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No. 1-01-1909 

First Division

November 27, 2002

JUSTICE COHEN delivered the opinion of the court:

Plaintiffs John and Amy Perri⁽¹⁾, individually and on behalf of their infant daughter Leah Perri,sued defendant Furama Restaurant, Inc., after Leah was burned by hot tea at defendant's restaurant. Leah's injury occurred when Leah's four-year-old cousin Jordan Marsala spun a lazy susan uponwhich a pot of hot tea had been placed without the plaintiffs' knowledge. The trial court grantedsummary judgment in favor of defendant, finding that Jordan's parents had a duty to supervise Jordanand, because of the parents failure to supervise Jordan, defendant owed no duty to protect Leah fromthe injuries she sustained. Plaintiffs appeal.

FACTS⁽²⁾

On May 21,1995, plaintiffs and their three-month-old daughter Leah met Amy's sister KarenGreen, Karen's husband Andrew Marsala, and Karen and Andrew's children Jillian and Jordan fordim sum brunch at defendant's restaurant. The group was led to a large round table with a lazy susanin the center. Leah, asleep in her carriage, was positioned parallel to the table between her parents. So Ching Wong, a waitress at defendant's restaurant, greeted the party as they arrived at the tableand then returned to the kitchen to get a pot of hot tea. Wong returned and placed the teapot on thelazy susan approximately halfway between the center and the edge. Wong did not say anything toanyone in the party when she placed the tea on the table and none of the adults at the table noticedthe tea. After serving the tea, Wong returned to the kitchen to get ice water for the party.

A short time later⁽³⁾, Jordan spun the lazy susan, causing the pot of tea to tip over and spill. Amy testified that Jillian was already seated at the time of the accident, but the remainder of thegroup was "in the process of sitting down." Amy testified that she was "on [her] way down" whenhot liquid struck her hand and thigh. Leah began screaming a second or two later and John wasstruck last. Leah suffered severe burns over 10 percent of her body.

Plaintiffs filed suit against defendant, alleging Wong was negligent for placing a pot of hottea on a lazy susan without alerting the adults at the table to the presence of the tea. Plaintiffs furtheralleged that defendant knew or should have known both that: (1) the teapot could tip if the lazysusan were spun; and (2) minor children were present at plaintiffs' table. John, as Leah's father andnext friend, filed suit on Leah's behalf seeking damages for his daughter's injuries. John and Amysued individually pursuant to the Family Expense Act (750 ILCS 65/15 (West 2000)) to recover theexpenses they incurred for treatment of Leah's injuries.

Defendant moved for summary judgment, arguing that defendant owed no duty to Leahbecause Jordan's parents had a duty to supervise their son and therefore defendant could not haveforeseen the accident which occurred. Additionally, defendant argued that it was not liable forLeah's injuries because any negligence on its part in placing the teapot on the lazy susan did notproximately cause Leah's injuries but merely furnished a condition which made those injuriespossible. Plaintiffs responded that, because the adults at the table were unaware of the pot of tea,the duty of Jordan's parents to supervise him did not absolve defendant of its duty to exercisereasonable care. Plaintiffs further argued that Jordan's actions in spinning the lazy susan were notthe sole proximate cause of the accident and that defendant's negligence was a proximate cause andnot a mere condition.

Following a hearing, the trial court granted summary judgment in favor of defendant. Inreaching her conclusion, the trial judge commented:

"I agree with the Defendant that there was no duty here tosafeguard this Leah Perri from the independent intervening act of ***Jordan Marsala.

It is the plaintiffs' position that the restaurant breached its dutyof care by placing a teapot on the lazy susan, but I would say thatthat's what Asian restaurants do. The serve tea whether its ordered ornot.

Whether or not the parents were aware of the pot of tea doesnot make it any less visible. The whole purpose of the shifting of theduty by the Court to the parents to supervise children is preciselywhat happened in this case. Children, especially age 4, areunpredictable and somewhat powerful, perhaps more so than theirsize indicates.

The specific rationale for [excepting] from the restaurant'sduty is because children must be supervised because they areunpredictable.

Unfortunately being the mother of three children, I can'timagine what the Perri's went through on this, but that doesn't changethe fact that [defendant] did nothing which was dangerous or inviolation of any duty that it might have owed its customers in thiscase.

