Opinion
4-23-0386
05-16-2024
GAIL A. QUAST, Plaintiff-Appellant, v. FARM & FLEET OF LOVES PARK, a Division of FARM & FLEET OF OTTAWA, INC., Defendant-Appellee.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 20L83 Honorable Ronald Anthony Barch, Judge Presiding.
HARRIS JUSTICE delivered the judgment of the court. Justices Lannerd and Turner concurred in the judgment.
ORDER
HARRIS JUSTICE
¶ 1 Held: The trial court did not err in granting summary judgment in defendant's favor.
¶ 2 Plaintiff, Gail A. Quast, filed a cause of action against defendant, Farm &Fleet of Loves Park, a Division of Farm &Fleet of Ottawa, Inc., seeking to recover for injuries she sustained after slipping and falling in defendant's parking lot. The trial court granted defendant's motion for summary judgment, and plaintiff appeals. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On June 23, 2019, plaintiff and her husband visited defendant's store, arriving at approximately 9 a.m. and parking their vehicle in defendant's parking lot. Plaintiff asserted that after exiting her vehicle and beginning to walk around it toward the entrance of the store, she stepped on a gray foreign substance or "concrete powder mix," which caused her to slip and fall.
¶ 5 In July 2020, plaintiff filed a two-count amended complaint against defendant, alleging negligence (count I) and a violation of the Premises Liability Act (740 ILCS 130/1 et seq (West 2018)) (count II). She alleged defendant had a duty (1) "to exercise ordinary care and caution in the ownership, operation, maintenance, management, control, and repair of' its premises for the use of its lawful patrons and (2) of reasonable care to her as an entrant of its premises. Further, she alleged defendant breached those duties where it:
"a. Maintained the Premises in an unreasonably dangerous manner and/or condition;
b. Failed to remove or clean-up the concrete powder mix on the Premises in a timely manner;
c. Failed to warn those lawfully on the Premises of the concrete powder mix in the parking lot;
d. Failed to warn those lawfully on the Premises of the precarious nature of the parking lot;
e. Failed to regularly check the parking lot of the Premises for any obstructions or hazards;
f. Allowed the concrete powder mix to remain in an area which constituted an unreasonably dangerous hazard to those lawfully on the Premises;
g. Failed to fix, repair, replace, remove or otherwise remedy the concrete powder mix in the parking lot, which it knew or should have known was unreasonably dangerous;
h. Failed to warn customers of the unreasonably dangerous conditions on the Premises; and/or
i. Was otherwise careless or negligent regarding maintenance of the parking lot of the Premises."
Plaintiff asserted she was injured as a result of defendant's negligent acts or omissions.
¶ 6 In August 2020, defendant filed an answer to plaintiff's amended complaint, denying the material allegations against it. In May 2022, it filed a motion for summary judgment. In its motion, defendant agreed plaintiff was a "business invitee" on its premises and, as such, it owed plaintiff "a duty of reasonable care." However, it argued plaintiff could not establish any breach of duty where no evidence showed that it (1) was responsible for the presence of the gray foreign substance in the parking lot or (2) had actual or constructive knowledge that the gray foreign substance was present in the parking lot. Alternatively, defendant argued plaintiff's claims for relief failed "due to the open and obvious nature of the condition that allegedly caused [her] fall."
¶ 7 To its motion, defendant attached the discovery depositions of plaintiff; plaintiff's husband, Richard Quast; and its employee, Aime Nauyalis. Defendant's exhibits also included photographs depicting the gray substance and surveillance video that showed plaintiff parking her vehicle in defendant's parking lot at 8:58 a.m. and falling shortly after exiting her vehicle. Both the photographs and surveillance video also showed puddles of water in defendant's parking lot at the time of plaintiff's fall.
¶ 8 During her deposition, plaintiff testified she was driving her vehicle on the morning in question and the parking lot was "clear enough" that she was "able to pull into one parking stall *** and then pull through to the opposite stall" when parking. She did not notice anything on the ground when parking. Plaintiff testified she exited her vehicle and "started walking around the front [of her vehicle] to go into the store." As she was walking, she was looking at the store when her foot slid out from under her, and she fell to the ground.
¶ 9 Initially, plaintiff did not know what caused her to fall. However, after looking around, she noticed that she had fallen on a "light gray powder" that was located in front of her car, and which got on her hand, clothing, and purse. Plaintiff testified that part of the substance "had gotten wet" and was "very slippery." She agreed that the gray powder was a different color than the asphalt of the parking lot and that, had she looked down, there was nothing that would have obstructed her view of the ground where she fell. Plaintiff also identified photographs, which she stated accurately depicted the gray powder and showed "skid marks" from her shoes.
