The Illinois First District Court of Appeals recently decided Babich v. Copernicus Foundation, 2019 IL App (1st) 181537-U (April 26, 2019). Babich is yet another chapter in the long line of slip-and-fall cases litigated in Illinois. This particular chapter concluded in favor of the premises owner, who was found to have fulfilled the duty owed to an invitee. Although not formally reported, Babich provides guidance to premises owners that might encounter this relatively common situation.
In Babich, an event attendee slipped on spilled wine which caused him to fall and resulted in a fractured fibula in his right ankle. The attendee subsequently brought suit against the owner of the event space. In the attendee’s complaint, he alleged that the premises owner failed to properly supervise common areas, failed to maintain the bar area in a safe condition, failed to properly inspect the bar area, failed to maintain the premises in a safe condition, and failed to properly exercise the degree of care required.
During the course of the attendee’s deposition, he testified that he slipped while walking toward the self-serve bar where wine was being served at the event. The attendee denied seeing anything on the floor prior to his fall; he only admitted to seeing a puddle of wine on the floor after he had fallen. The attendee further testified that he did not know how the wine got on the floor or how long the wine was on the floor prior to his fall. The premises owner’s managing director testified that they did not employ any servers at the event. Rather, event attendees came to the self-serve bar to collect a glass of wine that had been poured and placed on the bar by the premises owner’s bartenders. Of particular importance, the bartenders did not go out into the area where the wine was consumed but remained behind the bar. As a result, the attendees were the only people who handled the wine once it left the bar top. The two bartenders and a building supervisor were the only employees on site at the time of the accident.
The premises owner argued in its motion for summary judgment that it did not owe a duty of care to the injured attendee at the time of the accident. The premises owner further argued that no evidence had been presented that the premises owner’s employees created the wine spill through their own negligence, that its employees knew of the wine spill, or that the wine had been present on the floor for so long that its employees had constructive notice of the spill. The trial court granted the premises owner’s motion for summary judgment stating that the attendee had not presented any evidence “which would even permit a reasonable inference that one of defendant’s employees spilled the wine” or that the premises owner had “actual or constructive notice” of the spilled wine.
On appeal, the attendee argued that the trial court erred in granting summary judgment because the premises owner was liable for failing to exercise reasonable care in serving wine. The attendee’s argument centered on whether there was a genuine issue of material fact as to whether the premises owner spilled the wine on the floor or whether it remained on the floor due to their negligence. The parties did not dispute the issue of whether a duty was owed to the attendee. Rather, the focus of the appeal was whether the premises owner breached that duty. The Appellate Court stated that a premises owner “breaches its duty to an invitee who slips on a foreign substance if (1) the substance was placed there by the negligence of the proprietor; (2) its servant knew of its presence; or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered.”
Upon review of the record presented, the Appellate Court found that there was no evidence that the premises owner or its employee created the puddle of wine that the attendee ultimately slipped on, or that the premises owner had actual notice of the puddle of wine. The Appellate Court then turned to the question of constructive notice. In finding that the premises owner did not have constructive notice of the puddle of wine, the Appellate Court stated that there was no evidence that the wine was present for any particular length of time such that the premises owner’s employees should have been aware of its existence – primarily because the bartenders remained behind the bar. The Appellate Court concluded that the premises owner could not be held liable for the presence of a substance that no one had knowledge of prior to the attendee’s slip and fall.