# Miller v. National Ass'n of Realtors > Appellate Court of Illinois · March 31, 1995 · 271 Ill. App. 3d 653 URL: https://www.frixlaw.com/law-library/cases/9544522 ## Case - **Full name:** THEODORE RANDALL MILLER, Plaintiff-Appellant, v. NATIONAL ASSOCIATION OF REALTORS, Defendant-Appellee and Third-Party Plaintiff (Arthur Rubloff and Company, Third-Party Defendant) - **Court:** Appellate Court of Illinois - **Decided:** March 31, 1995 - **Citations:** 271 Ill. App. 3d 653; 207 Ill. Dec. 642; 648 N.E.2d 98 - **Precedential status:** Published - **Opinion:** Dissent by Greiman - **Judges:** Tully, Greiman, Rizzi - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544522 ## Opinion text JUSTICE GREIMAN, dissenting: The majority opinion is a persuasive document — except it inadvertently mischaracterizes essential facts, some of which plaintiff conceded during oral argument. For example, the majority asserts, "As the lighting on the ramp was dim, plaintiff did not observe the condition of the ramp.” ( 271 Ill. App. 3d 655 .) Neither the pleadings, affidavits nor depositions support the conclusion that the state of illumination on the ramp caused plaintiff’s injuries and, in fact, plaintiff conceded at oral argument that he waived this argument on appeal. Moreover, the record shows plaintiff observed the condition of the ramp prior to his fall. He testified that he looked but did not notice that the ramp was wet or uneven or bore any debris when he walked down it to enter the tavern or when, several minutes later, he crossed the ramp a second time to return to his truck to fill the order. Plaintiff further testified that he had no knowledge as to how the cardboard came to be on the ramp or how long it remained there prior to his fall. The majority also ignores the body of slip-and-fall cases where the plaintiff cannot establish the causal connection between the landowner’s alleged negligence and the plaintiff’s injury. The owner of land or operator of a business located on the land owes an invitee a duty to exercise reasonable care to maintain the premises in a reasonably safe condition for use by the invitee; however, he does not insure the invitee’s safety. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 141 , 554 N.E.2d 223 .) A landowner breaches his duty to the invitee who slips on a foreign substance if the substance was present by the negligence of the owner or his employees or a third party if the owner knew or should have known of its presence. (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 474 , 173 N.E.2d 443 (plaintiff who slipped on a reddish substance on floor of defendant’s store failed to show substance was related to defendant’s business or any negligent maintenance of the premises).) In those cases where there is no evidence to explain the origin of the substance, the plaintiff must show its presence for a sufficient amount of time so that the landowner should have discovered its existence. (Thompson v. Economy Super Marts, Inc. (1991), 221 Ill. App. 3d 263 , 581 N.E.2d 885 , citing Olinger, 21 Ill. 2d at 474 .) The plaintiff who satisfies this burden imputes to the landowner constructive notice of the substance, and his failure to remove the substance may reasonably be inferred as a proximate cause of the plaintiff’s injuries. Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 1030 , 400 N.E.2d 544 (verdict properly directed for defendant when plaintiff who slipped and fell on a wet floor provided no evidence showing defendant knew of this condition). Plaintiff provided no evidence concerning the origin of the cardboard or the length of time it remained on the ramp before his fall. Instead, plaintiff testified that after he slipped and fell he noticed a piece of cardboard on the ramp and assumed this material caused him to lose his footing. In the absence of any evidence tending to show actual knowledge or constructive notice, the trial court properly granted defendants’ summary judgment motion. Hayes, 80 Ill. App. 3d at 1030-31 ; Hresil v. Sears, Roebuck & Co. (1980), 82 Ill. App. 3d 1000 , 403 N.E.2d 678 (trial court properly held that evidence showing foreign substance upon which plaintiff allegedly slipped and fell could only have been on the floor for 10 minutes failed to provide store owner with constructive notice). Plaintiff’s argument that the cardboard was present on the ramp but that he merely failed to see it prior to his fall does not establish notice to defendants. The time element to establish constructive notice is a material factor, and it is incumbent upon plaintiff to offer some evidence showing that the cardboard was on the ramp long enough to constitute constructive notice. Hayes, 80 Ill. App. 3d at 1030 ; see Thompson, 221 Ill. App. 3d at 265 (plaintiff alleging she slipped on water and lettuce leaf which remained on floor of defendant’s store for an unknown length of time failed to establish notice). Alternatively, plaintiff argues that he was not required to establish actual knowledge or constructive notice for liability to attach for reasons stated in Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113 , 148 N.E.2d 434 . In Donoho, the Illinois Supreme Court stated that where a plaintiff slips and falls on a foreign substance