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12/31/87 Frances Erne, v. Margaret Peace Et Al.

December 31, 1987

FRANCES ERNE, PLAINTIFF-APPELLANT

v.

MARGARET PEACE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 1203, 164 Ill. App. 3d 420, 115 Ill. Dec. 517

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding. 1987.IL.1993

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Frances Erne, appeals from the judgment of the circuit court which dismissed her amended complaint sounding in negligence against the defendants, Margaret and Charles Peace, for failure to state a cause of action. On appeal, the plaintiff contends that the trial court improperly dismissed the complaint as it adequately set forth a cause of action for negligence under section 2 of the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 302).

In her initial one-count complaint, plaintiff sought recovery for injuries sustained when she fell while on the defendants' premises. It alleged that plaintiff was lawfully on the defendants' premises, that she was visually-impaired, and that the defendants knew of her handicap. The complaint further alleged that when plaintiff exited the premises, with the defendants' knowledge, the defendants failed to warn her of the fact that there was a step/stoop where she was about to descend and that the negligent acts which proximately caused her injuries included a failure to: (1) warn her of the step/stoop; (2) escort or assist her on her exit; and (3) provide adequate handrails.

The defendants moved to dismiss that complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) on the ground that, as a matter of law, the defendants owed no statutory or common law duty to the plaintiff. The trial court dismissed the complaint and plaintiff subsequently filed a four-count amended complaint.

Count I of the amended complaint realleged the facts contained in the original complaint. Count II described plaintiff's visual problem with greater specificity and also alleged that a condition of the premises, namely, the change in elevation which required anyone exiting the front door to step down to a concrete step/stoop of approximately 12 inches width by 18 inches in length and then to further step off of the step/stoop onto a concrete porch, created an unreasonable risk of harm. Count II further alleged that the defendants knew or should have known that the plaintiff would not discover this danger and that, despite their knowledge of the plaintiff's visual problem, the defendants failed to warn plaintiff. In count III, the amended complaint realleged the negligent acts stated in count I, a failure to warn the plaintiff of the change in elevation and that the defendants should have anticipated the harm to the plaintiff despite the obviousness of the condition of the premises. Count IV alleged the negligent acts stated in count II with additional allegations which described the known defective condition of the concrete steps/stoop in that it failed to "extend the entire width or swing of the edge of the door." Defendants' motion to dismiss plaintiff's amended complaint was also granted by the trial court, and she appeals.

Plaintiff contends that under section 2 of the Illinois Premises Liability Act, the Restatement (Second) of Torts, and applicable case law, her amended complaint states a cause of action in negligence. Defendants respond that the complaint fails to allege facts necessary to establish any common law or statutory duty which an owner has to protect an invitee from injury, absent allegations of an inherently dangerous, defective, or unique condition of the premises. Defendants also assert that the plaintiff's visual impairment does not change an otherwise ordinary condition into an inherently dangerous condition such that the law should impose a duty.

In order to state a cause of action for negligence, a complaint must allege facts establishing the existence of a duty, a breach of that duty, and an injury which proximately resulted from the breach. (Williams v. McCoy (1987), 152 Ill. App. 3d 912, 913, 505 N.E.2d 46; Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 187, 478 N.E.2d 603.) The plaintiff must state facts from which the law will raise a duty, and it is not sufficient that the complaint merely allege that a duty exists. (133 Ill. App. 3d at 187; Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 65, 68, 446 N.E.2d 1209.) Whether a legal duty exists is a question of law which is determined by the court. Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 96, 497 N.E.2d 433.

The presence of a legal duty involves considerations of legal and social policies (Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 192, 478 N.E.2d 603) which include the foreseeability and likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden upon the defendant. (Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1055, 462 N.E.2d 502; Morgan v. Dalton Management Co. (1983), 117 Ill. App. 3d 815, 818, 454 N.E.2d 57.) Only when it is apparent that no set of facts can be proved under the pleadings which would entitle the plaintiff to recover can a complaint be dismissed. (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145, 404 N.E.2d 1104.) In order to withstand a motion to dismiss, the complaint need not set forth evidence which may be gleaned from discovery subsequent to the filing of the pleadings (Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 536, 449 N.E.2d 151), and no pleading is bad in substance which includes such information as reasonably apprises the opposing party of the nature of the claim or defense which she is called upon to meet (Ill. Rev. Stat. 1985, ch. 110, par. 2-612(b)).

We note initially that the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 302) abolished the distinction between invitees and licensees with regard to the duty owed by a property owner to entrants. This section provides that "[the] duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." Ill. Rev. Stat. 1985, ch. 80, par. 302.

Plaintiff contends that the facts of the case, considered in light of the duty owed an invitee as set forth in the Restatement (Second) of Torts ยงยง 343, 343 A (1965), establish that her amended complaint raises a duty to her owed by the defendants. In Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35, the court discussed the applicability of sections 343 and 343 A of the Restatement (Second) of Torts and noted that in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, our supreme court ...


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