What better way to celebrate the end of 2014 than to look at case law!

There were three cases published in the fourth quarter of 2014 that are specifically relevant to the retail, restaurant and hospitality industries.  Below are detailed summaries of each case but if you can’t handle reading that much case law this early in the new year, here is a quick summary:

• Just because there is a puddle on the floor, does not mean a store is liable.
• The best type of puddle is an undisturbed puddle – it helps win summary judgment every time!
• A well written security vendor contract can do wonders.
• If a security vendor is not hired to protect personnel / people – put it in the contract!
• If you fall but can’t remember why and there are no witnesses – tough luck, no money for you!
• Even in Cook County, Illinois, a property holder will not be found liable for an injury simply because it happened on its property. 

Warning:  The following is a lot of dry legal stuff.  Sorry, this must be done every once and a while.

Summary Judgment Granted & Affirmed for Retailer Following Customer Slip and Fall in Water

In Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644 (7^th Cir., Oct. 24, 2014), the plaintiff was walking in a store with a shopping cart when she slipped and fell in a puddle of water on the floor.  The plaintiff described the puddle as being two feet in diameter and it blended in with the floor.  There was no warning of the puddle and no indications that anyone else had walked through it.  The fall took place near a set of doors often used by store employees.

Store employees were trained to inspect the floors for hazards while performing their duties.    Employees carried towels and followed the “clean-as-you-go” method.  Store policy required a customer incident report be prepared after incidents, but the report for this incident could not be located.  The store only had five photographs taken after the incident.

The case was in federal court and Illinois law was applied to the summary judgment analysis.  The court noted that in order for the plaintiff to create a triable issue of act, she had to present some evidence that the water was more likely placed on the floor through the store’s negligence, than a customer’s.  (See, Donoho v. O’Connell’s, Inc., 13 Ill.2d 113 (1958)).  To do this, the plaintiff must show the water was related to the store’s business and offer some evidence from which it could be inferred that it was more likely that the store and its employees, rather than a customer, caused the spill.  (See, Donoho v. O’Connell’s, Inc., 13 Ill.2d 113 (1958)).  The court ruled the plaintiff failed to prove the second prong of this analysis.

Since the store was not assumed to be the cause of the water, the court next analyzed whether the store had actual or constructive notice of the water prior to the incident.  The plaintiff admitted there was no actual notice, but argued there was constructive notice.

The court stated that where constructive knowledge is claimed, “[o]f critical importance is whether the substance that caused the accident was there a length of time so that in the exercise of ordinary care its presence should have been discovered.”  (citing, Torrez v. TGI Friday’s, Inc., 509 F.3d 808, 811 (7th Cir.2007); Tomczak v. Planetsphere, Inc., 735 N.E.2d 662, 668 (2000)).  “Absent any evidence demonstrating the length of time that the substance was on the floor, a plaintiff cannot establish constructive notice.”  (citing, Reid v. Kohl’s Dept. Stores, Inc., 545 F.3d 479, 481 (7th Cir.2008); Tomczak v. Planetsphere, Inc., 735 N.E.2d 662, 668 (2000)).

The court ruled that the plaintiff could not meet her burden of demonstrating constructive notice because she could not prove how much time elapsed between the spill and the fall.  She also could not identify a source of the water.  Instead, the plaintiff’s testimony supported that the puddle was undisturbed, meaning that no employees or customers had walked through it before her fall.  Since there was no constructive notice, summary judgment for the store was upheld.

Security Company’s Contract Protected It From Liability 

In Blankenship v. Securitas Security Services USA, Inc., 2014 IL App (1st) 123749 (Nov. 17, 2014), the plaintiff’s-decedent worked as a part-time receptionist for Centegra Health System (Centegra) at a mental health facility.  Defendant Securitas Security Services USA, Inc. (Securitas) was contracted to provide uniformed security officers at the facility.

Lawrence Hucksteadt was a patient at the facility, attending an out-patient treatment program.  One afternoon Hucksteadt became angry, anxious and short of breath and said he was going to the VA hospital for treatment.  He later returned with a paint can and hung around outside the front lobby smoking a cigarette.  Hucksteadt then quickly entered the lobby and doused the plaintiff’s-decedent with gasoline from the can and set her on fire.

At the time of the incident, the two Securitas officers were in their assigned security room.  One was monitoring the cameras and the other just returned from patrol.  When the fire was spotted, they both went to the lobby.

Hucksteadt had previously been removed from a different Centegra facility for disruptive behavior.  He thought Centegra was going to file charges against him but none had ever been filed.

The plaintiff filed suit against Securitas.  After experts were disclosed by both parties, Securitas moved for summary judgment and it was granted.  The trial court determined that the contract between Centegra and Securitas “did not guarantee the personal safety of any person; and Securitas had no liability arising from criminal acts of third parties.”  The court found that Securitas had no duty to protect the plaintiff’s-decedent from the attack.  The plaintiff appealed this ruling.

On appeal, the plaintiff argued there was a question of fact as to whether Securitas undertook a duty to provide security to the plaintiff’s-decedent and whether the Securitas employees were negligent in performing their duties.

