Purcell v. Kemper Sports Mangement, Inc. ( 2023 )

2023 IL App (2d) 220397-UNo. 2-22-0397
Order filed December 13, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
VERA PURCELL and JOHN PATRICK ) Appeal from the Circuit Court
PURCELL, ) of Lake County.
)
Plaintiffs-Appellants, )
)
v. ) No. 19-L-295
)
KEMPER SPORTS MANAGEMENT, INC., ) Honorable
) Luis A. Berrones,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice McLaren and Justice Kennedy concurred in the judgment.
ORDER
¶1 Held: Summary judgment entered in favor of the defendant in this slip and fall case was
proper, where the plaintiff failed to establish a genuine question of material fact
that the defendant created the alleged dangerous condition.
¶2 The plaintiffs, Vera Purcell and John Patrick Purcell, appeal from the summary judgment
entered against them and in favor of the defendant, Kemper Sports Management, Inc., in the circuit
court of Lake County. On appeal, the plaintiffs contend that there were questions of material fact
that precluded summary judgment. We affirm.
¶3 I. BACKGROUND
2023 IL App (2d) 220397-U¶4 On September 8, 2020, the plaintiffs filed an amended complaint against the defendant
alleging negligence and loss of consortium.1 The complaint alleged that the defendant managed
and operated the golf course and clubhouse commonly known as the Deerpath Golf Club, located
in Lake Forest. There was a café/bar located in the clubhouse. The complaint alleged that, prior
to June 2018, renovations were completed such that carpeted flooring in the café/bar and the
hallway leading to the bathrooms was replaced with brown porcelain tile. The complaint also
alleged that, on September 27, 2018, the defendant’s employees set up and maintained a water
dispenser on the counter of the bar by the north end of the bathroom hallway and that the employees
knew that water would spill or drip from the dispenser onto the floor.
¶5 The complaint further alleged that, on September 27, 2018, a woman’s golf event was
scheduled to start at 8 a.m.. The defendant’s employees knew that the course would be wet with
morning dew and had a duty to exercise ordinary care in the operation of the course and clubhouse.
On that day, at about 9 a.m. and after golfing four holes, Vera entered the clubhouse from the north
door to go to the restroom. She slipped and fell as she was walking in front of the bar in the café
and turning toward the hallway to the bathroom. Her shoes were wet. The complaint alleged that
the defendant failed to supply a safe and suitable ingress to the restroom in that the defendant failed
to supply indoor and outdoor floor mats at the door and runners in the café, allowed golfers access
to the café when it knew the floor was slippery with wet golf shoes, supplied a floor that was very
slippery when wet, and put a water dispenser on the café bar when there was a water fountain near
1
The amended complaint also asserted claims for negligence and loss of consortium against
the City of Lake Forest. However, on November 10, 2020, the City was voluntarily dismissed.
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2023 IL App (2d) 220397-Uthe restrooms. The plaintiffs alleged that, as a direct and proximate result of the aforementioned
failures, Vera sustained personal injury and John suffered the loss of consortium of his spouse.
¶6 The defendant filed a motion for summary judgment. The defendant argued that there was
no evidence of an unnatural accumulation of water on the floor or that the defendant had any notice
of such a condition. The defendant also argued that it had no duty to prevent falls attributable to
a natural accumulation of water. Further, the defendant asserted that there was no evidence that
water droplets or wet shoes proximately caused Vera to fall.
