Culli v. Marathon Petroleum Co. 862 F.2d 119 (7th Cir. 1988)

Elizabeth Culli stopped at a 24-hour self-service gas station operated by Marathon Petroleum. She filled her gas tank and then picked up five eight-pack cartons of soda. After paying for the gas, she headed back toward her car. Before Culli reached her car, however, she slipped and fell on a "clearish" slippery substance in a pool approximately 8 to 10 inches in width and length. Culli suffered a compound fracture of her ankle and had to use a wheelchair and walker for several months thereafter.

At the trial of Culli's negligence suit against Marathon, the evidence indicated that the station typically was staffed by one person, who would primarily stay inside and run the cash register, and who also was responsible for replenishing supplies of the various items sold at the station. The station lot was normally swept once a day during the night shift. There was also testimony that spills generally occurred once or twice each day, and that one employee had asked the station manager to hire more help because the station was understaffed, a request that he relayed to his superiors but that went unheeded. After a jury awarded Culli $87,500, Marathon appealed.

Will, Senior District Judge   The defendant owed the plaintiff invitee the duty of maintaining its property in a reasonably safe condition. This includes a duty to inspect and repair dangerous conditions on the property or give adequate warnings to prevent injury. To be liable, Marathon must have had actual or constructive notice of the dangerous condition. Both parties agree that Marathon did not have actual notice.

Constructive notice can be established under Illinois law under two alternative theories: (1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care, or (2) the dangerous condition was part of a pattern of conduct or a recurring incident.

In Hresil v. Sears, Roebuck & Co. (1980), plaintiff sought damages for injuries she suffered when she slipped on a "gob" of phlegm in the defendant's self-service store. At the time of her accident, there were few customers in the store and, due to the inactivity in the store at the place where she fell, the foreign substance could have been on the floor for at least 10 minutes. The court found that, as a matter of law, 10 minutes was not long enough to give Sears constructive notice of the gob, and "to charge the store with constructive notice would place upon the store the unfair requirement of the constant patrolling of its aisles."

Because of the lack of testimony establishing how long the substance in this case was present, we do not know if it was present for a period of time which would have placed Marathon on constructive notice of it. It could have been present for a few minutes or several hours. Under the first constructive notice theory, evidence establishing how long the particular substance was present is necessary.

Under the second constructive notice theory, what is needed is a pattern of dangerous conditions which were not attended to within a reasonable time. There was substantial evidence presented at trial establishing that there were spills on a daily basis in the pump area and that the volume of sales on the day in question made it unreasonable for Marathon to sweep the lot only at night and operate for most of the day with only one attendant who was primarily confined to the cash register. The evidence is sufficient to support the jury's verdict that Marathon's maintenance of its property was unreasonable and proximately caused Culli's injury.

Judgment for Culli affirmed.