A state appeals panel has revived a lawsuit in which a woman seeks to hold supermarket chain Jewel liable for injuries she suffered after slipping and falling when she allegedly stepped on a cherry pit at a Deerfield grocery store.
Cook County Circuit Court Judge Gerald Cleary granted summary judgment in favor of Jewel Food Stores, temporarily ending a negligence lawsuit from Roberta Ruda stemming from her fall May 29, 2021. Ruda challenged that ruling before the Illinois First District Appellate Court.
Justice Sharon Oden Johnson wrote the opinion for a three-justice panel of the Illinois First District Appellate Court. The decision was initially filed as an unpublished order June 14, and then released as an official opinion of the court on July 9. Justices Michael B. Hyman and Carl Walker concurred in the decision.
In order to prove Jewel was liable, Johnson wrote, Ruda would have to demonstrate store employees had some awareness of the condition that caused her to slip and fall. The panel said that would require evidence that either the pit was on the floor long enough for staff to notice the condition during ordinary work activities or that the pit being on the floor was a typical occurrence.
“The depositions of defendant’s employees indicate that cherry pits on the floor was a recurring incident on the days when there was a cherry display, such as on the day of plaintiff’s fall,” Johnson wrote.
The justice noted testimony from a 20-year employee indicated the store director assumed the pit from Ruda’s fall came from another customer eating a cherry and spitting the pit. Further, despite longstanding employees being aware of the situation whenever cherries are sold, “there were no mats or non-skid floors.”
The panel agreed with Jewel that evidence deemed inadmissible at a trial couldn’t factor into a summary judgment ruling, and said the same was true on appeal. But the justices noted enough evidence was admissible that Judge Cleary’s ruling to quickly end the lawsuit in Jewel's favor was improper.
Ruda “argues that the video surveillance footage captures several instances where employees do not check the floor around them, as they walk through the store performing specific tasks such as stocking shelves and talking to other customers and employees,” Johnson wrote, adding specific claims regarding the store’s produce manager’s conduct and focus.
Jewel countered by arguing it was impossible to draw conclusive inferences from the video regarding where employees were looking, but Johnson wrote that discrepancy is suitable for jury consideration and not at the summary judgment stage of proceedings. There is no one who can provide testimony regarding when the produce manager personally checked the floor where Ruda fell, but “the store director stated that she did not have to ask plaintiff what caused the fall because the director could see for herself the cherry pit," Johnson wrote.
While Ruda alleged the store went more than two hours before checking the floor, Jewel argued the lawsuit was an improper attempt to use its own its safety procedures as fodder for litigation.
“The foreseeability of the alleged danger was already well established by employee depositions, and the question is more whether the store can rely on its procedure as a defense or shield to allegations of foreseeability,” Johnson wrote.
Johnson said summary judgment in this case was improper “as a matter of law, where only the element of breach was at issue; where the depositions of defendant’s own employees establish that, to people like themselves who are in the grocery business, the alleged hazard, namely, cherry debris on the floor, was readily foreseeable; where its produce manager stated that, when he stacked the cherry bags, they were not always sealed; where the store’s incident report indicates other measures that were not taken, such as non-skid floors or mats; where, due to a stipulation, there is a two-hour gap in the sweep procedure established by defendant, thereby rendering the procedure a weak shield against allegations of foreseeability; and where the parties on appeal spent portions of their appellate briefs disagreeing about the inferences to be drawn from a video concerning whether employees, other than the designated ‘sweeper’ looked at the floor as claimed.”
The panel remanded the complaint to Cook County Circuit Court for further proceedings.
Jewel did not respond to a request for comment.
Ruda has been represented by attorney Lawrence H. Hyman, of Chicago.
Jewel was represented by attorney Stacy D. Fulco, of Bodell Bove LLC, of Oak Brook.