No. 1-18-1316 Filed: June 10, 2019

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

CYNTHIA BAILEY, ) Appeal from the Circuit Court of ) Cook County, Law Division. Plaintiff-Appellant, ) ) v. ) ) No. 16 L 006564 GRAHAM ENTERPRISES, INC., ) a domestic corporation, and ) RED CROWN HOLDINGS, LLC, ) a limited liability company, ) Honorable ) Kathy M. Flanagan, Defendants-Appellees. ) Judge Presiding.

JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Cynthia Bailey sustained injuries to her left knee when she slipped and fell on a

slush-covered handicap parking symbol in a gas station parking lot. She filed a personal injury

action against defendants Graham Enterprises, Inc. and Red Crown Holdings, LLC claiming they

were negligent and liable for her injuries. Defendants filed a motion for summary judgment

arguing that plaintiff slipped on a natural accumulation of slush and under the natural

accumulation rule, which holds that a property owner has no duty to remove natural

accumulations of ice, snow or water from its property, plaintiff’s claim failed as a matter of law.

¶2 In response to defendants’ motion, plaintiff argued that the natural accumulation rule did

not apply because she slipped on the paint atop the handicap symbol, which became No. 1-18-1316

unreasonably slippery when wet as a result of defendants’ improper design, construction and

maintenance of the symbol. Plaintiff attached to its response an expert witness affidavit.

¶3 Defendants moved the trial court to strike the affidavit and in their reply, reaffirmed that

the natural accumulation rule precluded plaintiff’s recovery as a matter of law. The trial court

struck plaintiff’s affidavit as inadmissible and granted summary judgment in favor of defendants

after finding the evidence failed to establish a duty on the part of defendants to remove the

natural accumulation of slush from their property.

¶4 Plaintiff appeals, and argues that the trial court erred when it struck her affidavit and

entered summary judgment in favor of defendants. For the following reasons, we reverse.

¶5 BACKGROUND

¶6 On January 7, 2015, plaintiff went to a gas station located at 841 West Irving Park Road

in Chicago. The parking lot had been plowed earlier that day and salt was used to melt the

remaining snow. Upon exiting the gas station’s store, plaintiff slipped and fell on a handicap

symbol covered in slush. The symbol was painted on the asphalt ground to designate a handicap

parking space directly in front of defendants’ store. Plaintiff notified a gas station employee

about her fall, who promptly reviewed video surveillance footage, took pictures of the handicap

symbol and surrounding area, and prepared an incident report.

¶7 On July 1, 2016, plaintiff filed a lawsuit against defendants in the circuit court of Cook

County claiming they were liable for her injuries. Plaintiff pleaded several claims sounding in

negligence. Defendants answered the complaint and denied all material allegations thereby

placing the parties at issue. Discovery commenced and concluded.

¶8 Defendants filed a motion for summary judgment pursuant to section 2-1005 of the

Illinois Code of Civil Procedure (735 ILCS 5/2-1005 (West 2016)), which allows a trial court to

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enter judgment short of trial when there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. In their motion, defendants argued that the evidence

showed plaintiff slipped on a natural accumulation of slush and under the natural accumulation

rule in Illinois, defendants had no legal duty to remove the slush from their property.

¶9 In her response to the motion, plaintiff argued that the natural accumulation rule did not

apply because she slipped on the paint atop the handicap symbol, which became unreasonably

slippery when wet as a result of defendants’ improper design, construction and maintenance of

the symbol. Plaintiff attached to her response a supporting affidavit pursuant to Illinois Supreme

Court Rule 191(a) (Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013)) (Rule 191(a)), which governs the use

of affidavits in opposition to a motion for summary judgment.

¶ 10 In the affidavit, expert witness Daniel Robson (“Robson”) stated that, based on his

review of the deposition testimony of the witnesses, the video tape of plaintiff’s fall, the incident

report prepared by defendants’ employee and the photographs taken of the handicap symbol on

January 7, 2015, the “root cause of [plaintiff’s] fall was that she slipped on the handicap parking

symbol which was contaminated with slush.” He further concluded that the slush “on the smooth

painted surface caused a sudden and unexpected change in the co-efficient of friction of the

surface of the painted symbol to a value which was unreasonably dangerous for the public

asphalt parking lot, causing [plaintiff] to slip, fall and be injured.” Robson’s conclusions were

based in part on certain testing he performed. Robson outlined the testing procedure and results

in the affidavit.