¶7 In support of its motion for summary judgment, the defendant relied on multiple discovery
depositions. In her discovery deposition, Vera stated that, on the day of the accident, she started
golfing at 8 a.m. on the 15th hole. She was placed in a group with two other women, Phyllis
Moughamian and Elizabeth Hamilton. The weather was overcast, cool, and there was dew on the
fairways. She was wearing soft spike golf shoes. After golfing the 18th hole, she and Moughamian
went to the clubhouse to use the restroom. They entered the north door to the clubhouse but took
different routes to the bathroom. Vera turned to the right while Moughamian went straight. When
asked what caused her to fall, Vera stated that she “slipped on [her] feet” and that she thought
“there was some water on the floor.” Vera later stated that she slipped on water. She did not see
any water on the floor prior to her fall or during the 15 minutes she was on the ground after her
fall. She did not recall if her clothes were wet when she was on the ground. She thought there
was water on the floor because her husband, John, told her that there was water on the floor. She
acknowledged that there was a water dispenser on the bar but she did not know where it was
located in relation to where she fell. She did not know what activities of the defendant caused
water to be on the floor. She did not know how long the water droplets that her husband saw were
on the floor or where the water came from.
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2023 IL App (2d) 220397-U¶8 In a discovery deposition, Moughamian stated that she took a different route to the ladies’
room than Vera. Moughamian said that she walked carefully on the tile floor because it was
slippery, “especially with cleats on your shoes.” Her foot had slipped on the tile on previous
occasions but she had never fallen down. She did not know of any other women that had slipped
on the floor. She did not see or hear Vera fall. However, she heard Vera ask for help so she went
to her. Moughamian did not see any droplets of water in the area, she was focused on Vera. Vera
never stated what caused her to fall and Moughamian had no opinion as to the cause of Vera’s fall.
Moughamian acknowledged that there was normally a container of water on the bar in the café so
that golfers could serve themselves a cup of water. She had seen water on the floor from spills
that occurred while patrons were using the water dispenser on the bar. About a month prior to
Vera’s fall, Moughamian had spilled water while filling her water bottle at the bar. She told Juarez
about it and he dried the floor with a towel.
¶9 In his discovery deposition, Juarez stated that he did not see Vera fall but he heard her call
for help. He saw Vera sitting up on the floor holding her left wrist and arm. She was bleeding and
there was blood on the floor. She was about two feet from the corner of the bar, which was about
6 to 8 feet from the water dispenser on the bar. He retrieved a towel and wrapped Vera’s wound.
Juarez then called 911 and asked another employee to call Vera’s husband, John. He stayed with
Vera until the paramedics arrived. During that time, Vera did not say why she fell. After the
paramedics took Vera away, Juarez did not see any debris or water on the floor, just some droplets
of blood. Juarez denied telling John Purcell that Vera slipped on water. Vera’s fall was the first
reported fall inside the clubhouse that he was aware of. He was not aware of any other falls that
occurred after Vera’s. Juarez acknowledged that on one occasion he had cleaned up water on the
floor near the water dispenser on the bar because someone had spilled a water bottle.
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2023 IL App (2d) 220397-U¶ 10 Elizabeth Hamilton stated in a discovery deposition that she entered the clubhouse when
she heard that Vera had fallen. She had no difficulty walking to where Vera was on the floor. She
did not recall Vera or anyone else talking about what caused Vera to fall. She was with Vera for
about 10 minutes before the paramedics took her away and, during that time, she did not observe
any water on the floor within a 10-foot radius of where Vera fell.
¶ 11 John Purcell testified that the floor in the clubhouse café was very slippery when wet. He
slipped once but did not fall down. When he arrived at the café on the day of Vera’s fall, he saw
droplets of water on the floor near Vera. He said there was a trail of water droplets from the water
dispenser on the bar to where Vera had fallen on the floor. The droplets were randomly located,
not in a straight line. He did not know how the water got there. It could have been from the water
dispenser or from some other source. He never observed water dripping from the spigot of the
water dispenser on the bar. He also did not know how long the water had been there. When he
arrived, Juarez told him that Vera slipped on some water and it was the worst accident he ever saw.
The paramedics gave Vera’s shoes to John to bring home. John observed that the shoes were wet
and there were grass clippings all around the spikes of both shoes. He could not rule out that Vera
slipped due to her wet golf shoes.
¶ 12 The plaintiffs retained an expert in architecture, Anthony Fenton, to determine if the wet
café floor caused Vera to fall and if those responsible for the maintenance of the floor created or
allowed a dangerous condition to remain on the café floor. In a deposition, Fenton opined that the
defendant created a dangerous condition by failing to keep the café floor clean and dry, failing to
use mats or provide slip resistant walking surfaces, and failing to barricade wet areas on the floor.
