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06/21/89 George Ward, v. K Mart Corporation

June 21, 1989

GEORGE WARD, PLAINTIFF-APPELLANT

v.

K MART CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

540 N.E.2d 1036, 185 Ill. App. 3d 153, 133 Ill. Dec. 170 1989.IL.951

Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, J., concurs. JUSTICE LUND, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

In this case we must determine whether a department store has a duty to warn its customers of the existence of concrete posts located just outside a customer entrance to the store or to remove such posts, in order to prevent customers from colliding with them when they are carrying large, bulky items of merchandise from the store. We hold that no such duty exists and affirm the judgment n.o.v. which the circuit court entered in defendant's favor.

In his complaint, plaintiff George Ward alleged that on October 11, 1985, he was present as a customer on the premises of a store in Champaign operated by defendant K mart Corporation. Plaintiff alleged that at the relevant time, defendant breached its duty of ordinary care for his safety by committing one or more of the following negligent acts or omissions:

"(a) The customer exit at the northeast corner of the K Mart facility does not open automatically for exiting customers.

(b) The customer exit at the northeast corner of the K Mart facility has a pneumatic closing device which causes the door to close automatically and thereby impede the exit of customers with packages.

(c) The customer exit at the northeast corner of the K Mart facility does not have a window.

(d) There is no warning in the vicinity of the customer exit for the customer to step down to the parking surface upon exiting the door.

(e) There are posts located in close proximity to the customer exit in the northeast corner of the K Mart facility that:

1. impede the exit of customers; and,

2. are below eye level and cannot be seen if a customer's downward vision is obstructed by packages.

(f) There are no warnings in the vicinity of the customer exit in the northeast corner of the K Mart facility which indicate the presence of posts outside the exit."

Plaintiff alleged that as a direct and proximate result of one or more of the above acts and omissions, he forcibly collided with a concrete-filled metal pipe as he exited the above-mentioned door while carrying a full-length mirror. Plaintiff alleged that as a result of this collision, he sustained a facial laceration and injuries to his right eye. Plaintiff subsequently amended his complaint to allege K mart negligently placed steel posts in front of a customer exit door and that the door was constructed with a step of such a height that it created a tripping hazard. Plaintiff further alleged that as a result of his collision with the post, he suffered a head trauma which resulted in severe and recurrent headaches.

In its answer, defendant admitted that it placed steel posts in the vicinity of a customer exit door. It denied, however, that it was negligent in doing so and denied it breached any duty which it owed plaintiff. As an affirmative defense, K mart alleged negligence on the part of plaintiff which contributed in the whole or in part to the injuries of which he complained.

At trial, plaintiff presented testimony of medical experts to the effect that to a reasonable degree of medical certainty, the vision problems and headaches from which he suffers were probably caused by the October 11, 1985, accident at the K mart store. Plaintiff also presented the testimony of his wife, Gwendolyn G. Ward, concerning his medical problems since the accident at the K mart store and the embarrassment caused plaintiff by a scar on his left cheek which is attributable to the laceration which plaintiff sustained in the accident.

Testifying on his own behalf, plaintiff stated that he is 59 years old and is a self-employed parking lot designer and line striper. He had done work on the parking area of the K mart store at which he collided with the post, but had not done any work in the area of the door at which the mishap occurred. The plaintiff testified that on October 11, 1985, he went to a K mart store in Champaign in order to purchase a full-length bathroom mirror. He parked on the rear (east) side of the store and entered through a small pedestrian door located next to a large overhead door similar to a garage door. Plaintiff did not recall using that door on previous occasions, although there was a possibility that he may have done so.

The mirror which plaintiff purchased on that day was 5 feet long and perhaps 1 1/2 feet wide. The mirror was in a cardboard holder, but the face of the mirror was not covered.

Plaintiff completed his purchase of the mirror about one-half hour after he entered the store. He was not in any particular hurry on that day. After plaintiff paid for the mirror, a store clerk released a security lock, which permitted customers to exit the store through the door by which plaintiff had entered. (The door is apparently designed so that customers may freely enter through it during business hours, but as a shoplifting prevention measure, a security lock must be released in order for customers to exit through the door.) Plaintiff was carrying the mirror with both hands in a vertical position when he left the store, "because I couldn't get through the door with it sideways." According to plaintiff, he put his left shoulder to the door, turned and walked out of the store. After taking a half to a full step outside the door, he "just saw stars and [felt] a -- a bad pain, and then some stars. That was the last that I recall."

Plaintiff testified that the object with which he collided while exiting the store was a large post located close to the doorknob side of the pedestrian door. There is a similar post on the opposite side of the door. Plaintiff was not warned, by means of signs or otherwise, of the existence of the posts before he exited.

The door to the K mart store which plaintiff used on the day he was injured is 36 inches wide, and the posts on the sides of the door are also 36 inches apart. Both posts are located 19 inches from the building. When the door is opened to a position where its edge is nearest the post with which plaintiff collided, the door is four inches from the post. The posts are five feet four inches high. On the date of plaintiff's accident, both posts were painted dark brown. When leaving the store through the door in question, one must step down six inches.

The following exchange occurred concerning plaintiff's perception of the posts when ...


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