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Simmons v. American Drug Stores, Inc.

Case Date: 03/25/2002
Court: 1st District Appellate
Docket No: 1-01-0882 Rel

No. 1-01-0882                                                                                                                                      First District

                                                                                                                                                              March 25, 2002


 

TIMOTHY SIMMONS, ) Appeal from the
) Circuit Court of
                        Plaintiff-Appellant,  ) Cook County.
)
)
)
)
)
v. ) No. 97 L 16195
)
AMERICAN DRUG STORES, INC., an )
Illinois corp., d/b/a OSCO, JACK )
ZIMMERMAN, individually and as agent )
and/or employee of B&N REALTY CORP., )
and B&N REALTY CORP., an )
Illinois corp., ) The Honorable
) Sophia H. Hall,
                       Defendants-Appellees.  ) Judge Presiding.


PRESIDING JUSTICE COHEN delivered the opinion of the court:

Plaintiff filed a personal injury action against defendantsAmerican Drug Stores, Inc., d/b/a Osco, B&N Realty Corp., and JackZimmerman, an agent of B&N Realty Corp. for injuries plaintiffsustained when he fell while exiting an Osco store. The trialcourt granted summary judgment in favor of defendants. Plaintiffappeals, contending that: (1) the danger presented by certain"cartnapper" barriers was not open and obvious; (2) even if thedanger was open and obvious, plaintiff was distracted at the timehe fell; and (3) plaintiff was forced to confront the allegeddanger because he exited through the only exit from the store. Forthe reasons that follow, we reverse and remand for furtherproceedings.

BACKGROUND

On October 21, 1996, plaintiff was attempting to pass througha "cartnapper" barrier outside an Osco drug store when he becamestuck in the barrier, fell, and broke his foot. Plaintiff sueddefendants, alleging that the "cartnapper" barriers presented adangerous condition. Defendants moved for summary judgment,arguing that they owed plaintiff no duty because the "cartnapper"barriers presented an open and obvious danger and that plaintiffwas not distracted when he encountered that danger. Defendantsfurther asserted that plaintiff did not raise a genuine issue ofmaterial fact as to whether the "cartnapper" gates proximatelycaused plaintiff's injury.

In support of their motion for summary judgment, defendantssubmitted transcripts from the depositions of plaintiff andplaintiff's expert witness, John Fotsch, Jr. The depositiontranscripts were accompanied by deposition exhibits, which includedseveral photographs of the scene of the occurrence and a letterfrom Fotsch to plaintiff's attorney regarding his analysis of the"cartnapper" barriers.

The Osco store where plaintiff fell was located in a smallstrip mall containing several other businesses. A single doorwayprovided customers ingress and egress to the Osco. "Cartnapper"barriers, intended to prevent the removal of shopping carts fromthe Osco premises, were imbedded in a concrete slab between Osco'ssingle doorway and the parking lot. The letter from Fotsch toplaintiff's counsel indicates that the concrete slab endedapproximately 4