MOUNT VERNON – Pilot Travel Center in East St. Louis couldn’t have foreseen that two pounds of toilet paper would fall on someone entering a restroom stall, Fifth District appellate judges ruled on Jan. 27 in a published opinion.
They reversed St. Clair County Circuit Judge Christopher Kolker, who approved a jury’s award of $560,563.68 for plaintiff Reona Pearson, 31, of East St. Louis.
Justices Randy Moore and John Barberis found Pilot owed Pearson no duty under the circumstances.
Dissenting Justice Milton Wharton found Moore and Barberis “created an overly broad exemption from the duty a business invitor owes its invitees.”
Pearson waited tables at Denny’s in the travel center.
She used the only public restrooms, on Pilot’s side.
On a night shift in April 2016, she opened a stall and a roll of toilet paper nine inches in diameter hit the top of her head.
She sued Pilot, claiming the impact caused herniation of a cervical disc. She alleged Pilot failed to maintain safe premises, failed to periodically inspect restrooms, and allowed a hazard it knew or should have known existed.
At trial in 2018, she testified she didn’t see the object before it struck her.
She said she didn’t know where it came from or where it was positioned, and said she had no idea why it was up on the door or how long it was there.
Pilot custodian Robert Sayles testified that more than 2,500 people use the restrooms daily.
Sayles said he was responsible for maintaining the restrooms, stocking and selling ice, waiting on customers outside, cleaning the showers, doing laundry, filling propane tanks, and emptying trash.
He said he hadn’t cleaned or inspected the women’s room on his shift.
He said toilet paper should be in his supply closet, on his supply cart, or in a stall dispenser.
He said there was no business-related reason to place a roll on top of a door.
“That’s weird,” he said.
Pilot shift manager Roshawn Berry testified that Pilot had a policy of inspecting and cleaning restrooms every hour.
She said she believed she would have used the same restroom prior to the incident.
Shift manager Tiffany Powell testified that the supply cart was accessible to the public at times.
She said someone so inclined could steal toilet paper off the cart. She said she would have noticed the toilet paper when she used the restroom.
Mechanical engineer Benjamin Fischer, testifying for Pearson, showed jurors video demonstrating likely positions of the door and the roll.
He said the roll wasn’t obvious because, “You had a white roll on a beige or a white, very light background.”
He said the only reason for a roll to be in such a position was a prank.
Pilot’s mechanical engineer, Alex Rigoni, testified it couldn’t have happened as Fischer showed because she would have had to pause or slow down.
Pilot general manager Jamie Abbott testified that pressing issues commonly arose that interfered with the policy of hourly restroom maintenance.
She said Pilot had 28 pumps, 202 parking spots for trucks, service areas at diesel pumps, weight scale, propane service, 15 showers, four restrooms, Cinnabon, deli, Denny’s, fax and transfer stations, money recycler, lounge, and gaming room.
She said it wasn’t realistic to return the cart to the closet every time something required attention because the closet was on the opposite side of the Pilot.
Jurors awarded Pearson $407,441 for past and future medical expenses and $153,122.68 in other damages.
Pilot moved for judgment notwithstanding the verdict, and Kolker denied it.
He should have granted it, according to Moore and Barberis.
Moore wrote that the identity of the individual who caused the injuries was unknown and Pearson did not name any individuals as defendants.
He wrote that Pilot denied a relationship of invitor and invitee but didn’t articulate its reasons or address the issue in its appeal briefs.
“Additionally, it does not appear in the record that the trial court ever heard arguments on the issue or expressly found that such a relationship existed,” Moore wrote.
He wrote that the parties and perhaps the trial court assumed a special relationship existed and was applicable to the case.
“The fact that this issue was not more thoroughly developed at the trial court level raises serious concern for this court,” he wrote.
In such a relationship, he wrote, a person enters by express or implied invitation, the entry connects to the business, and the owner receives a benefit.
He wrote that no evidence was available relating to how the companies coexist.
He wrote that it wasn’t apparent how Pearson’s use of Pilot’s restroom would constitute her presence for business related activities.
“Even less apparent is how Pilot benefited from the plaintiff using its restroom,” he wrote.
Moore found no evidence that she shopped in Pilot and expressed doubt that she could fulfill the requirements to establish an invitor invitee relationship.
Instead of solving a puzzle without all the pieces, he and Barberis found Pilot failed to preserve its denial.
That ruling helped Pearson’s case but not much.
“After reviewing all of the evidence presented in this matter, described in detail above, we find that it was not reasonably foreseeable that a third party would obtain a roll of toilet paper and balance it on top of a restroom stall door so as to booby trap the entryway into the stall in some sort of prank or intentional attack upon the plaintiff,” Moore wrote.
“All of the testimony at trial demonstrated that this was the only plausible explanation of what occurred, and no witness had ever seen or heard of this type of injury occurring before.”
He rejected Pearson’s argument that Pilot would have discovered the roll if employees followed policy.
He wrote that evidence suggested the roll wasn’t present for a significant amount of time. He wrote that to ensure it didn’t happen again, Pilot would have to hire restroom monitors and privacy would be infringed.
Dissenter Wharton, a former St. Clair County judge who replaced Melissa Chapman by appointment in November, missed oral argument but watched the video.
“Obviously, a restaurant cannot operate without its employees,” he wrote.
“Thus, the plaintiff was on Pilot’s premises for business purposes regardless of whether she personally shopped Pilot’s convenience store.”
He wrote that the question wasn’t whether it was reasonably foreseeable that a patron would place of toilet paper in the location Fischer believed it was placed.
“Rather, the question is whether it was reasonably foreseeable that a patron might place a toilet paper anywhere it might pose a risk to other patrons or otherwise cause a dangerous condition in the restrooms,” Wharton wrote.
He wrote that the volume of use magnified the risk of third party negligence.
“The risk is further magnified by the fact that not only adults but also children and teenagers had easy access to the custodian’s cart,” he wrote.
“Teenagers are particularly likely to engage in pranks or careless acts.”
John Cooney and Justin Zimmerman, both of Lewis, Brisbois, Bisgaard and Smith in Edwardsville, represented Pilot.
Thomas Rich, Michelle Rich, and Kristina Cooksey, of Rich, Rich, and Cooksey, represented Pearson.