filed a third-party complaint against the Park District for indemnity and contribution. Shortly after that, the plaintiffs filed an amended complaint that added Arbor Management, the food service provider at the school, as a defendant. In May 2011, the Park District moved to reset the trial date (and amend the pretrial scheduling order). In June 2011, the trial court granted the School District leave to file an amended third-party complaint. ¶ 14 On August 17, 2011, the trial court entered a new pretrial scheduling order. This order required the plaintiffs to disclose their Rule 213(f) witnesses by November 30, 2011. (Illinois Supreme Court Rule 213(f) (eff. Sept. 1, 2008) requires the disclosure of all witnesses who are expected to testify at trial, including (1) lay or occurrence witnesses, (2) independent expert witnesses, and (3) controlled expert witnesses retained by the parties.) Under the scheduling order, the defendants (the School District and Arbor Management) were required to disclose their Rule 213(f) witnesses by January 15, 2011, and the third-party defendant (the Park District) was ordered to disclose such witnesses by February 5, 2011. The order further provided that "Plaintiff(s) shall disclose the identity of any and all rebuttal witness information under Rule 213(f) not later than March 7, 2012." The discovery cut-off date was April 1, 2012, with any dispositive motions to be filed no later than April 15, 2012. Trial was set for May 29, 2012. ¶ 15 On January 18, 2012, the School District filed a motion for summary judgment. In its motion, the School District argued that: (1) based on Barton's deposition testimony, she could not "describe or establish the nature of any surface condition that caused her" to fall or show that the condition was caused by the School District; (2) Barton could not establish that the School District had any actual or constructive notice of the dangerous condition that caused her to fall, and such notice was required under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102(a) (West 2010)); and (3) the School District was entitled to discretionary immunity from liability under section 2-201 of the Act (745 ILCS 10/2-201 (West 2010)), which grants governmental bodies such immunity when the alleged act or omission involved both a policy determination and the exercise of discretion. ¶ 16 On February 15, 2012, the plaintiffs filed their response to the School District's motion for summary judgment, arguing that the evidence showed that Barton did know what caused her fall: she clearly stated, both at the time of her fall and later in deposition, that she slipped on water or a similar clear liquid on the kitchen floor and that she saw that liquid coming out from under the stand-alone refrigerator. Thus, this case was distinguishable from the case law cited by the School District. As to notice, the plaintiffs argued that the School District had constructive notice of several possible sources of the liquid. It had constructive notice that the refrigerator was leaking because, according to Jaimes (one of its employees), all refrigerators leak. Also, there was a drip pan under the refrigerator at the time of the fall, which suggested that someone believed that the refrigerator was leaking. The plaintiffs also argued that the School District had constructive notice that the drain under the refrigerator could be obstructed because LaMarche (another of its employees) knew that there was a drain there and that the kitchen floor drains sometimes became obstructed. Also, the plaintiffs alleged that the School District's own actions directly caused the slippery condition (and thus notice was not required) in that there were no mats on the floor in front of the refrigerator at the time of the accident. Lastly, the plaintiffs argued that tort immunity did not apply because LaMarche's actions were neither discretionary nor policy-related. ¶ 17 The plaintiffs attached to their response an affidavit and preliminary report from Dr. Gary Hutter, a Registered Professional Engineer and Certified Safety Professional. Dr. Hutter opined that: Barton's presence in the kitchen was permitted and expected; Barton did not cause or contribute to the liquid's presence on the floor and had no reason to expect that the kitchen floor would be wet; safety standards recommended the use of floor mats in kitchen areas, and the lack of a floor mat in front of the refrigerator contributed to Barton's fall; combination refrigerator/freezer units, such as the one that appeared to have been in the kitchen on the date of the fall, tended to generate water from condensation during freezing and defrosting cycles and that water could leak from the inside of the refrigerator in various ways; Barton's failure to see the liquid before she slipped was consistent with human factors research and literature; and the accident was covered by some OSHA criteria. ¶ 18 Also on February 15, the plaintiffs