Illinois Appellate Court Reaffirms Kimbrough As “Mainstay” Authority For Obtaining Summary Judgment In Slip And Fall Cases
By Melinda S. Kollross
In 1981, the Illinois Appellate Court decided Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813 (1981), holding that merely showing a slip and fall on a defendant’s premises was insufficient to satisfy proximate causation requirements. Instead, the plaintiff had to show that some condition caused the fall, and this condition was caused by the defendant.
The recent decision in Aalbers v. LaSalle Hotel Properties, 2022 IL APP (1st) 210494, is significant for two reasons. First, Aalbers reaffirms the Kimbrough decision as the “seminal decision on proximate causation in slip and fall cases”. Second, Aalbers contains an extensive 33-page discussion of what defendants need to adduce as facts to successfully move for summary judgment that a plaintiff cannot show with reasonable certainty the cause of a fall.
Plaintiff fell on a hotel lobby floor that had been recently renovated and suffered serious injuries. Plaintiff testified upon deposition that she did not slip, but instead had tripped on a ledge in the lobby where certain tiles were joined with carpeting. According to plaintiff, she felt something with the toe of her shoe … something that caught her shoe as she fell. Although plaintiff testified she felt something catch her foot, she did not see what had caught her foot before or after she fell; she couldn’t describe it at all and did not know if it was metallic wood or otherwise; and couldn’t physically describe it other than to say it may have been a ledge.
Defendants produced several witnesses to testify upon deposition that there were no defects in the area where plaintiff fell. The hotel manager testified that he got down on the floor immediately after plaintiff fell and touched the carpet and tiles with his hands and found no rips, cracks, or other defects. Other defense witnesses testified after the hotel lobby renovations, thousands of people walked through the lobby area where plaintiff fell and no one complained of any defects and no one had slipped, tripped, or fallen or made any complaints about the tile or carpet.
Defendant moved for summary judgment citing Kimbrough, and the trial court relying on Kimbrough granted summary judgment because the plaintiff failed to show there was any condition created by defendants that caused her fall.
The Appellate Court affirmed finding Kimbrough dispositive. Kimbrough held that a plaintiff could not proceed with any personal injury claim for damages from a fall on defendant’s premises unless the plaintiff could point “to an identifiable defect that caused the fall.” The Court found the Kimbrough reasoning to still be sound today and that Kimbrough had remained on “solid legal footing as the mainstay of slip-and-fall summary judgment cases.” Because the plaintiff here could not identify the defect that caused her fall, she failed to show that defendants were responsible for her fall.
The Court also rejected plaintiff’s attempts to distinguish Kimbrough based on her testimony that she could identify a defect because she felt her foot catch on something, and therefore there must have been a defective ledge between the carpeting and tiles. The Court dismissed plaintiff’s argument as all conjecture that could not defeat a defense motion for summary judgment on causation. According to the Court, “equally plausible (and never dismissed by plaintiff in her testimony) is that the ‘ledge’ she felt was her other foot, her suitcase she was rolling behind her as she was walking, or even a strap on the bag she had on her shoulder, among a number of other scenarios.” The Court held that plaintiff wrongly assumed that by merely stating the existence of something she caught her foot on, there must have been a defect in the flooring.
Learning Point: Aalbers together with Kimbrough now give the Illinois defense bar solid authorities to obtain summary judgment on causation in slip and fall cases. But those cases must be prepared properly. Aalbers provides a “blueprint” to help the defense bar formulate a deposition strategy on what to ask not only the plaintiff, but other defense witnesses as well to build a case for summary judgment on causation.