¶ 11 Robson attested that he inspected the scene of the incident on November 16, 2017 and

later chose a test site that had “some similar areas of asphalt texture” and the “same slope as

[defendant’s] lot.” He purchased “Sherwin-Williams Pro-Park Traffic Paint” and “H&C

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SharkGrip Slip Resistant Additive,” both of which according to Robison were materials used by

defendants’ painting contractor, Craig Phillips, to paint the handicap symbol in defendants’

parking lot. He reviewed the “product data sheets, directions and warnings” for each product and

concluded that, “according to the data,” the slip-resistant additive would “have to be refreshed

every ninety (90) days since [it] is walked off by pedestrian and motor vehicle traffic.”

¶ 12 Robson painted a handicap symbol on the test parking lot (“Test Symbol”) on March 29,

2018 and tested the dry and wet “co-efficient of friction values” of the Test symbol with a slip

tester. He determined that the “wet values of the tested locations demonstrate that the painted

handicap symbol was slipperier than the unpainted asphalt” and those values fell below what was

“widely accepted to be a reasonably slip resistant condition under normal walking conditions.”

Robson stated that given “wear and slush conditions” on January 7, 2015, the wet values of the

handicap symbol in defendant’s parking lot would have been “lower” than the wet values of the

Test Symbol on March 29, 2018. Robson concluded: “[t]his means that the [defendant’s]

handicap symbol had a lower co-efficient of friction value equating to greater slipperiness than a

dry symbol.”

¶ 13 Defendants moved to strike the affidavit arguing that it was speculative and lacked

foundation. Defendants contended that Robson failed to state in his affidavit whether he

“actually mixed the SharkGrip with the Sherwin-Williams paint” and overall, relied “on guess

and speculation regarding the co-efficient of friction on the area of parking lot where plaintiff

fell at the time she fell.” In their reply, defendants reaffirmed that the evidence showed plaintiff

slipped on a natural accumulation of slush which they had no duty to remove.

¶ 14 In a written order entered on May 30, 2018, the trial court struck plaintiff’s affidavit and

entered summary judgment in favor of defendants and against plaintiff. The trial court found

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Robson’s affidavit inadmissible and concluded that in absence of the affidavit, “all we are left

with is a natural accumulation of slush for which the Defendant’s owed no duty to remove.”

¶ 15 The trial court found the affidavit failed to provide “any basis upon which to make a

“meaningful comparison” between the Test Symbol and the handicap symbol in defendants’

parking lot. The trial court pointed to Robson’s failure to attest to mixing the paint and

“SharkGrip” additive in the same way defendants’ mixed the materials as failing to establish the

foundation necessary to demonstrate that the composition of the Test Symbol was similar to the

handicap symbol in defendant’s parking lot.

¶ 16 Plaintiff appeals, and seeks a reversal of the trial court’s judgment on the basis that it

erred when it struck her affidavit and granted summary judgment in favor of defendants.

¶ 17 ANALYSIS

¶ 18 The issues on appeal are whether the trial court erred when it struck plaintiff’s affidavit

and entered summary judgment in favor of defendants.

¶ 19 Summary judgment is appropriate where “the pleadings, depositions, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005 (West

2016). Although summary judgment is encouraged as an aid in the expeditious disposition of a

lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right

of the moving party is clear and free from doubt. Loyola Academy v. S & S Roof Maintenance,

Inc.,

(1992).

¶ 20 The purpose of summary judgment is not to try a question of fact, but to determine if one

exists. Robidoux v. Oliphant,

(2002). A plaintiff is not required to prove his

case at the summary judgment stage, but in order to survive a motion for summary judgment the

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nonmoving party must present a factual basis that would arguably entitle the party to a judgment.

We review the trial court’s decision to grant summary judgment de novo, and construe all

evidence in the record strictly against the moving party and liberally in favor of the nonmoving

party. Hastings v. Jefco Equipment Co.,

.

¶ 21 An affidavit submitted in the summary judgment context, such as the affidavit plaintiff

submitted here, serves as a substitute for testimony at trial and therefore must strictly comply

with Rule 191(a) “to ensure that trial judges are presented with valid evidentiary facts upon

which to base a decision.” Oliphant,

citing Solon v. Godbole,

(1987). When a trial court rules on a motion to strike an affidavit in conjunction with a

motion for summary judgment, as the trial court did here, we review the trial court decision de

novo. Snow v. Power Construction Co., LLC,

.

