APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
515 N.E.2d 403, 162 Ill. App. 3d 238, 113 Ill. Dec. 594 1987.IL.1622
Appeal from the Circuit Court of La Salle County; the Hon. Thomas Flood, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On August 18, 1981, defendant Iola Mitchell's car crashed through the front glass wall of the Aldi store in Peru, Illinois. Plaintiffs Linda Simmons, Nancy Born, and Judith Kurtz, all patrons of the store, were injured. In addition, the mother of Linda Simmons and Nancy Born, who are sisters, was killed.
Plaintiffs filed a personal injury action alleging negligence against the driver of the automobile, Mitchell, the lessee-occupier of the premises, Aldi, and the lessor-owners of the premises, Anthony Raccuglia, Mary Kaszynski, and Benjamin Kaszynski. During the pendency of the suit, Benjamin Kaszynski passed away. His estate was substituted as a party defendant. Plaintiffs Linda Simmons, Nancy Born, and Judith Kurtz asked for compensation from each of the defendants for the injuries they had suffered. Linda Simmons and Nancy Born also asked for compensation for negligent infliction of emotional distress, having watched their mother die. Eugene Simmons, Linda's husband, asked for compensation for loss of consortium.
The Aldi store in Peru is on Shooting Park Road, an east-west street, and is on the north side of the road. The store had an all-glass front wall with aluminum framing. Directly in front of the glass wall was a sidewalk five feet wide. The curb was four to six inches high along the sidewalk. Parking stalls were immediately perpendicular to the sidewalk, meaning that cars were "invited" to park facing the glass front wall. After making the turn into Aldi's parking lot, Mitchell's car continued through the parking lot, a distance of roughly 65 1/2 feet, up over the sidewalk curb, and through the glass wall of the store. It completely entered the Aldi store, ending up some 20 to 25 feet inside the store. The investigating officer concluded that Mitchell applied no brakes before entering the store. One braking skid mark was found on the sidewalk and three more were found inside the store. The officer gave the car a brief inspection after the accident and found no mechanical defects.
Iola Mitchell, the driver of the car, testified that she was going west on Shooting Park Road prior to the accident. She made a right turn into the Aldi parking lot, and as she made the turn, she "blacked out." She remembered nothing else until regaining consciousness after the accident. She further stated she was driving 12 to 15 miles per hour when she went into her turn. An occurrence witness testified that the Mitchell car entered a parking space slowly, then accelerated, going up onto the sidewalk and into the store.
Dr. Won Kim, a specialist in internal medicine who had treated Mitchell in the past, gave his diagnosis that Mitchell suffered an episode of syncope. This episode of syncope was brought on suddenly by a third-degree atrioventricular block in her heart.
A photo exhibit indicates that the front of the store faces south toward Shooting Park Road, with a door at the southeast corner of the store. Eight parking places are in front of the store, perpendicular to the sidewalk. The parking lot is separated from Shooting Park Road by a grassy boulevard with a raised curb along the road. At least two parking places are provided next to and parallel to the boulevard. There are two entrance and exit drives, one on the east side in front of the store and one on the west side beyond the store's western edge. The grassy boulevard lies between the two entrances.
Aldi contends it violated no duty in relation to the construction of the store and further contends that the construction of the store was not the proximate cause of plaintiffs' injuries.
Common law negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307, 308; Alm v. Van Nostrand Reinhold Co. (1985), 134 Ill. App. 3d 716, 718, 480 N.E.2d 1263, 1265.) The existence of a duty, that is, a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, 540; Alm v. Van Nostrand Reinhold Co. (1985), 134 Ill. App. 3d 716, 718, 480 N.E.2d 1263, 1265.) "In determining whether the law imposes a duty, foreseeability of possible harm alone is not the test, for in retrospect almost every occurrence may appear to be foreseeable. The likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant must be taken into account. [Citation.]" Barnes v. Washington (1973), 56 Ill. 2d 22, 29, 305 N.E.2d 535, 539; see also Alm v. Van Nostrand Reinhold Co. (1985), 134 Ill. App. 3d 716, 718, 480 N.E.2d 1263, 1265.
A business invitee is one who enters upon the premises of another in response to an express or implied invitation for the purpose of transacting business in which the parties are mutually interested. (Sepesy v. Fuller (1978), 59 Ill. App. 3d 56, 58, 375 N.E.2d 180, 182; Augsburger v. Singer (1968), 103 Ill. App. 2d 12, 15, 242 N.E.2d 436, 438.) The owner or occupier of land owes to persons present on the premises as business invitees the duty of exercising ordinary and reasonable care to see that the premises are reasonably safe for use by the business invitees. (Sepesy v. Fuller (1978), 59 Ill. App. 3d 56, 58, 375 N.E.2d 180, 182.) However, a storekeeper is not the insurer of his customers' safety. Liability must be founded on fault. (Olinger v. The Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 476, 173 N.E.2d 443, 446.) The issue of whether the standard of care in a given case has been exercised is ordinarily one for the jury. (Sepesy v. Fuller ...