Paul notes 1) From "premises liability update", file E-JTB.pdf >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> a) A premises-liability action is a negligence claim. See, Salazar v. Crown Enterprises, Inc., 328 Ill. App. 3d 735, 740, 767 N.E.2d 366, 262 Ill. Dec. 906 (1st Dist. 2002). The essential elements of a cause of action based on common-law negligence are the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Ward v. Kmart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990). b) Restatement (Second) of Torts § 314A, at 118 (1965). states that “[t]he duty to protect the other against unreasonable risk of harm extends to risks arising out of the actor's own conduct, or the condition of his land or chattels. It extends also to risks arising from * * * the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.” Restatement (Second) of Torts § 314A, Comment d, at 119 (1965). reasonably foreseeable c) Under the Premises Liability Act, “the owner or lessee of premises owes a duty of ‘reasonable care under the circumstances' to those lawfully on the premises.” Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43, 768 N.E.2d 46, 51, 263 Ill. Dec. 286 (1st Dist. 2002), quoting 740 ILCS 130/2 (West 2000). In a situation where a plaintiff alleges that an injury was caused by a condition on the defendant's property, and the plaintiff was an invitee on the property, whether the injury is reasonably foreseeable is determined pursuant to section 343A of the Restatement (Second) of Torts. Section 343 of the Restatement provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965). An exception to this general rule, known as the “open and obvious danger rule,” is set forth in section 343A of the Restatement. It provides: A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts § 343A(1). 2 exceptions to the open and obvious danger rule: distraction exception and the deliberate encounter exception. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 2) Under the Premises Liability Act, the duty owed by owners or occupiers of land to invitees or licensees is one of “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” 740 ILCS 130/2. Although an owner or occupier of land does not insure the safety of such a person, he or she may become liable to invitees and licensees because of a condition on his or her land if he or she: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. ................................................................................................ 3) from file C-HER a) It is well settled that a possessor of land can be liable to an invitee under certain circumstances. The Restatement (Second) of Torts provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against danger. Restatement (Second) of Torts § 343 (1965) The Exception – Open and Obvious Doctrine The Exceptions to the Exception – Distraction Doctrine and Deliberate Encounter Doctrine b) To state a cause of action for negligence, a plaintiff must plead: 1) the existence of a duty owed to the plaintiff by the defendant; 2) a breach of that duty; 3) an injury proximately caused by the breach; and 4) damages. c) Section 318 of the Restatement provides that if the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and, (b) knows or should know of the necessity and opportunity for exercising such control." Restatement (Second) of Torts § 318 (1965). d) Possibility to Impose Liability on a Possessor of Land by Negligence Claim Rather Than Through Premises Liability Plaintiff asserted that the hospital was liable under a general negligence theory for placing a mat down that was prone to buckling on the floor in front of the elevators rather than under a premises liability theory. Under the general negligence theory, all plaintiff would need to prove is that defendant negligently created the dangerous condition on its premises. Therefore, plaintiff would be able to avoid the notice requirement. (No one disputed the hospital did not have actual or constructive notice of the fold in the mat.) Plaintiff would only need to prove the existence of a duty on the hospital's part, breach of the duty, and that the breach proximately caused the injuries. e) III. CONCLUSION The cases decided in 2011 and 2012 continue to apply the rules previously established by the Restatement (Second) of Torts which have been adopted by the courts. The cases continue to be fact specific and the application of the exceptions turn on the testimony and evidence presented by the parties and their experts. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 4) Duty to warn According to the Illinois Code of Civil Procedure, § 735, "fault" refers to: "…any act or omission that is negligent, willful and wanton, or reckless…and is a proximate cause of death, bodily injury to person, or physical damage to property for which recovery is sought." >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 5) from file ICLDR-ISSUE-4.pdf a) Slip & Fall In General Illinois has adopted the rules set forth in Sections 343 and 343A of the Restatement (Second) of Torts regarding the duty of possessors of land to their invitees. Joyce v. Mastri, 861 N.E.2d 1102, 1117 (Ill. App. Ct. 1st Dist. 2007). Section 343 provides that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. Joyce, 861 N.E.2d at 1117; Restatement (Second) b) To state a cause of action for negligence in a premises liability case, a plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, and that an injury was proximately caused by the breach. Prostran v. City of Chicago, 811 N.E.2d 364, 368 (Ill. App. Ct. 1st Dist. 2004). Whether a duty exists is a question of law. Id. at 85. The factors that must be considered in determining whether a duty exists are: (1) the foreseeability that defendant’s conduct will result in injury to another; (2) the likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon defendant. Sandoval v. City of Chicago, 830 N.E.2d 722, 726 (Ill. App. Ct. 1st Dist. 2005). of Torts (1965). c) Illinois law holds that persons or entities that own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. Sandoval, 830 N.E.2d at 726. However, there are two exceptions to the open and obvious rule: the distraction exception and the deliberate encounter exception. Prostran,811 N.E.2d at 370. Regarding the distraction exception to the open and obvious rule, a property owner will be found to owe a duty of care if it is reasonably foreseeable that the plaintiff›s attention might be distracted so that she would not discover the obvious condition. Id. Primarily, in those instances where courts have applied the distraction exception to impose a duty upon a landowner, it is clear that the landowner created, contributed to, or was responsible in some way for the distraction which diverted the plaintiff’s attention from the open and obvious condition and, thus, was charged with reasonable foreseeability that an injury might occur. Sandoval, 830 N.E.2d at 730. The defendant is not required to anticipate the specific plaintiff›s own negligence or make his premises injury-proof. Id. at 728. Under the deliberate encounter exception to the open and obvious rule, a duty is imposed when a possessor of land has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. Prostran, 811 N.E.2d at 370. The exception has most often been applied in cases involving some economic compulsion, as where workers are compelled to encounter dangerous conditions as part of their employment obligation. Id. at 89. d) Assault Ordinarily, a party owes no duty of care to protect another from the harmful or criminal acts of third persons. Aidroos v. Vance Uniformed Prot. Servs., 897 N.E.2d 402, 407 (Ill. App. Ct. 1st Dist. 2008). There are, however, four exceptions to this rule: (1) when the parties are in a special relationship - i.e., common carrier/passenger, innkeeper/guest, business invitor/invitee, or voluntarily custodian/protectee - and the harm is foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect another from the harmful acts of a third party. Id. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 6) from file: "legal issues and prperty owners liability" The Question of Liability The core issue at hand is the question of liability. There may be no denying you are injured, but is someone liable for your injury? Many people assume if they get hurt while on another person’s property due to no fault of their own, then that someone is liable. However, this is not often the case. In fact, only 1 out of 10 cases have good liability. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 7) from file: "premises liability and the open-and-obvious..." duty analysis The court began its analysis (as it always does) by noting that whether a duty exists depends upon "whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff," an analysis that is based on four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury and (4) the consequences of placing that burden on the defendant. Simpkins v. CSX Transportation Inc., 2012 IL 110662, ¶ 18; LaFever v. Kemlite Co., 185 Ill.2d 380, 389 (1998). The existence of an open and obvious danger is not a per se bar to the finding of a legal duty on the part of a defendant; "[i]n assessing whether a duty is owed, the court must still apply traditional duty analysis to the particular facts of the case." Id. Accord Sollami v. Eaton, 201 Ill.2d 1, 17 (2002). Application of the open-and-obvious rule affects the first two factors of the duty analysis: the foreseeability of injury and the likelihood of injury. Where the condition is open and obvious, the foreseeability of harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty. But where an exception to the open-and-obvious rule applies, the outcome of the duty analysis with respect the first two factors is "reversed." The court found the distraction exception did not apply because the plaintiff had "failed to identify any circumstance, much less a circumstance that was reasonably foreseeable by the city, which required her to divert her attention from the open and obvious sidewalk defect, or otherwise prevented her from avoiding the sidewalk defect." According to the court, "[t]o the extent that looking elsewhere could, itself, be deemed a distraction, then it is, at most, a self-made distraction." But allowing a plaintiff to recover for self-made distractions would be contrary to "[t]he very essence of the open-and-obvious rule: Because the risks are obvious, the defendant could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition." However, determining that the distracted exception did not apply "does not end the inquiry regarding duty in a negligence case." Bruns, 2014 IL 116998, ¶¶ 35, quoting Sollami, 201 Ill.2d at 17. Under Illinois law, the four factors noted above (i.e., (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury and (4) the consequences of placing that burden on the defendant) must still be analyzed. Id. The court found the first two factors weighed against finding the existence of a duty because a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious and because it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks, making the likelihood of injury slight. As to the third and fourth factors, the court found that the burden on the city of repairing this particular stretch of sidewalk, or otherwise protecting pedestrians from the sidewalk defect, was not contained in the record. But even if the burden was not great, the consequences of imposing that burden on the city would go well beyond the risk of injury posed by that sidewalk defect. "The city has miles of sidewalk to maintain" and "[t]he imposition of this burden is not justified given the open and obvious nature of the risk involved." Accordingly, the court found city had no duty to protect the plaintiff from the open-and-obvious sidewalk defect. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 8) from file: "premises liability - how far does the duty...." a) Premises liability is generally defined as “[a] landowner’s or landholder’s tort liability for conditions or activities on the premises.” Black’s Law Dictionary (9th ed. 2009). b) The specific legal standards for premises liability vary widely from state to state, but in general, most states have adopted some form of the Restatement Second of Torts in terms of laying out the overall structure for a premises liability claim, even in asbestos litigation. Id.; Kristin Donnelly-Miller and Ryan Johanningsmeier , c) Premises Liability Case Law Review: Relevant Restatement Sections, 18-22 Mealey’s Litig. Rep. Asb. 24 (2003). The Restatement defines an invitee as: (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Restatement (Second) of Torts §332 (1965). In terms of his or her own actions and behavior, a premises owner “is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.” Restatement (Second) of Torts §341A (1965). Furthermore, when it comes to dangers that may be hidden or are intrinsic to the premises itself: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts §343 (1965). Likewise, the premises owner “is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts §343A (1965). >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 9) from file: "property owners may be held responsible..." Generally, in order to hold a property owner liable, a plaintiff must show that a condition presented a risk of harm, the owner knew or should have known about the condition and its risk, the owner should have expected that people on the premises would fail to recognize the danger or protect themselves, the owner was negligent in some way, the plaintiff was injured, and the injury was caused by the property’s condition. As a result, landowners may have a duty to take measures to protect people who come on the property or to warn them of risks. Sometimes a risk is so obvious that an owner does not need to warn people about it, but it depends on the specific situation. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 10) from file: "responsible parties in premises liability..." Under the Premises Liability Act, the owner or occupier has to owe you a duty of reasonable care before the owner or occupier becomes liable for your injuries. In general, that means you were invited to the premises as a guest, were there doing business, or it was a place open to the public. It also means that the defect in the premises was something the owner or occupier knew about or should have known about and either failed to correct it or warn you about it. However, the owner or occupier may have a defense against your claim when: You knew about the defect before you were injured The defect was open and obvious and you should have noticed it and taken care to avoid it The owner or occupier didn’t know about the defect and couldn’t have been expected to know You caused the defect through your misuse of the premises >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 11) from file: "what is premises liability in illinois" To successfully pursue a legal claim against a property owner for a personal injury, you must be able to prove that the property owner was negligent. As we have discussed in a previous post, but the fact remains that, to effectively establish a premises liability claim, you must be able to prove the following: That the property owner owed you a legal duty. That the property owner breached that duty. That the property owner’s breach of that duty led to or contributed to the injuries you suffered on the property in question. That you suffered damages due to the property owner’s breach of their legal duty to you, a visitor on their property. The legal duty in this case arises out of the property owner’s possession of and control over the property. To prove that the property owner was liable for an injury you suffered, you would have to prove that the property owner did not exercise “reasonable care” in keeping visitors safe. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 12) from Ignarski v norbut a) The instant legal malpractice action was filed on December 7, 1989. On March 13, 1990, defendants filed a motion to dismiss pursuant to Section 2-615 (Ill.Rev.Stat.1989, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992)) which stated the complaint did not state a cause of action for legal malpractice because it did not properly allege that but for the attorney's negligence, the plaintiff would have prevailed in the underlying action. According to defendants, the complaint did not state ultimate facts as to why KFC owed plaintiff a duty to protect him from the criminal acts of third parties. The trial court granted the motion, but allowed plaintiff leave to file a first amended complaint. This complaint was likewise stricken and again the trial court allowed plaintiff leave to amend. Plaintiff filed a second amended complaint on April 29, 1991. On November 18, 1992, defendants moved for summary judgment (Ill.Rev.Stat.1991, ch. 110, par. 2-1005 (now 735 ILCS 5/2-1005 (West 1992)) based on plaintiff's inability to plead ultimate facts establishing why KFC had a duty to protect the plaintiff from criminal acts of third parties. The parties briefed the issue and after oral argument the court granted defendants' motion and denied plaintiff's oral motion to file a third amended complaint. b) Summary judgment should be granted if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Carruthers v. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) It should never be granted unless the right of the movant is free from doubt. (Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 58 Ill. Dec. 828, 430 N.E.2d 1079.) If the affidavits and other materials disclose a dispute as to any material issue of fact, summary judgment must be denied even if the court believes the movant will or should prevail at trial. Summary judgment procedure is not designed to try an issue of fact, but rather to determine if one exists. (Ray v. Chicago (1960), 19 Ill. 2d 593, 599,169 N.E.2d 73.) In considering a motion for summary judgment, the court must strictly construe all things filed in support of the motion while liberally construing all things filed in opposition thereto. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 47 Ill. Dec. 392, 415 N.E.2d 397.) If fair minded persons could draw different inferences from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. (Silberstein v. Peoria Town and Country Bowl, Inc. (1970), 120 Ill.App.2d 290, 293-94, 257 N.E.2d 12.) Finally, although the plaintiff need not prove his case at the summary judgment stage, he may be required to present some evidence which demonstrates the existence of a triable and genuine issue of fact. Ralston v. Casanova (1984), 129 Ill.App.3d 1050, 1058, 85 Ill. Dec. 76, 473 N.E.2d 444 c) The elements of a legal malpractice claim are: (1) the existence of an attorney client relationship which establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause establishing that "but for" the attorneys negligence, the plaintiff would have prevailed in the underlying action; and (4) damages. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 64 Ill. Dec. 544, 440 N.E.2d 96; Sheppard v. Krol (1991), 218 Ill.App.3d 254, 161 Ill. Dec. 85, 578 N.E.2d 212; Claire Associates v. Pontikes (1986), 151 Ill.App.3d 116, 104 Ill. Dec. 526, 502 N.E.2d 1186.) Because legal malpractice claims must be predicated upon an unfavorable result in the underlying suit, no malpractice exists unless counsel's negligence has resulted in the loss of the underlying action. (Claire Associates, 151 Ill.App.3d at 122, 104 Ill. Dec. 526, 502 N.E.2d 1186.) Plaintiff is required to establish that but for the negligence of counsel, he would have successfully prosecuted or defended against the claim in the underlying suit. (Sheppard, 218 Ill.App.3d at 257, 161 Ill. Dec. 85, 578 N.E.2d 212; Claire Associates, 151 Ill.App.3d at 122, 104 Ill. Dec. 526, 502 N.E.2d 1186.) Damages will not be presumed, and the client bears the burden of proving he suffered a loss as a result of the attorney's alleged negligence. Sheppard 218 Ill.App.3d at 257, 161 Ill.Dec. *289 85, 578 N.E.2d 212; Claire Associates, 151 Ill.App.3d at 122,104 Ill. Dec. 526, 502 N.E.2d 1186. As a result of the foregoing, the plaintiff at bar was required to plead a case within a case. In particular, he was required to plead ultimate facts establishing why KFC had a duty to protect him from the criminal acts of third parties. The sole allegation in the second amended complaint concerning this duty reads as follows: "5. That on the day of the occurrence and for a long time prior thereto, National knew by reason of prior incidents occurring on said premises that its business invitees were subject to attacks by third persons frequenting the said premises." d) As previously stated, the plaintiff failed to plead a case within a case. In particular, because the second amended complaint did not contain ultimate facts as to why KFC owed plaintiff a duty of protection, it did not satisfy the proximate cause requirement (i.e., but for the attorney's negligence, plaintiff would have prevailed in the underlying action). Plaintiff, however, essentially seeks to dispose of the proximate cause requirement. In attempting to do so, plaintiff ignores Illinois case law which has repeatedly rejected this position. In Sheppard 218 Ill.App.3d 254, 161 Ill. Dec. 85, 578 N.E.2d 212, the defendant was injured at work by an unidentified and allegedly defective forklift. The *291 defendant attorney was retained to investigate and file a product liability action against the manufacturer of the forklift. The complaint alleged that the attorney never investigated