filed a motion for leave to file a second amended complaint. A copy of the proposed complaint was attached to the motion. The complaint added two new counts against the School District: a "general negligence" count by Barton, based on allegations that the School District had installed a "dripping, leaking, and/or otherwise defective" refrigerator near a walkway, in an area where a puddle could form (count II); and a related loss of consortium claim by Barton's husband (count IV). ¶ 19 On February 29, 2012, the School District moved to bar the plaintiffs from presenting Dr. Hutter's testimony on the ground that they had never disclosed Dr. Hutter as an expert witness. On March 6, 2012, the plaintiffs filed a formal disclosure of Dr. Hutter and his opinions. ¶ 20 On March 7, 2012, the trial court held a hearing on the pending motions for summary judgment, the motion to bar Dr. Hutter, and the plaintiffs' motion for leave to file a second amended complaint. The trial court found that Dr. Hutter's opinions concerned issues of liability that were inherent in the plaintiffs' claims and were not "rebuttal" to any of the evidence presented by the School District, and thus the plaintiffs had violated the pretrial scheduling order by failing to timely disclose Dr. Hutter and his opinions. The trial court granted the motion to bar Dr. Hutter's testimony, with the exception of paragraph 9 of the expert report, which detailed Dr. Hutter's opinions relating to the applicability of OSHA criteria and safety doctrines to the incident. (The trial court held that this was the only opinion of Dr. Hutter's that could possibly be considered rebuttal.) ¶ 21 The trial court then denied the motions for summary judgment, finding that Barton had not fatally contradicted herself in her deposition regarding the cause of her fall:
A. Correct. I feel that's where it was coming from.
Q. That is speculation, correct?
A. Correct."
"In reading the deposition of the Plaintiff, I think both sides are playing a little bit fast and loose with the deposition. She does say that she fell on something that was clear on the floor. And then defense counsel cleverly put in there [']were you just guessing about that?['] Well, you know, that's typical questioning of an opponent, of a witness. But she does say that she fell on something that was clear on the floor. She doesn't know where it came from. So I think that remains a factual question about that."The trial court also denied the School District's request for summary judgment on the basis of immunity, commenting that "[t]he immunity question is a close one too." The trial court then granted the plaintiffs' motion for leave to file their second amended complaint. The second amended complaint was filed on March 14, 2012. ¶ 22 Thereafter, the School District and the Park District filed motions to reconsider the denial of summary judgment. The School District sought to bring to the trial court's attention a recent case, Ishoo v. General Growth Properties, Inc., 2012 IL App (1st) 110919, arguing that Ishoo showed that summary judgment in the defendants' favor was proper here. The School District did not raise any argument about immunity in this motion. After oral argument was heard on May 9, 2012, the trial court reconsidered its earlier ruling, stating:
"This case has been troubling me for a while, particularly with regard to the Ishoo, I-S-H-O-O, case that talks about notice, etcetera [sic]. I'm going to reverse my earlier decision and grant the motion to reconsider. I don't think there has been any showing of any notice to the School District.The trial court found that the Park District's motion to reconsider was moot in light of the judgment in favor of the School District and therefore did not rule on it. Finally, the trial court struck the trial date and made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay enforcement or appeal of the order. The plaintiffs filed this timely appeal.
Other than having a drip pan under the refrigerator, freezer, there's nothing to show that there was any water on the floor, any notice of water on the floor at any time before this occurrence."
A week later, the Park District also moved for summary judgment, arguing that the School District could not show that any Park District employee had caused the condition (water on the floor) that caused Barton's fall; it was the School District's duty, not the Park District's, to maintain the kitchen floor in a reasonably safe condition; and it was immune from liability under various provisions of the Act. About this time, Arbor Management settled with the plaintiffs and was dismissed from the case pursuant to the settlement agreement.
¶ 23 II. ANALYSIS
¶ 24 On appeal, the plaintiffs assert that the trial court erred in entering (1) the March 2012 order barring most of Dr. Hutter's opinions and (2) the May 2012 order granting summary judgment in favor of the School District. We take each argument in turn.