Fenton’s opinions were based on the fact that Vera’s fall was consistent with that of a slip on a wet
surface.
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2023 IL App (2d) 220397-U¶ 13 In response to the defendant’s motion for summary judgment, the plaintiffs asserted that
they were not pleading a premises liability case based upon a natural or unnatural accumulation of
water. Rather, they were pleading an “active negligence” case. The plaintiffs asserted that the
defendant had a duty to maintain the clubhouse floor in a clean and dry condition. The plaintiffs
noted that Fenton testified that the wet porcelain tile floor was a slipping hazard and John testified
that he saw water droplets on the floor where Vera fell and that Juarez told him Vera slipped on
water. The plaintiffs argued that this evidence was sufficient to create a question of fact as to
whether the defendant breached its duty and whether that breach was the proximate cause of Vera’s
injuries. The plaintiffs also asserted that the defendant created the dangerous condition when it
chose not to provide runners or floor mats and, therefore, they did not need to prove actual or
constructive notice.
¶ 14 On April 14, 2022, following a hearing, the trial court granted the defendant’s motion for
summary judgment. The trial court found that the dangerous condition was that the floor was
slippery when wet. The trial court also found that there was no evidence that the defendant created
the dangerous condition because it had no input on the choice of flooring. Failing to put down
mats did not create the dangerous condition. The trial court concluded that there was not sufficient
evidence to support a case based on negligence. Following the denial of their motion to reconsider,
the plaintiffs filed a timely notice of appeal.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the plaintiffs argue that the trial court erred in granting summary judgment in
favor of the defendant. Summary judgment is proper where the pleadings, depositions, and
admissions on file, together with the affidavits, if any, indicate that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
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2023 IL App (2d) 220397-U(West 2022). The trial court must construe the evidentiary materials strictly against the movant
and liberally in favor of the nonmovant. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d
107, 113 (1995). Although a drastic means of disposing of litigation, summary judgment is an
appropriate measure to expeditiously dispose of a suit when the moving party’s right to the
judgment is clear and free from doubt. Gaston v. City of Danville, 393 Ill. App. 3d 591, 601
(2009). We review de novo an order granting summary judgment. Espinoza, 165 Ill. 2d at 113.
¶ 17 At oral argument in this case, the plaintiffs abandoned any argument that Vera slipped due
to tracked-in water on her golf shoes, that this was a premises liability case, or that the claim was
based on actual or constructive notice of the alleged dangerous condition. The plaintiffs now assert
only that Vera slipped due to water on the floor near the café bar where the accident occurred and
that the defendant was negligent because it created the dangerous condition.
¶ 18 A plaintiff bringing a negligence claim must prove that the defendant owed her a duty of
care, the defendant breached that duty, and the breach was the proximate cause of her injury.
Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 236 (2010). Summary judgment is proper
for the defendant if the plaintiff fails to establish any of those elements. Pavlik v. Wal-Mart Stores,
Inc., 323 Ill. App. 3d 1060, 1063 (2001). In determining whether a duty exists, our courts consider
four factors: 1) foreseeability of the injury; 2) likelihood of the injury; 3) the magnitude of the
burden on the defendant in guarding against the injury and 4) the consequences of placing that
burden on a defendant. LaFever v. Kemlite Co., a Division of Dyrotech Industries, Inc., 185 Ill.
2d 380, 389. The existence of a duty is a question of law for the court to decide. Espinoza, 165
Ill. 2d at 114. A plaintiff is not required to prove her case in response to a motion for summary
judgment but must present evidentiary facts to support the elements of the cause of action.
Richardson v. Bond Drug Co. of Illinois, 387 Ill. App. 3d 881, 885 (2009). It is well settled that
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2023 IL App (2d) 220397-U“[l]iability cannot be based on guess, speculation, or conjecture as to the cause of the injury.”
