Cobb v. Iga

Case Date: 02/10/2003
Court: 5th District Appellate
Docket No: 5-01-0671 Rel

Decision filed 02/10/03. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0671

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


DELORES COBB, ) Appeal from the
) Circuit Court of
          Plaintiff-Appellant, ) Effingham County.
)
v. ) No. 99-L-26
)
MARTIN IGA & FROZEN FOOD )
CENTER, INC., ) Honorable
) Steven P. Seymour,
          Defendant-Appellee. ) Judge, presiding.

JUSTICE MAAG delivered the opinion of the court:

Delores Cobb (plaintiff) filed a personal-injury action against Martin IGA & FrozenFood Center, Inc. (defendant), in the circuit court of Effingham County. Plaintiff soughtcompensation for damages she sustained when a young boy ran into her with a grocery cartwhile she was shopping in defendant's store. Defendant filed a motion for a summaryjudgment asserting that it had no duty to protect plaintiff from the type of harm she hadsuffered. The trial court granted the motion and entered a summary judgment in favor ofdefendant. On appeal, plaintiff contends that the trial court erred in granting the summaryjudgment because there was a jury question of whether defendant was or was not negligent.

Plaintiff filed a negligence action against defendant for injuries she had sustainedwhile she was a customer in defendant's grocery store. The amended complaint alleged thaton August 6, 1997, plaintiff was a customer shopping in defendant's store, that anunsupervised child ran into plaintiff with a shopping cart while she was shopping, thatplaintiff suffered serious injuries to her foot and ankle as a result of the incident, and thatdefendant was negligent and breached its duty to exercise reasonable care to protect itscustomers under the Premises Liability Act (740 ILCS 130/1 et seq. (West 1996)). Theamended complaint further alleged that defendant had been negligent in one or more of thefollowing ways:

"a. Negligently failed to supervise the delivery of shopping carts to customers andother individuals on the premises so as to prevent the use of said carts bychildren who were inexperienced operators;

    • Negligently failed to supervise the operation of shopping carts by customersand other individuals on the premises so as to prevent the use of said carts bychildren who were inexperienced operators; [and]
    • Negligently failed to supervise the operation of shopping carts by customersand other individuals on the premises so as to prevent the use of said carts bychildren who were inexperienced operator [sic]."

After the trial court resolved a series of motions attacking the sufficiency of thecomplaint, discovery ensued. During the discovery phase of the case, plaintiff sought andwas granted leave to add the following allegation of negligence:

"d. Negligently adopted and followed a policy of permitting young children tooperate shopping carts."

Plaintiff and Kenneth Lansing, defendant's general manager, were deposed duringthe discovery period. A summary of the pertinent portions of the testimony of plaintiff andMr. Lansing follows.

In her deposition, plaintiff testified that she went to defendant's store on August 6,1997, to purchase some groceries. While she was shopping, a young boy pushed a shoppingcart into her left foot and ankle. Plaintiff testified that she had first noticed the boy in thepickle aisle. He was pushing a cart and running fast toward her. He was not screaming ormaking any noises. She did not see any adult with or near the boy. Plaintiff changeddirection in an attempt to avoid him. Had she followed her regular routine, she would havegone to the deli and then to the meat counter. Instead, she stopped at a display of greetingcards in order to maintain some distance from the boy. Plaintiff explained why she initially was not afraid that she would be harmed: "[The boy] was far enough away and I saw himand he saw me and I thought he had plenty of time to stop, but apparently he was going toofast[;] he couldn't." The boy pushed the cart into plaintiff and knocked her down to thefloor. Plaintiff testified that the boy stopped for a few seconds, said that he was sorry, andthen ran off. Plaintiff stated that the boy appeared to be between 8 and 10 years old. Shedid not know him and she did not get his name.

Plaintiff testified that she had been a customer of defendant's store for several yearsbefore this incident. She shopped there about once a week. Plaintiff testified that prior tothis incident, she had never seen a young child pushing a shopping cart without adultsupervision in defendant's store. She stated that she had not heard anyone complain thatdefendant did a poor job of policing the use of its shopping carts. Plaintiff stated that shehad no information that defendant had any problems with this boy or any other childrenrunning around its store with shopping carts. Plaintiff also testified that she had not seenany store employees in the area prior to the incident. She had no information indicating thatany employee had seen the boy running with the cart prior to the incident.

