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Zimmermann v. Netemeyer

OPINION FILED FEBRUARY 10, 1984.

JOHN L. ZIMMERMANN, PLAINTIFF-APPELLANT,

v.

FRANK NETEMEYER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Clinton County; the Hon. Joseph L. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 16, 1984.

Plaintiff appeals the dismissal of count II of his amended complaint for personal injuries for its failure to state a cause of action. The defendants are tavern keepers doing business in Albers, Illinois, as The Diamond Tavern or The Diamond Lounge (tavern). The amended complaint alleges that the tavern has a parking lot for patrons on its south side, which abutted Illinois Route 161 and lacked a shoulder area. Plaintiff was a passenger in a car being driven in a westerly direction on Route 161 in the evening hours of June 1, 1978. A patron left defendant's tavern, entered his car which was parked "head-in" in the parking lot and, without his headlights on and as a maneuver made necessary by the size and location of defendant's parking lot, backed his car onto Route 161 and into the path of the car in which plaintiff was riding, thus causing a collision in which plaintiff was injured. We are to consider whether under the facts of this case the defendants-landowners were under a duty to take measures for the protection of the plaintiff from the injury he received. We hold that they were not under any such duty.

Since we are determining the propriety of dismissing count II of plaintiff's amended complaint, we must accept all properly pleaded facts as true and are concerned only with the question of law presented by the pleadings. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538.) Plaintiff candidly admits in his brief that "no prior court decision has been found by plaintiff as direct authority in support of the duty asserted on defendants under this factual situation" but goes on to assert that "the general law of each person's duty not to act in a way that exposes others to an unreasonable risk of harm is sufficient support for the plaintiff's cause of action." The central theme of plaintiff's argument is that since defendants knowingly provided the narrow space in front of their building as additional parking space for customers who would frequently leave the tavern under the effect of intoxicants and back their cars onto the adjacent Route 161 under the conditions described, they were under a duty to the plaintiff to take measures to protect the plaintiff from the injury he received. Plaintiff also states in his brief, we think with further candor as to the sweep of the rule he proposes, that "the defendants' duty to regulate their conduct as a landowner in contemplation of the presence of travelers upon the adjacent public way applies irrespective of whether they are owners of a dramshop or any other business."

Plaintiff's amended complaint was in two counts. Count I alleged a cause of action based upon a violation of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135). Count II was framed in terms of common law negligence and did not rely upon the Dramshop Act in any way. The trial court dismissed count II in a judgment in which the court held that no cause of action was alleged because no duty was owed by the defendants to the plaintiff under the facts alleged. The requisite findings of Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) were made as a presage to the appeal. Count II of plaintiff's amended complaint charged defendants with three specific acts of negligence: (1) failing to "properly post" the parking lot to prevent dangerous "head-in" parking by customers who would by necessity back their automobiles across a State highway near a blind curve thereon; (2) failing to "chain or otherwise guard or fence" their parking lot, known to be used for "head-in" parking by customers who had to back their motor vehicles across a State highway near a blind curve after consuming alcoholic beverages, so as to prevent the use of the parking lot in a manner hazardous and dangerous to other drivers traveling in a westerly direction on the highway; and (3) causing one of its customers "to back his automobile across a highway near a blind curve for westerly traffic requiring him to locate his said automobile in the wrong lane and in the path of an oncoming automobile * * *."

Plaintiff seeks to impose a duty upon defendants-landowners although plaintiff was never on defendants' land and the accident complained of neither occurred upon defendants' land nor was alleged to have occurred because of any structure, artificial condition or obstruction of any kind or nature located upon defendants' land. It is unnecessary for us to determine whether the plaintiff would fit into a category as an invitee, licensee or trespasser because the collision did not occur on defendants' land.

• 1 In order to state adequately a cause of action for negligence, the allegations must establish the existence of a duty of care owed by the defendants to the plaintiff, a breach of that duty and an injury proximately resulting from that breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158; Pelham v. Griesheimer (1982), 92 Ill.2d 13, 440 N.E.2d 96; Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617.) While the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters (Curtis v. County of Cook; First National Bank v. City of Aurora (1978), 71 Ill.2d 1, 373 N.E.2d 1326), the existence of a duty must be determined by the courts> as a matter of law. Curtis v. County of Cook; Pelham v. Griesheimer; Cunis v. Brennan; Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307.

As we have noted, our consideration of the sufficiency of count II of plaintiff's amended complaint centers upon the question of duty. In Barnes v. Washington (1973), 56 Ill.2d 22, 26, 305 N.E.2d 535, 538, our supreme court stated:

"Necessary to any recovery based on the theory of common law negligence is the existence of a duty or an obligation requiring one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. Whether under the facts of a case such a relationship exists between two parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 37.)"