¶ 25 A. The March 2012 Order Barring Most of Dr. Hutter's Opinions
¶ 26 The plaintiffs raise two arguments with respect to the barring of Dr. Hutter's opinions. First, they argue that the trial court abused its discretion in barring any of the opinions, because it was unreasonable to expect the plaintiffs to disclose their expert's opinion by November 30, 2011, when relevant depositions were completed only two weeks earlier, on November 15. Second, they argue that even if some of Dr. Hutter's opinions were properly barred, Dr. Hutter's opinions in paragraphs 5 and 7 of his report were rebuttal evidence and therefore should not have been barred. ¶ 27 The barring of some or all of an expert witness's opinions is a matter within the sound discretion of the trial court. Illinois Supreme Court Rule 219(c) (eff. July 1, 2002) provides that "where a party unreasonably refuses to comply with discovery rules or orders, the trial court may enter 'such orders as are just' to remedy the situation." Bachmann v. General Motors Corp., 332 Ill. App. 3d 760, 790-91 (2002). "In considering whether a particular sanction is appropriate, a court must consider the conduct of the offending party and the effect of that conduct upon the opposing party." Id. at 791. "The decision to impose a particular sanction—if any—lies within the trial court's discretion, and only a clear abuse of discretion justifies reversal." Id. "Whether omissions in discovery are intentional or inadvertent, a reviewing court will neither condone nor tolerate false, incomplete, or inaccurate discovery." Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 108 (1994). ¶ 28 Here, the plaintiffs were required to disclose by November 30, 2011, the identity and expected testimony of all lay and expert witnesses they wished to present at trial. The timely disclosure of a plaintiff's expert witnesses is an important part of pretrial discovery, as it impacts the defendant's assessment of whether the defense will need its own expert witness. Where, as here, a defendant reasonably believes that it will not need to incur the expense of retaining an expert witness because the plaintiff will not offer expert testimony at trial, the plaintiff's later disclosure of an expert witness can be highly prejudicial. This is especially true where, as here, the disclosure came after the defendant had filed a motion for summary judgment. Because the plaintiffs disclosed Dr. Hutter's opinions so late, the School District faced the unpalatable course of attempting to depose Dr. Hutter, seek an expert of their own, and fight a rearguard battle against the newly-revealed opinions in the short time remaining before trial, or (as they did) seeking to bar Dr. Hutter's opinions as untimely. Our review of the record shows that the trial court was aware of the broad discretion it possessed to fashion an effective remedy for the late disclosures in light of the looming trial date, and that it exercised this discretion appropriately. The trial court did not abuse its discretion in barring most of Dr. Hutter's opinions. ¶ 29 The plaintiffs further argue that, even if most of Dr. Hutter's opinions were properly barred, paragraphs 5 and 7 were (like paragraph 9) "rebuttal" and thus should not have been stricken. These paragraphs related to (a) the safety-related reasons that floor mats are recommended in kitchens and other places where the floor could become slippery (paragraph 5), and (b) the likelihood that the refrigerator/freezer unit at issue would produce water as part of its normal operation and the likelihood that the manual for that refrigerator unit recommended that owners take steps to prevent that water from leaking onto the floor (paragraph 7). ¶ 30 Contrary to the plaintiffs' assertion, neither of these paragraphs is proper rebuttal evidence. "The purpose of rebuttal *** is not to provide a second opportunity to introduce evidence that could have been introduced in a plaintiff's case-in-chief." Naleway v. Agnich, 386 Ill. App. 3d 635, 649 (2008). Rather, rebuttal evidence is properly admitted in response to an affirmative defense or new points raised by the defendant. Affatato v. Jewel Companies, Inc., 259 Ill. App. 3d 787, 796 (1994). Where the plaintiff cannot identify the evidence of the defendant that the proffered "rebuttal" evidence is intended to rebut, it is not error to exclude the proffered "rebuttal" evidence. Naleway, 386 Ill. App. 3d at 649; see also Affatato, 259 Ill. App. 3d at 795 (where the timing of presentation of evidence prejudices opposing party, it may be error to admit that evidence). ¶ 31 Here, the School District presented only limited evidence in support of its motion for summary judgment, including