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Welch v. Paulson's Enterprises

DECEMBER 19, 1969.

SARA M. WELCH, PLAINTIFF-APPELLEE,

v.

PAULSON'S ENTERPRISES, INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. PAUL W. SCHNAKE, Judge, presiding. Reversed and remanded with directions. MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 28, 1970.

The plaintiff, Sara Welch, was awarded damages of $5,000 in a jury trial in the Circuit Court of Kane County for injuries suffered by her as a result of a fall as she left the defendant's place of business.

On July 20, 1965, the plaintiff, then a widow 52 years of age, had been shopping with a woman friend and stopped at a tavern and restaurant operated by the defendant at the intersection of Douglas and Highland Avenues in Elgin. The two women entered the tavern at approximately 7:30 p.m. by way of an entrance on Highland and sat at a table near the bar, where they had two drinks each. The bar was crowded and dimly lit and they decided to eat at another restaurant.

As they began to leave, the friend returned to the table for her sweater and the plaintiff went on ahead through an exit on Douglas Street. The Douglas exit is through an inner door into a foyer or hallway and then through an outer door out to the street. There was no artificial lighting in the foyer but there was an octagonal window in the outer door. Immediately beyond the outer door was a step down to the sidewalk level. The intersection itself is in the business section of town and was well lighted. As the plaintiff stepped through the outer door onto the step she fell down, face first, onto the sidewalk and suffered serious and painful injuries.

The complaint, filed on July 19, 1967, alleged that the defendant had "negligently permitted one of the exits to be and remain improperly lit and negligently failed to warn patrons leaving the premises, including the plaintiff, of certain steps in said dimly lit area. . . ." After the trial, the complaint was amended by leave of court to include the additional allegation that the defendant "negligently permitted a step at its west entrance and exit-way to become and/or remain in a defective condition. . . ."

The defendant moved for a directed verdict at the close of the evidence for the plaintiff and again at the close of all the evidence. Both motions were denied and the jury returned with a verdict in favor of the plaintiff and assessed her damages in the sum of $5,000. On appeal, the defendant maintains that the cause should not have been submitted to the jury since there was insufficient evidence of negligence or that the negligence, if any, was the proximate cause of the plaintiff's injuries.

It is undisputed that the owner or operator of of a restaurant or tavern is not an insurer of his customers' safety but must exercise reasonable care to keep the premises in a safe condition. Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 118, 148 N.E.2d 434. The liability of the defendant for the plaintiff's injuries could only be predicated, therefore, on its proven negligence. Lubin v. Goldblatt Bros., Inc., 37 Ill. App.2d 437, 441, 186 N.E.2d 64; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469, 473, 173 N.E.2d 443.

For the most part, the evidence introduced at the trial was uncontradicted. The defendant admits that there were no warning signs at the Douglas exit and that the foyer had no artificial light. The plaintiff admits that Douglas Street itself was "well lighted." In her complaint, the plaintiff claims that the defendant was negligent in its failure to light the foyer or to warn patrons of the step beyond the outer door. The plaintiff testified on direct examination as follows:

"Mr. Lindner: Q. All right, so you opened the first door and then entered this little cubicle area that you told us about, right?

"A. Right.

"Q. Could you describe to the jury what the lighting was like in this cubicle area between the two doors?

"A. I would say it was dimly lighted.

"Q. And what did you do after you go into that area? What was your next move?

"A. Opened the other door.

"Q. And before you opened that door, did you see any signs of any warning ...


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