Where’s the Evidence? - Illinois Premises Liability & The Notice Requirement
To prevail in a premises liability action in Illinois, a plaintiff must satisfy the “notice” requirement, proving that the defendant had either actual or constructive notice that a condition existed that posed an unreasonable risk of harm to others.
Chicago, Ill. (January 22, 2019) - To prevail in a premises liability action in Illinois, a plaintiff must prove the following:
- The existence of a condition that presents an unreasonable risk of harm to persons on the premises;
- That the defendants knew or should have known that the condition posed an unreasonable risk of harm;
- That the defendants should have anticipated that individuals on the premises would fail to discover or recognize the danger or otherwise fail to protect themselves against it;
- A negligent act or omission on the part of the defendant;
- An injury suffered by the plaintiff; and
- That the condition on the property was a proximate cause of the injury to the plaintiff.
The second element is known as the “notice” requirement. In Illinois, a defendant must either have actual or constructive notice that a condition existed that posed an unreasonable risk of harm to others.
In the recent case Stimac v. JC Penney Corp., No. 16 CV 03581 (10/10/18), the plaintiff, Stimac, was walking in the jewelry department of the Joliet JC Penney when she slipped on a “laminate flyer, laminate piece of paper or piece of paper” resulting in injury. Stimac then filed suit in District Court for the Northern District of Illinois.
Stimac claimed that she did not need to establish actual or constructive notice, because it could be inferred from the evidence that it was more likely that an employee of the defendant, rather than a customer, dropped the “laminate flyer/piece of paper” and as such was an exception to the notice requirement. See Donoho v. O’Connell’s, 148 N.E.2d 434 (1958); Reed v. Wal-Mart, 700 N.E.2d 212 (1998).
Following fact discovery, the defendant moved for summary judgment. Citing Reed, the District Court judge granted JC Penney’s motion, finding that while the plaintiff may have established that she slipped on a paper, and that JC Penney displayed advertisements which contained paper resembling the one on which plaintiff slipped, she had not provided sufficient evidence that JC Penney or its employees, as opposed to a customer, caused the flyer to be on the floor.
In Reed, the court had found that the notice exception applied when a plaintiff: (1) shows that the object is related to the defendant’s business; and (2) offers some slight evidence that the defendant or its employees, rather than a customer, placed the object on the floor.
In this instance, however, the plaintiff failed to link the flyer to JC Penney as there was no testimony of such a relationship. Further, the court found that a lack of evidence about how long the flyer was on the floor also doomed the plaintiff’s alternative claim that JC Penney had constructive notice.
Notice is always an issue in premises cases and must be thoroughly analyzed as Illinois courts have ample case law to support summary judgment. Additionally, federal courts tend to dislike personal injury cases; therefore, defendants should look to motion practice as a means of seeking summary disposition.
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Timothy J. Young, Partner
Joelle Nelson, Partner