¶ 10 Ultimately, plaintiff continued into defendant's store and reported what had happened to its employees. She stated store employees "did not indicate that they knew [the gray powder] was there." Plaintiff testified she did not know how the gray powder got in the parking lot. She also did not "know specifically" how long the gray powder had been there. However, she theorized that it may have been present since the day before because it had rained and the powder was partially wet.
¶ 11 Plaintiff's husband Richard testified he did not recall seeing anything on the pavement as plaintiff was parking their vehicle. He also did not see plaintiff fall. Rather, after exiting the vehicle, Richard began walking in the direction of defendant's store when he heard plaintiff make a noise and then observed her on the ground. He observed a grayish-colored substance on the ground near plaintiff. Richard described the substance as "powdery" and also "wet and slimy." He believed he was told the substance was cement but did not remember who told him that information. Richard testified he did not know how the substance got into the parking lot or how long it had been there.
¶ 12 Aime Nauyalis testified that at the time of plaintiff's fall, she worked for defendant as an assistant store manager. She arrived at work at 6 a.m. that day and stated the store opened at 7 a.m. Around 9 a.m., she received a report about a customer falling in the parking lot and spoke with plaintiff. Plaintiff reported that she stepped on something in front of her car and fell. Nauyalis went to the location of plaintiff's fall and took photographs. She testified she thought the substance on the ground looked like cat litter, while another assistant store manager told her the substance looked like concrete mix. Nauyalis stated she did not know "for sure" what the substance was.
¶ 13 As a result of the incident, Nauyalis filled out a customer incident form. On the form, she wrote that a contributing factor to plaintiff's fall was that it "rained overnight," making "it slippery." When asked if she recalled when it rained, Nauyalis stated as follows: "It rained overnight because that moment when the accident happened it did not rain, and I remember when I went to work it did not rain either." Further, she stated it was her belief that the rain occurred overnight because when she went to look at the location of plaintiff's fall, some areas of the pavement were dry.
¶ 14 Nauyalis testified the gray foreign substance was cleaned up by defendant's maintenance person, Daniel McDonald. She stated McDonald was responsible for cleaning up spills or garbage and bringing shopping carts in. According to Nauyalis, when McDonald went outside to pick up garbage or bring carts in, it was "his responsibility to make sure that the parking lot [was] cleaned up and there [were] no safety hazards." She described McDonald's duty as "ongoing," stating that "[i]f he goes outside and sees something he needs to clean it up." He had the same responsibility inside the store. On the day of plaintiff's fall, McDonald probably began working at 7 or 8 a.m.
¶ 15 When asked whether she did "any type of follow-up investigation" into the incident, Nauyalis testified as follows:
"Well, I did look at cameras before store-a little bit before store opening. I don't remember exactly how far I looked. But I did not see anything there, you know, before the accident happened or earlier, I don't remember how many hours I looked."
She stated she was able to see plaintiff's fall occur on the surveillance video footage. She did not remember if the "cement mix" was visible or not. Nauyalis agreed that she also put in the incident report that "the cement mix looked like it was wet from overnight rain." When asked if she checked video footage from the night before to see how the "cement mix" got there, Nauyalis said she did not remember.
¶ 16 Finally, Nauyalis explained that customers parked in the middle of the parking lot, whereas store employees parked toward the edge of the parking lot on its west side. Employees also used a side entrance to the store.
¶ 17 In June 2022, plaintiff filed a response to defendant's motion for summary judgment, arguing genuine issues of material fact existed as to whether defendant violated the duties it owed her, defendant had constructive notice of the gray foreign substance, and the gray foreign substance was an open and obvious condition. In particular, plaintiff argued that constructive notice may be established by evidence that a condition persisted long enough on a defendant's premises that the defendant should have discovered it through the exercise of reasonable care. She asserted that in the present case, it could be inferred through circumstantial evidence that the gray substance was on the ground prior to the opening of defendant's store at 7 a.m. and that defendant had at least two hours to discover it before her fall at approximately 9 a.m. Plaintiff noted deposition testimony that the substance appeared wet and slimy and that it had rained earlier that morning or overnight. She argued that whether a two-hour time gap constituted constructive notice was for a jury to determine.
¶ 18 To her response, plaintiff attached the discovery depositions of herself, Richard, and Nauyalis, photographs of the scene and the gray foreign substance, and a document purporting to show the weather history for the Rockford, Illinois, area on the date of the fall. The weather history indicated precipitation in the area from 4 a.m. to 6 a.m. Plaintiff also attached the customer injury report Nauyalis prepared. Under a section entitled "Customer Accident Information," Nauyalis described the "Accident Conditions" as "[s]omeone spilled concrete mix on the parking lot." As a "Contributing Factor[ ]," she identified the following: "Rained overnight and made it slippery."
¶ 19 In July 2022, defendant filed a reply in support of its motion for summary judgment. Regarding whether it had constructive notice of the gray foreign substance in the parking lot, defendant argued no evidence showed how the substance came to be in the parking lot or how long it had been there prior to plaintiff's fall. Defendant asserted plaintiff's claim that the substance had to have been deposited in the parking lot before it rained earlier that morning or overnight was speculative. In particular, it noted that photographs and surveillance video of the scene showed the rain left puddles in the parking lot and, thus, it was "just as plausible that, shortly before Plaintiff arrived, a customer spilled [the] substance into one of those puddles causing it to become partially wet."
¶ 20 In November 2022, the trial court conducted a hearing on defendant's motion for summary judgment. The parties argued their respective positions and the court took the matter under advisement. In December 2022, it entered a written decision and order, granting the motion. Notably, the court found a lack of evidence to establish constructive notice by defendant of the presence of the gray foreign substance in its parking lot. In reaching that determination, the court stated as follows:
"The problem here is the lack of evidence concerning how long the concrete mix, cat litter or other gray powdery material was present in the location of [plaintiff's] fall. There are no witnesses that testified or gave statements concerning the precise length of time the patch of gray slippery stuff was present. As [plaintiff's] fall occurred fairly early in the morning (9:00 a.m.), it is possible that the gray powdery substance was from a spill that occurred when a customer was loading cat litter or concrete mix during business hours the night or day before. It rained overnight, which would explain why a deposit of foreign substance in the parking lot would be moist shortly after opening the following morning. At the same time, it is equally plausible that the gray powdery material was spilled or deposited sometime during business hours on June 23, 2019. The assistant manager testified the store opened at 7:00 a.m. Plaintiff *** testified she thought the store opened at 8:00 to 8:30 a.m. Regardless, it is entirely possible that the gray powdery material was deposited by a third party ([defendant's] customer) sometime between 7:00 a.m. and 9:00 a.m. Other than pure speculation, there is nothing in the record that makes one timing scenario more probable than the other. The court is simply left to speculate as to which scenario is more reasonable."
¶ 21 In January 2023, plaintiff filed a motion to reconsider and vacate the summary judgment. Following a hearing, the trial court denied the motion.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 A. Plaintiff's Compliance with Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020)
¶ 25 Initially, defendant asks this court to disregard the statement of facts and argument sections of plaintiff's brief due to her noncompliance with Rule 341(h). It argues plaintiff's statement of facts is impermissibly argumentative. Defendant also complains that to support references to the underlying facts of the case, plaintiff improperly cited to the trial court's written decision on the motion for summary judgment or statements the court made during oral argument instead of to the actual evidence presented by the parties, i.e., deposition testimony presented in support of, or opposition to, the motion for summary judgment. Finally, defendant contends the argument section of plaintiff's brief is improperly "devoid" of citations to relevant portions of the appellate record.
¶ 26 Rule 341(h) sets forth requirements for the form and content of an appellant's brief. It provides that an appellant's brief must include a "Statement of Facts, which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). The rule also states that an appellant's argument "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). "Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found." Id.
¶ 27 On review, "[t]his court may strike a statement of facts when the improprieties hinder our review." Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 9, 969 N.E.2d 930. Additionally, "[s]trict adherence to the requirement of citing relevant pages of the record is necessary to expedite and facilitate the administration of justice." Maun v. Department of Professional Regulation, 299 Ill.App.3d 388, 399, 701 N.E.2d 791, 799 (1998). Argument that does not satisfy the requirements set forth in the Illinois Supreme Court rules does "not merit consideration on appeal [citation] and may be rejected for that reason alone." Id.; see Crull v. Sriratana, 388 Ill.App.3d 1036, 1045, 904 N.E.2d 1183, 1190 (2009) ("The rules of procedure concerning appellate briefs are not mere suggestions, and it is within this court's discretion to strike the plaintiff's brief for failing to comply with Supreme Court Rule 341.").
