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August 18, 1995



Presiding Justice McNAMARA delivered the opinion of the court: Egan and Rakowski, J.j., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Amparo Gonzalez, brought this action as special administrator of the estate of Jose Gonzalez, to recover damages for personal injuries sustained by the decedent in an accident which occurred at a gasoline service station owned by defendant Mobil Oil Corporation ("Mobil") and operated by codefendant Kennedy Mobil Service, Inc. ("Kennedy Mobil"). On June 10, 1993, the trial court entered an order granting Mobil's motion for summary judgment and on May 10, 1994, entered an order granting Kennedy Mobil's motion for a directed verdict. Plaintiff appeals, contending the trial court erred in granting the respective motions.

The relevant facts are as follows. On August 10, 1989, the decedent was at the Kennedy Mobil service station, located in Chicago, filling his automobile with gasoline. The opening to the gas tank was located above the middle of the rear bumper, and the decedent was standing in back of his automobile holding the gasoline hose and nozzle. Shortly before this time, codefendant Rosario Injerra arrived at the service station to pick up his car which had been there overnight for repairs. At a deposition, Injerra testified that he paid the repair bill and proceeded to get into his car when he noticed that one of the tires was flat. He then drove his car to the entrance of the service station's garage to inflate the tire with an air pump located inside the garage. He opened the driver's side door, exited the car, closed the door, and walked into the garage. Before exiting the vehicle, Injerra placed the car in park; he left the keys in the ignition with the engine running. About four seconds after he entered the garage, Injerra heard a loud scream. Injerra walked back outside, saw the decedent take three steps and then fall to the ground. He also observed that the rear of his car was about five feet from the rear of the decedent's car.

The decedent testified at a deposition that as he was standing at the rear of his vehicle facing the gas pump, a car came up behind him and hit his legs, throwing him forward against his vehicle and pinning him between the two vehicles. (The decedent died in 1993 as the result of injuries suffered in this accident.)

Injerra further stated at his deposition that the gasoline hose that the decedent had been using was broken, and gasoline was pouring onto the ground. The engine of Injerra's car was still running, so Injerra ran over to the car and drove it away from the puddle of gasoline.

Injerra testified that he was aware of the danger of leaving a car unattended with the keys in the ignition and the engine running. Prior to the accident he had observed signs posted at other service stations warning customers not to leave the engines of their vehicles running while pumping gas. According to Injerra, no one from Kennedy Mobil told him to leave the engine running while he inflated the tire.

In her amended complaint, plaintiff alleged that Kennedy Mobil and Manop Suesuntisook, its president, were negligent in failing to: (1) have an attendant on duty to monitor and manage motor vehicles on the service station premises; (2) have an attendant on duty who had a clear view of the gasoline pumps and adjacent areas; (3) warn the decedent that there was an unattended motor vehicle moving about the premises; and (4) have an effective method in place for prohibiting motor vehicles from being left unattended with the motor running while on the premises. Plaintiff alleged that Mobil was negligent in failing to: (1) post a permanent sign on the premises warning motorists not to leave the engines of their vehicles running while the vehicles were unattended (plaintiff has since abandoned this claim); (2) provide an adequate view from the business office of all areas of the station frequently used by customers; (3) provide adequate electronic surveillance devices which would enable employees in the office to have an adequate view of areas of the station used by customers; and (4) periodically inspect the premises with a view toward discovering whether the premises were reasonably safe. Plaintiff also alleged negligence on the part of Injerra. (Injerra neither answered the complaint nor appeared at trial. On May 10, 1993, plaintiff obtained an order of default against Injerra. No issues are raised in this appeal concerning Injerra.)

Suesuntisook stated in an affidavit that he had operated the service station as a sole proprietor from 1972 to 1975 and thereafter pursuant to a franchise agreement with Mobil. Suesuntisook further stated that there had been no accidents involving motor vehicles on Kennedy Mobil's premises during the 20 years he had operated the service station. The affidavit established that on the day of the accident, five 10 1/4-inch by 18-inch signs were posted, one at each of five gas pump islands, which stated, "NO SMOKING, STOP ENGINES."

On January 19, 1993, Mobil and Kennedy Mobil each filed a motion for summary judgment. Defendants contended that they owed no legal duty to the decedent to protect him from the type of harm he suffered as a result of the negligent conduct of a third party (Injerra). In making this argument, defendants relied almost exclusively on this court's decision in Anderson v. Woodlawn Shell, Inc. (1985), 132 Ill. App. 3d 580, 478 N.E.2d 10, 87 Ill. Dec. 871, a case factually similar to thepresent case. The trial court granted Mobil's motion, finding that as merely a lessor who was not situated on the service station premises, Mobil had no opportunity to attempt to prevent the accident from occurring. The trial court, however, denied the motion of Kennedy Mobil. Although the court determined that "the Anderson case *** close[s] the door on a claim that the station employees should have foreseen the possibility of this kind of an accident and taken steps to guard against it," it nevertheless ruled that the initial distance between Injerra's and the decedent's cars created a question of fact as to "whether the station employees had an opportunity to take action, and whether they failed to take action" within the period of time that Injerra's car began to move and when it struck the decedent. The case proceeded to trial against Injerra and Kennedy Mobil.

Plaintiff called Michael Rosario to testify. Rosario, a Kennedy Mobil mechanic who was working in one of the three garage bays at the time of the accident, testified that he did not see how the accident occurred or where either of the two cars involved in the accident were situated prior to the accident. At no time did Rosario see Injerra's car in motion. The first indication Rosario had that an accident had occurred was when he heard people screaming for someone to call an ambulance. Rosario stated that the service station was equipped with a loud speaker system which enabled the sales clerk in the office to talk to customers at the pumps.

Suesuntisook was called by plaintiff as an adverse witness. He reiterated what he had stated in his affidavit and testified further that he first saw Injerra's vehicle after the accident occurred. He did not know where or how the accident occurred or where Injerra's vehicle was prior to the collision. Nor did anyone employed at Kennedy Mobil, to his knowledge, know how the accident occurred.

Plaintiff also called John O'Malley, a traffic specialist employed by the Chicago Police Department. O'Malley conducted an investigation at the service station on the date of the accident. O'Malley spoke with Injerra shortly after he arrived at the service station. Counsel for Kennedy Mobil objected to O'Malley's hearsay testimony concerning Injerra's statements. The court ruled that the jury would be instructed prior to deliberations to disregard this testimony in determining the liability of Kennedy Mobil. ...

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