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11/30/94 THEODORE RANDALL MILLER v. NATIONAL

November 30, 1994

THEODORE RANDALL MILLER, PLAINTIFF-APPELLANT,
v.
NATIONAL ASSOCIATION OF REALTORS, DEFENDANT-APPELLEE, NATIONAL ASSOCIATION OF REALTORS, THIRD PARTY PLAINTIFF, V. ARTHUR RUBLOFF & COMPANY, THIRD PARTY DEFENDANT.



Appeal from the Circuit Court of Cook County. Honorable Paddy H. McNamara, Judge Presiding.

As Amended March 31, 1995. Rehearing Denied March 31, 1995.

Presiding Justice Tully delivered the opinion of the court: Rizzi, J., concurs. Greiman, J., Dissents.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiff, Theodore Randall Miller, appeals from an order granting, pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005 (now codified as 735 ILCS 5/2-1005 (West 1992))), summary judgment in favor of defendants, National Association of Realtors (hereinafter National) and Arthur Rubloff & Company (hereinafter Arthur Rubloff). Jurisdiction is vested in this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we reverse and remand.

FACTUAL BACKGROUND

On July 10, 1986, plaintiff worked as a delivery man for a beer distributor and was making a regular delivery of beer kegs to the Billy Goat Inn, a tavern located at 430 North Michigan Avenue in Chicago, when he slipped on a piece of cardboard and seriously injured himself inside the building on a loading ramp. The loading ramp lead to the delivery or industrial entrance of the building located on lower Michigan Avenue.

According to plaintiff, he made deliveries to the tavern about twice a week for the previous three months. Deliveries required plaintiff to descend the loading ramp behind a two-wheeled hand truck loaded with two 160-pound barrels of beer. In order to avoid losing control of the kegs, plaintiff would have to tip the hand truck back towards himself while descending the ramp.

An open dumpster was maintained at the top of the ramp for at least three months. The dumpster, which remained open continuously, faced the ramp and was filled with various types of debris. Plaintiff testified that people working in the building used the dumpster and there was always some type of debris or dirt present on the ramp. The ramp was the only means of ingress and egress to the building for delivery men. Plaintiff stated that he knew of other delivery men who had complained of the loading ramp area's conditions prior to the date of his injury.

On the date in question, plaintiff entered the tavern, via the ramp, to determine the number of kegs needed, and then returned to his truck. As the lighting on the ramp was dim, plaintiff did not observe the condition of the ramp. Plaintiff then loaded the kegs onto the hand truck, proceeded three or four steps down the ramp and fell on a piece of cardboard.

Subsequently, plaintiff brought a negligence action against National. National then filed a third-party complaint against Arthur Rubloff. Defendants each moved for summary judgment, arguing that plaintiff failed to prove notice of the dangerous condition. The trial court granted defendants' motions.

The instant appeal followed.

We initially note that use of the summary judgment procedure is to be encouraged as an important tool in the expeditious Disposition of a lawsuit. ( King v. Linemaster Switch Corporation (1992), 238 Ill. App. 3d 729, 732, 606 N.E.2d 584, 179 Ill. Dec. 752.) The procedure's underlying policy is the facilitation of litigation; its benefits inure not only to the litigants in the saving of time and expense, but also to the community in avoiding congested trial calendars and the expense of unnecessary trials. ( Rerack v. Lally (1992), 241 Ill. App. 3d 692, 694, 609 N.E.2d 727, 182 Ill. Dec. 193.) Nonetheless, the granting of summary judgment is a drastic method of disposing of a case, which should not be used unless there is no issue of material fact and it is free from doubt that the movant is entitled to judgment as a matter of law. ( Langer v. Becker (1992), 240 Ill. App. 3d 823, 825, 608 N.E.2d 468, 181 Ill. Dec. 395.) "In determining whether a genuine issue of material fact exists, the trial court must construe the pleadings, depositions, admissions and affidavits on file strictly against the movant and liberally in favor of the opposing party. " (Emphasis added.) ( Rerack, 241 Ill. App. 3d at 696.) The standard of review applicable in evaluating the propriety of a trial court's entry of summary judgment is de novo. King, 238 Ill. App. 3d at 732.

Plaintiff maintains that the trial court erred in entering summary judgment as the issue of material fact exists as to whether defendants exercised reasonable care with regard to the condition of dumpster and the ramp. We agree.

In a cause of action for negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from a breach of that duty. ( Grove v. City of Park Ridge (1992), 240 Ill. App. 3d 659, 608 N.E.2d 421, 181 Ill. Dec. 348.) Regarding the conditions of real property, the scope of a landowner's or occupier's duty owed to entrants upon his premises traditionally depended on the status of the entrant. Though not an insurer of his customer's safety, the operator of a business owed his invitees a duty to exercise reasonable care to maintain his premises in a reasonably safe condition for use by invitees. (Ward v. K mart Corporation (1990), 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288; Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 328 N.E.2d 290.) A substantially narrower duty was owed to licensees and trespassers. ( Pashinian v. Hartinoff (1980), 81 Ill. 2d 377, 410 N.E.2d 21, 43 Ill. Dec. 21.) In the case sub judice, it is undisputed that plaintiff was a business invitee on defendants' ...


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