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SIXTH DIVISION

SEPTEMBER 6, 2002

JUSTICE TULLY delivered the opinion of the Court:

Plaintiff, Merle Friedman, commenced this action against defendants, City of Chicago,Red Fish Restaurant (Red Fish), and State and Kinzie Associates (State and Kinzie), sounding innegligence. The trial court granted summary judgment in favor of Red Fish and State andKinzie. The City of Chicago settled with the plaintiff and is not a party to this appeal. Plaintiffraises two issues on appeal.

The record establishes the following undisputed facts. On August 17, 1998, MerleFriedman suffered injuries when she fell on a sidewalk outside the Red Fish Restaurant located atthe corner of State Street and Kinzie Street in Chicago. Defendant State and Kinzie was theowner of the building and Defendant Red Fish was the owner of the restaurant.

The Red Fish had erected a barrier for an outdoor café which encompassed a portion ofthe sidewalk outside of the restaurant, just west of the entrance. Ms. Friedman was walking eastalong Kinzie Street towards the entrance to the Red Fish Restaurant. As she walked around thebarrier for the outdoor seating area, she fell on a portion of the sidewalk that was cracked anduneven. Ms. Friedman fell near the curb and was laying with her head toward the street. Ms.Friedman's son-in-law was meeting her at the restaurant and when he arrived, he saw her on theground. He took Ms. Friedman to the hospital.

Ms. Friedman filed a complaint alleging that each of the defendants owned, managedand/or maintained the sidewalk where her injury occurred. She alleges that both Red Fish andState and Kinzie had an agreement with the City of Chicago to occupy, manage and control thesidewalk area outside of the Red Fish Restaurant. She alleges that defendants were negligent,causing a dangerous and defective condition which caused her injuries.

The trial court granted summary judgment in favor of defendants Red Fish and State andKinzie and against plaintiff. The trial court found that if the defendants have a duty to maintainthe sidewalk, that duty only extends to the portion of the sidewalk actually appropriated. Thetrial court further determined that the pictures indicate Red Fish had appropriated approximatelyone-third of the sidewalk.

On appeal, the plaintiff contends that the case law does not support a finding that RedFish's duty to maintain extends only to the area of sidewalk actually appropriated. The plaintifffurther contends that the amount of sidewalk appropriated by Red Fish is a question of fact. Finally, the plaintiff maintains that the defendants assumed the duty to maintain and repair thesidewalk by contractually exerting control over the sidewalk.

DISCUSSION

A court will grant summary judgment when the pleadings, depositions, and admissions onfile, together with the affidavits, if any, show that there is no genuine issue as to any material factand that the moving party is entitled to a judgment as a matter of law. Purtill v. Hess (1986), 111Ill.2d 229, 240, 489 N.E.2d 867, 871; 735 ILCS 5/2-1005(c) (West 2000). In determiningwhether summary judgment is appropriate, the trial court must construe all pleadings,depositions, admissions and affidavits strictly against the moving party and liberally in favor ofthe opponent. Purtill, 111 Ill.2d at 240, 489 N.E.2d at 871. In an action based upon negligence,the plaintiff must set out sufficient facts establishing a duty owed by the defendant to theplaintiff, a breach of that duty and that the injury was proximately caused by the breach. Vesey v.Chicago Housing Authority, 145 Ill.2d 404, 411, 583 N.E.2d 538, 541 (1991). The existence of aduty must be determined by the court as a matter of law, but the questions of whether there was abreach and whether that breach was a proximate cause of the injury are questions of fact for thejury. Rodriguez v. Norfolk & Western Ry. Co., 228 Ill.App.3d 1024, 1037-38, 593 N.E.2d 597,607 (1992).

Whether a duty exists depends upon whether the parties stood in such a relationship toone another that the law imposes an obligation on the defendant to act reasonably for theprotection of the plaintiff. Ziemba v. Mierzwa, 142 Ill.2d 42, 566 N.E.2d 1365 (1991). Generally, "[i]n considering whether a duty exists in a particular case, a court must weigh theforeseeability that defendant's conduct will result in injury to another and the likelihood of aninjury occurring, against the burden to defendant of imposing a duty, and the consequences ofimposing this burden." Ziemba, 142 Ill.2d at 47, 566 N.E.2d 1365.

The general rule regarding the duty of a business occupier of any premises is that it mustprovide a reasonably safe means of ingress to and egress from the premises, but ordinarily it willnot be held liable for any injuries incurred on a public sidewalk under the control of amunicipality, even though the sidewalk may also be used for ingress or egress to the premises. Schumann v. Pekin House Restaurant (1981), 102 Ill.App.3d 532, 534, 430 N.E.2d 145,146; Repinski v. Jubilee Oil Co. (1980), 85 Ill.App.3d 15, 21, 405 N.E.2d 1383, 1388; Decker v. PolkBrothers (1976), 43 Ill.App.3d 563, 565, 357 N.E.2d 599, 600. However, if the occupier of thepremises appropriates the sidewalk for its own use, it then has a duty to insure that the sidewalkis safe. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill.App.3d 424, 432, 533 N.E.2d 486, 491(1988); see also McDonald v. Frontier Lanes, Inc. (1971), 1 Ill.App.3d 345, 352, 272 N.E.2d369, 373; Cooley v. Makse (1964), 46 Ill.App.2d 25, 30, 196 N.E.2d 396, 398.