If I were to accept the plaintiff's position[,] there must be agrace period between the time children accompanied by parents arriveand when the parents' duty to supervise them kicks in. Is it uponbeing seated, everybody in their own chair, or is it after the coats arehung up[?] I am not sure. I am not prepared to start mincing as towhat happens as people arrive in a business establishment and getseated for an activity. I don't think I need to.

I think it is clear in this case that the apparent cause of thisincident was Jordan because nobody saw it. The presence of a teapoton the table is not unforeseeable, and I think the duty to superviseremoves from the restaurant the requirement that it safeguard certainsituations because minors are there and are not being watched."

The court further clarified that "[a]s a matter of law, under the circumstances *** stated, the rulingis that [defendant] did exercise ordinary care ."

Plaintiffs' posttrial motion was denied. Plaintiffs now appeal.

ANALYSIS

Summary judgment is proper if the pleadings, depositions and admissions on file, along withany affidavits, show that there is no genuine issue of material fact and that the moving party isentitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). The purpose ofsummary judgment is not to try a question of fact, but simply to determine whether a genuine issueof triable fact exists. Watkins v. Schmitt, 172 Ill.2d 193, 203 (1996). It is well established that indetermining whether a genuine issue of material fact exists, a court must construe the pleadings,depositions, admissions and affidavits strictly against the movant and liberally in favor of theopponent. Schmitt, 172 Ill.2d at 203. In addition, any evidence which would be inadmissible at trialcannot be considered by the court in support of or opposition to a motion for summary judgment. Schmitt, 172 Ill.2d at 204. Because the propriety of an order granting summary judgment is aquestion of law, our review of such an order is de novo. Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 909 (1994).

To sustain a cause of action for negligence, a plaintiff must establish the existence of a dutyowed by defendant to plaintiff, a breach of that duty and an injury to plaintiff proximately caused bythe breach. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000). Defendant arguesthat summary judgment was properly granted both because defendant owed no duty to plaintiffs andbecause any negligence on defendant's part did not proximately cause Leah's injuries. We addresseach of these contentions in turn.

I. Duty

The existence of a duty is a question of law to be determined by the court. Ward v. Kmart,136 Ill. 2d 132, 140 (1990). In determining whether a duty exists, the court considers: (1) thereasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden ofguarding against injury; and (4) the consequences of placing that burden upon the defendant. Ward,136 Ill. 2d at 140-41. Because simply alerting adult customers to the presence of the hot teapresents a particularly minimal burden which we would not hesitate to impose on restaurants, thereal issue in this case is whether the injury was sufficiently foreseeable and likely that we would bejustified in placing a duty on defendant to guard against such an injury.

As a general rule, a property owner owes no greater duty of care to small children than theduty owed to adults. Kahn v. James Burton Co., 5 Ill. 2d 614, 625 (1955). An exception to thisgeneral rule exists, however, when a property owner:

"knows, or should know, that young children [are present] in thevicinity of *** a dangerous [condition], which is likely to causeinjury to them because they, by reason of their immaturity, areincapable of appreciating the risk involved, and where the expense orinconvenience of remedying the condition is slight compared to therisk to the children." Kahn, 5 Ill. 2d at 625.

Defendant in this case does not deny that it knew or should have known that young childrenwere at plaintiffs' table. Defendant further concedes that, because of his immaturity, Jordan wasincapable of appreciating the risk presented by the hot tea on the lazy susan. Finally, defendantacknowledges that a child Jordan's age might foreseeably "engage in playful and unpredictablebehavior"-such as spinning or otherwise playing with the lazy susan. Under these circumstances,a pot of hot tea resting on a lazy susan is a dangerous condition likely to cause injury when youngchildren are present. Applying the analysis in Kahn, defendant owed a duty to guard against theinjury in this case. 5 Ill. 2d at 625.