Newsom-Bogan v. Wendy’s Old Fashioned Hamburgers of New York, Inc., 2011 IL App (1st)
092860, ¶ 16.
¶ 19 The parties do not dispute that the defendant owed the plaintiff a duty to exercise ordinary
care in the operation of the clubhouse. To the extent the plaintiffs argue that the duty was to keep
the floor dry at all times and the defendant breached that duty because there was water on floor,
we are not aware of any precedent to support such an assertion. To the contrary, it is well settled
that a business owner is not the insurer of his customer’s safety. Olinger v. Great Atlantic &
Pacific Tea Co., 21 Ill. 2d 469, 476 (1961). Moreover, property owners generally owe a duty only
to take reasonable measures to keep premises safe for invitees and need not take unduly
burdensome or impractical measures. See, e.g., Krywin v. Chicago Transit Authority, 283 Ill. 2d
215, 232-33 (explaining that natural accumulation rule was based not on a notion that accumulated
water was safe to walk on, but on the impracticality of constantly removing it: “the hazards
presented have always been acknowledged, but the imposition of an obligation to remedy those
conditions would be so unreasonable and impractical as to negate the imposition of a legal duty to
do so.” (quoting Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1029-30 (1995)). Thus, the
issue is whether the plaintiffs have established a genuine question of material fact as to whether
the defendant breached a more limited duty: to keep the floors reasonably safe for the plaintiffs.
¶ 20 The plaintiffs argue that the defendant breached its duty because it created the alleged
dangerous condition by placing a water dispenser on the café bar that was known to produce spills.
This argument has no merit. The only person who saw water on the floor was Vera’s husband
John. However, he only saw the water on the floor after Vera fell. Further, he admitted in his
discovery deposition that he did not know how the water got there and he did not see water dripping
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2023 IL App (2d) 220397-Ufrom the water dispenser on the café bar. He stated that the water could have been from the water
dispenser or it could have been from some other source. John’s deposition testimony fails to raise
a genuine question of material fact because, even if there was water on the floor, there was no
testimony or evidence to establish that it was there due to the actions of the defendant or one of its
employees. As such, any assertion that the alleged water on the floor was caused by the defendant
is mere speculation, which is insufficient to overcome summary judgment. 2 Newsom-Bogan, 2011
IL App (1st) 092860, ¶ 16; see also Olinger, 21 Ill. 2d at 475 (even where there is proof that a
foreign substance on the floor was related to defendant’s business, a defendant is entitled to a
directed verdict where there is no evidence offered other than the presence of a substance on the
floor and the occurrence of the injury).
¶ 21 In arguing that the defendant created the dangerous condition, the plaintiffs cite Donoho v.
O’Connell’s, Inc., 13 Ill. 2d 113 (1958), Bailey v. Graham Enterprises, Inc., 2019 IL App (1st)
181316, and Sommese v. Maling Bros., 65 Ill. App. 3d 223 (1965), reversed on other grounds, 36
Ill. 2d 263 (1966). These cases do not support the plaintiffs’ argument.
¶ 22 In Donoho, the plaintiff slipped on an onion ring and the evidence showed that about 15
minutes before she fell, the “table had been cleared by the bus boy, who had a practice of clearing
the tables by putting the dirty dishes on a tray, which he would set on a chair while he wiped the
debris off the counter with a damp cloth, so that particles could drop to the floor; and that no one
else had since been at the counter, or in the particular area.” Donoho, 13 Ill. 2d at 124. The
2
Although Moughamian testified that she had, on one occasion, spilled water on the floor
while using the water dispenser, that is not relevant here as the plaintiffs have disavowed that this
case was based on notice or premises liability.
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2023 IL App (2d) 220397-Ureviewing court held that this was sufficient circumstantial evidence to suggest that the onion ring
was on the floor through the act of defendant’s employee and that the issue of negligence was
properly submitted to the jury. Id. at 125. Here, unlike Donoho, there was no evidence that any
of the defendant’s employees were responsible for the alleged water drops on the floor.