the facts, never identified the manufacturer, and failed to institute legal proceedings. Subsequently, plaintiff's employer disposed of the forklift making it impossible to prosecute the claim. The trial court dismissed plaintiff's complaint because it did not plead, and plaintiff could not prove, that he would have prevailed in the product liability suit "but for the defendant's negligence." In affirming the trial court's dismissal, this court rejected the plaintiff's argument that defendant's negligence should absolve the plaintiff of his responsibility to identify the forklift manufacturer. Sheppard, 218 Ill.App.3d at 258; 161 Ill. Dec. 85, 578 N.E.2d 212; see also Beastall v. Madson (1992), 235 Ill.App.3d 95, 175 Ill. Dec. 865, 600 N.E.2d 1323; Coofc v. Gould (1982), 109 Ill.App.3d 311, 64 Ill. Dec. 896. 440 N.E.2d 448. e) Estoppel is defined as a bar or impediment raised by law precluding a party from alleging or denying a state of facts as a consequence of his previous allegations or conduct. (Black's Law Dictionary.) f) The case law says that amendments should be allowed if there's a possibility that the amendment will cure the defects. "Regardless of whether we treat plaintiff's attempt to amend as brought pursuant to section 2-616(a) of the Code of Civil Procedure, which permits amendments `[a]t any time before final judgment * * * on just and reasonable terms' (Ill.Rev.Stat. 1989, ch. 110, par. 2-616(a)), or under section 2-1005(g), which permits amendments `[b]efore or after the entry of a summary judgment * * * upon just and reasonable terms' (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(g)), *293 our inquiry is the same: whether the circuit court abused its discretion in denying leave to amend. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263 [166 Ill. Dec. 882], 586 N.E.2d 1211.) This determination requires us to evaluate the following four factors established to address this issue in Kupianen v. Graham (1982), 107 Ill. App. 3d 373 [63 Ill. Dec. 125], 437 N.E.2d 774, and adopted by our supreme court (see Loyola Academy, 146 Ill.2d at 273 [166 Ill.Dec. at 886-87], 586 N.E.2d at 1215-160): (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 13) from file: "C-HER.pdf" Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York, Inc., 2011 IL App (1st) 092860, 953 N.E.2d 427, 352 l. Dec. 188 (1st Dist. 2011) Facts: Plaintiff was eating at a restaurant in November of 2006. It was a cold day, but it had not rained or snowed. She purchased her food and sat down to eat. When she finished, she got up to throw her food in the trash can. She stepped from the carpeted area to the tile floor where her right foot slipped and she fell on her right hip and knee. The contents from her tray went flying. When she attempted to get up from the floor, she was unable to do so because her hands were greasy so she could not brace herself. She testified that the grease was the same color as the floor. She could not say how much grease was on the floor, but could only say that it was all over her hands. Two customers came over and helped plaintiff up. The assistant manager Archer came out and spoke to plaintiff. Plaintiff was taken to the hospital where she eventually required surgery on her right knee. Archer testified at her discovery deposition that she did not observe anything on the floor where the customer had fallen. She testified that plaintiff did not tell her how or why she fell, but rather that she "just fell." The restaurant training manual provided that the senior manager must walk through the restaurant to make sure everything is “up to par” every 15 minutes. If a customer notifies an employee that anything has been spilled, it is to be cleaned up immediately. If the employee notices any food or debris on the floor, it is to be picked up immediately. Defendant filed a Motion for Summary Judgment arguing that it did not owe a duty to the plaintiff to warn or make the area safe because it did not have actual or constructive knowledge of any substance on the floor and further argued that plaintiff had the burden to show that the greasy substance on the floor caused her to fall. Plaintiff attached an affidavit to her Response which provided she sat there eating for 20 minutes facing the trash can and that during those 20 minutes, she did not observe any employee do a walk through or a customer spill anything. Holding: A defendant owes a business invitee on his premises a duty to exercise ordinary care in maintaining the premises in a easonably safe condition. When a business invitee is injured by slipping and falling on the premises and there is no way to show how the substance became located on the floor, liability may be imposed if the defendant or its employees had constructive notice of its presence. Constructive notice exists if the substance was there long enough that through the exercise of ordinary care, it should have been discovered. Although there were no witnesses in this case who observed the grease on the floor, plaintiff's testimony given in her discovery deposition was sufficient to create a triable issue of fact as to the cause of the fall. Defendant's manual was sufficient to create a duty to inspect the store every 15 minutes and, based on plaintiff’s claims, no one inspected the property for at least 20 minutes. Therefore, the testimony was sufficient to create a triable issue of fact as to constructive notice.