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Mick v. the Kroger Co.

JULY 12, 1966.




Appeal from the Circuit Court of Franklin County; the Hon. RANDALL S. QUINDRY, Judge, presiding. Judgment affirmed.


Rehearing denied August 3, 1966.

This is an appeal from the Circuit Court of Franklin County, Illinois, from a jury verdict for one of two plaintiffs in a negligence action.

The original action, based upon the alleged negligence of the defendant-appellant, was brought by the appellee, Mrs. Helen Mick, to recover damages for personal injuries received by her while a customer and business invitee on defendant's premises, and by her husband for moneys spent and for loss of services and consortium. The complaint set forth the "custom, usage, and habit with reference to the customers of the defendant's store for many years, and a violation of its duty to exercise reasonable care for the safety of the plaintiff while upon its premises," alleging that:

The plaintiff had traded for years at said place of business of defendant, during all of which time defendant, without being requested to do so, furnished one or more of its employees to help its customers, including plaintiff and her husband, Jack Mick, to carry their groceries and meats and other commodities from the store proper to defendant's said parking lot immediately East of the store building, and to other places on East Main Street, in said City, where its customers had parked their cars,

and that the defendant was negligent in that it had "failed to assist plaintiff in carrying out of said store the groceries, meats and commodities which she had purchased therein."

For several years, the appellee had shopped at the defendant's self-service grocery store in Benton, Illinois. During that time, the store had provided a carry-out service for its customers. On September 3, 1963, after finishing her shopping, she pushed her cart into the check-out aisle. Her purchases were tabulated, the amount due collected, and the groceries placed in a large bag. The cashier then told her that she would have to manage by herself because there was no one else in the store and that he could not leave the cash register. She then said that she didn't know if she could manage it, but that she would try.

Mrs. Mick then picked up the bag containing about thirty pounds of assorted groceries and carried it out to the sidewalk, when she discovered that her husband had left to pick up one of their children at a nearby high school. She rested the bag of groceries on the fender of a nearby car until she saw her husband drive into the lot. Mrs. Mick then picked up the bag again and stepped from the sidewalk to the parking lot pavement, whereupon she turned her ankle and began stumbling forward until the weight of the bag pulled her down. She suffered a broken foot and resulting permanent injuries.

The jury returned a verdict for Mrs. Mick in the sum of $4,000 and against her husband. The jury also answered a special interrogatory finding that Mrs. Mick was not guilty of contributory negligence at the time and place of the occurrence in question. Judgments were entered on the verdicts, from which only the defendant appeals. The trial court refused to strike all the allegations of negligence and overruled the defendant's motions for a directed verdict, in arrest of judgment, for judgment notwithstanding the verdict, and for a new trial.

On appeal, the Kroger Company first contends that the plaintiff failed to offer sufficient evidence to allow a jury to find it guilty of any negligence which proximately or contributorily caused the plaintiff's injuries and seeks a reversal.

Negligent conduct consists in the failure to exercise the care that a reasonable man of ordinary prudence would exercise in order to guard against any reasonably foreseeable, unreasonable risks of harm which flow or might flow from his conduct. The essential element of negligence is the exposure of another person to an unreasonable risk of harm. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578; Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836; Harper and James, The Law of Torts, § 16.9 (1956).

In fact, the very concept of due care contains within it the implication of due care under certain circumstances, one of which is the presence of a reasonably foreseeable, unreasonable risk of harm. Once it has been established that a duty to exercise due care exists, the question what constitutes due care under particular circumstances remains and must be determined by an analysis of all the facts. Thus, the determination of due care is essentially factual.

Generally, questions of due care, including the question of unreasonable risk, are for the jury to determine. Once a determination is made, a verdict will be set aside only if the verdict is against the manifest weight of the evidence or if reasonable minds would not differ as to the presence of due care under the circumstances. The mere fact that a jury could have reached a different conclusion or that a judge disagrees with the verdict does not suffice. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847; Kahn v. James Burton Co., supra; Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804; Levanti v. Dorris, 343 Ill. App. 355, 99 ...

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