A state appeals court has revived a woman's lawsuit against Kmart, saying the retailer can be sued because the judge could not clearly discount the woman's account of how she came to trip over an empty shopping basket in her path on the floor of a Rockford store on Black Friday 2013.
The Illinois Second District Appellate Court ruled Aug. 16 a Winnebago County judge erred in granting summary judgment to Kmart in the legal action.
Justice Robert B. Spence wrote the court order, with Justices Robert D. McLaren and Joseph E. Birkett concurring.
Pamela Pollak-Becker alleged while she was shopping at a Kmart store in Rockford on the Friday after Thanksgiving Day in 2013. As her husband waited in the car, Pollak-Becker alleged she proceeded through the nearly empty store to the cash registers to check out.
While waiting in line, a second employee called her over to his lane to check out. Pollak-Becker states that as she walked the few feet to that employee’s cash register, she fell or slipped on an empty shopping basket left on the floor, causing her to sustain injuries.
The plaintiffs filed a negligence complaint against Kmart in 2015, alleging an employee either placed the shopping basket on the floor instead of at the front of the store as per company policy or failed to remove the basket, knowing the basket could pose a tripping hazard to customers. Pollak-Becker is seeking damages for her injuries, lost wages, and medical bills, and her husband seeks recovery for loss of consortium.
Kmart argued Pollak-Becker had not proven the shopping basket’s location was the fault of an employee or that an employee knew about the basket being on the floor or that it could be a hazard for customers.
Pollak-Becker countered the second employee would have seen the basket when he called her to his register and should have moved the basket or warned her.
The circuit court struck a sentence in Pollak-Becker’s affidavit that stated: “From his perspective, the basket I tripped over would have been clearly visible to him at the time he called me over to his register,” finding that the sentence was speculative.
The circuit judge granted summary judgment to Kmart, specifying during the ruling “there was simply not enough evidence” Kmart employees negligently placed the shopping basket on the floor.
In their appeal, the plaintiffs claim the statement struck from the affidavit is not speculation, but is a statement of fact that the employee knew about the shopping basket and claim the circuit court erred in striking this statement. They further argued they should have been given a trial by jury because enough circumstantial evidence was provided.
Justice Spence affirmed the decision to strike Pollak-Becker’s statement as speculation, stating she had not given any evidence that she had seen the basket and “has no basis upon which to assert that the shopping basket would have been clearly visible to [the cashier at register 2]… the statement is pure speculation and conjecture because it is not based on Pamela’s personal knowledge.”
Justice Spence pointed out, however, that Kmart could still be liable “if the hazard was placed on the floor through the negligence of defendant or one of its employees”, and agreed that the circumstantial evidence Pollak-Becker presented, “however slight…could be inferred that it was more likely that an employee placed the basket on the floor rather than a customer.”
The case was remanded to Winnebago County court for further proceedings.
Illinois Second District Appellate Court, case Number 2-17-0979