# Lubin v. Goldblatt Bros., Inc.

> Appellate Court of Illinois · October 29, 1962 · 37 Ill. App. 2d 437

URL: https://www.frixlaw.com/law-library/cases/9715864

## Case

- **Full name:** Fay Lubin, Plaintiff-Appellee, v. Goldblatt Bros., Inc., a Corporation, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** October 29, 1962
- **Citations:** 37 Ill. App. 2d 437; 186 N.E.2d 64; 1962 Ill. App. LEXIS 386
- **Precedential status:** Published
- **Opinion:** Dissent by English
- **Judges:** Burman, English, Murphy
- **Cited by:** 14 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/9715864

## Opinion text

ENGLISH, J., dissenting:
As conceded in the majority opinion, the authorities amply support the propositions that a storekeeper is not an insurer of its customer’s safety; that liability exists, in a ease of this kind, only for proven negligence; that maintaining a floor in a slick or slippery condition by treatment with wax or oil does not, in itself, constitute negligence. (Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 476, 173 NE2d 443 (1961); Dixon v. Hart, 344 Ill App 432, 436, 101 NE2d 282 (1951).)
Yet the majority appear to find evidence of negligence in the testimony of the firemen and policeman to the effect that the floor was smooth and slippery. Plaintiff also testified in her deposition: “What caused me to fall was: slippery.” This is not enough. There was evidence in Dixon that the floor was slick, polished and slippery. See also Custer v. St. Clair Country Club, 349 Ill App 316, 110 NE2d 697 (1953), in which the court reapplied the principle of the Dixon decision.
Nor does the maintenance of a floor on a 3° grade constitute negligence per se. While this proposition has not been the subject of a decision in Illinois, it is so eminently reasonable and practical that I don’t consider it debatable. The alternative in the maintenance of store floors (few of which are completely level) would be the construction of very small steps here and there which would obviously be far more dangerous. In other jurisdictions it has been specifically held that a floor grade such as in the case at bar is not evidence of negligence. (Miller v. Gimbel Bros., 262 NY 107 , 186 NE 410 (1933); Guercio v. New York Lerner Co., 63 NYS2d 664 , 273 App Div 782 , 816 (1946); Dolan v. Bry Block Mercantile Co., 23 Tenn App 47, 126 SW2d 376 (1938); Mullen v. Sensenbrenner Mercantile Co., 260 SW 982 (Mo 1924).)
In the New York cases, verdicts and judgments for the plaintiffs were reversed even though it was conceded that the evidence had established the existence of floors which were both slippery and sloping. The court in the Guercio case stated:
“Liability, if any, must be founded solely upon tbe slippery, sloping floor. Giving plaintiff tbe benefit of all favorable inferences deducible from tbe evidence, tbe facts shown are insufficient to establish actionable negligence. The verdict cannot be sustained on the evidence” 63 NYS2d 664 , 666.
I grant that the opinion in Burg v. Great Atlantic & Pacific Tea Co., 256 F2d 613 (7th Cir, 1958), presents argument in favor of the majority’s decision in this case. It admits that neither the waxing of a floor nor (inferentially) the maintenance of a 3° slope would, alone, constitute evidence of negligence, but holds that the two together would he sufficient to support a verdict. The Burg decision thus goes beyond the previously declared Illinois law. However logical the Burg supposition might seem to be as an abstract proposition, it must, of course, be applied only to a factual situation in which a reasonably careful person could foresee that the waxing of the inclined floor area would make it measurably more slippery than the same floor without wax and, thus, so dangerous as to render the waxing an act of negligence. *
This principle is not applicable to the case at bar, because here there is no room for a supposition that the slightly inclined floor in this particular case might be measurably more slippery waxed than unwaxed. We have the uncontroverted testimony of a highly qualified witness (a Professor at Illinois Institute of Technology and head of its mechanical engineering laboratory) that he made tests of the inclined asphalt-tiled floor in the precise area where plaintiff fell, and found that its coefficient of friction (slipperiness) was the same waxed and unwaxed. In other words, a person walking on this particular inclined floor was no more likely to fall on account of its slipperiness when it was waxed than when it was not.
