Illinois Court returns case of Slip and Fall victim

This article originally ran in the March 20, 2012 issue of The Chicago Daily Law Bulletin

After allegedly tripping on a floor mat and winding up quadriplegic, Dr. Fernando Caburnay relied on a theory of general negligence — not premises liability — when suing Norwegian American Hospital.

According to the anesthesiologist’s deposition testimony, he entered the hospital on a rainy day, walked onto a 6-foot by 10-foot rubber/fabric mat that had been placed in front of two elevators, pressed the call button, stepped back, felt his foot catch a fold and fell backwards, fracturing his spine when the back of his head hit a couch.

Viewing the evidence in the light most favorable to Caburnay, the Illinois Appellate Court reversed summary judgment for the hospital, explaining that:

1) Although the defendant presented testimony that the mat was in good condition and some of Caburnay’s testimony might be deemed inconsistent, his statement about his sensory perception — that he felt his foot catch in a fold — would be sufficient to support a jury verdict that he tripped because of a buckle in the mat.

2) The fact that Caburnay did not mention the fold immediately after the accident merely created a credibility question for the jury and did not entitle the hospital to summary judgment.

3) Evidence that the hospital created a dangerous condition (by using a mat that was prone to buckling and not keeping the mat taped down) meant that — under a theory of general negligence — Caburnay did not have to establish that the hospital had prior notice of the alleged fold. Caburnay v. Norwegian American Hosp. 2011 IL App (1st) 101740 (Dec. 23, 2011).

Here are brief highlights of Justice Joseph Gordon’s opinion (with omissions not noted in the text):

When Caburnay testified that he felt his foot catch in the mat, he was not describing an emotion, but a sensory perception, in the same way that a blind person would describe something he or she was able to touch but not see.

He never testified that it “felt as if” he tripped on a fold or that it “seemed like” his foot caught a buckle in the carpet, but instead unequivocally testified as to his sensory perceptions, describing the tangible, physical sensation of his foot catching on a fold in the mat.

Caburnay repeatedly asserted that he physically felt his foot catch on a tangible fold in Norwegian’s carpet, and Norwegian’s reliance on certain statements made during his discovery deposition does not in any way reduce their effect.

Norwegian asserts that Caburnay’s failure to attribute his fall to a fold in the mat immediately after it occurred proves that his statements amount to speculative guesses as to the cause of his injuries.

Caburnay told the nurse that came to his aid after the fall that he slipped, but did not elaborate further. He later told the emergency room doctor that he “tripped,” but did not attribute it to a fold in the carpet.

These statements, made in the moments after a catastrophic injury, while vague or incomplete, are not sufficient to constitute an admission on Caburnay’s part that he did not trip on a fold in the mat, nor are they sufficient to preclude us from finding an issue of fact with respect to the cause of his fall, especially when viewed in a light most favorable to Caburnay.

Caburnay’s failure to specifically mention the mat as a factor in causing his fall, immediately after or within close proximity to its occurrence, would not amount to an admission by silence or omission because Caburnay could not have been reasonably expected to elaborate on the specific cause of his fall just moments after being rendered quadriplegic.

When viewed in a light most favorable to him, the evidence could well have allowed a jury to conclude that a fold in the mat caused Caburnay’s fall.

Having determined that an issue of fact exists with respect to whether the existence of a fold caused Caburnay’s fall, we must next determine whether the presence of the fold in the mat was grounds for liability.

Norwegian contends that it cannot be held liable, regardless of whether Caburnay proceeds under a premises liability theory or an ordinary negligence theory.

“There is no liability for landowners for dangerous or defective conditions on the premises in the absence of the landowner’s actual or constructive knowledge of those conditions.” Tomczak v. Planetsphere Inc. 315 Ill.App.3d 1033 (2000).

Caburnay asserts that Norwegian is liable under a general negligence theory for placing a mat that was prone to buckling on the floor in front of the elevators.

Under a general negligence theory of liability, Norwegian’s prior notice of the fold would be irrelevant if Caburnay can show that it created the dangerous condition in the first place by using a mat which could buckle. Reed v. Wal–Mart Stores, Inc. 298 Ill.App.3d 712 (1998).

