First District Affirms Summary Judgment Due to Lack of Notice; Rules No Legal Duty Owed Based on the Defendant Business Owner’s Internal Safety Policy

In Tafoya-Cruz v. Temperance Beer Company, LLC, et al., 2020 Il App (1st) 190606, the Illinois Appellate Court First District recently upheld a trial court’s grant of summary judgment on the plaintiff’s slip-and-fall claim in favor of the defendant’s brewery. The decision is noteworthy because it provides a good example of defeating the argument of constructive notice, which is an essential element of many premises liability claims. The case also provides useful guidance for assessing whether a defendant’s internal policies/practices can trigger a legal duty to safeguard against injury based on: 1) the common law, or 2) a voluntary undertaking.


The plaintiff in Tafoya-Cruz attended the defendant’s craft brewery to hang out with friends. Shortly after arriving, he went to use the restroom, which was located down a small corridor. He testified that he had not taken even two steps through the restroom door before slipping and falling on a liquid substance. The plaintiff could not describe the type or the extent of the liquid, how the liquid ended up on the floor, or how long it had been there. He only recalled his clothes being wet afterward. The plaintiff began experiencing severe back pain, and paramedics brought him to the emergency room.

The plaintiff’s medical records indicated his blood alcohol level was more than twice the legal limit to drive a vehicle in Illinois, and an MRI could not be performed at the emergency room because of his level of intoxication. He denied being intoxicated when he fell and claimed that the MRI was not performed due to his intolerable pain. He also denied that the reason his clothes were wet was because he had urinated on himself, in contrast to records which suggested that possibility.

Constructive Notice

Several of the defendant’s employees, including the brewery’s bar manager and a bartender who assisted the plaintiff after his fall, testified during discovery. The defendant’s internal policy was to inspect the restroom every hour, including for water on the floor. However, the defendant’s manager, as a matter of personal policy, inspected the restroom every 30 minutes when the brewery was crowded, which was the case at the time of the plaintiff’s fall. The defendant’s employees testified that if water were ever discovered on the floor, it would be mopped up and a “wet floor” sign would be displayed.

One of the defendant’s employees had last inspected the restroom approximately two hours before the plaintiff’s fall. The defendant’s manager subsequently inspected the restroom, but he could not recall when that was prior to the plaintiff’s fall. Another employee observed the plaintiff displaying intoxicated behavior before checking on him in the restroom. The employee did not notice any water on the floor. After the plaintiff’s fall, another employee went into the restroom and did not report any water. In between the plaintiff’s fall and the employees’ post-fall inspections, at least one other person used the bathroom without incident. The defendant’s employees denied a history of prior complaints of a wet floor or falls in the restroom.

The First District affirmed summary judgment for the defendant as the plaintiff failed to raise a question of fact regarding notice. The plaintiff did not allege nor did the evidence show that the defendant created the liquid or had actual notice of any liquid on the floor. Thus, the issue was whether the defendant had constructive notice of this condition, that is, the liquid was on the floor for such a sufficient length of time that the defendant should have known of its presence and taken measures to prevent the dangerous condition of a slippery floor.

The court began its analysis by explaining that establishing a time period is critical to showing constructive notice. The plaintiff has the burden of showing that the substance was on the floor long enough to impute liability. Here, the best evidence of establishing a time period was the evidence that the restroom was last inspected two hours before the plaintiff’s fall. While another employee subsequently inspected the restroom, he could not say when that inspection was in relation to the plaintiff’s fall. Regardless, none of the defendant’s employees ever observed any liquid on the floor either before or after the plaintiff’s fall. While the plaintiff testified that he observed liquid on the floor after his fall, his testimony did not offer any insight regarding the length of time the liquid had been there. As such, the court concluded that one would have to guess as to whether the liquid was on the floor for two hours, 30 minutes, or merely two minutes. As speculation or conjecture cannot be used to create a question of fact to defeat summary judgment, the court found that the trial court’s ruling on the defendant’s motion was correct.

Duty Based on the Common Law vs. Voluntary Undertaking

One of the plaintiff’s arguments against summary judgment was that the defendant owed him a legal duty to inspect the restroom every 30 minutes based on its employee’s personal inspection policy. This is a common plaintiff argument made in premises liability cases, particularly at the summary judgment stage. The plaintiff will elicit evidence establishing a premises owner’s official or unofficial policy, usually a safety measure.  The plaintiff will then point to the absence of evidence that the policy was followed and argue that the defendant owed a legal duty based on that policy (and by extension, breached the duty owed).

Drawing from Illinois Supreme Court precedent, the court first reaffirmed the law that a defendant’s internal policy, official or otherwise, by itself does not create a legally binding duty. The court then explained that while an internal policy may be a factor in the traditional four-factor duty analysis, that policy by itself will not be converted into a legal duty independent of the common law. Converting a defendant’s internal policy or rule into a legally binding duty beyond what is already required under the law would essentially punish a defendant business owner for imposing policies that are intended to protect its employees and the public.

The court added that while a defendant’s internal policy does not create a freestanding duty, it may create a duty based on a voluntary undertaking in certain circumstances. The court explained the key difference between the lack of a freestanding duty and a duty based on a voluntary undertaking as the latter requiring not just that the defendant had a policy in existence, but also that it was communicated to and relied upon by its customers. A duty based on a voluntary undertaking is separate from one based on the common law. The plaintiff in Tafoya-Cruz did not plead a voluntary undertaking, and the facts did not support a finding that the defendant undertook such a duty. Thus, the court found that the defendant’s policy did not create a duty, and summary judgment was proper.


Although constructive notice is ordinarily a factual question for a jury to resolve, Tafoya-Cruz reminds us that the issue may be appropriate for a dispositive motion under the right set of facts. To be successful, it is critical for defense counsel to carefully question the witnesses and elicit testimony that makes it essentially impossible for the reviewing judge to fix the time period for which the allegedly dangerous condition existed prior to injury. The court’s opinion highlights some excerpts of defense counsel’s questioning on this issue, which may be useful. The case also provides guidance on how to defeat the common plaintiff argument that a defendant’s internal policy creates a freestanding legal duty owed to the plaintiff.

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Kerri Forsythe

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