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King v. NLSB, No. 3-99-0027

3rd District, 7 June 2000

JUSTICE KOEHLER delivered the opinion of the court:

The plaintiffs in this negligence action, Janice and James King, appeal the Will County circuit court's grant of summary judgment. At issue is whether the circuit court erred in granting summary judgment when it concluded that a glass panel was inherently an open and obvious hazard, obviating as a matter of law the defendant's duty to warn of its existence. We conclude that whether the glass panel was an open and obvious condition was a matter of fact to be decided by the jury and, accordingly, reverse.

I. FACTS

Janice King, the plaintiff, went to NLSB on May 30, 1993, to purchase a savings bond. NLSB is a free-standing motor banking facility with a lobby area open to customers conducting business with the bank. NLSB's entrance to the lobby consists of two doors with two clear, floor-to-ceiling glass panels with lettering on either side of the doors that lead into a vestibule area where there are two more doors with two clear, floor-to-ceiling, unmarked glass panels on either side. This was the plaintiff's second visit to this NLSB branch.

After the plaintiff purchased the savings bond, she stopped at a counter near the doors to organize her papers. As she began to walk out of the bank, she thought a bank teller was calling to her. She turned to look at the bank teller, but she then determined that the bank teller was not speaking to her. The plaintiff again turned to leave and continued walking. She took a few steps, and walked into the clear glass panel located immediately to the right of the inner doors, bruising her arm and breaking her nose.

The plaintiff was taken to a local hospital to have her injured nose sewn and, later that summer, underwent further surgery. She was unable to work for several months because she continued to have problems with congestion and restricted breathing. The plaintiff alleges that she remains in need of plastic surgery to remove her facial scars caused by the accident.

The plaintiff ultimately brought a two-count complaint: count I on her own behalf and count II on behalf of her husband for his loss of consortium. The defendant filed affirmative defenses, alleging that the plaintiff failed to keep a proper lookout while proceeding through the NLSB premises, failed to avoid an object that was within plain view, and walked through the premises at a speed greater than reasonable for the present conditions.

Ultimately, the defendant moved for summary judgment, urging that the glass panel was an open and obvious hazard, precluding any duty to warn of its existence. The plaintiff countered that an issue of material fact existed as to whether the condition itself was open and obvious. The circuit court granted the defendant's motion for summary judgment, and this appeal followed.

II. ANALYSIS

Our review of summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). Summary judgment should only be granted when the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact when construed in the light most favorable to the nonmoving party and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992); LaFever v. Kemlite Co., 185 Ill. 2d 380, 388, 706 N.E.2d 441, 446 (1998). Summary judgment is a drastic measure that should only be granted when the right of the moving party is clear and free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 239-41, 489 N.E.2d 867, 871 (1986).

A cause of action based on common law negligence is comprised of the following essential elements: (1) the existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by that breach. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). Ordinarily, whether a duty exists is a question of law which a court must determine. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226. In Ward, our supreme court ruled that a property owner's duty to a person lawfully on the premises (the distinction between invitee and licensee having been abrogated (740 ILCS 130/2 (West 1992))) is that which is articulated in Section 343 of the Restatement (Second) of Torts (1965) (the Restatement). Section 343 states, in pertinent part:

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

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

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

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