which is a product sold or related to the defendant’s operations, and the plaintiff offers evidence raising the inference that the defendant rather than a third party dropped the substance, the issue of negligence may be presented to the jury without establishing the element of notice. There, plaintiff established that the substance upon which she slipped was a product sold by defendant’s restaurant and more likely on the floor as a consequence of defendant’s employee’s clearing a table in the area of the fall 15 minutes earlier. Here, plaintiff has failed to show that the cardboard at issue is a product sold or related to the defendants’ operations, much less that the placement of the cardboard upon the ramp was more likely a consequence of the acts of either defendant or its employees rather than a third party, especially since the ramp faced the street and could be accessed by anyone entering the building from the lower level of Michigan Avenue. See Thompson, 221 Ill. App. 3d at 226 ; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817-18 , 416 N.E.2d 328 ; compare Maschhoff v. National Super Markets, Inc. (1992), 230 Ill. App. 3d 169 , 595 N.E.2d 665 (plaintiff sufficiently established defendant’s awareness of the dirty and slippery condition of the floor upon which he fell since defendant’s manager witnessed the occurrence), with Papadatos v. National Tea Co. (1974), 21 Ill. App. 3d 616 , 316 N.E.2d 83 (plaintiff who slipped and fell on unknown object in parking lot sufficiently demonstrated store owner had prior knowledge of hole surrounding the area at issue). Instead, this case is analogous to Kimbrough, where the reviewing court affirmed summary judgment in favor of the defendant landowner since the plaintiff could not prove any causal connection between the alleged condition of the property (i.e., from where the grease upon which she allegedly fell originated or the dangerous condition of the ramp) and her fall. As the Kimbrough court recognized, it is not enough for a plaintiff to show that he or she fell on a defendant’s ramp; the plaintiff must go further and prove that some condition caused the fall and that this condition was caused by the defendant. Kimbrough, 92 Ill. App. 3d at 818 . Plaintiff has also failed to demonstrate that any material other than the cardboard or effluence (i.e., debris or soot) proximately caused his fall. Plaintiff produced no evidence to show that the dumpster contributed in any manner to his injury in terms of engendering the cardboard or other waste which accumulated on the ramp causing him to slip and fall. In addition, he testified that on the day at issue the ramp was not wet and had no uneven surfaces. Liability cannot be predicated upon surmise or conjecture regarding the cause of injury; proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injury. Kimbrough, 92 Ill. App. 3d at 817 . Plaintiff’s testimony regarding the complaints of other workmen as to the conditions of the premises cannot be construed as notice to defendants for purposes of the summary judgment motion since they represent classic examples of hearsay. Zonta v. Village of Bensenville (1988), 167 Ill. App. 3d 354, 357 , 521 N.E.2d 274 (in plaintiff’s action for injuries sustained while leaning against and breaking defendant’s window, purported statements of witnesses substantiating claim that defendant knew the window was defective constituted inadmissible hearsay); cf. Dace v. Gilbert (1981), 96 Ill. App. 3d 199 , 421 N.E.2d 377 (summary judgment against plaintiff, in personal injury action based upon defendant’s signalling plaintiff to proceed in traffic, proper since plaintiff admitted that he used his vision to judge traffic conditions). Since plaintiff failed to demonstrate the existence of a genuine question as to the proximate cause of his injury, other than a piece of cardboard of unknown origin which rested on the ramp for an unknown length of time, defendants were entitled to judgment as a matter of law. Although this writer might prefer that most matters be determined by a jury, our legislature and supreme court have made a policy decision directing trial courts to enter summary judgment in appropriate cases in the interests of justice among the particular litigants and judicial economy. (See Kimbrough, 92 Ill. App. 3d at 819 .) Harsh as this remedy may be, intermediate courts of review must exercise great care that they do not obliquely make a different policy choice by merely reversing summary judgments properly entered. Any judge who has sat in the law motion division of the circuit court understands that the entry of summary judgment requires a certain degree of fortitude; it is infinitely easier to pass the decision to the trial judge to consider the same issues on a motion for directed verdict or to the jury. Better still from the judge’s perspective, denials of summary judgments are not generally reviewable since they do not constitute final orders in a case. If appellate courts routinely turn our backs on these orders, we send a message to the courts below that they should not waste their time or agony on these motions. Accordingly, I dissent from the majority. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544522. Public record. Not legal advice.