Professor Leon Green gave a lucid analysis of the duty aspect of a negligence case in an extended article that appeared in two segments in the Columbia Law Journal, The Duty Problem in Negligence Cases, 28 Colum. L. Rev. 1014 (1928), and 29 Colum. L. Rev. 255 (1929). Appropriate here is the following excerpt from Professor Green's article:

"In the class of cases known as `negligence cases' a working analysis has been rather widely adopted which will serve our purposes here. Such a case has four elements: (1) the right-duty element; (2) the negligence element; (3) the damage element; and (4) the causal relation element. Ordinarily two judgment-passing agencies are employed in these cases — the judge and jury. * * * This dual tribunal requires an allocation of functions. And it is generally agreed that the problems arising under the right-duty element are for the judge, while the problems of negligence, damages and causal relation, if there is an issue raised as to them by the evidence, are for the jury under instructions.

Now it is clear that when the theology of a negligence case is swept aside all that is involved is that there must be a concurrence of judgment in plaintiff's favor both by judge and jury before a defendant is required to pay the loss. * * * The judge passes his judgment on so-called questions of law — rights and duties; the jury on so-called questions of fact — negligence, damage, and causal relation. The judge is the dominant factor in this arrangement. He not only passes his judgment first, but determines in what cases the jury can properly pass a judgment at all, as well as indicates some of the considerations which should be taken into account by the jury in passing judgment. * * *

In passing his own judgment, the judge may frame his problems in a variety of forms: (1) Was the defendant under a duty, and if so, was he under a duty to plaintiff? or (2) Was plaintiff's interest protected against defendant's conduct? or (3) Plaintiff having invoked some general rule, was such rule designed to give protection to plaintiff's interest against such a risk as the defendant's conduct in the particular case? In another type of case it may take the form of whether defendant's conduct makes a prima facie case for plaintiff, or whether defendant's conduct was privileged or justifiable. But however framed, the issue is the same; the court must say whether there is any `law' which would require defendant to bear the risk or whether plaintiff must bear his own loss." 28 Colum. L. Rev. 1014, 1022-23.

Courts> in Illinois have been, and are, called upon frequently in negligence cases to determine whether a duty exists under the facts presented. Although reliable guidelines for this determination are furnished in many cases, their utilization by Illinois courts> has been something less than uniform. As the supreme court said in Mieher v. Brown (1973), 54 Ill.2d 539, 545, 301 N.E.2d 307, 310:

"It is apparent that the concept of duty in negligence cases is very involved, complex and indeed nebulous. The term is so ill-defined and its boundaries so indistinct that one commentator has observed: `There is a duty if the court says there is a duty.' And he concluded that the court's pronouncement often reflects the policy and social requirements of the time and community. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15; see also Prosser, Law of Torts (4th ed. 1971) 325-26."

Probably the most quoted statement concerning the determination of duty found in Illinois cases is from Lance v. Senior (1967), 36 Ill.2d 516, 224 N.E.2d 231. The plaintiff in that case was a nine-year-old boy who suffered from hemophilia. His condition was known to defendants, and the complaint alleged that while he was an overnight guest in defendants' home, the defendants negligently permitted him to play with a needle which got into plaintiff's throat and was thereafter sucked into the inner part of his lung. The supreme court held that the complaint was properly dismissed for its failure to show a duty owed by the defendants to the plaintiff. The court spoke to the basis of duty in negligence cases as follows:

"In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires — the assertion of a duty and its breach. (See Prosser on Torts, sec. 36; Green, Duties, Risks, Causation Doctrines, 41 Tex. L. Rev. 42, reprinted in Green, The Litigation Process in Tort Law 215; Harper & James, The Law of Torts, sec. 18.2; Gregory & Kalven, Cases and Materials on Torts 252.) * * *

After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account." Lance v. Senior (1967), 36 Ill.2d 516, 518, 224 N.E.2d 231, 233.

The last sentence in the foregoing quotation is to be equated with a declaration that duty in a negligence case is a matter of policy as well as foreseeability of harm so that in many cases the determination of duty is refined to: The existence of a legal duty is not dependent on the factor of foreseeability alone, but includes considerations of public policy and social requirements. Cf. Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250; Cunis v. Brennan; Mieher v. Brown; Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App.3d 247, 433 N.E.2d 1350; Walsh v. A.D. Conner, Inc. (1981), 99 Ill. App.3d 427, 425 N.E.2d 1153.

The two phrases "foreseeability of harm" and "considerations of policy" are present in some form in nearly every Illinois case that considers the duty question. Most cases use those phrases in tandem in pronouncing upon the duty issue, as in Lance v. Senior and the numerous cases that have used the quotation from it set forth above. However, it appears from close examination and analysis of the determination of duty in Illinois cases that "foreseeability of harm" in actuality plays little part in a resolution of the duty issue. This conclusion emerges upon consideration of the traditional role of the term "foreseeable," or "foreseeability of harm," in negligence law ...


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