Defendant correctly notes that Kahn dealt with a situation involving an unaccompaniedminor. whereas the children in the instant case were accompanied by their parents. Defendant arguesthat the injury in this case was therefore not reasonably foreseeable because it was not reasonablyforeseeable that Jordan's parents would fail to adequately supervise him. Citing to a line of casesaddressing a parent's duty to supervise young children (see, e.g., Driscoll v. Rasmussen, 35 Ill. 2d74 (1960); Keller v. Mols, 129 Ill. App. 3d 208 (1984); Kay v. Ludwick, 87 Ill. App. 2d 114 (1967))defendant argues that it owed no duty to prevent the injury which resulted from Jordan's actionsbecause Jordan was accompanied by his parents at the time of the accident.

Defendant's reliance on these cases is misplaced. A defendant is "not absolved of allresponsibility to very young children merely because supervision of young children is generally theresponsibility of their parents." T.T. v. Kim, 278 Ill. App. 3d 11, 18-19 (1996), citing Strode, 206 Ill. App. 3d at 405. A defendant can be held responsible for a child's injuries-notwithstanding aparent's duty to supervise-where recognized theories of liability support such a finding. Driscoll,35 Ill. 2d at 79. In other words, a parent's duty to supervise absolves a defendant of liability onlywhere consideration of the duty to supervise precludes a finding of liability under recognizedtheories-for example, where an injury is not foreseeable unless a parent or caretaker fails to properlysupervise a minor child (see e.g. O'Clair v. Dumelle, 735 F. Supp. 1344, __ (N.D. Ill. 1990) (findingan injury unforeseeable because parent's failure to adequately supervise was not reasonablyforeseeable).

Here, the evidence presented by both parties demonstrates that the group, which included atwo-year-old and a four-year-old child, was not yet seated when, unbeknownst to the adults, Wongplaced the pot of tea on the lazy susan. None of the adults in the group actually saw the pot of teauntil after the injury occurred. A parent's duty to supervise requires the parent to exercise due carein the face of obvious risks. See, e.g. Salinas, 189 Ill. App. 3d at 62 ("duty to supervise *** childas to obvious risks lies primarily with the accompanying parent"); Strode 206 Ill. App. 3d at 405(when children are supervised by their parents, "landowners may be relieved of duty to warn [thechildren] of or remove dangerous instrumentality the danger from which is apparent").

Even the most vigilant parent cannot be omniscient-the duty to supervise does not requirea parent to prevent a child from causing or suffering harm from a danger of which the parent has noreason to be aware. If parents or caregivers are unaware of a particular danger, it is reasonablyforeseeable that they will fail to prevent a minor child from encountering that danger. Thus, whiledefendant was certainly entitled to rely on the adults in plaintiffs' group to protect their children fromdangers of which the adults were or should have been aware, defendant is not absolved of its dutyunder Kahn simply because Jordan was accompanied by his parents (T.T., 278 Ill. App. 3d at 18-19). Defendant suggests that "the true factual issue with respect to the duty to supervise is whetherplaintiffs⁽⁴⁾ were in a position to observe the risk and to prevent Jordan from causing the accident."

Defendant argues that, because the group was at the table long enough for Jordan to discover andspin the lazy susan, the adults "were clearly in a position in which they could have observed therisk"-in other words, defendant argues that the pot of hot tea was an open and obvious hazard. Thetrial court apparently accepted this argument, noting that "[w]hether or not the parents were awareof the teapot does not make it any less visible."⁽⁵⁾ Whether a condition presents an open and obviousdanger, however, is a question of fact. Pullia v. Builder's Square, 265 Ill. App. 3d 933, 939 (1994). Indeed, defendant concedes that the obviousness of the danger presents a "factual issue." Summaryjudgment is inappropriate in the face of genuine issues of material fact. 735 ILCS 5/2-1005(c) (West2000).

Furthermore, a property owner owes a duty of care even in the face of a known and obviousdanger if the property owner should anticipate the harm despite the "obvious" nature of the danger. Ward, 136 Ill. 2d at 149. Wong's deposition testimony indicates that the hot tea was not on the tablewhen the group first arrived but rather was served shortly thereafter. Plaintiffs presented evidencethat the group was at the table for less than 30 seconds and the adults were not yet seated when theaccident occurred. Under these circumstances, defendant should have anticipated that Jordan'sparents would fail to notice or prevent Jordan from disturbing the pot of hot tea, even if the teapotwas in fact "obvious." Ward, 136 Ill. 2d at 156.