¶ 23 In Bailey, the plaintiff slipped and fell on a handicapped parking symbol painted on the
surface of a parking lot which was covered by slush. Bailey, 2019 IL App (1st) 181316, ¶ 6. There
was evidence that the paint used to make the handicap symbol was excessively slippery when wet
and thus required a slip resistant coating. An expert witness stated in an affidavit that the slip
resistant additive would need to be reapplied on the symbol every 90 days due to normal wear and
tear from foot and motor traffic. Id. ¶ 32. The reviewing court concluded that summary judgment
was improper because there was a question of fact as to whether the defendant repainted the
handicap symbol and refreshed the slip resistant coating in a way to make the surface reasonably
safe for customers (id. ¶ 25), or whether it failed to properly “maintain” the symbol, making it
unreasonably slippery when wet (id. ¶ 33). Here, unlike in Bailey, there was no evidence that the
defendant took any active steps, or failed to act in any manner, that resulted in water on the floor
or that decreased the slip resistance of the floor.
¶ 24 In Sommese, the plaintiff fell in the entryway of the defendant’s store. It had been raining
periodically before the plaintiff’s fall and there was evidence that the entryway was wet. The
entryway floor was terrazzo tile. The plaintiff provided an expert witness who testified that the
terrazzo floor, upon becoming wet, was very slippery and hazardous without an abrasive material
on it. Sommese, 65 Ill. App. 2d at 228. The jury returned a verdict in favor of the plaintiff, and
the defendant appealed, arguing that the trial court should have directed a verdict for the defendant.
The reviewing court disagreed, holding that, under the circumstances, whether the defendant was
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2023 IL App (2d) 220397-Unegligent in failing to place rubber mats or mop the floor, was a question for the jury. Id. at 237.
In affirming the appellate court on this issue, our supreme court stated that “[i]t is this feature of
the condition of an outside terrazo [sic] floor [that, without an abrasive, it became very slippery
and dangerous when wet,] which distinguishes this case from those cases in which recovery has
been denied as a result of slipping and falling on a wet floor.” Sommese, 36 Ill. 2d at 266.
¶ 25 The plaintiffs’ reliance on Sommese is misplaced. The issue in Sommese related to “the
law that liability may be imposed on the landlord if a walking surface becomes unreasonably
dangerous because of the nature of its construction or the materials used to construct it.” Richter
v. Burton Investment Properties, Inc., 240 Ill. App. 3d 998, 1003 (1993) (citing Selby v. Danville
Pepsi-Cola Bottling Co., 169 Ill. App. 3d 427, 436 (1988)). In this case, the plaintiffs are not
claiming that the installation of the floor was negligent or that some other flooring should have
been installed.
¶ 26 This case is more similar to Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644 (7th Cir.
2014). While Zuppardi is a premises liability case, it is instructive to the extent that it addresses
whether the Zuppardi defendant created a dangerous condition. In Zuppardi, plaintiff slipped on
a puddle of water in an aisle at Wal-Mart. Id. at 646. The Seventh Circuit explained that in order
to survive summary judgment and “create a triable issue of fact with respect to placement of the
substance by Wal-Mart, [plaintiff] needed to present some evidence showing that the substance
was more likely placed on the premises through Wal-Mart’s negligence rather than a customer’s.”
Id. at 649. Even though plaintiff believed she slipped on water, and it was undisputed that Wal-
Mart sold water bottles, she did not offer any other evidence “tending to show that it was more
likely that Wal-Mart was responsible for spilling it on the ground.” Id. at 650. In the present case,
similar to the plaintiff in Zuppardi, Vera did not see any water on the floor before or after her fall.
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2023 IL App (2d) 220397-UThe only one who allegedly saw the water, John Purcell, did not know where the water came from.
Assuming there was water on the floor, there is no evidence to suggest that it was due to the
defendant’s negligence rather than the negligence of a patron in the clubhouse. As such, the trial
court did not err in granting summary judgment in favor of the defendant.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 29 Affirmed.
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