My conclusion is, therefore, this: Since a leading scientist, qualified in the particular field of testing, could find no perceptible difference in the slipperiness of the waxed floor with relation to the same floor unwaxed, then the law should not impose a duty on a “reasonably careful” storekeeper to perceive such a difference, or suffer the consequences of negligence. This amounts, in my opinion, to the imposition of liability without fault.
I also believe that plaintiff failed to introduce any evidence to establish due care on her own part. It is incontrovertible that plaintiff had this burden, and neither the fact of her walking through the store, nor the fact of her fall is sufficient to satisfy this requirement. (McKinney v. Illinois Power Company, 26 Ill App2d 193, 202, 167 NE2d 249 (1960); Rohr v. Cluver, 20 Ill App2d 548, 552, 156 NE2d 770 (1959); Burns v. Chicago & A. R. Co., 223 Ill App 439, 444 (1921); Tuohey v. Yellow Cab Co., 33 Ill App2d 180, 180 NE2d 691 (1962).) Very recently the principle was well stated by Mr. Justice Crow in Overman v. Illinois Cent. R. Co., 34 Ill App2d 30, 42, 180 NE2d 213 (1962):
“The claim that care and caution by any person has been exercised cannot be sustained when the known facts disclose that ordinary care would have avoided the accident. There must be some evidence tending to prove due care by the decedent. The burden is on the plaintiff. Due care cannot be presumed from the mere fact of the happening of an accident and a consideration of the human instinct of self-preservation. Liability cannot rest upon imagination, speculation, or conjecture, nor upon a choice between two views, equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them. If the record is without evidence of due care by the decedent, the decedent was necessarily guilty of contributory negligence as a matter of law and the Court should instruct the jury to render a verdict for the defendant: (citing cases).” [Emphasis supplied. ]
The only evidence which might be construed as touching on the plaintiff’s exercise of care for her own safety came from her own deposition and the testimony of a friend, Mrs. Kelly. Plaintiff testified in her deposition:
“I was in Goldblatt’s and was just going to walk out, and I slipped and fell and here I am.
“I walked right by the door. ... I ought to know this department because that is my way of walking in and walking out when I go to Goldblatt’s. I fell right there by the door.
“What caused me to fall was: slippery.
“I never had an accident before this accident. I never made a claim for personal injuries. Of course, sometimes it is slippery and you fall and you get over it the next day and you are back again. But an accident I never had. I never made a claim for one.”
Mrs. Kelly testified:
“Mrs. Lubin never walked fast since I knew her. . . . Mrs. Lubin never took more than three or four steps at a time even on a straight walk. Mrs. Lubin never walked fast and walked a long ways at a time.”
This is the same Mrs. Kelly who also testified that in the Spring before the occurrence of July 11, plaintiff fainted or “blacked out” while crossing Sheridan Road in the middle of the block; that a week before the occurrence in question Mrs. Kelly and Mr. Murphy assisted plaintiff by the arm, taking 10-15 minutes to get her from the back yard to her room on the second floor; that on that day and on other occasions plaintiff told of having dizzy spells, black outs and headaches.
Under all the circumstances in evidence, I believe there is nothing to negative contributory negligence. And certainly there is nothing in the record on which to base the majority’s repeated conjecture that plaintiff was keeping her eyes on the door. This is precisely the kind of speculation necessary to fill the void in the evidence as to plaintiff’s own conduct, and precisely the kind of speculation which we are not permitted to make.
I believe the judgment should be reversed.
In considering tbe significance ,of an incline of 3°, it should be borne in mind that this deviation from level is only that represented by the difference between a hand of a watch pointed at 15 minutes after the hour and one pointed at 15% minutes after the hour.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715864. Public record. Not legal advice.