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05/03/88 Eleanor Swett, Indiv. and v. the Village of Algonquin

May 3, 1988

ELEANOR SWETT, INDI

v.

AND AS INDEPENDENT EX'R OF THE ESTATE OF BOBBY SWETT, DECEASED, AND AS INDEPENDENT ADM'R OF

THE ESTATE OF HELEN DULIN, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF ALGONQUIN ET AL., DEFENDANTS-APPELLEES (THE COUNTY OF MCHENRY ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 594, 169 Ill. App. 3d 78, 119 Ill. Dec. 838 1988.IL.661

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiffs, Eleanor Swett, individually and as independent executor and independent administrator, respectively, of the estates of Bobby Swett, her husband, and Helen Dulin, her mother, and Linda Becker, daughter of Eleanor and Bobby Swett and granddaughter of Helen Dulin, appeal from the judgment of the circuit court of McHenry County dismissing with prejudice all counts of their second amended complaint against the defendants, the Iron Skillet, Inc., Raymond Schwartz, individually and as agent/employee of the Iron Skillet, Inc., and the Village of Algonquin. On October 26, 1984, plaintiff Eleanor Swett, her husband and her mother were walking across Illinois Route 31 in Algonquin in an easterly direction from the Iron Skillet restaurant towards its parking lot across the street when they were struck by an automobile being driven in a southbound direction on Route 31. Swett was injured, her husband and her mother killed. The plaintiffs' complaint against these defendants alleged a cause of action in negligence for personal injury and emotional distress as to Swett and alleged survival and wrongful death actions as to the decedents. Upon dismissal of plaintiffs' claims, the court found there was no just reason to delay enforcement or appeal (107 Ill. 2d R. 304(a)), and we have jurisdiction to consider the merits of this appeal.

In their respective motions to dismiss pursuant to section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), these defendants alleged they owed no duty to plaintiffs, and the court agreed. Plaintiffs contend here their complaint sufficiently stated a cause of action in negligence against the Iron Skillet and Raymond Schwartz (hereafter referred to only as the Iron Skillet) in that it owed them as business invitees a duty of care to properly maintain a safe ingress and egress to and from the restaurant and, further, that the complaint sufficiently set forth a cause of action against the restaurant under section 9-117 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 9-117), which prohibits the injuring or obstructing of highways. As to the Village of Algonquin, plaintiffs contend their complaint sufficiently stated a cause of action in negligence under sections 3-102(a), 3-103(a) and 3-104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, pars. 3-102(a), 3-103(a), 3-104(b)), and section 11-304 of the Illinois Rules of the Road (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-304), and section 9-117 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 9-117).

At the outset we note some general principles of law which will guide our determination. 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. (Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 241.) Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116; Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 639.) It is not sufficient that the plaintiff's complaint merely alleges that a duty exists; the plaintiff must state facts from which the law will raise a duty. (Erne v. Peace (1987), 164 Ill. App. 3d 420, 423.) Whether a legal duty exists is a question of law to be determined by the court. (Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 193.) The issue of whether there is a duty is broad in its implication, whereas the issue of whether there was negligence is confined to the particular case. (Zimmerman v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1048, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 544-47.) Whether a legal duty exists involves consideration of more than just foreseeability of possible harm; it involves consideration of legal and social policies which include the foreseeability and likelihood of the injury, the magnitude of the burden of guarding against the injury and the consequence of placing that burden on the defendant. (Erne v. Peace (1987), 164 Ill. App. 3d 420, 423.) If no duty is found to exist, no recovery is possible as a matter of law. Beal, 164 Ill. App. 3d at 193.

In determining whether a motion to dismiss was properly allowed, all well-pleaded facts will be regarded as true and all reasonable inferences should be construed in plaintiff's favor. (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 217.) Facts which are not well pleaded will not be considered by the court (Kavanaugh, 164 Ill. App. 3d at 219), and Conclusions of law or fact unsupported by specific facts in the record are not deemed to be admitted as true. (Curtis v. Birch (1983), 114 Ill. App. 3d 127.) A complaint should not be dismissed unless it clearly appears from the pleadings that no set of facts can be proved which will entitle plaintiff to recover. Anderson v. Marquette National Bank (1987), 164 Ill. App. 3d 626, 627-28; Kavanaugh, 164 Ill. App. 3d at 217.

As to the Iron Skillet, counts II, IV, VI and IX of plaintiffs' second amended complaint alleged that on and prior to October 26, 1984, it owned, operated, possessed, maintained, controlled and managed the premises commonly known as The Iron Skillet Restaurant on Illinois Route 31 near its intersection with Beach Drive in Algonquin; that it owned, operated, supervised, maintained and controlled a parcel of property across Illinois Route 31 from the restaurant which it provided as well as promoted to its business invitees as a parking lot; that it used, enjoyed, employed, maintained and inspected an easement across that highway as a necessary means of egress and/or ingress for its business invitees to and/or from its restaurant building and its parking lot; that it undertook to provide a lighting system for the parking lot and easement which lighting, however, it found to be inadequate and hazardous prior to the date of the accident; that it owed the plaintiffs a duty to exercise ordinary care in the ownership, control, inspection and maintenance of its premises including its use, enjoyment, employment, maintenance and inspection of the aforementioned easement; that on October 26, 1984, the plaintiffs were business invitees of the Iron Skillet and were struck by an automobile while they were walking eastbound along the said egress toward the parking lot across from the Iron Skillet; that it breached its duty of care owed to the plaintiffs in that it:

"(a) Owned, maintained, possessed, controlled, inspected and managed its said premises in such a manner that as a proximate result thereof, the [Plaintiffs] [were] severely injured;

(b) Carelessly and negligently failed to provide a safe means of ingress and egress for its business invitees, including the [Plaintiffs], although Defendants knew that such failure was likely to cause serious injuries to the [Plaintiffs];

(c) Carelessly and negligently failed to improve the lighting previously erected at the aforesaid location when Defendants knew that such failure was likely to cause serious dangers to persons foreseeably using the said easement during evening hours;

(d) Carelessly and negligently failed to improve the lighting previously erected at the aforesaid location despite the Defendants' knowledge of the substantial increase of pedestrian traffic along the said easement and the prior incidents of danger or injury to pedestrians thereon;

(e) Carelessly and negligently failed to construct, maintain and employ an adequate lighting system at the aforesaid location when Defendants knew that such a condition was likely to cause serious injuries to its business invitees who were knowingly using said easement as a necessary means of egress and/or ingress to or from its restaurant and its said parking lot:

(f) Carelessly and negligently failed to install or request a marked and posted crosswalk for its business invitees using said easement notwithstanding Defendants' knowledge of the substantial increase of pedestrian traffic and the inadequate lighting system at the aforesaid location;

(g) Carelessly and negligently failed to warn either motorists or its business invitees of the said unsafe condition at the aforesaid location when Defendants knew from prior incidents of danger and/or injury to pedestrians, that such an omission was likely to cause serious injury to persons, such as the [Plaintiffs];

(h) Carelessly and negligently promoted and encouraged parking along Illinois Route 31 at said location when Defendants knew or should have known that such parking conditions would increase the known visibility problems for motorists as to pedestrian traffic and would obstruct the safe use of the public highway in violation of Ill. Rev. Stat., Chapter 121, Section 9-119."

It was alleged that as a direct and proximate result of one or more of the Iron Skillet's careless negligent acts or omissions, plaintiff Eleanor Swett was severely injured, sustained substantial damages and sustained great emotional disturbance, shock and injury to her nervous system, and that plaintiffs Bobby Swett and Helen Dulin suffered serious injuries which resulted in their deaths.

As to the Village of Algonquin, counts I, IV, V and VIII of plaintiffs' second amended complaint alleged that on and prior to October 26, 1984, Illinois Route 31 was a public highway running in a general northerly and southerly direction at or near its intersection with Beach Drive in the Village of Algonquin; that the municipal corporation of Algonquin (among others alleged in these counts, but not involved in this appeal) possessed, controlled, maintained, inspected, and regulated a network of streets and highways within its jurisdictional limits, including Illinois Route 31 at or near its intersection with Beach Drive; that Algonquin developed and adopted a traffic control plan to regulate, inspect and maintain the aforementioned portion of Illinois Route 31 and undertook to exercise said program of action through various public improvements, including but not limited to the erection of streetlights, traffic signs and warning devices and the establishment of speed limits, parking facilities and a certain pedestrian walkway; that Algonquin owed the plaintiffs a duty to exercise ordinary care in its program of action and to not create an unsafe condition for motorists and pedestrians; that for some time prior to October 16, 1984, Algonquin knew or should have known through routine inspections that the aforementioned portion of Illinois Route 31 was regularly and frequently used as a crosswalk during evening hours by pedestrian traffic proceeding from or to the parking facility across from the Iron Skillet restaurant; that the parking facility was designed, engineered and constructed under the supervision of Algonquin and was maintained and operated with the defendant's knowledge and consent; that Algonquin owed the plaintiffs a duty to maintain, control and regulate Illinois Route 31, including the crosswalk area, in a reasonable, safe manner for ordinary use by pedestrians; that the plaintiffs, proceeding eastbound across Illinois Route 31 within the crosswalk were struck by a motor vehicle; and that Algonquin breached its duty of care to them in that it:

"(a) Carelessly and negligently failed to adequately possess, control, maintain, inspect and regulate said highway in violation of Ill. Rev. Stat., 1981, Chapter 85, Section 3-102(a) and as a proximate ...


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