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Geraghty v. Burr Oak Lanes

OPINION FILED JANUARY 21, 1955

JAMES GERAGHTY, APPELLANT,

v.

BURR OAK LANES, INC., APPELLEE.



APPEAL from the First Division of the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. JULIAN P. WILAMOSKI, Judge, presiding.

MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

Rehearing petition stricken March 22, 1955.

In a personal injury action for damages sustained by plaintiff, James Geraghty, the circuit court of Cook County entered a judgment on a jury verdict in favor of plaintiff and against the defendant for $28,000. The Appellate Court reversed the judgment and remanded the cause with directions to enter a judgment for defendant and against the plaintiff notwithstanding the verdict of the jury, (2 Ill. App.2d 48,) holding, as a proposition of law, that the proximate cause of plaintiff's injury was his contributory negligence, and that a verdict should have been directed. This cause is here on leave granted plaintiff to appeal, and the only question presented for determination is whether or not the judgment of the Appellate Court was proper.

In determining that question we are required to consider all of the evidence in the record which, in the light most favorable to plaintiff, together with all favorable inferences which may be drawn therefrom, and with all controverted questions of fact resolved in his favor, tends to prove the essential elements of his cause of action alleged in his complaint. Sims v. Chicago Transit Authority, 4 Ill.2d 60; Seeds v. Chicago Transit Authority, 409 Ill. 566; Shannon v. Nightingale, 321 Ill. 168.

From the evidence in the record it appears that on September 30, 1948, the defendant operated a bowling alley in a building which it owned, and adjacent thereto it maintained a parking lot for the use of its patrons, and which lot was constructed prior to November, 1946. At about 8:30 in the evening of September 30, 1948, plaintiff entered the premises of defendant with his car and parked it at one of the lanes there. He and his four guests got out of the car. They had an engagement to bowl at the alleys that evening. The building was northeast of where the car was parked. After plaintiff and his guests got out of the car, he, followed by his guests, proceeded to walk north towards the next lane to get to the entrance of the bowling alley, which was the most direct way to get there. He was looking where he was walking. Plaintiff walked four or five feet, when all of a sudden, he fell to the ground after his left foot became wedged between a railroad tie and a telephone pole which were lying on the surface of the parking lot. They were at an angle to one another. The ground around the pole and tie was covered with weeds and grass. The weeds extended above the pole and tie, were brown in color, and were estimated as being from twelve inches to three feet in height.

The pole and tie were part of a row of logs and ties laid east and west across the vacant premises to serve as bumpers and to keep parked automobiles in line and thereby leave room for cars to enter and leave the parking space. There was a space of approximately 8 inches between the pole and tie and it was in this angle or space, which was obscured by weeds, in which plaintiff caught his foot and fell. Plaintiff's left shoulder was dislocated by his fall and he was otherwise severely and painfully injured. Neither the plaintiff nor his guests saw the telephone pole or railroad tie until he had fallen and before that he did not know of their existence. He was then 22 years of age. This was the first time he had ever driven to the bowling alleys in his car and it was the first time he had ever been in the parking lot.

He knew the parking lot was there but was not familiar with it. There were no light standard fixtures or lights of any kind in any part of the parking lot. The lighting conditions were very poor. It was dark there and the light nearest to the place where plaintiff fell was at the entrance of the parking lot, a distance of about 75 feet and did not light up the lot near the lane down which plaintiff had driven. It was as dark to the rear of plaintiff's car as it was to the front. As plaintiff drove down the lane to park his car, the headlights of the car lighted up the roadway on which he was traveling and it was rough and bumpy with holes in it and with piles of earth, some of which protruded out into the lane so much that the car had to zigzag while moving down the lane. There were no lines or markings of any kind outlining the stalls for the automobiles to park nor were there any attendants on duty in the parking lot.

It was upon substantially the foregoing evidence that the Appellate Court reversed the judgment which plaintiff had recovered in the circuit court. Before entering upon a discussion of the question whether the judgment of the Appellate Court was correct or not we deem it appropriate to first make the following observations relating to the rights and obligation of the parties hereto growing out of their relationship of invitor and invitee.

It is undisputed that plaintiff's relation to the defendant was that of a business invitee. This is conceded by defendant. It was, therefore, the duty of defendant to exercise reasonable care for the safety of the plaintiff while he was on that portion of the premises required for the purpose of his visit. (Pauckner v. Wakem, 231 Ill. 276.) Toward an invitee the owner of premises must use reasonable care and caution to keep the premises reasonably safe for use by such invitee. To be upon premises by an implied invitation means that the person is there for a purpose connected with the business in which the owner of the premises is engaged. Ellguth v. Blackstone Hotel, Inc. 408 Ill. 343.

Under the facts and circumstances in this case, the defendant owed plaintiff, who was a business invitee, the duty to exercise ordinary care to have the parking lot in a reasonably safe condition to use in a manner consistent with the purpose of the invitation, or at least not to lead him into a dangerous trap, or expose him to an unreasonable risk, but to give him adequate and timely notice and warning of any latent or concealed perils, which were known to defendant but not to plaintiff. An owner in occupation of the premises violates his duty to an invitee when he negligently allows such conditions to exist on the property which imperil the safety of persons upon the premises. For such violation, he is responsible in damages to the injured person, provided, of course, due care was exercised by that person. If there are hidden dangers upon the premises he must use ordinary care to give warning thereof. 38 Am. Jur., Negligence, sec. 96 et seq., p. 754; O'Rourke v. Marshall Field & Co. 307 Ill. 197.

The law does not charge one with anticipating dangers and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers, (Pollard v. Broadway Central Hotel Corp. 353 Ill. 312,) and apart from obvious dangers the plaintiff, as an invitee, could assume that the premises were reasonably safe for the use to which defendant had put them. Brooks v. Sears, Roebuck & Co. 302 Mass. 184, 19 N.E.2d 39.

And now having laid the foundation for a better understanding of the issue here presented, we proceed to a discussion thereof.

In seeking to reverse the judgment of the Appellate Court the plaintiff argues that the Appellate Court in achieving the result reached set up completely new duties and standards of conduct to be exercised by a business invitee; that the court erroneously drew all possible unfavorable inferences from the evidence against plaintiff, and resolved controverted questions of fact against plaintiff; that in order to hold plaintiff guilty of contributory negligence as a matter of law, the Appellate Court erroneously failed to adhere to the rule that no person will be held guilty of contributory negligence as a matter of law unless all reasonable men would reach the conclusion that the facts did not establish due care and caution on the part of such person; and finally that the Appellate Court in reaching its conclusion ignored prior rulings of this court as well as certain decisions in parking lot cases cited by the plaintiff and that the court supported its decision by relying on three cases having no application to the case at bar. These were Brooks v. Sears, Roebuck & Co. 302 Mass. 184, 19 N.E.2d 39; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; and Sims v. Chicago Transit Authority, 351 Ill. App. 314.

The above cases are clearly distinguishable from the case at bar. In the Brooks case the plaintiff fell over a wood curbing in a parking lot maintained by defendant. The accident occurred at dusk, but the plaintiff could see perfectly well. There were painted lines and markings extending from the wooden curbings. The case was disposed of by the Supreme Court of Massachusetts solely upon the ground that there was no evidence in the case which would warrant the jury to find that the parking lot was not reasonably safe in its construction and maintenance. There was no holding or ruling in respect to the want of due care on the part of the plaintiff as a matter of law. In that case there was no telephone pole or railroad tie lying at an angle to each other on the ground nor any obscuring weeds, ...


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