¶ 22 Rule 191(a) provides that affidavits in opposition to a motion for summary judgment

“shall be made on the personal knowledge of the affiants; shall set forth with particularity the

facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn

or certified copies of all documents upon which the affiant relies; shall not consist of conclusions

but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a

witness, can testify competently thereto.” An affidavit satisfies the requirements of Rule 191(a) if

as a whole it appears the affidavit is based on the personal knowledge of the affiant and there is a

reasonable inference that the affiant could competently testify to its contents. Safeway Insurance

Co. v. Ebijimi,

.On a motion to strike a Rule 191(a) affidavit, a

trial court should grant a motion to strike “only the tainted portions” of the affidavit should be

stricken and any remaining portions that satisfy the rule should be saved.

citing Murphy v.

Urso,

(1981).

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¶ 23 We find that the trial court erred in striking the entirety of the statements contained in

plaintiff’s affidavit. While experiments such as the one Robson performed in this case need only

be substantially similar conditions of the accident and not identical (Lorenz v. Pledge,

), there were certainly aspects of Robson’s testing that were not worthy of

evidentiary consideration by the trial court. However, some of Robson’s statements were free of

taint and should have been saved by the trial court. Urso,

.

¶ 24 Robson’s expert qualifications were at no time challenged and no counter-affidavit was

filed by defendants. He stated in his affidavit that, based upon his review of the “product data

sheets, directions and warnings” for the materials used by defendants’ contractor Craig Phillips

to paint the handicap symbol, the “H&C SharkGrip Slip Resistant Additive” would have to be

“refreshed every ninety (90) days since the Shark Grip is walked off by pedestrian and motor

vehicle traffic.” Robson attached sworn copies of the documents upon which he based this

attestation to his affidavit. Robson further stated that he reviewed the security video of plaintiff’s

fall, the incident report prepared by defendants’ manager, the photos taken of the scene on the

date in question and plaintiff’s deposition testimony, which included her statement that she fell

“[r]ight here in between – in between the little handicap chair thing, sign, symbol *** (pointing

to a picture of the handicap symbol taken by defendants’ employee on the day of her fall)

because it was slippery.” Based on his review, Robson opined that plaintiff slipped on the

painted handicap symbol, not the slush, and that when wet the symbol was unreasonably slippery

for pedestrian traffic.

¶ 25 It appears these statements were sufficiently based upon Robson’s personal knowledge

and there is a reasonable inference he could competently testify to them based upon his expertise

and review of the sworn material he attached to his affidavit. Safeway Insurance Co., 2018 IL

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170862, ¶ 39. The believability of Robson’s opinion is a different consideration that cannot

support a decision to strike the affidavit as inadmissible. Smith v. Chicago Park District,

(1995) (finding that “scant specific facts” offered in support of an expert

opinion is a matter that goes to the weight and not to the admissibility of the expert’s opinion and

the believability of such an opinion is for a trier of fact to resolve rather than a judge or judges).

¶ 26 Accordingly, at least parts of the affidavit were free from taint and met the standards of

Rule 191(a) such that the trial court should not have stricken the affidavit in its entirety. We turn

to address the issue of whether summary judgment was appropriate in this case.

¶ 27 On appeal, the parties focus primarily on the issue of whether the natural accumulation

applied to bar plaintiff’s recovery. Under the natural accumulation rule, a landowner or possessor

of real property has no duty to remove natural accumulations of ice, snow, or water from its

property. Krywin v. Chicago Transit Authority,

(2010). There is also no duty

to warn of such conditions. Reed v. Galaxy Holdings, Inc.,

(2009). There

is, however, an exception to the rule. If the accumulation of ice and snow becomes unnatural due

to the defective design or construction, or improper maintenance of the landowner’s premises

which are under his control, then the rule does not apply. Bloom v. Bistro Restaurant Limited

Partnership,

(1999) (finding that an undue burden does not arise as a

result of requiring property owners “not to add to the difficulties facing Illinois residents from

natural accumulations of ice and snow by permitting unnatural accumulations due to defective

construction or improper or insufficient maintenance of the premises” under their control).

