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                                                                                                   FIRST DIVISION
                                                                                                   August 14, 2000

No. 1-99-3603

This is an appeal from an order that granted summary judgment to defendant. Plaintiff, Camille Tomczak, appeals, claiming that the Roller Skating Rink Safety Act (theAct) (745 ILCS 72/1 et seq. (West 1998)) does away with the requirement that a plaintiffmust allege and prove actual or constructive notice on the part of a landowner beforeliability will attach. This is an issue of first impression under the Act. We affirm.

Plaintiff testified in her deposition that she was roller skating on November 16,1996, at Orbit Skate Center in Palatine, which is owned and operated by defendant,Planetsphere, Inc. Plaintiff considered herself a beginner skater though she had skatedwhen younger and had recently begun to skate again. She made several trips aroundthe rink going forward. She then took a concession break for a few minutes. During thattime a male skater slipped and almost fell on what appeared to be water on the rinkfloor. An unidentified person went to the floor with towels obtained from a rail near thesnack bar area and wiped up the puddle of water, which was approximately 18 inches indiameter. Thereafter, plaintiff resumed skating and decided to skate backwards for awhile. While doing so, and after some turns around the rink, she slipped and fell,fracturing her elbow. She noticed water near where she fell and also testified that shefell in the area where the other skater had nearly fallen. There was a skylightimmediately above the area where her fall occurred. She did not see the puddle she fellin prior to the time of her fall. She was also unable to say how long the puddle waspresent.

The following exchange occurred in her deposition:

"Q. Would it be fair to say that that puddle could have been thereanywhere from ten seconds to ten minutes, you just don't know?

A. I don't know that.

Q. Do you have any information whatsoever as to where this watercame from?

A. Other than from the roof, from the sky, from the ceiling, overheadpipes, I don't know.

Q. What makes you think that the water came from overhead?

A. There was nobody skating around with drinks in their hands. Logically speaking, it --

Q. Would it be fair to say that you're guessing that the water came fromthe roof or from overhead?

A. Yes.

Q. But on your own personal knowledge, can you tell me, based uponanything you observed, either before or after your fall, where the water wascoming from?

A. I don't know that."

Plaintiff's friend, Mary Ellen Habetler, was accompanying her at the rink on theday of the occurrence. Habetler was skating with plaintiff when she fell. Habetlertestified during her deposition that she did not know what caused plaintiff to fall. Shehad observed water on the floor earlier, during the concession break, and had seen aman wipe up the water with a towel or a rag. She also testified that she did not look atthe floor surrounding plaintiff after plaintiff fell. She did not notice if plaintiff's clotheswere wet or see anything on the floor that would indicate to her the cause of plaintiff'sfall. Ms. Habetler did not see any water dripping from the ceiling, nor did she see anyleaking from the skylight. Neither Ms. Habetler, plaintiff, nor anyone else made acomplaint concerning water falling from the ceiling.

Defendant had one employee, Loring Winslow, on duty on the day of theoccurrence. Mr. Winslow testified at his deposition that he was responsible for preparingthe skating surface for the sessions, maintaining the facility, admitting skaters to the rink,operating the concessions stand, working the rental desk, playing music, and serving asa skate guard or supervisor. Part of his duties included a routine visual inspection of theskating area 15 minutes prior to each skating session. Mr. Winslow had no recollectionof the November 26, 1996, skating session, had never heard any complaint of waterbeing on the floor of the rink or of a leaking skylight, and had not known of plaintiff'saccident until he was asked to give a deposition in this matter. Sandra Carter, a vicepresident of defendant, testified that Mr. Winslow was the only employee present onNovember 26, 1996. He would act as a skate guard as well as manager.

Plaintiff was taken to Northwest Community Hospital, where she underwentsurgery the same day to repair her fractured elbow. Plaintiff required two additionalsurgeries.

After full briefing and a hearing, the trial court granted defendant's motion forsummary judgment on June 22, 1999. A motion for reconsideration was denied onSeptember 15, 1999. A timely notice of appeal was then filed. We review the grant ofsummary judgment de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 619 N.E.2d 732, 735 (1993).

Plaintiff has raised three points asserting that the trial court erred in grantingsummary judgment. First, plaintiff states that the Act was passed without mention of therequirement that a landowner must have notice of a condition before liability will beestablished. Therefore, plaintiff posits, notice is not a requirement to the imposition ofliability in this context. Next, plaintiff argues that summary judgment was wrongfullygranted because plaintiff has raised questions of fact relating to whether defendant hadnotice of the unsafe condition. Third, plaintiff asserts that a question of fact exists as towhether the most probable cause of the condition was the conduct of defendant or itsemployees. Plaintiff cites several examples of potential questions of fact that, shecontends, preclude summary judgment. The questions include: whether drinks wereever spilled on the rink; whether it is reasonable to infer that some other cause existedfor the water spill; whether it had rained the night before; why towels were present at therink, creating the inference they were there to wipe up spilled water; whether the earlierincident involving the near fall by another skater created the inference that wateraccumulation was a recurrent problem; and whether Mr. Winslow, as the only employeepresent, was not a skate guard, as required by the Act, thereby making defendantnegligent for not abiding by a provision of the Act to provide skate guards or floorsupervisors.

We first consider the applicability of notice to the landowner under the Act. Theprovisions of the Act pertinent to this case are as follows:

"It is the responsibility of the operator to the extent practicable to:

* * *

(4) When the rink is open for sessions, have at least one floorsupervisor on duty for every 200 skaters.

(5) Maintain the skating surface in a reasonably safe condition andclean and inspect the skating surface before each session." 745 ILCS 72/15(West 1998).

We disagree with plaintiff that the Act must be read to exclude the requirement ofnotice. In passing the Act, the General Assembly indicated that its intent was toencourage the operation of roller skating rinks and to make the imposition of liabilitypredictable. Specifically, the statute reads in part: "In order to make it moreeconomically feasible for insurance companies to provide coverage to roller skating rinksat an affordable rate to the owners, occurrences resulting in liability to the owners shouldbe more predictable by limiting the liability that may be incurred by the owners andencouraging the development and implementation of risk reduction techniques. This Actshould be liberally construed to best carry out the purposes of this Act." 745 ILCS 72/5(West 1998).

The law regarding liability of landowners where a defect or danger on thepremises, not created by the landowner or its agents, is alleged, is well settled. InGenaust v. Illinois Power Co., 62 Ill. 2d 456 (1976), our supreme court adopted section343 of the Restatement (Second) of Torts, which stated:

"A possessor of land is subject to liability for physical harm caused to hisinvitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover thecondition, and should realize that it involves an unreasonable risk of harm to suchinvitees, and

(b) should expect that they will not discover or realize the danger, or will failto protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts