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12/30/88 Wanda L. Dodd, v. Cavett Rexall Drugs

December 30, 1988

WANDA L. DODD, PLAINTIFF-APPELLANT

v.

CAVETT REXALL DRUGS, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

533 N.E.2d 486, 178 Ill. App. 3d 424, 127 Ill. Dec. 614 1988.IL.1930

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiff, Wanda L. Dodd, filed a complaint in the circuit court of Cook County seeking damages for personal injuries sustained when she fell on a sidewalk adjoining the Cavett Rexall Drug store, which was leased from the estate of Grover C. Elmore and was located in the Grover C. Elmore Plaza. The suit named Cavett Rexall Drugs, Inc., and Irma T. Elmore and Alvah T. Martin, individually and/or as trustees under the last will and testament of Grover C. Elmore, as defendants. Ultimately the circuit court entered summary judgment in favor of all defendants and, thereafter, denied the plaintiff's motion for rehearing. Plaintiff now appeals to this court. We affirm.

On December 5, 1983, plaintiff drove to Cavett Rexall Drugs (Cavett) sometime between noon and three in the afternoon. Cavett was located at the south end of the Grover C. Elmore Plaza, a shopping center containing approximately 10 to 12 stores. The shopping center was owned by the estate of the late Grover C. Elmore. Cavett leased its store from defendants Irma T. Elmore and Alvah T. Martin, trustees for Grover Elmore's estate.

Elmore Plaza faced the west side of Oak Park Avenue in Tinley Park, Illinois. The south end of Elmore Plaza, where Cavett was located, bordered 171st Street. There were diagonal parking spaces along Oak Park Avenue and also along 171st Street. Additionally, there were sidewalks between the parking spaces and the buildings in the plaza. Plaintiff parked her car in one of the spaces along 171st Street, which was approximately six spaces down from the entrance to Cavett. She then walked east on the sidewalk and entered Cavett. When she left Cavett, she walked west on the same sidewalk. As she was walking toward her car, she stepped in a hole in the sidewalk and fell.

Subsequently, plaintiff, as noted above, filed a complaint at law in the circuit court of Cook County, which contained two counts. Count I alleged that defendant Cavett was in possession of, operated and maintained a building in Elmore Plaza where it operated a drugstore and that it

"expressly and impliedly invited members of the general public to enter the . . . drugstore and to use the adjoining sidewalk and parking lot for the purpose of purchasing retail goods, and it then and there became the duty of the Defendant . . . to keep and maintain its building and the adjoining sidewalk and parking lot in a reasonably safe condition so that persons lawfully on the premises and the adjoining sidewalk and parking lot . . . would not be injured."

Plaintiff charged that Cavett negligently failed to perform these duties, and as a direct and proximate result of this negligence, plaintiff fell and suffered personal injuries.

Count II alleged that defendants Irma T. Elmore and Alvah T. Martin, individually and/or as trustees under the last will and testament of Grover C. Elmore,

"by their ownership of the property and their acquiescence in the use of said property then and there expressly and impliedly invited members of the general public to enter the drugstore and the adjoining sidewalk and parking lot for the purpose of purchasing retail goods, it then and there became the duty of the Defendants . . . to supervise and control the maintenance of the premises and the adjoining parking lot and sidewalk so that those using the said sidewalk and parking lot for the purpose of purchasing retail goods would not be injured."

Plaintiff also alleged that Elmore and Martin negligently failed to perform these duties, and as a direct and proximate result of this negligence, plaintiff fell and suffered personal injuries. On both counts, plaintiff sought as damages an amount in excess of the minimum required for the law division, plus costs.

Defendant Cavett filed an answer to count I of plaintiff's complaint and admitted that it leased a store and that it possessed, maintained and controlled the area within the store, but denied that it possessed, maintained or controlled the building or sidewalk where plaintiff fell. Defendants Elmore and Martin also filed an answer and in their answer they admitted that they owned the Grover C. Elmore shopping plaza, including the building leased by Cavett, as trustee under the last will and testament of Grover C. Elmore, but denied that they owned the property individually. Further, they also admitted responsibility for all duties imposed by law, but denied breaching those duties., Plaintiff then served interrogatories on defendant Cavett and on defendants Elmore and Martin. All of the defendants were asked:

"Was this defendant [referring to the party served] in control of the premises in question at the time and at the situs of the occurrence complained of? If 'yes', was such control exclusive; if 'no', who do ...


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