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FOURTH DIVISION
FILED: 6/28/01

No. 1-00-3279

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Jill A. Pavlik, appeals from a summary judgment entered in favor of thedefendant, Wal-Mart Stores, Inc., on her complaint seeking recovery under a premises liability theory, and from a subsequent order denying her motion for reconsideration. For the reasons whichfollow, we reverse and remand this cause to the circuit court for further proceedings.

The plaintiff filed the instant action seeking to recover damages for injuries she suffered onMarch 18, 1995, when she slipped and fell on a liquid substance while shopping at the defendant'sstore. The plaintiff alleged that, at the time she fell, she was lawfully on the defendant's premisesas a customer; that the defendant had a duty to exercise ordinary care in the operation of its premises;and that it breached this duty because (1) its employee failed to wipe the liquid substance from thefloor, (2) its employee spilled the liquid substance on the floor, but failed to clean the floorafterwards, and (3) it failed to warn the plaintiff that a liquid substance had been spilled on the floor. She further alleged that, as a proximate result of the defendant's negligence, she sustained seriousand permanent personal injuries. The defendant answered the complaint, denying that it breachedits duty to the plaintiff or that any of its employees were negligent.

The plaintiff testified in her deposition that, on the date in question, she and her father,Andrew Pavlik, were at the defendant's store in an aisle containing hair products. She walked to theend of the aisle, turned to her right to walk around the corner, and then slipped on a liquid substanceand fell, landing on her right knee. According to the plaintiff, the substance on which she fell washair conditioner. She testified that, after the fall, she observed a 12 to 14-inch wide puddle ofconditioner and a conditioner bottle on the floor, but had no idea how the conditioner came to be onthe floor or how long it had been there prior to her accident. There were no markings indicating thatanyone had walked through the puddle of conditioner before the plaintiff's fall. Andrew Pavlik'sdeposition testimony substantially corroborated that of the plaintiff.

The defendant moved for summary judgment, asserting that, in light of the above depositiontestimony, the plaintiff would not be able to establish negligence on its part because there was noevidence that an employee caused the conditioner to spill, or that the defendant knew of or shouldhave discovered the presence of the spilled conditioner. In response, the plaintiff argued that agenuine issue of material fact existed as to the question of whether the defendant, through itsemployees, had knowledge of the spilled conditioner and should have cleaned it up prior to theaccident. Specifically, she relied on her testimony that, after she fell, one of the defendant'semployees, someone "like a store clerk," stated that the puddle of conditioner "should have beencleaned up before." Andrew Pavlik also testified that an employee remarked, in reference to thepuddle,"oh, she was supposed to clean that up and she didn't." In its reply brief in support of themotion for summary judgment, the defendant argued that the deposition testimony regarding thepost-occurrence statements of its employee constituted inadmissible hearsay and, therefore, couldnot be used to create a genuine issue of material fact defeating summary judgment.

After hearing oral argument, the trial court entered summary judgment in favor of thedefendant, stating:

"in as much as the statement attributed to an unidentified employee of [defendant]that 'it [the puddle] should have been cleaned up before' is not admissible since it ishearsay, and there is no genuine issue of material fact regarding defendant's actualor constructive notice of said puddle."

Thereafter, the plaintiff filed a motion for reconsideration which the trial court denied. This appealfollowed.

Summary judgment is to be granted only when the moving party is entitled to judgment asa matter of law. 735 ILCS 5/2-1005(c) (West 1998). Since our review of the summary judgmententered in this action is de novo (In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736(1993)), we have examined all of the pleadings and evidentiary material on file in their light mostfavorable to the plaintiff (Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1980)).

To recover on a negligence claim, the plaintiff must establish the existence of a duty owedby the defendant, a breach of that duty, and an injury proximately resulting from that breach. Millerv. National Ass'n of Realtors, 271 Ill. App. 3d 653, 656, 648 N.E.2d 98 (1994). If the plaintiffcannot establish an element of her cause of action, summary judgment for the defendant is proper. Pyne v. Witmer, 129 Ill. 2d 351, 358, 543 N.E.2d 1304 (1989).