¶ 28 Here, defendant accurately identifies violations of Rule 341(h) in both the statement of facts and argument sections of plaintiff's appellant's brief. However, such deficiencies are not so egregious as to hinder our review of the issues presented, and we find it unnecessary to strike or disregard the entirety of either section. Instead, we ignore any improper argument in plaintiff's statement of the facts, as well as any factual assertion not supported by the appellate record, and we caution plaintiff "that the rules of procedure governing appellate briefs are mandatory and not mere suggestions." State ex rel. Fox v. Thornley, 2023 IL App (4th) 220622, ¶ 71, 227 N.E.3d 788.
¶ 29 B. The Trial Court's Grant of Summary Judgment
¶ 30 On appeal, plaintiff argues the trial court erred by granting defendant's motion for summary judgment. Specifically, she contends the court erroneously determined that no evidence showed constructive notice to defendant of the gray substance in its parking lot.
¶ 31 Summary judgment is appropriate "if 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 2022). "The purpose of summary judgment is not to try a question of fact but, rather, to determine whether a genuine issue of material fact exists." Lewis v. Lead Industries Ass'n, 2020 IL 124107, ¶ 14, 178 N.E.3d 1046. "Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt." Beaman v. Freesmeyer, 2021 IL 125617, ¶ 72, 183 N.E.3d 767.
¶ 32 "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." Lewis, 2020 IL 124107, ¶ 15. "A genuine issue of material fact precluding summary judgment exists where the material facts are disputed or, if the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts." Id.
¶ 33 Additionally, "to survive a motion for summary judgment, a plaintiff need not prove her case, but she must present a factual basis that would arguably entitle her to a judgment." Bruns v. City of Centralia, 2014 IL 116998, ¶ 12, 21 N.E.3d 684. "If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is appropriate." Lewis, 2020 IL 124107, ¶ 15. On appeal, a de novo standard of review applies to the trial court's summary judgment ruling. Id.
¶ 34 In her complaint, plaintiff raised both an ordinary negligence claim and a premises liability claim. "Ordinary negligence requires proof of (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately caused by the breach." Martin v. City of Chicago, 2023 IL App (1st) 221116, ¶ 22, 229 N.E.3d 986. By contrast, a premises liability claim requires not only "proof of the three elements of ordinary negligence," but also proof of the following three elements:
"(1) there was a condition on the property that presented an unreasonable risk of harm, (2) the defendant knew or reasonably should have known of the condition and the risk, and (3) the defendant could reasonably have expected people on the property would not realize, would not discover, or would fail to protect themselves
from the danger." Id.
"In effect, the difference between premises liability and ordinary liability is that in a premises liability case the defendant is alleged to have 'maintained a dangerous condition,' whereas in an ordinary liability case the defendant is alleged to have caused the dangerous condition." Hutson v. Pate, 2022 IL App (4th) 210696, ¶ 45, 216 N.E.3d 1085.
¶ 35 In this instance, defendant does not dispute that it owed plaintiff a duty of care as a business invitee. "A business owner owes a duty to business invitees to exercise ordinary care in maintaining their property in a reasonably safe condition." (Internal quotation marks omitted.) Heider v. DJG Pizza, Inc., 2019 IL App (1st) 181173, ¶ 29, 138 N.E.3d 934.
" 'The general rule is that liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if (1) the substance was placed there by the negligence of the proprietor, or (2) his servant knew of its presence, or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the proprietor had constructive notice of the substance.'" Id. ¶ 31 (quoting Hayes v. Bailey, 80 Ill.App.3d 1027, 1030, 400 N.E.2d 544, 546 (1980))."If the gist of a complaint is that the landowner did not create the condition, the plaintiff must be required to establish that the landowner knew or should have known of the defect." Tomczak v. Planetsphere, Inc., 315 Ill.App.3d 1033, 1038, 735 N.E.2d 662, 666 (2000). "[T]here is no liability for landowners for dangerous or defective conditions on the premises in the absence of the landowner's actual or constructive knowledge." Id.
¶ 36 "Constructive notice can only be shown where the dangerous condition is shown to exist for a sufficient length of time to impute knowledge of its existence to the defendants." (Internal quotation marks omitted.) Haslett v. United Skates of America, Inc., 2019 IL App (1st) 181337, ¶ 53, 136 N.E.3d 172. "Establishing a period of time is critical to showing a defendant's constructive notice of an allegedly dangerous condition." Tafoya-Cruz v. Temperance Beer Co., 2020 IL App (1st) 190606, ¶ 59, 178 N.E.3d 182; see Hresil v. Sears, Roebuck &Co., 82 Ill.App.3d 1000, 1002, 403 N.E.2d 678, 680 (1980) ("[A]s a matter of law, that ten minutes was an insufficient period of time to give constructive notice to the operator of [a] self-service store of the presence of [a] foreign substance.").