¶ 28 While this exception may apply, we do not find it necessary to analyze this case in the

context of the natural accumulation rule because the central issue is whether the painted handicap

symbol became unreasonably slippery when wet regardless of whether the wetness was natural

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or unnatural in source. See Buscaglia v. United States,

(7th Cir. 1994) (finding

that the plaintiff presented a sufficient factual basis to survive a motion for summary judgment

on theory that the composition of the floor in combination with an accumulation of water caused

the slip, fall and sustain injury). In the context of this case, the natural accumulation rule is an

“analytic sidetrack.” See Bloom,

(Wolfson, J., specially concurring).

¶ 29 To prevail on a claim of common law negligence, a plaintiff must establish the existence

of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately

caused by that breach. Ward v. K Mart Corp.,

(1990). An operator of a

business owes his invitees a duty to exercise reasonable care to maintain his premises in a

reasonably safe condition for their use. Pageloff v. Gaumer,

(2006).

When the landowner prescribes a means of ingress and egress, it has a duty to illuminate

properly and give adequate warning of a known, dangerous condition, or it must repair the

condition. Richter v. Burton Inv. Properties, Inc.,

(1993). Defendants,

as owners of the gas station and the store on their property, had an ordinary common law duty to

maintain the premises within their control in a reasonably safe condition and to warn gas station

customers about known dangerous conditions on its property.

¶ 30 We hold that summary judgment in this case was inappropriate because the evidence

contained in the record, construed strictly against the moving party and liberally in favor of the

nonmoving party, presents a sufficient factual basis upon which a trier of fact could find in favor

of plaintiff on the theory that defendants’ failure to maintain the painted handicap symbol

resulted in a change to its slip-resistant composition, which made the symbol unreasonably

slippery when wet and caused plaintiff’s injuries. Whether plaintiff will prevail on the merits of

her negligence action at trial is not for us to determine.

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¶ 31 Plaintiff stated in her deposition testimony that she slipped on the handicap symbol in

defendants’ parking lot upon exiting the gas station store and that the symbol was slippery. The

deposition testimony of defendants’ painting contractor, Craig Phillips, shows that he painted the

handicap symbol with “Sherwin-Williams Pro-Park Traffic Paint” and added to the paint “H&C

SharkGrip Slip Resistant Additive” for the purpose of making it grippier “so somebody doesn’t

slip.” Phillips testified that he did not know how long “SharkGrip” was supposed to last, could

not recall if he painted the handicap symbol since 2014 and stated that he repainted the handicap

symbol “basically” on a yearly basis, but “we could be there twice a year.” Defendants’

employee cashier, Kevin Ndlovu, testified in a deposition that the handicap symbol would fade

“constantly” as a result of pedestrian traffic and would be repainted more than once a year.

¶ 32 The literature in the record on “Sherwin-Williams Pro-Park Traffic Paint” warns that

“[p]ainted surfaces can become slippery when wet” and indicates that some “surfaces may

require a slip resistant additive for safety.” The literature suggests the use of “SharkGrip” as an

additive. Robson stated in his affidavit that, based on his review of the “product data sheets,

direction and warnings” for the materials used by Philips to paint the handicap symbol, the slip-

resistant additive would “have to be refreshed every ninety (90) days since Shark Grip is walked

off by pedestrian and motor vehicle traffic.”

¶ 33 The evidence presents at least a genuine issue of material fact as to whether defendants

timely repainted the handicap symbol and refreshed the slip-resistant additive in a way necessary

to make the surface reasonable safe and suitable for pedestrian traffic and customers walking in

and out of defendants gas station store.

¶ 34 Defendants separately contend that the evidence in the record failed to demonstrate that

they had actual or constructive notice “of any danger of slipperiness of the parking lot surface,

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including the alleged painted handicap symbol and square.” Notice is a question of fact and

plaintiff may not need to show constructive or actual knowledge if there is a finding that

defendants created the condition through their own negligence. Hornacek v. 5th Ave. Property

Management,

(notice is generally a question of fact for the jury

and where a defendant created the condition through its own negligence, a plaintiff does not need

to show constructive or actual notice). Breach of a duty and proximate cause are also matters to

be decided by the trier of fact. Id., ¶ 27.

¶ 35 Accordingly, the trial court erred when it struck plaintiff’s affidavit in its entirety and

entered summary judgment in favor of defendants under the natural accumulation rule.

¶ 36 CONCLUSION

¶ 37 Based on the foregoing, we reverse the judgment of the trial court and remand this case

for further proceedings consistent with this opinion.

¶ 38 Reversed and remanded.

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