deposition testimony of: Barton (to support the argument that she admitted that she did not know where the liquid on the floor came from); the school principal (who testified that Barton did not tell the principal that she slipped on liquid, only that she fell); Peters and the two women who worked for the food service provider (all of whom testified that they had never seen water leaking from the refrigerator, they had never known the floor drains to become clogged, and there were always mats on the kitchen floor); and the custodian, LaMarche (who testified as to the manner in which he cleaned the kitchen floor, and that there was no water left on the kitchen floor on the day of Barton's fall). All of this testimony was from lay witnesses and related to the usual activities in the school and on the day of the occurrence. Nothing about this evidence required the introduction of expert testimony in response. ¶ 32 In addition, the opinions stated in paragraphs 5 and 7 did not respond directly to (or "rebut") any of this evidence. The plaintiffs describe paragraph 5 as "rebutting" Boyko's deposition testimony regarding the purpose of placing mats on a kitchen floor. Specifically, Boyko testified that the mats were put down for ergonomic reasons, to provide a comfortable surface for workers to stand on. The plaintiffs also assert that paragraph 7 of Dr. Hutter's opinions was a response to Boyko's testimony on a different matter—that no inspection of the refrigerator was necessary because there had never been any problems with it. ¶ 33 We first note that neither of these issues necessarily requires expert testimony. The purpose of expert testimony is to assist the jury by providing knowledge or experience that is not common to a layperson. Compton v. Ubilluz, 353 Ill. App. 3d 863, 866 (2004). We think it likely that a jury, in the exercise of its common life experience, could address the safety benefits of floor mats and the necessity for occasional inspections of appliances without having to resort to expert opinion. Second, we observe that the School District did not cite Boyko's testimony in its motion for summary judgment, and so Dr. Hutter's opinions in paragraphs 5 and 7 were not necessary in order for the plaintiffs to respond to the motion. Thus, the trial court was correct in ruling that these opinions were not "rebuttal." ¶ 34 Moreover, Boyko voiced these opinions in his deposition, which was taken on November 15, 2011, two weeks before the November 30 deadline for the plaintiffs' Rule 213(f) disclosures. The plaintiffs' attorney was present at this deposition. The pretrial scheduling order setting that deadline was entered three months earlier. Accordingly, the plaintiffs should have been well aware of the difficulties that might arise as a result of scheduling depositions so close to the disclosure deadline. If the plaintiffs intended to retain an expert but feared that the expert would be unable to complete his review of the depositions and prepare his report by the deadline, the plaintiffs bore the responsibility of bringing that fact to the attention of the trial court and seeking an extension. Nothing in the record suggests that the trial court would not have entertained such a motion. In deciding to simply ignore the deadline, the plaintiffs ran the risk that the trial court would act as it did and bar the expert's opinions. ¶ 35 Finally, the plaintiffs argue that paragraph 7 is so similar to paragraph 9 that it made no sense to bar the former but not the latter. As we consider that the trial court could properly have barred both of these paragraphs, we do not find erroneous the fact that the trial court exercised its discretion to be lenient with respect to paragraph 9 but not paragraph 7. In sum, we find no abuse of discretion in the trial court's rulings regarding Dr. Hutter's opinions.
¶ 36 B. Summary Judgment
¶ 37 The plaintiffs' second argument on appeal is that the trial court erred in granting summary judgment for the School District. A motion for summary judgment is properly granted where the pleadings, depositions, admissions, and affidavits establish that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2010); Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 546 (2006). "In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent." Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). A triable issue precluding summary judgment exists where material facts are disputed or where the material facts are undisputed but reasonable persons might draw different inferences from the undisputed facts. Id. We review the grant of summary judgment de novo. Ioerger v. Halverson Construction Co., Inc., 232 Ill. 2d 196, 201 (2008).
