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09/09/96 JAMES SHORTALL v. HAWKEYE'S BAR AND GRILL

September 9, 1996

JAMES SHORTALL, PLAINTIFF-APPELLANT,
v.
HAWKEYE'S BAR AND GRILL, AND EDWARD CLAUSSEN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Released for Publication October 22, 1996.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j., concurs. Wolfson, J., dissents.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, James Shortall, brought an action in the circuit court of Cook County to recover for personal injuries sustained in a fight that occurred outside Hawkeye's Bar and Grill (Hawkeye's). Counts I through III of the complaint were brought against Hawkeye's and its owner, Edward Claussen (defendants), alleging negligence, willful and wanton conduct, and premises liability. Counts IV and V were brought against Louis Rodriguez, alleging battery and willful and wanton conduct. The trial court granted summary judgment in favor of Hawkeye's and Claussen; plaintiff's claims against Rodriguez remain pending below. On appeal, plaintiff contends that the trial court erred in finding, as a matter of law, that defendants owed no duty to plaintiff to take action to prevent a criminal attack by a third party because plaintiff had left the tavern.

At approximately 8 p.m. on April 12, 1991, plaintiff went to Hawkeye's at 1458 West Taylor Street in Chicago with a group of friends. At about 1:40 a.m. on April 13, the bartender announced "last call," and Patricia Wald, a friend of plaintiff, approached the bar to get a drink. While she was waiting to be served, plaintiff noticed that three men sitting at the bar were "hassling" and "grabbing" her. Plaintiff approached Wald and asked her if she wanted to leave. One of the men at the bar told plaintiff to "take a hike," and plaintiff told them to "forget about it." Plaintiff stated in his deposition that the bartender heard the exchange. When Wald received her drink, she and plaintiff returned to their table.

A few minutes later, plaintiff was standing next to his table with his back towards the bar. The three men who had been harassing Wald walked behind plaintiff, and one of them threw an elbow into his back, knocking him off balance into the table. Plaintiff got up and turned around. One of the men asked plaintiff if he wanted to "take it outside." Plaintiff said he did not want to go outside with them, but if they wanted to wait, he was going to have to leave some time. Then the three men left the tavern.

A few minutes later, plaintiff, Wald, and two other individuals decided to leave and began walking toward the door. Wald and the others stopped to talk to someone, and plaintiff went outside by himself. Plaintiff saw the three men with whom had bickered, but he started walking towards his car, which was about 60 feet away on Taylor Street. He took a couple of steps, and the men approached him. Plaintiff testified that the three men were standing directly in front of a Hawkeye's window, and the bouncer was inside looking out at them. Plaintiff and one of the men exchanged punches and began wrestling. The bar "cleared out," and the other patrons watched the rest of the fight. A short time later, one of the other men also challenged plaintiff, but plaintiff declined.

As plaintiff was about to walk away, a woman who had been inside the bar yelled at him to leave her boy friend alone and smashed a beer bottle over his head. As plaintiff stood looking at the woman, another man punched him in the mouth. The fight escalated to include numerous people who had exited the bar, including Louis Rodriguez. Rodriguez approached plaintiff from behind with a knife drawn and stabbed him in the neck, back, chest, and arm.

Plaintiff stated that the entire incident outside the bar lasted about 15 minutes and that Hawkeye's employees were watching out the window. Plaintiff stated that no one called the police, and none of the bouncers attempted to stop the fight. He also claimed that after the fight began, Claussen ushered the other patrons out of the bar, which caused the fight to escalate. After being stabbed, plaintiff left the scene and drove himself to the hospital where he received over 200 stitches.

Claussen stated in his deposition that he did not witness any of the fight, but that he called the police because of the number of people congregated outside the bar. Furthermore, none of the fight outside the bar occurred on property owned or controlled by Hawkeye's.

Defendants filed a motion for summary judgment. The court held that defendants owed plaintiff no duty because the incident took place outside the premises of the tavern and Hawkeye's employees had no knowledge of the initial altercation occurring in the bar. Therefore, the court held that the duty of an owner-occupier to prevent attacks on invitees by third parties was not applicable in this case. The court granted summary judgment in favor of defendants, and plaintiff filed a timely notice of appeal.

ARGUMENT(S)

In examining an order granting summary judgment, the appellate court must conduct a de novo review. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209, 180 Ill. Dec. 691 (1992). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Outboard Marine Corp., 154 Ill. 2d at 102, 607 N.E.2d at 1209. However, it is a drastic measure which should not be granted if the movant's right to judgment is unclear or ...


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