¶ 37 Additionally, "[f]acts may be shown by either direct or circumstantial evidence," including those necessary to establish constructive notice and to defeat summary judgment. Heider, 2019 IL App (1st) 181173, ¶ 38. "However, a fact cannot be established through circumstantial evidence unless the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn." (Internal quotation marks omitted.) Banks v. City of Rockford, 2023 IL App (4th) 221111, ¶ 29, 227 N.E.3d 816. "Moreover, when the established facts demonstrate [that] the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion is a matter of speculation, conjecture, and guess, and the inference is not permissible." Id.
¶ 38 On appeal, plaintiff does not contend that defendant was responsible for the presence of the gray foreign substance in its parking lot or that it had actual knowledge of its existence. Rather, she claims defendant had constructive notice of the substance. Plaintiff argues sufficient circumstantial evidence was presented from which a trier of fact could reasonably infer that the substance was present in the parking lot "for an extended period of time," such that defendant should have known about it and removed it.
¶ 39 Here, the evidence showed that plaintiff's fall occurred shortly before 9 a.m. and approximately two hours after defendant's store opened at 7 a.m. Plaintiff testified her fall was caused by slipping on a gray foreign substance, which she described as a gray powdery substance that was "partially wet." However, as defendant argues, no evidence showed "the source of the substance or how [it] came to be in the parking lot." There was also no evidence showing how long that substance was in defendant's parking lot prior to plaintiff's fall.
¶ 40 In arguing that the gray foreign substance must have been present "for an extended period of time," plaintiff points to testimony that described the substance as "wet" and "slippery," as well as evidence that it had rained overnight or early in the morning. She suggests that because the substance was wet, it must have been present prior to any rainfall. However, both the photographs and surveillance video relied upon by the parties showed that when plaintiff fell, the parking lot was wet in appearance and had puddles of water. It was equally possible that the substance was deposited after the rainfall and became "partially" wet from water that was already on the ground.
¶ 41 Plaintiff also argues that photographs showed the gray foreign substance "arguably had tire tracks through it," suggesting it was in the parking lot long enough to have been "disturbed by others." Initially, we note that although a photograph of the gray foreign substance appears to show marks of some kind in the substance, the evidence presented was that plaintiff's foot slid in the substance and she fell on top of it. During her own deposition, plaintiff described the photograph as showing "skid marks" from her fall, with no mention of any tire tracks.
¶ 42 Additionally, we note the trial court considered plaintiff's "tire tracks" argument in connection with her motion to reconsider. Although the court accepted that the photograph showed "a track *** suggesting at least one car went through there," it did not find the presence of a single tire track supported plaintiff's contention that the gray substance necessarily had to have been present for a substantial length of time. The court found it plausible that the track was left by "the driver of the car that dropped it to begin with."
¶ 43 We agree with the trial court's assessment and find the present case is factually distinguishable from the case authority relied upon by plaintiff. In Burns v. Goldammer, 38 Ill.App.2d 83, 84-85, 186 N.E.2d 97, 97-98 (1962), the plaintiff fell while bowling after her foot struck a piece of gum on the floor that "was flattened, dark and dirty." The reviewing court determined that based on the condition of the gum, a jury might properly have concluded "that it had been present on the approach for a considerable period of time" and, thus, the plaintiff made a sufficient showing of constructive notice. Id. at 87-88.
¶ 44 In Canales v. Dominick's Finer Foods, Inc., 92 Ill.App.3d 773, 775, 416 N.E.2d 303, 305 (1981), evidence indicated the plaintiff slipped in the defendant's store on the contents of a "Ben-Gay tube." The reviewing court rejected an argument by the defendant that there was insufficient evidence to create a factual question as to its constructive notice of the substance, relying, in part, on evidence that the contents of the tube were tracked over an area that was approximately one foot wide and three feet long, the substance was greasy and pasty and could not have spread by itself, and there were five or six footprints in the substance. Id. at 775-77.
¶ 45 Here, although we do not dispute that the physical state of a foreign substance can provide circumstantial evidence as to the length of time that the substance was present at a particular location, such circumstances do not exist in this case. As suggested by plaintiff, it is possible that the gray foreign substance was in the parking lot for several hours prior to plaintiff's fall; however, as the trial court determined, it is equally possible, based on the evidence presented, that the substance was deposited in the parking lot much closer in time to plaintiff's fall. Neither the fact that the substance was "partially wet" nor the possible presence of a single tire track in the substance makes plaintiff's theory of the case more probable and less speculative than any alternative scenario.
