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August 2, 1994


Appeal from the Circuit Court of Cook County. Honorable Stephen A. Schiller, Judge Presiding.

Released for Publication September 13, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Hartman, DiVITO, Scariano

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

We are asked to review whether the circuit court properly granted summary judgment in favor of defendant, Builders Square, Inc., under the circumstances of this case. We hold that it did not, and reverse and remand for trial.

On Sunday, July 23, 1989, plaintiffs Anthony and Bridie Pullia went to a Builders Square store in Melrose Park, Illinois to purchase fence posts. Anthony had been to the store on 10 to 15 other occasions and had purchased fence parts there. The Pullias walked around the store for a brief time, noticing it was very busy, and then proceeded to the fence department where there were no other customers.

The store displayed its fence posts on a cantilever rack system anchored to a wall. The rack system held groups of poles horizontally at several heights, beginning at ground level. The rack's metal arms extended from the wall about three feet, at an angle to prevent the posts from rolling off. Signs affixed to the rack system contained the fence posts' size, length, and price. No warning signs were placed on or near the rack system, which was contained in a self-serve area of the store, prohibiting them from serving themselves, or warning them of any danger to themselves should they do so. Builders Square's policy was to assist customers on an "as needed" basis.

Anthony, six feet and two inches tall, was unable to reach the fence posts he wished to purchase while standing on the floor. The posts were not at the highest level of the rack system, but somewhere lower. Anthony approached a Builders Square employee and requested assistance. The employee responded that he would help him "in a minute," then departed. Anthony waited 15 to 20 minutes. He saw no other employee and wondered if the employee he talked to was ever going to return.

Anthony then decided to help himself to the three fence posts he wanted, seeing no real danger in doing so. Each post was one and one-half inches in diameter, ten feet in length, and weighed two to three pounds. He stepped up onto the lowest arm of the rack and, with his left hand, held onto the rack's face plate for support. Using his right hand, he removed the three fence posts from the rack, one at a time, and placed them on the floor. Anthony turned and began to step off the rack arm first with his right foot, then his left foot, when he felt his wedding ring catch on the face plate he was holding. He was unable to stop his downward momentum, and his ring finger was completely severed from the knuckle.

Anthony did not know whether the face plate or his ring severed his finger. The face plate did not feel sharp to him. He had never climbed on the rack before, nor had he seen anyone else do so. Builders Square and Steel King Industries, Inc. (Steel King), the manufacturer of the rack system, reported that they had never received any complaints and knew of no injuries associated with the rack.

Anthony and his wife filed a personal injury lawsuit against Builders Square and Steel King. Count I charged that Builders Square was negligent for failing to: exercise reasonable care in the operation, management, maintenance, and control of its premises; provide adequate staff to assist Anthony; adequately train its staff; store and display merchandise in a manner allowing Anthony to secure its possession safely; inspect the premises for unreasonably dangerous conditions; and warn Anthony. Count IV contained a loss of consortium claim for his wife. The remaining counts, which are not at issue in this appeal, were directed against Steel King. Builders Square's answer denied the allegations of negligence and raised the affirmative defense of comparative negligence.

Builders Square filed a motion for summary judgment as to counts I and IV, claiming (1) it owed no duty to Anthony and (2) his claim is speculative since he does not know whether his ring or the face plate severed his finger. Plaintiffs' response was supported by the deposition testimony of an expert, Gene Litwin, who reviewed the rack's characteristics and expressed an opinion that it was unsuitable for its intended use in a self-service facility because people, who would be expected to load and unload by hand, would have a natural tendency to step up onto it for objects stored too high off the ground to reach while standing flat-footed. He found the display a very natural structure for people to step onto because it had a massive square base, with a flat top eight to ten inches off of the floor, which provided a motivation for people to attempt to reach objects temptingly displayed, but just immediately out of their grasp. Litwin also determined that stepping onto the rack was not an open and obvious danger. Nevertheless, the court granted the motion.

On appeal, plaintiffs contend that the circuit court erroneously granted summary judgment in favor of Builders Square. They identify error in the court's holdings that (1) Builders Square owed no duty to Anthony to guard against his injury, and (2) the cantilever rack system was an open and obvious danger as a matter of law. Builders Square responds that it "neither owed nor breached any legal duty that was a proximate cause" of Anthony's injuries.

Summary judgment is appropriate only where the pleadings, affidavits, depositions, admissions, and exhibits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. ( American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 22, 594 N.E.2d 313, 171 Ill. Dec. 461; Vajda v. Arthur Andersen & Co. (1993), 253 Ill. App. 3d 345, 352, 624 N.E.2d 1343, 191 Ill. Dec. 965; Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271, 81 Ill. Dec. 469.) To prevail on a claim of negligence, a plaintiff must prove a duty owed, ...

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