While a plaintiff generally must prove a defendant’s actual or constructive notice of a dangerous condition in order to establish liability, our courts have held that when a defendant creates that dangerous condition, that the defendant’s notice becomes irrelevant. Bernal v. City of Hoopeston. 307 Ill.App.3d 766 (1999). All he must prove is that the defendant negligently created the dangerous condition on its premises. Reed v. Wal–Mart Stores, Inc.. 298 Ill.App.3d 712 (1998).

Thus, Caburnay can avoid the notice requirement only if he can establish that the mat was negligently placed in front of the elevator by Norwegian.

To prevail on a claim of negligence, Caburnay must prove the existence of a duty on the part of Norwegian, and present some evidence showing Norwegian’s breach of that duty, and demonstrate injury proximately resulting from that breach. Wojdyla v. City of Park Ridge. 209 Ill.App.3d 290 (1991).

Our courts have held that in the absence of any evidence indicating a mat was in anything less than excellent condition, “the mere use of a floor covering on which an invitee falls is not evidence of negligence.” Brett v. F.W. Woolworth Co. 8 Ill.App.3d 334 (1972).

In circumstances where “the evidence fails to show any damages or defective condition of the mat,” a defendant’s use of such mats “is perfectly reasonable and the fact that a person trips on one of them is not evidence of negligence.” Robinson v. Southwestern Bell Telephone Co. 26 Ill.App.2d 139 (1960). However, “the condition of the mat and the manner in which it was placed on the floor may constitute negligent placement of the mat on the floor.” Johnson v. United States. 1999 U.S. Dist. LEXIS 9819 (N.D. Ill. June 23, 1999).

A plaintiff can establish negligent use of a floor mat if he can show that those mats are defective or negligently installed. Wind v. Hy–Vee Food Stores. 272 Ill.App.3d 149 (1995).

In Wind, the appellate court reversed a jury verdict for the defendant-store owner, finding that the jury should have been instructed on a general negligence theory because the evidence indicated that the mat the plaintiff tripped on was poorly maintained and was not fastened to the floor.

Unlike Wind, in Robinson the court reversed a judgment in favor of the plaintiff, finding that she could not establish defendant’s negligence after she admitted that the mat was in excellent condition and was free from debris and rips and was unable to precisely determine what caused her to trip and fall. Robinson,26 Ill.App.2d at 141–42.

Here, Caburnay does not dispute the holding in Robinson that the ordinary use of a safe mat is not negligent, but instead maintains that case is inapposite because the mat he tripped on, like that in Wind, was defective in that it was prone to buckling and not taped down and therefore Norwegian’s use of that mat was negligent.

The deposition testimony of Frank Krause [who was working on one of the elevators] supports Caburnay’s position. He testified that the mat in question had repeatedly buckled because it was not secured to the floor with tape. He stated that the mat would “bunch up” and become “disheveled” as a result of the work being done on the adjacent elevator and suggested the mat should have been taped down in order to prevent folds from occurring.

Krause’s testimony indicates that he actually taped the mat to the floor, but that the tape was repeatedly removed by Norwegian employees so that they could clean the floor underneath it.

Krause’s testimony was reinforced by Caburnay’s experts, as well as by Ben Gonzalez, Norwegian’s manager of housekeeping.

Caburnay’s experts opined that the mat was unsafe because it was not secured to the floor with tape, despite being prone to buckling.

It is undisputed that the mat in question was not taped down on the morning of Caburnay’s fall. Moreover, we also take note of Caburnay’s contention that if the mat was properly used and maintained, his fall would not have occurred. He asserts that the fact that the mat buckled in the first place demonstrates that it was not an ordinary mat with a proper backing, but instead was faulty and therefore should have been taped down.

When viewed in a light most favorable to Caburnay, the deposition testimony is sufficient to create an issue of fact as to whether there was a breach of Norwegian’s duty of care to Caburnay to properly use a safe and secure mat, by placing a mat that was prone to buckling in front of the elevator without securing it, thus causing him to fall.

Therefore, summary judgment in favor of Norwegian on this issue was improper.