In the case at bar, defendants maintain that any duty to maintain the sidewalk extendsonly to that part of the sidewalk which was appropriated. The trial court agreed. The plaintiffhowever, argues that the case law does not support such a finding. The plaintiff maintains that aduty of reasonable care is owed by those who assume the use of the sidewalk for their businesspurposes. Plaintiff cites King v. Swanson, 216 Ill.App. 294 (1919); Donovan v. Raschke, 106Ill.App.2d 366, 246 N.E.2d 110 (1969); McDonald v. Frontier Lanes, Inc. , 1 Ill.App.3d 345,272 N.E.2d 369 (2d Dist. 1971); and Gilmore v. Stanmar, Inc., 261 Ill.App.3d 651, 633 N.E.2d985 (1994), as illustrative of cases wherein the higher duty has been imposed.

In King, the plaintiff slipped on ice which had accumulated on the sidewalk in front of thedefendant's laundry. The evidence showed that although snow and ice covered the entiresidewalk, a certain 4-foot wide strip between the curb and the shop was especially slippery due todefendant's dragging large laundry baskets across it. The court stated the duty of the abuttinglandowner as follows:

" * * * It is true that abutters upon the street may use the sidewalk in front of their premises forthe purpose of loading and unloading goods or merchandise, and may thus temporarily obstructthe use of the street, providing it is reasonably necessary to do so. But where an abutter does so,it is his duty to see that such use does not make the sidewalk dangerous for persons rightfullyusing it." 216 Ill.App. at 298.

Because the defendant's use of the sidewalk in his personal business rendered thesidewalk unsafe, the court held him responsible for the resulting injuries.

In Donovan, the trial court had directed a verdict for the defendant who had causedbuilding materials to be placed on the sidewalk in front of his building while remodeling workwas being done by a contractor. Scaffolding and other construction materials on the sidewalkallowed only a narrow space for passage. As the plaintiff walked by, she tripped over a roll ofwire mesh which fell in front of her. The court stated the owner's duty as follows:

"An owner of property which abuts a public sidewalk owes a duty to keep the sidewalk free fromany condition which may create a danger or a hazard to persons lawfully upon the street. (Citation.) And the duty thus imposed on the owner is non-delegable." 106 Ill.App.2d at369-370, 246 N.E.2d at 113.

The court found ample evidence to warrant submission of the case to the jury and foundthat the trial court erred in directing the verdict.

In McDonald, plaintiff was injured when she fell in a hole 12 inches deep and 2 feet widein the parkway next to defendant's parking lot. The hole was the result of trenching undertakento install a gas line to defendant's business. The evidence revealed that defendant assumedcontrol of the parkway for the ingress and egress of its patrons, allowed patrons to park in such away as to necessitate their use of the parkway, and knew of the hole's existence for some timebefore the accident. In upholding the defendant's liability, the court recognized both the duty ofan inviter to provide an invitee with reasonably safe means of ingress and egress and also theabutting landowner's duty of reasonable care to non-invitees where he has assumed the use of thesidewalk-parkway.

In Gilmore, the plaintiff was injured when his vehicle collided with a police car at anintersection in Chicago. The defendants had erected a pedestrian canopy along the sidewalkwhich extended six feet into the street. The plaintiff alleged that the canopy interfered with theuse by motorists of the street because it partially obscured their vision and also because itprevented plaintiff from taking evasive action and swerving his vehicle to avoid the collision. The court found that the duty espoused in King, Donovan, and McDonald to use reasonable carewhen taking the sidewalk for business purposes extends also to a taking of part of the street. Thecourt held that by building over the public sidewalk and street for their own business purposes,the defendants subjected themselves to the duty to act with reasonable care toward anyonelawfully on the street.

The cases cited by defendants can each be distinguished from the case at bar. In bothDecker v. Polk Brothers, Inc., 43 Ill.App.3d 563, 357 N.E.2d 599 (1976) and Dodd v. CavettRexall Drugs, Inc., 178 Ill.App.3d 424, 533 N.E.2d 486 (1988), the court declined to impose aduty on the defendants because there was no evidence that defendants made an affirmative act ofappropriating the sidewalk.

Here, we find that the defendants had a duty to use reasonable care when appropriatingthe sidewalk for their own business purposes. To be clear, we are not imposing a duty upondefendants to repair or maintain the public sidewalk. We find that by sectioning off a portion ofthe sidewalk for use as an outdoor café, the defendants subjected themselves to the duty to actwith reasonable care toward anyone lawfully on the sidewalk. As the Donovan court noted, thisis not an unlimited duty requiring the defendants to insure the plaintiff against any contingency,but it is the duty of reasonable care articulated in King. Whether the defendants breached thisduty is a question which should be left to a jury. Johnson v. Hoover Waterwell Service, Inc., 108Ill.App.3d 994, 439 N.E.2d 1284 (1982).

We note that despite the trial court's findings that the defendants apportioned only one-third of the sidewalk and "there was a substantial amount of room left for pedestrian traffic", wecould not find support for these findings in the record. Apparently, the trial court relied onpictures to make such findings. The plaintiff has presented evidence that she was forced to walkover the defective area of the sidewalk in order to get around the defendants' outdoor café. Wefind that these questions go towards whether the defendants breached their duty of reasonablecare and should be left to a jury.

For the reasons stated above, we reverse the judgment of the trial court and remand forfurther proceedings in accordance with this ruling.

REVERSED AND REMANDED.

COHEN, P.J., and McNULTY, J., concur.