The parties do not dispute that the defendant owed the plaintiff, its invitee, a duty to exerciseordinary care in maintaining its premises in a reasonably safe condition. See Ward v. K Mart Corp.,136 Ill. 2d 132, 141, 554 N.E.2d 223 (1990). Rather, the question in the instant case is whether theplaintiff can establish that the defendant breached this duty. A business owner breaches its duty toan invitee who slips on a foreign substance if "(1) the substance was placed there by the negligenceof the proprietor or (2) [its] servant knew of its presence, or (3) the substance was there a sufficientlength of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e.the proprietor had constructive notice of the substance." Hayes v. Bailey, 80 Ill. App. 3d 1027, 1030,400 N.E.2d 544 (1980); see also Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill. 2d 469, 173N.E.2d 443 (1961).

In the instant action, the plaintiff does not contend that she presented evidence establishingthat the conditioner was placed on the floor by the negligence of the defendant or that the defendanthad constructive notice of the spill. Rather, the plaintiff argues that triable issues of fact regardingthe defendant's actual notice of the spilled conditioner precluded summary judgment in thedefendant's favor. She relies on her deposition testimony, as well as that of Andrew Pavlik,regarding post-occurrence statements by the defendant's employee. As stated previously, the plaintifftestified that an employee, "like a store clerk," commented that the puddle of conditioner "shouldhave been cleaned up before," and Andrew Pavlik testified that an employee remarked "oh, she wassupposed to clean that up and she didn't." The plaintiff argues that the trial court erred in ruling thatthese statements constituted inadmissible hearsay. She contends that the statements are within theparty admission exception to the hearsay rule. We agree with the plaintiff.

Under Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)), evidentiary materials filed insupport of or in opposition to a motion for summary judgment must consist of "facts admissible inevidence." Hearsay is an out of court statement offered to prove the truth of the matter asserted andis inadmissible unless it falls within one of the recognized exceptions to the rule. People v. Lawler,142 Ill. 2d 548, 557, 568 N.E.2d 895 (1991). Any statement made out-of-court by a party to anaction or attributable to a party to an action, which tends to establish or disprove any material factin a case, is admissible as an exception to the hearsay rule and is competent evidence against thatparty. Bafia v. City International Trucks, Inc., 258 Ill. App. 3d 4, 9, 629 N.E.2d 666 (1994). Further,a statement by an agent may constitute an admission on the part of her principal which can beintroduced substantively against the principal. Oaklawn Trust & Savings Bank v. City of PalosHeights, 115 Ill. App. 3d 887, 896, 450 N.E.2d 788 (1983). The courts of this State have used twodifferent approaches in determining whether a statement by an agent or employee constitutes anadmission by her principal or employer, the traditional agency approach and the scope ofemployment approach.

Under the traditional agency approach, the proponent of the statement must establish that (1)the declarant was an agent or employee, (2) the statement was made about a matter over which shehad actual or apparent authority, and (3) she spoke by virtue of her authority as such agent oremployee. Jenkins v. Dominick's Finer Foods, Inc., 288 Ill. App. 3d 827, 834, 681 N.E.2d 129(1997); Bafia, 258 Ill. App. 3d at 9; Roberts v. Norfolk & Western Ry. Co., 229 Ill. App. 3d 706,713-14, 593 N.E.2d 1144 (1992). In applying this rule, many courts found damaging statements tobe outside the scope of authority, even in cases involving relatively high-level employees, sinceemployees are seldom hired to make damaging statements. Halleck v. Coastal Building MaintenanceCo., 269 Ill. App. 3d 887, 892, 647 N.E.2d 618 (1995); see Jenkins, 288 Ill. App. 3d at 834; see alsoCleary & Graham's Handbook of Illinois Evidence