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Trout v. Bank of Belleville

OPINION FILED FEBRUARY 18, 1976.

ETTA TROUT, ADM'RX OF THE ESTATE OF GILBERT TROUT, PLAINTIFF-APPELLANT,

v.

BANK OF BELLEVILLE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. J.F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff, Etta Trout, as administratrix of the estate of her deceased son, Gilbert Trout, brought an action against defendant, Bank of Belleville, for the wrongful death of Gilbert Trout. Plaintiff's complaint was in two counts. The first count alleged, among other things, that Gilbert Trout had been a customer of defendant and that while he was exercising ordinary care, his death resulted from the negligent acts or omissions of defendant. The second count contained substantially the same allegations, with the exception that defendant's acts or omissions were alleged to be willful and wanton rather than merely negligent.

The case was brought to trial before a jury. At the close of plaintiff's case defendant moved for a directed verdict on both counts. The court granted the motion with respect to both counts and entered judgment against plaintiff. Plaintiff appeals, raising only the issue whether the court erred by directing a verdict for defendant on both counts of plaintiff's complaint.

Subsequent to her filing of the notice of appeal, plaintiff filed in this court a motion to amend the second count of her complaint to include the allegation that Gilbert Trout "was free from contributory willful and wanton conduct," and "[a]lternatively" that he was a trespasser. Plaintiff's motion was allowed.

Gilbert Trout's death occurred when he ran into a chain which was strung across the parking lot of defendant bank. The circumstances in which this occurred were described by two witnesses for plaintiff, Richard Klein and Michael Dome, during their testimony at the trial. At approximately 2 a.m., October 29, 1971, Trout, Klein and Dome were riding together, each on a separate motorcycle, in an easterly direction on West Main Street in Belleville, Illinois. Over a period of two or three months prior to that time, Trout, Klein, and Dome had become accustomed to riding their motorcycles together each Thursday night. On this particular occasion, they had ridden on some rural roads near Caseyville, Illinois and then returned to Belleville, where each of them lived. While en route home, they discussed the possibility of stopping for something to eat at a Belleville restaurant. Klein decided to return to his home. The other two decided that they would go to a restaurant but that they would first ride along with Klein to his home.

The Bank of Belleville is located at 48th and West Main streets in Belleville. Along side the bank is a parking lot and "drive-up" teller windows. On the northern side of the lot is West Main Street; on the opposite side is Washington Street. Apparently, although it is not totally clear from the testimony or trial exhibits, there were driveways on both the West Main Street side and the Washington Street side of the lot. Along the western side of the bank lot, but separated from it by a curb, is a driveway or alleyway, on the opposite side of which is a flower shop.

As the three motorcycle riders approached this portion of West Main Street, Trout and Klein were close together; Dome was approximately 150 feet behind them. Taking a "shortcut," Klein turned into the alleyway and Trout turned into the bank lot. Klein anticipated that Trout would have to exit from the lot in the same way that he had entered, because Klein was aware of the chain across the bank lot. However, as Klein neared Washington Street he heard a crash. He proceeded to Washington Street, drove into the bank lot and discovered Trout lying on the pavement and his motorcycle on its side on the pavement.

When Dome reached the bank lot, he turned into the bank lot and waited. Dome anticipated that Trout would come out of the lot the same way he had entered it because Dome was also aware of the chain stretched across the bank lot. When Trout did not come out, Dome drove further onto the lot to see what had occurred. He also found Trout and the motorcycle lying on the pavement.

The chain into which Trout had driven ran parallel to West Main Street and Washington Street at a distance of approximately 175 feet from West Main Street. The chain was approximately 70 feet long and was a dark color much the same as the color of the parking lot pavement. The chain was strung from a post on one end, through a series of three standards spaced at equal intervals across the lot, and to a post on the other end, thus making a total of four spans. The distance of the chain from the pavement was approximately 30 to 36 inches. On each of the three standards was a "no thoroughfare" sign. Two stopsigns had been rung on the chain, one on the easternmost span and one on the next span. However, no stopsign had been hung on the other two spans. (Defendant had driven into the westernmost span.) According to Dome, one driving through the lot on the same route that Trout had taken would not be able to see the stopsigns unless that person looked to his left.

At 2 a.m. on October 29, 1971, the weather was clear. The bank lot was well lit by a number of mercury vapor lights; however, near the westernmost portion of the chain was a tree which partially shaded that area from the lights.

According to Klein, during the 1-year period prior to October 29, 1971, he had driven his motorcycle approximately ten times at night through the bank lot from West Main Street to Washington Street. For 8 to 12 months he had known that the chain was up "once in a while" at night in the bank lot. Because of this knowledge, he had cut through the alleyway rather than through the bank lot on this particular occasion Klein and Trout had never ridden through the bank lot together at night, although they had ridden through together once during the day.

According to the testimony of Dome, he had never driven through the bank lot before, and he did not know whether Trout had ever driven through the lot. Dome had known for at least a year prior to October 29, 1971, that the chain was used in the bank lot, because on one occasion he had begun to drive through the lot and had found the chain to block the way. Because of his knowledge that the chain was used, Dome waited for Trout to exit from the lot at the same place Trout had entered.

• 1 Under Illinois law the duty of a landowner with respect to a person who comes upon the premises varies according to the status of the person. (Gartley v. Chicago Housing Authority, 28 Ill. App.3d 705, 329 N.E.2d 252; 28 Ill. L. & Pr. Negligence §§ 51, 56, and 60 (1957).) It has long been settled that a landowner has a duty to exercise reasonable care for the safety of an invitee. (Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A. 1118; Milauskis v. Terminal R.R. Association, 286 Ill. 547, 122 N.E. 78.) To a trespasser, however, the landowner owes only the duty not to willfully and wantonly injure him and to use ordinary care to avoid injuring him after he is discovered in a place of danger. (Briney v. Illinois Central R.R. Co., 401 Ill. 181, 81 N.E.2d 866.) The owner's duty to a licensee is the same as his duty to a trespasser (Pauckner v. Wakem; Jones v. 20 North Wacker Drive Building Corp., 332 Ill. App. 382, 75 N.E.2d 400); the licensee will be able to recover only by showing an injury willfully and wantonly inflicted. Pauckner v. Wakem; Schoen v. Harris, 108 Ill. App.2d 186, 246 N.E.2d 849.

• 2-4 An invitee is a person who goes upon the premises of another by an express or implied invitation to transact business in which he and the owner have a mutual interest or to promote some real or fancied material, financial, or economic interest of the owner. (Madrazo v. Michaels, 1 Ill. App.3d 583, 274 N.E.2d 635; IPI Civil No. 120.05, at 356 (2d ed. 1971).) A licensee is a person who goes upon the premises of another with the express or implied consent of the owner, to satisfy his own purposes rather than for the mutual benefit of himself and the owner or a purpose connected with the business in which the owner is engaged or permits to be carried on upon the premises. (Drews v. Mason, 29 Ill. App.2d 269, 172 N.E.2d 383; Kapka v. Urbaszewski, 47 Ill. App.2d 321, 198 N.E.2d 569; Schoen v. Harris; IPI Civil No. 120.08, at 361 (2d ed. 1971).) A trespasser is one who enters the premises of the other ...


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