¶ 38 1. Premises Liability Claim
¶ 39 The plaintiffs allege that the School District was negligent under premises liability for failing to provide Barton, an expected user of the kitchen, with a safe place to walk. The School District moved for summary judgment based on, inter alia, the argument that it had no actual or constructive notice of the dangerous condition (the accumulation of liquid on the kitchen floor). Where a plaintiff is injured by slipping and falling on a substance and there is no showing of how the substance came to be on the floor at that location, premises liability will attach only if the landowner or its employees knew of the presence of the substance on the floor, or the substance had been on the floor for a long enough period of time that its presence should have been discovered through the exercise of ordinary care. Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1039 (2000). Here, there was no evidence as to how long the liquid had been on the floor. In granting summary judgment in favor of the School District, the trial court cited lack of notice as its reason. ¶ 40 On appeal, the plaintiffs argue that three items of evidence show that the School District had either actual or constructive notice of the presence of water on the floor: the presence of a drip pan under the refrigerator; Jaimes' statement that all refrigerators leak; and LaMarche's acknowledgment that the floor drains could become clogged with debris and that the floors near the drains sloped noticeably toward the drains, permitting an inference that a puddle could form. We find that none of this evidence demonstrates either actual or constructive notice of the presence of water on the floor at the time of the fall. ¶ 41 Shmerl, one of the women who served lunch at the school, testified that there was a drip pan under the refrigerator. However, she also stated that it was always dry and that she had never had to call anyone to empty it. The plaintiffs argue that the School District would not have put a drip pan under the refrigerator unless they knew or at least had some inkling that the refrigerator was leaking, but this conclusion does not necessarily follow from the premise. The presence of a precaution meant to guard against a particular danger is not proof of knowledge that the danger is likely to arise at any particular point in time. For instance, the fact that a bicycle rider wears a helmet does not mean that the rider has actual or constructive notice that he will have an accident on any particular day: he may never have had an accident and have no reason to expect one, but simply be a cautious rider. Similarly, without evidence that the drip pan ever in fact contained any actual drips or leaks from the refrigerator, it was merely a precaution, not proof that the School District had notice of a leak that caused the accumulation of liquid in which Barton slipped. ¶ 42 The same principle applies to Jaimes' testimony that the refrigerator at issue was placed over a drain in the floor "in case it leaks," as he immediately followed that statement by clarifying that he had never seen the refrigerator leak. Jaimes also testified that he was the person who would report any such leaking or dripping and would notify Boyko of any necessary repairs to appliances at the school. He had never heard of any problems with this particular refrigerator. Further, Jaimes' statement that "all coolers [refrigerators] leak" lacks probative value when placed in context. Jaimes clarified that he did not mean that refrigerators leak "all of the time." Instead, refrigerators "sometimes" leaked, but he had never seen this one leak. It is clear that this statement referred to a general possibility, not to a known occurrence involving the refrigerator at issue. And, as discussed above, a general appreciation of a risk is not the same as knowledge that the risk will give rise to a dangerous condition at a specific time. Accordingly, Jaimes' statements do not show that the School District either knew or should have known that the refrigerator was leaking in such a manner as to cause the accumulation of liquid in which Barton slipped. ¶ 43 The final evidence to which the plaintiffs point is LaMarche's testimony that the floor drains in the kitchen could become clogged with debris. Indeed, we note that some of the exhibits to various depositions included work orders for clogged drains in the kitchen floor. However, these work orders were from the fall of 2010, over a year after Barton's fall, and there is no evidence that at the time of her fall any of the kitchen floor drains were in fact clogged. Without such evidence of an actual clog near the time of the accident, the bare fact that a School District employee knew that the floor drains could become clogged does not show that the School District had any actual or constructive notice of the presence of liquid on the floor. ¶ 44 The plaintiffs have failed to put forward any evidence showing that the School District knew or in the exercise of reasonable care should have known that liquid had accumulated on the kitchen floor at the spot where Barton fell. We therefore affirm the trial court's grant of summary judgment in favor of the School District on the plaintiffs' premises liability claim.
In analyzing the plaintiffs' claims for premises liability as well as ordinary negligence, we leave aside the claims for loss of consortium, which are dependent on the underlying claims and stand or fall with those claims.
