Recently, I secured a summary judgment win for my client in DuPage County and the argument asserted by the plaintiff’s attorney was one of the most creative, yet legally offensive, arguments I have heard in some time.

The plaintiff fell in the restaurant dining room and was severely injured. The plaintiff offered several potential causes of her fall including tripping on a chair, slipping on food or a liquid substance or possibly the floor was recently mopped.  The plaintiff never saw anything on the floor before her fall, never saw anyone mopping the floors and did not open her eyes after the fall to look at the floor.

The only witness to the fall saw it out of the corner of her eye and she believed the plaintiff tripped on a chair.  The medical records shortly after the fall noted the plaintiff said she tripped on a chair.

We moved for summary judgment, arguing the plaintiff did not know the cause of her fall so she could not support her claim, or show a dangerous/defective condition existed.  The plaintiff’s attorney’s response was the surprising argument.  He asserted a material question of fact existed preventing summary judgment BECAUSE the cause of the fall was unknown and because several possible theories of the cause were offered.  I find this legally offensive because it completely flies in the face of every Illinois case on the issue.

Fortunately, the judge confirmed that Illinois law requires the plaintiff to know the cause of her fall and her alternative theories do not create a question of fact.  Since the cause was not known, there was no known defect and there could not have been notice of a defect.  Summary judgment was granted in January, 2017 and no appeal was filed.

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