The courted noted that “Generally, one does not owe a duty of care to protect another from the criminal acts of third persons.” Blankenship, at ¶19, citing MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (2005). “The four exceptions to the rule are (1) when a special relationship exists between the parties and the harm is foreseeable; (2) when an employee faces imminent danger and this fact is known to the employer; (3) when a principal fails to warn an agent of an unreasonable risk of harm regarding the agency; and (4) when one party voluntarily or contractually assumes a duty to protect another from the acts of a third party.” Blankenship, at ¶19, citing Aidroos v. Vance Uniformed Protection Services, Inc., 386 Ill. App. 3d 167, 172 (2008).  The plaintiff in this case argued that the fourth exception applied here because Securitas agreed to provide security pursuant to its contract with Centegra.

The court analyzed the Aidroos case in detail and determined it was similar to this case.  The court then looked to the specific contract at issue.  In the contract between Centegra and Securitas, it specifically stated that Securitas “does not and will not under the terms hereof, or otherwise, provide or furnish any service that directly or indirectly requires armed personnel or guard animals.” In addition, an amendment modifying the contract explicitly set forth that “in no event will [Securitas] or its insurers be liable” for “any claim, loss, damage or expense arising from” a violent action.

Based on the contract, the court determined that Securitas did not contract with Centegra to provide protective guard services to Centegra personnel. “To find that the security officers had a duty to protect [the plaintiff’s-decedent] from this horrifying and violent act would go beyond the extent of their contractual undertaking.”  Blankenship, at ¶26.  For these reasons, and because the contract specifically precluded liability, the court determined that Securitas did not owe a duty to protect the plaintiff’s-decedent from a violent act and summary judgment was affirmed.  The plaintiff’s petition for leave to appeal to the Illinois Supreme Court was denied.

Summary Judgment Entered & Affirmed Because Plaintiff Had No Memory Of Incident So He Could Not Establish Proximate Cause 

In Rahic v. Satellite Air-Land Motor Service, Inc., 2014 IL App (1st) 132899 (Dec. 30, 2014), the plaintiff, a truck driver, suffered a serious head injury while picking up a load of freight from the defendant.  The plaintiff had no memory of the incident and there were no witnesses.  The plaintiff sued the owner of the property where the incident took place, alleging negligence, premises liability and spoliation of evidence.  The trial court granted summary judgment for the defendant because the cause of the injury was a matter of speculation.

After summary judgment was granted, the plaintiff amended the complaint to add a res ipsa loquitur claim.  The trial court granted the defendant’s motion to dismiss the new claims and the plaintiff appealed.

On appeal, the appellate court first analyzed the concept of proximate cause and how it can be established.  “Generally, proximate cause is an issue of material fact to be determined by the trier of fact.”  Rahic, at ¶19, citing Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004).  “Proximate cause may be determined as a matter of law where the facts show that the plaintiff would never be entitled to recover.”  Id.   “Proximate cause consists of two requirements: cause in fact and legal cause.” Id. at 258.

“For a defendant’s conduct to be a “cause in fact” of the plaintiff’s injury, the conduct must constitute “a material element and a substantial factor in bringing about the injury.” If the plaintiff’s injury would not have occurred absent the defendant’s conduct, then the conduct forms a material element and substantial factor in bringing about the injury. On the other hand, “legal cause” involves an assessment of foreseeability and the court must consider whether the injury is of the type that a reasonable person would see as a likely result of his or her conduct.” Id.

To establish proximate cause, the plaintiff bears the burden of “affirmatively and positively show[ing]” that the defendant’s alleged negligence caused the injuries for which the plaintiff seeks to recover. Rahic, at ¶20, citing Bermudez v. Martinez Trucking, 343 Ill. App. 3d 25, 29 (2003). The court then relied on very well established law in Illinois which holds that “liability against a defendant cannot be predicated on speculation, surmise, or conjecture. “  See, Mann v. Producer’s Chemical Co., 356 Ill. App. 3d 967, 974 (2005). Instead, the plaintiff must establish with “reasonable certainty” that the defendant’s acts or omissions caused the injury. Id.  A plaintiff may establish proximate cause through circumstantial evidence, but those facts must reasonably suggest that the defendant’s negligence operated to produce the injury.  Id.

In this case, the plaintiff had no recollection of the incident and could only speculate as to what caused his injury.  There were multiple plausible events that could have caused the plaintiff’s injury so the actual cause was pure conjecture.  The court ruled that “in the absence of even a scintilla of evidence that [the defendants] either did or failed to do something, [the plaintiff] has no means to establish negligence on their part as a proximate cause.”  Rahic, at ¶25.  For this reason, summary judgment was affirmed.

The appellate court also affirmed the dismissal of the res ipsa loquitur claim.  In order for a plaintiff to succeed with such a claim, he must show: “(1) he or she was injured, (2) the injury was received from an instrumentality that was under the defendant’s control, and (3) in the normal course of events, the injury would not have occurred if the defendant had used ordinary care while the instrumentality was under his or her control. Heastie v. Roberts, 226 Ill. 2d 515, 531-532 (2007).  The court ruled that in this case, the plaintiff failed to make allegations supporting the second and third elements so dismissal was proper.

If you have any questions about any of these cases, please let me know.