Based on the foregoing analysis, we find that defendant owed a duty to guard against theinjury in this case. Summary judgment, therefore, cannot properly be predicated on a lack of duty.

II. Proximate Cause

Defendant next argues that any negligence on its part cannot have been the proximate causeof Leah's injuries. Proximate cause consists of two distinct requirements: cause in fact and legalcause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). Cause in factexists where the negligence at issue is a material and substantial element in bringing about the injury. Galman, 188 Ill. 2d at 258. Legal cause exists when the injury is of a type a reasonable personwould see as likely to result from his conduct. Galman, 188 Ill. 2d at 258. Proximate cause isordinarily a question of fact to be determined from all the attending circumstances, and it can onlybe determined as a matter of law when the facts are not only undisputed but are also such that therecan be no difference in the judgment of reasonable persons as to the inferences to be drawn fromthem. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 19 (1999).

Defendant first argues that any negligence on its part was not a cause of Leah's injuries butmerely a condition, which made the injury possible. If the negligence charged does nothing morethan furnish a condition by which the injury is made possible, and that condition facilitate an injuryby the subsequ-ent, independent act of a third person, the creation of the condition is not theproximate cause of the injury. Galman, 188 Ill. 2d at 257. Whether a defendant's conduct was acause of injury or merely a condition which made the injury possible turns on whether thedefendant's conduct was a material and substantial element in bringing about the injury. Galman,188 Ill. 2d at 259. A defendant's conduct is a material and substantial element in bringing about aninjury if, absent that conduct, the injury would not have occurred. Galman, 188 Ill. 2d at 258. Defendant also argues that Jordan's actions in spinning the lazy susan-not defendant's actionsin placing the tea on the lazy susan-proximately caused Leah's injuries. The test that should beapplied where injury results from the intervening act of a third party is whether the defendantreasonably might have anticipated the intervening efficient cause as a natural and probable result ofthe defendant's own negligence. Galman, 188 Ill. 2d at 259.

A reasonable fact-finder could conclude that, absent Wong's actions in placing the hot tea onthe lazy susan without notice, Leah's injuries would not have occurred. Likewise, a reasonable fact-finder could conclude that defendant might reasonably have anticipated that Jordan would spin thelazy susan under the circumstances in this case. Accordingly, proximate cause is not an issue whichcan be decided as a matter of law in this case. Seef, 311 Ill. App. 3d 19. Because proximate causepresents a genuine issue of material fact, summary judgment was not appropriate on this basis. 735ILCS 5/2-1005(c) (West 2000).

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Cook County grantingsummary judgment in favor of defendant is reversed. This cause is remaded for further proceedings.

Reversed; cause remanded.

GORDON, PJ., and McNULTY, J., concur.

1. At her deposition, Amy testified that her correct name is Amy Green and that, although sheis married to John Perri, she has never been known by the name Amy Perri. Nevertheless, Amyacknowledged that she is the Amy Perri referred to in the caption of this case.

2. The underlying facts in this case are largely undisputed. Disputes as to particular detailsare noted, as necessary, herein.

3. Both Amy and John testified at their depositions that the accident occurred less than 30seconds after the party arrived at the table. Defendant contends that the timing of the accident iscontested because Wong testified at her deposition that the accident occurred while she was on herway to get ice water for the group after having served the tea. Defendant's apparent inference is thatthe activities described by Wong would have required more than 30 seconds; however, defendantpoints to no evidence in the record which would support such an inference.

4. It is unclear whether defendant has confused plaintiffs with Jordan's parents or whetherdefendant is suggesting that plaintiffs had a duty to supervise their nephew even though Jordan wasaccompanied by his parents.

5. The trial court also apparently concluded that plaintiffs and Jordan's parents should haveanticipated the presence of the hot tea because "Asian restaurants *** serve hot tea whether it'sordered or not." Such a factual determination-not compelled by any undisputed evidence-isinappropriate on summary judgment. The purpose of summary judgment is not to try a question offact, but simply to determine whether a genuine issue of triable fact exists. Schmitt, 172 Ill. 2d at203. Furthermore, we are not prepared to adopt a rule that a restaurant's duty to its customersdepends on the ethnic origin of the cuisine being served.