¶ 46 On appeal, plaintiff emphasizes that in the incident report Nauyalis prepared, she described "overnight" rainfall as a contributing factor to the accident. However, such a statement does not necessarily require an inference that the gray foreign substance was deposited in the parking lot prior to when it rained. Instead, the statement could equally refer to circumstances of a substance being deposited on ground that was already wet from rain.
¶ 47 Finally, plaintiff contends Nauyalis's deposition testimony shows she reviewed surveillance footage from the morning of the accident and did not see anything "that would explain how the foreign substance got in the parking lot." She cites the First District's decision in Heider, 2019 IL App (1st) 181173, to support the contention that Nauyalis's unrebutted testimony was sufficient to create a genuine issue of material fact regarding whether the grey foreign substance was in the parking lot long enough to give defendant constructive notice. In Heider, the plaintiff slipped and fell on a wet floor in the entryway of the defendant's bar and restaurant as he was exiting the building. Id. ¶ 12. Evidence in the case showed during the 1 hour and 40 minutes he was seated in the restaurant, the plaintiff could see the entryway and did not observe an employee mopping or cleaning the area, or that anyone spilled anything. Id. ¶ 10. The reviewing court found such evidence significant and that it indicated "that the dampness was there the whole time." Id. ¶ 36. The court further stated as follows:
"[The plaintiff's] testimony is that he could see [the area where he fell] from his table, he never left the table, and during that time he witnessed nothing that would have caused the water he later slipped on to be there. On a motion for summary judgment, we must construe the evidence 'strictly against the movant and liberally
in favor of the opponent.' [Citation.] We conclude that [the plaintiff's] unrebutted testimony was enough to create a genuine issue of material fact regarding whether the water in the entryway was present for long enough to give [the defendant] constructive notice of a dangerous condition on its property." Id. ¶ 37.
¶ 48 We find the facts of the present case are distinguishable from Heider, and that plaintiff mischaracterizes Nauyalis's deposition testimony by asserting it shows she did not see anything on the surveillance video footage from the morning of plaintiff's fall to "explain how the foreign substance got in the parking lot." Rather, when asked during her deposition whether she did any follow-up investigation into plaintiff's fall, Nauyalis testified as follows:
"Well, I did look at cameras before store-a little bit before store opening. I don't remember exactly how far I looked. But I did not see anything there, you know, before the accident happened or earlier, I don't remember how many hours I looked."
This testimony does not establish what portions of the surveillance video Nauyalis viewed from the morning of plaintiff's fall, let alone that she viewed the entirety of the footage spanning from before the opening of the store to when plaintiff fell. Additionally, her statement that she "did not see anything there" appears to reference the fact that the gray foreign substance was not visible in the surveillance footage. We note the portion of the surveillance video submitted by the parties- which spans from 8:57 a.m., approximately one minute prior to plaintiff's fall, until 9:05 a.m.- reflects the surveillance camera was positioned some distance away from the location where plaintiff fell and supports a finding that the gray foreign substance was not visible from the camera's vantage point.
¶ 49 Here, the trial court was correct in finding a lack of evidence showing how long the gray foreign substance was present in defendant's parking lot prior to plaintiff s fall. We also agree that to accept plaintiff's contention that it was present for at least several hours and prior to any rainfall would require speculation, as alternative scenarios were equally possible. Because plaintiff does not allege defendant was responsible for placing the substance in the parking lot and the evidence does not show defendant had actual or constructive notice of the substance, plaintiff cannot establish a claim for ordinary negligence or one based on premises liability. Accordingly, we find the court committed no error in granting defendant's motion for summary judgment.
¶ 50 C. Additional Issues
¶ 51 On appeal, plaintiff raises additional issues, arguing (1) "a genuine issue of material fact exist[ed] as to whether [defendant] breached its duties owed to [her]" and (2) the gray foreign substance was not an open and obvious condition. However, we find it unnecessary to address either issue given (1) that plaintiff's assertions of liability are based on allegations of defendant's constructive notice of an allegedly dangerous condition on its property and (2) our finding that the trial court properly granted summary judgment in defendant's favor based upon a lack of evidence in the case tending to show constructive notice.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the trial court's judgment.
¶ 54 Affirmed.