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Welsh v. White Castle Systems

OPINION FILED MAY 21, 1985.

JOHN E. WELSH ET AL., PLAINTIFFS-APPELLANTS,

v.

WHITE CASTLE SYSTEMS, INC., DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 26, 1985.

This is a common law negligence action brought by the plaintiffs, John E. Welsh and Cheryl Welsh, against defendant, White Castle Systems, Inc., for personal injuries sustained while on defendant's premises. The trial court granted defendant's motion for summary judgment. Plaintiffs filed this timely appeal.

On Friday evening, January 30, 1981, John E. Welsh and Cheryl Welsh, his wife, went bowling with their friends and neighbors, Paul Angone and his wife, Josephine. John was 28 years of age and his wife was 26. They resided in the Chicago area with their four children. After bowling, they stopped at a lounge and then proceeded to a White Castle hamburger restaurant at 79th and Pulaski in Chicago. They arrived at about 1 a.m. on Saturday, January 31, 1981. After parking about three feet from the entrance, John and Paul went into White Castle to purchase hamburgers. Their wives remained in the car, from which they had a clear view into the restaurant.

The restaurant and its adjacent parking area were well lighted. Approximately five people were ahead of them in line. Shortly thereafter, John and Paul observed two white boys, each approximately 18 years old, 5 feet 9 inches tall and weighing about 140 pounds. One of them took a napkin holder which belonged to White Castle, hid it inside his coat and both of them headed for the door. A uniformed armed security guard was a few feet away so John reported the theft to him. The guard went out the door in pursuit of the boys.

About a minute later, John and Paul received and paid for their order and returned to their car, which was about three feet from the exit. As they were about to enter the car, they heard shouts for help. They noticed the security guard was fighting with the boys. In response to his shouts for help, John and Paul proceeded toward the fight, which was taking place in the parking lot about 20 feet away. The guard did not have his gun drawn and they did not notice any weapon in the hands of the boys.

John was the first at the scene. He grabbed one of the boys. The next thing he remembered was that his head was on his wife's lap. John did not hear from the security guard again. He was taken by ambulance to Christ Community Hospital in Oak Lawn. He underwent emergency treatment and surgery for a collapsed lung, pierced liver and slashed throat, which he suffered as a result of stab wounds inflicted by one of the boys.

Ten days later, John was released from the hospital. After six weeks, he returned to work as a manager of tract search at a title company in Chicago. John, who is 6 feet 4 inches tall and weighs 195 pounds, was in good health prior to this occurrence. He now has scars on his side, stomach and throat as a result of the stabbing and the surgery that followed.

The restaurant is owned and operated by the defendant, White Castle Systems, Inc. The status of the security guard is not clear. The depositions do not establish the security guard's status except that he was on the premises, armed and in uniform. Defendant did not submit any affidavit as to whether he was an employee, loaned employee or otherwise. John E. Welsh sued for the injuries sustained and his wife, Cheryl, sued for loss of the society and companionship of her husband.

Plaintiffs' complaint alleges that the defendant had a duty to keep its premises in reasonably safe condition for use by the plaintiffs and others. They allege that defendant violated this duty by not providing proper security, did not have sufficient security guards, and failed to exercise proper procedures to remove a dangerous person from the premises.

The defendant filed a general denial, then submitted interrogatories to plaintiffs and took the depositions of plaintiffs. The depositions of the plaintiffs provide the basis for defendant's motion for summary judgment. Defendant's motion for summary judgment states, in part:

"3. * * * As John Welsh was leaving the White Castle Restaurant, he heard a call for help from the security guard. At no time did he perceive himself in physical danger in the restaurant or in the parking lot. He was stabbed in the parking lot after he ran to help the security guard. * * *

4. * * * As a matter of law, defendant is under no duty to protect plaintiffs from danger of criminal activity which they subject themselves to."

It appears that defendant's theory is that the plaintiff was a volunteer and assumed the risk that led to his injury and, therefore, there is no liability on the part of defendant. Defendant's counsel asked plaintiff John E. Welsh:

"Q. You weren't in any danger until you ran up to those individuals, is that true?

A. True."

Plaintiff's wife was also questioned as follows:

"Q. Your husband wasn't in any physical danger until he ran up to the two ...


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