Appeal from the Circuit Court St. Clair County, No. 91-L-643. Honorable Robert J. Hillebrand, Judge Presiding.
The opinion of the court was delivered by: Chapman
JUSTICE CHAPMAN delivered the opinion of the court:
On April 22, 1990, Mary Jean Hodges, a 75-year-old woman, visited her son who was confined at the St. Clair County jail. Hodges had visited her son on at least three occasions, and on each of these occasions she sat on a stool equipped with a back. At some time between these visits and her April 22 visit the old stools were removed and replaced with new stools that were slightly lower and which were not equipped with backs. Eugene Compton, an employee of the St. Clair County jail who was responsible for the decision to replacethe stools, testified that he decided to replace the stools in the visitor's room because vandals were constantly ripping the upholstery on the seats and backs of the stools. Compton replaced the upholstered stools with a stainless steel version. On the date in question, Hodges attempted to seat herself, lost her balance, fell to the floor, and was injured. Her complaint alleged that the county negligently maintained and made changes to the seating arrangement without posting a notice or warning the public of those changes. The court in a bench trial found that the county negligently breached its duty to warn. The court further found Hodges 50% contributorily negligent and entered judgment for her in the amount of $20,536. The County appeals. We reverse.
Prior to trial the county filed a motion for summary judgment. The court had before it the discovery depositions of Hodges and Eugene Compton, defendant's employee who was responsible for the decision to replace the stools. The court denied the county's motion, stating in part:
"Defendant argues that it had no duty to warn or protect plaintiff from the condition of the chair upon which plaintiff sat on April 22, 1990; plaintiff argues that the issue involves fact questions for the trier of fact. Each side is incorrect.
Clearly the issue of whether defendant owed plaintiff a duty to warn or protect is one of law, not fact. The obviousness of the danger and plaintiff's own negligence affect whether and to what extent plaintiff is comparatively negligent; these factors do not affect the duty of the possessor of the premises. * * *
The county argues that the trial court erred in denying its motion for summary judgment. We agree.
A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508, 584 N.E.2d 104, 112, 164 Ill. Dec. 892.) The purpose of summary judgment is to determine whether a genuine issue of material fact exists that would require a trial. ( Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 226, 396 N.E.2d 1241, 1244, 33 Ill. Dec. 517.) In addition, the existence of a duty is a question of law properly decided on a motion for summary judgment because, absent a legal duty, there can be no recovery in negligence as a matter of law. Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.
A duty to warn of a particular hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given. ( Collins v. Hyster Co. (1988), 174 Ill. App. 3d 972, 977, 529 N.E.2d 303, 306, 124 Ill. Dec. 483.) The general rule is reflected in the Restatement (Second) of Torts, section 343, which was adopted in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472:
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger." (Restatement (Second) ...