Kenneth Lansing was the manager of defendant's Effingham store. In his deposition,Mr. Lansing testified that there was no written policy or document regarding the use of cartswithin the store, the delivery of carts to customers, or the storage of carts. During theirtraining, employees were instructed to return carts that had been abandoned in the store orwere otherwise not in use to a storage area at the front of the store. Mr. Lansing stated thatthe store did not have an attendant assigned to deliver carts to customers entering the storeand that it did not have a surveillance system to monitor the entire store. At the time of theincident, there was a surveillance system for the purpose of monitoring shoplifting in high-risk sections of the store, such as near cigarette displays and health and beauty counters. There was no surveillance in the area where this incident occurred. In a supplementaldiscovery deposition, Mr. Lansing stated that employees were expected to monitorinappropriate behavior of adults and children. He testified that the store did not have apolicy against children using shopping carts. He explained that there are many children whoshop for their families in defendant's stores.

Mr. Lansing signed an affidavit that was filed in support of defendant's summaryjudgment motion. The affidavit states in pertinent part as follows:

"Prior to August 6, 1997, there had never been an incident or accident at any of theMartin's I.G.A. stores involving circumstances where a patron was injured as a resultof a fellow patron, child or adult, running into the other person with or without ashopping cart. Also, Martin's I.G.A. had never received a complaint prior to August6, 1997, that the Martin's I.G.A. employees failed to supervise the delivery of cartsto adults or children. With regard to this case, no one, including Delores Cobb, hascome forward with any information concerning the identity of the boy who waspushing the cart at the time of the incident. Furthermore, no one, including DeloresCobb, has come forward with any information concerning where the unidentified boyobtained the cart, whether the cart was obtained by his parent or guardian, or theperiod of time the boy had been pushing the cart prior to the accident."

In its motion for a summary judgment, defendant alleged that plaintiff failed to allegeand failed to produce evidence establishing that defendant owed a duty of care under thecircumstances of the case. Defendant argued that plaintiff failed to produce any evidenceto suggest that it knew or should have known that a young child would negligently orrecklessly push a cart into another customer. Defendant also argued that imposing a dutyto prohibit children from operating carts in its store would be unduly burdensome.

Following a hearing, the trial court entered an order granting defendant's motion fora summary judgment. In its order, the trial court noted that defendant had filed a motion todismiss the complaint on the ground that it owed no duty to plaintiff under thecircumstances. The court explained that the standard used to assess a motion to dismiss isdifferent from that used to assess a motion for a summary judgment. The court stated thatit had denied the motion to dismiss at an earlier stage of the proceedings because "it wasconceivable that a set of facts could have been developed under which a duty could havebeen found to exist with regard to the plaintiff by the defendant." The trial court found thatduring the time allotted for discovery, plaintiff "totally failed to develop any facts that wouldsuggest that the defendant was placed on notice of either other children between the ages ofeight and ten running into customers with shopping carts or the particular minor involvedrunning into customers with shopping carts." The court also found that the imposition ofa duty to prohibit all unsupervised children from using shopping carts or, alternatively, tomonitor all children pushing shopping carts, as suggested by plaintiff, would create anintolerable burden on defendant.

A summary judgment is appropriate when there are no genuine issues of material factand the movant is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West2000); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607N.E.2d 1204, 1209 (1992). A summary judgment is properly granted when the pleadings,depositions, admissions, and permissible inferences therefrom, construed in the light mostfavorable to the nonmoving party, so clearly favor the movant that no fair-minded individualcould dispute the movant's right to a judgment in his or her favor. Wysocki v. Bedrosian,124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344 (1984). Appellate review of summaryjudgment rulings is de novo. Outboard Marine Corp., 154 Ill. 2d at 102, 607 N.E.2d at1209.

In order to recover under a negligence theory, a plaintiff must offer evidence whichestablishes that the defendant owed a duty to the plaintiff, that the defendant breached theduty, and that the breach proximately caused the plaintiff's injuries. Ward v. K Mart Corp.,136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). The existence of a duty and the range ofprotection of that duty in a particular case are questions of law to be resolved by the court. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226. The resolution of these questions depends onwhether the defendant and the plaintiff stood in such a relationship to one another that thelaw imposed upon the defendant an obligation to act reasonably for the benefit of theplaintiff. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226; Loomis v. Granny's Rocker Nite Club,250 Ill. App. 3d 753, 755, 620 N.E.2d 664, 665-66 (1993). In determining whether a dutyexists in a specific case, a court must weigh the foreseeability of the injury, the likelihoodof the injury, the magnitude of the burden of guarding against it, and the consequences ofplacing that burden upon the defendant. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47, 566 N.E.2d1365, 1366-67 (1991).

In the trial court and on appeal, plaintiff has argued that sections 318, 344, and 390of the Restatement (Second) of Torts (Restatement (Second) of Torts