Appeal from the Circuit Court of Winnebago County. No. 96--L--390 No. 96--L--390
Honorable Galyn W. Moehring, Judge, Presiding.
JUSTICE GALASSO delivered the opinion of the court:
The plaintiff, Robert Carroll, appeals from orders of the circuit court of Winnebago County dismissing his third and fourth amended complaints for personal injuries against the defendants, Jack R. Faust, Ervin Muenster, Valera Muenster, and Menzis Venko, doing business as Travlur Motel & Lounge, also known as Rustic Motel (collectively Faust), American Water Heater Company (American), and Emerson Electric Company (Emerson).
The following facts are taken from the third and fourth amended complaints. On June 23, 1996, the plaintiff was a guest at Faust's motel. At approximately 1 a.m., the plaintiff drew water from the bathtub faucet into the bathtub to soak his feet and ankles. Due to the 170 degree temperature of the water from the faucet, the plaintiff sustained severe injuries to his feet and ankles requiring the amputation of all of the toes on both feet and the amputation of his lower right leg.
In a series of complaints, the plaintiff sued Faust, the owner of the motel, under theories of negligence and res ipsa loquitur (counts I through II); US/Craftsmaster Water Heater Company, a manufacturer of hot water heaters, under theories of negligence and product liability (counts III through IV); American Water Heater Company (misidentified as Southcorp, USA, Inc.), a manufacturer of water heaters, under theories of negligence and product liability (counts V through VI); American Water Heater Group, a manufacturer of water heaters, under theories of negligence and product liability (counts VII through VIII); Emerson Electric Company, a manufacturer of water heater thermostats, under theories of negligence and product liability (counts IX through X); and White-Rodgers, a manufacturer of water heater thermostats, under theories of negligence and product liability (counts IX through XII).
During the proceedings below, the parties agreed that US/Craftsmaster Company, Southcorp USA, Inc., American Water Heater Company, and American Water Heater Group would be collectively referred to as American Water Heater Company. We shall continue to refer to them collectively as "American." In addition, White-Rodgers is a division of Emerson Electric Company, and, therefore, we shall refer to them collectively as "Emerson."
On August 27, 1998, the trial court dismissed counts I and II of the third amended complaint with prejudice pursuant to Faust's motion to dismiss under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1996)). On November 9, 1998, the trial court made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay the enforcement or appeal of its August 27, 1998, order. On November 18, 1998, the plaintiff filed his notice of appeal from the dismissal of counts I and II. On January 21, 1999, the trial court dismissed the remaining counts III through XII of the fourth amended complaint with prejudice. The plaintiff filed his notice of appeal from that order on February 1, 1999. On February 16, 1999, this court consolidated the two appeals for review.
MOTION TO STRIKE PORTIONS OF THE PLAINTIFF'S BRIEF
Faust filed a motion to strike certain portions of the plaintiff's brief on the basis that the plaintiff's brief and appendix contain references to and copies of unsworn exhibits that the plaintiff is using to support his position on appeal. The plaintiff responded that these exhibits are articles pertaining to the allegations contained in the third amended complaint and are necessarily involved in the duty-risk analysis. Moreover, the American National Standards Institute (ANSI) standards were specifically pleaded in the third amended complaint. We ordered the motion and response be taken with the case.
It is well established that evidentiary matters outside the pleadings may not be considered in ruling on a section 2--615 motion. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). Moreover, attachments to briefs not included in the record are not properly before the reviewing court and cannot be used to supplement the record. Zimmer v. Melendez, 222 Ill. App. 3d 390, 394-95 (1991).
With the exception of the allegation as to the ANSI standards, none of the material complained of was part of the record below, and, therefore, we will not consider either those exhibits contained in the appendix or the references to those exhibits contained in the plaintiff's brief. See Zimmer, 222 Ill. App. 3d at 395.
We review the granting of a motion to dismiss pursuant to section 2--615 de novo. See T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994).
When the legal sufficiency of a complaint is challenged by a section 2--615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. T&S Signs, 261 Ill. App. 3d at 1083. On review of a section 2--615 dismissal, the reviewing court must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. T&S Signs, 261 Ill. App. 3d at 1083. The motion should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted. T&S Signs, 261 Ill. App. 3d at 1083-84. This process does not require the reviewing court to weigh findings of fact or determine credibility, and, as such, it is not required to defer to the trial court's judgment. 261 Ill. App. 3d at 1084.
In his third amended complaint, the plaintiff alleged that Faust was negligent for the following: permitting the thermostat of the hot water heater to be turned to an unsafe level in violation of the warnings in the owner's manual and the ANSI standards; failing to inspect the thermostat of the hot water heater to insure that the water coming from the bathtub faucet was at 120 degrees, the maximum required temperature, rather than the 170 degrees at which it was actually set; failing to reduce the temperature setting from 170 degrees to 120 degrees; failing to warn his guests that the temperature of the water from the bathtub faucet was 170 degrees, which could cause instantaneous severe burns; and failing to read or follow the water heater manual instructions to set the thermostat at 120 degrees instead of the approximately 170 degrees at which the water temperature was set. The plaintiff further alleged that as a result of these acts of negligence he sustained severe personal injuries.
In order to state a cause of action for negligence, the plaintiff's complaint must establish that the defendant owed the plaintiff a duty, that the defendant breached that duty, and that the plaintiff's injury was proximately caused by the breach. Doe v. Calumet City, 161 Ill. 2d 374, 384 (1994). The existence of a duty is a question of law for the court to decide and depends upon whether the parties stood in such a relationship to one another that the law imposed an obligation on the defendant to act reasonably for the protection of the plaintiff. St. Paul Insurance Co. v. Estate of Venute, 275 Ill. App. 3d 432, 436 (1995). In considering whether a duty exists, a court must weigh the foreseeability that the defendant's conduct will result in injury to another and the likelihood of an injury occurring against the burden to the defendant of imposing a duty and the consequences of imposing this burden. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). The existence of a legal duty is not to be bottomed on the fact of foreseeability alone but also on whether the harm was reasonably foreseeable. National Bank v. Westinghouse Electric Corp., 235 Ill. App. 3d 697, 704 (1992).
The fact that hot water within a range of temperatures can scald or burn skin is open and obvious. National Bank, 235 Ill. App. 3d at 708. However, as our supreme court noted in Ward v. K mart Corp. 136 Ill. 2d 132, 150 (1990), the manifest trend of the courts is away from the traditional rule of absolving, ipso facto, owners and occupiers of land from liability resulting from known or obvious conditions. Instead, liability will not be imposed where the danger is known or obvious unless, under the circumstances present, the harm should be anticipated. Ward, 136 Ill. 2d at 149-51.
The foreseeability of harm, in connection with a duty, is not a magical concept that ignores common sense. Estate of Venute, 275 Ill. App. 3d at 436. Foreseeability includes whatever is likely enough to occur that a reasonably thoughtful person would take it into account in guiding ...