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¶ 45 2. Ordinary Negligence
¶ 46 In their second amended complaint, the plaintiffs added a count (count II) based in ordinary negligence, which claimed that the School District acted negligently in placing a "dripping, leaking, and/or otherwise defective" refrigerator in the kitchen where Barton fell. Because the plaintiffs filed their second amended complaint after the School District's motion for summary judgment was denied, the first time the trial court considered whether summary judgment was appropriate on the ordinary negligence claim was when it ruled on the School District's motion for reconsideration. In what appears to have been an afterthought after granting summary judgment on the premises liability claim (count I of the second amended complaint), the trial court stated that the ordinary negligence claim "would fall" as well, because the School District was "not liable for ordinary negligence because of immunity" under the Act. The trial court did not identify the provision of the Act which it believed conferred such immunity, and the School District had not raised any argument regarding immunity in its motion to reconsider. ¶ 47 On appeal, the plaintiffs contend that the trial court erred in entering summary judgment on this claim because the evidence does not support the trial court's finding of immunity under the Act. The School District does not defend the grant of summary judgment on the basis of immunity. Instead, it argues that the ordinary negligence claim must fall for two reasons it also raised with respect to the premises liability claim: a lack of evidence regarding the cause of Barton's fall, and lack of notice about the presence of the liquid on the floor. ¶ 48 These arguments lack merit. The first contention is based on the fact that Barton acknowledged, in her deposition, that she had not inspected the refrigerator and did not know exactly where the liquid on the floor had come from. From this, the School District argues that she could not prove her case. The trial court rejected this argument, finding that Barton had stated clearly that she slipped on liquid that was "coming out from the bottom of the refrigerator." Similarly, there is conflicting evidence regarding whether there were mats on the floor at the spot where Barton fell. We agree that the evidence is sufficient to create a factual issue regarding whether Barton slipped on liquid on the floor. ¶ 49 We acknowledge that, at this point, there is no proof of the means by which the liquid came to be on the floor, i.e., whether it came from a refrigerator leak or condensation, was the result of the floor drain under the refrigerator being clogged, was left by the custodian when he mopped the kitchen, or had some other source. However, there is no evidence that the plaintiff herself tracked the liquid into the kitchen or otherwise caused the slippery condition, nor is there (at this point) any evidence establishing conclusively that a third party caused the presence of the liquid on the floor. Further, the evidence shows that the School District placed the refrigerator in the kitchen and the custodian was a School District employee. These facts could support the inference that negligence by the School District more probably than not caused the condition. ¶ 50 To sustain a negligence claim, a plaintiff need not identify with certainty the exact mechanism by which the dangerous condition that caused her injury was created in order to defeat summary judgment. See, e.g., Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 798 (1999) (evidence that the plaintiff slipped on water on the floor precluded summary judgment, although plaintiff did not know exactly how the water came to be on the floor). It is sufficient if the plaintiff can point to evidence that, if believed, could support a judgment in her favor. Keating v. 68th & Paxton L.L.C., 401 Ill. App. 3d 456, 472 (2010). Here, the evidence that Barton fell on a clear liquid that was coming out from the bottom of the refrigerator permits an inference that the dangerous condition (liquid on the floor) was more likely than not attributable to the School District's negligence. This inference would be sufficient to support a verdict in Barton's favor. Accordingly, there is a factual question that prevents the entry of summary judgment on this ground. ¶ 51 As to the School District's second contention regarding lack of notice, it is not applicable here. Because count II of the second amended complaint alleges that the School District itself created the dangerous condition, this claim is not subject to the defense of lack of notice. Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 715 (1998) ("[A] plaintiff does not need to prove actual or constructive notice when she can show the substance was placed on the premises through the defendant's negligence."). Accordingly, neither of these arguments can sustain the grant of summary judgment in favor of the School District on count II. ¶ 52 Nor may we affirm on the basis identified by the trial court when it granted summary judgment on this claim. The trial court stated that the School District was immune under the Act from any liability for ordinary negligence, but our review of the Act does not support this statement. Rather, "municipalities are liable in tort to the same extent as private parties" unless they can demonstrate that an immunity provision in the Act applies. Van Meter v. Darien Park District, 207 Ill. 2d 359, 369 (2003). Although there is one section of the Act, section 2-202, that provides immunity from ordinary negligence and limits public employees' liability to acts and omissions constituting willful and wanton conduct, that immunity provision is expressly limited to acts and omissions "in the execution or enforcement of any law." 745 ILCS 10/2-202 (West 2010). The School District has never contended that its employees were engaged in "the execution or enforcement of any law" when they installed the allegedly defective refrigerator in the kitchen. Accordingly, summary judgment on the ordinary negligence claim cannot be supported on the basis of section 2-202. See Van Meter, 207 Ill. 2d at 370 (immunity under the Act is an affirmative defense that must be raised and proved by the defendant). The record does not disclose any other basis for immunity under the Act. We therefore reverse the trial court's grant of summary judgment as to count II (and count IV, the related claim for loss of consortium).
¶ 53 CONCLUSION
¶ 54 For the reasons stated, we affirm the circuit court's grant of summary judgment in favor of the School District as to counts I and III of the second amended complaint; reverse its grant of summary judgment as to counts II and IV; and remand for further proceedings consistent with this order. ¶ 55 Affirmed in part and reversed in part; remanded.