Green v. Jewel Food Stores, Inc.

Case Date: 09/09/2003
Court: 1st District Appellate
Docket No: 1-02-1856 Rel

SECOND DIVISION
September 9, 2003


No. 1-02-1856

 

ROBERT GREEN and DORIS GREEN, ) Appeal from
) the Circuit Court
              Plaintiffs-Appellants, ) of Cook County
)
                        v. ) No. 99 L 11742
)
JEWEL FOOD STORES, INC., ) Honorable
) David G. Lichtenstein,
             Defendant-Appellee. ) Judge Presiding.

 

JUSTICE CAHILL delivered the opinion of the court:

Plaintiffs Robert and Doris Green appeal from an order of summary judgment entered infavor of defendant, Jewel Food Stores, Inc. Plaintiffs contend that the trial court erred indisposing of their negligence complaint by finding that defendant owed no duty to the plaintiffs. We believe the undisputed facts of this case fall within the distraction exception set out in Wardv. K mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990), and require that the question of duty beresolved against defendant. We reverse and remand.

The Greens filed a complaint seeking damages for injuries sustained when Doris fellwhile exiting defendant's store in Oaklawn, Illinois. Plaintiffs alleged that defendant negligentlymaintained an inherently unsafe environment at the store's exit where there were unattendedshopping carts and a one-inch ridge in the pavement. Doris claimed that the unsafe conditionswere the proximate cause of her injury, a broken patella (kneecap). Her husband Robert soughtdamages for loss of consortium. The trial court granted defendant's motion for summaryjudgment, finding: (1) defendant did not breach a duty of care owed to plaintiffs; (2) the recordwas uncontested with no unanswered questions of fact; and (3) there was no unreasonably unsafecondition on defendant's property as a matter of law.

The pleadings, depositions and photographs of record show that Doris and her husband'scousin, Eleanor Hastie, entered defendant's store at about 9:30 a.m. on November 16, 1997. Doris was visiting from Michigan and had not previously shopped at that store. Robert waited inthe car while the women shopped. Doris exited the store, carrying her purse over her shoulderand a plastic shopping bag containing one or two items in her hand. Hastie was behind Doris. Acustomer exiting in front of Doris pushed an empty shopping cart toward a cart storage area. When Doris noticed the cart was rolling down a slope toward the parking lot, she grabbed it bythe handle to stop it. She then fell.

In a recorded statement on November 20, 1997, Doris said as she and Hastie exited thestore, a man ahead of them "just gave his cart a shove." Doris said, "I grabbed for [the cart] so itwouldn't be out in the cars or hit a car." When asked why she thought she fell, Doris replied, "Ireally don't know what caused it *** unless it was this bump that [Robert] said was there." Thebump referred to a ridge between the cement sidewalk and the asphalt paving of the parking lotthat Robert noticed and photographed when he returned to the scene the next day. Doris laterstated in a discovery deposition on September 19, 2000, "[t]here was a ridge, but I think [it was]the cart that made me fall." She estimated the ridge to have been about one inch high.

Robert also gave a deposition on September 19, 2000. He said he saw Doris exit the storeand then saw her on the ground. He did not see her fall but believed she fell because "when shegrabbed that cart I think she didn't notice this little ridge" where the cement was "a little higher"than the asphalt. He said he did not notice the ridge until he returned to the scene the next day.

Hastie gave a deposition on May 23, 2001. She said she was walking 10 to 12 feetbehind Doris and she believed Doris fell because she lost her balance as she reached out to grabthe empty cart.

Ginger Lane, defendant's employee, gave a recorded statement on December 8, 1997, inwhich she said she saw Doris after the fall. Lane said Doris was on the ground on an incline thatwas dry and clean with no cracks in the pavement.

The standard of review of a trial court's grant of a motion for summary judgment is denovo. Morris v. Margulis, 197 Ill. 2d 28, 35, 754 N.E.2d 314 (2001). We construe all evidencestrictly against the moving party and liberally in favor of the nonmoving party. Espinoza v.Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995).

A plaintiff states a cause of action for negligence by establishing: (1) that the defendantowed a duty of care to the plaintiff; (2) the defendant breached the duty; (3) an injury occurred;and (4) the injury was proximately caused by the defendant's breach. Curatola v. Village ofNiles, 154 Ill. 2d 201, 207, 608 N.E.2d 882 (1993). Whether a duty of care exists is a question oflaw which may be decided on a motion for summary judgment. Curatola, 154 Ill. 2d at 207.

A business operator generally owes his customers a duty to exercise reasonable care tomaintain his premises in a reasonably safe condition. Ward, 136 Ill. 2d at 141. To decidewhether a duty exists, we consider: (1) the foreseeability that the defendant's conduct will resultin injury to another; (2) the likelihood of injury; (3) the burden of guarding against injury; and(4) the consequences of placing that burden on the defendant. Curatola, 154 Ill. 2d at 214. Aparty who owns or controls land is not required to foresee injuries if the potentially dangerouscondition is open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48, 665N.E.2d 826 (1996). The term "obvious" means that " 'both the condition and the risk areapparent to and would be recognized by a reasonable [person], in the position of the visitor,exercising ordinary perception, intelligence, and judgment.' " Deibert v. Bauer BrothersConstruction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239 (1990), quoting Restatement (Second) ofTorts