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O'donnell v. Electro-motive Division

OPINION FILED OCTOBER 9, 1986.

JAMES O'DONNELL, SPECIAL ADM'R OF THE ESTATE OF KEVIN T. O'DONNELL, DECEASED, PLAINTIFF-APPELLANT,

v.

ELECTRO-MOTIVE DIVISION OF THE GENERAL MOTORS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, James O'Donnell, special administrator of the estate of Kevin T. O'Donnell, brings this appeal seeking reversal of a trial court order dismissing with prejudice plaintiff's two-count second amended complaint at law. Plaintiff's second amended complaint alleges that the Electro-Motive Division of the General Motors Corporation (GM) negligently and recklessly failed to light or otherwise maintain its parking lot, resulting in the death of plaintiff's decedent, Kevin T. O'Donnell. Specifically, count I of the second amended complaint sounds in ordinary negligence and count II claims GM's wilful and wanton misconduct.

The trial court dismissed both counts after ruling, as a matter of law, that: (1) GM did not owe plaintiff's decedent, a licensee, a duty of ordinary care on the date he sustained the injuries allegedly causing his death; and (2) the factual allegations of wilful and wanton misconduct in O'Donnell's second amended complaint failed to state a cause of action.

On appeal, O'Donnell claims that the trial court erred in that (1) the Premises Liability Act (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 301 et seq.) should be enforced retroactively so as to permit his recovery on proof of GM's simple negligence; and (2) he has pleaded factual allegations sufficient to state a cause of action for wilful and wanton misconduct.

We affirm in toto the decision of the trial court dismissing plaintiff's second amended complaint at law.

BACKGROUND

This matter comes before us following the trial court's order granting GM's motion to strike and dismiss brought pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). Accordingly, we are required to accept as true all well-pleaded factual allegations in O'Donnell's second amended complaint, and must draw all reasonable inferences in his favor. Cook v. Askew (1975), 34 Ill. App.3d 1055, 341 N.E.2d 13.

The factual allegations of O'Donnell's second amended complaint state as follows. On July 4, 1983, Kevin O'Donnell died as a result of personal injuries he sustained on July 3, 1983, in an incident in a parking lot owned by GM. The parking lot is located adjacent to GM's Electro-Motive Division plant in McCook. In the lot there are a series of concrete posts running from north to south and east to west, with some of the posts connected by steel cables which run through them. The posts and cables are used to designate parking areas, control the flow of traffic, and divide the large lot into two smaller lots (north lot and south lot). O'Donnell alleges that the cables running through and between the concrete posts were painted yellow, but that the paint had faded so that on the night of July 3, 1983, only the concrete posts were visible.

The parking lot in question was designated by GM for use by its employees during working hours. However, on the night of July 3, 1983, the plant was not in operation and GM gave permission to the Certified Grocers Association (Certified) to operate a park-and-shuttle operation out of the lot for a nearby special event. Certified retained Guards Mark Service to secure the lot and oversee the shuttle operation. Guards Mark Service, in turn, assigned its employee, Richard Plecki, to this duty.

Plaintiff's decedent, Kevin O'Donnell, was also an employee of Guards Mark Service. On the night of July 3, 1983, Kevin drove his motorcycle to the GM lot where he visited Plecki. While on the premises, Kevin drove his motorcycle across the lot in a southerly direction, coming into contact with one of the traffic-lane cables strung through the concrete posts located in the parking lot. The night was dark, and Kevin allegedly could not see the traffic-lane cable until he was in such close proximity to it that it could not be avoided. Consequently, Kevin sustained severe personal injuries, dying the next day, on July 4, 1983.

A wrongful-death action was subsequently filed against GM by James O'Donnell, special administrator of Kevin's estate. O'Donnell's second amended complaint at law, filed on November 16, 1984, alleged two counts against GM. Count I alleged liability for ordinary negligence under the Premises Liability Act (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 301 et seq.), and count II claimed wilful and wanton misconduct. On June 7, 1985, the trial court entered an order dismissing O'Donnell's second amended complaint on the grounds that: (1) GM did not owe Kevin, a licensee, a duty of ordinary care on July 3, 1983, because the Premises Liability Act is not retroactive in its application; and (2) the factual allegations in O'Donnell's second amended complaint failed to state a cause of action for wilful and wanton misconduct. O'Donnell appeals from the trial court's order dismissing his second amended complaint.

OPINION

I

Count I of O'Donnell's second amended complaint alleges that on July 3, 1983, GM had a duty to warn plaintiff's decedent of the existence of the cable running through and between the posts in the parking lots in question. According to O'Donnell, the yellow paint on these cables had peeled and faded such that the cables were invisible in the nighttime, creating a dangerous condition on the premises. Count I alleges that GM's failure to make the premises safe or warn plaintiff's decedent of this dangerous latent condition was a breach of this duty, proximately causing Kevin O'Donnell's death. GM, on the contrary, contends that it owed no such duty to plaintiff's decedent because he was a licensee and therefore O'Donnell has failed to state a cause of action for negligence.

• 1, 2 Under Illinois common law, the duty a property owner owes to a person who enters his premises depends upon whether the entrant is an invitee, licensee, or a trespasser. (Pashinian v. Haritonoff (1980), 81 Ill.2d 377, 410 N.E.2d 21.) An invitee is defined in the common law as one who enters upon the premises with the owner's implied or express consent, 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. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App.3d 708, 710, 474 N.E.2d 920, 922.) A licensee, in turn, is defined as one who enters upon the premises of another with the owner's express or implied consent "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." (Emphasis ...


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