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Luu v. Kim

June 19, 2001

DONALD LUU, AS FATHER AND NEXT FRIEND OF BILLY LUU, A MINOR, PLAINTIFF-APPELLANT,
v.
PETER KIM AND EDMUND KIM, P-K MALL INC., AN ILLINOIS CORPORATION D/B/A P-K DISCOUNT MALL, BUSCHMAN CONVEYORS, AMERICAN NATIONAL BANK, AS TRUSTEE, AND PILSEN PARK SHOPPING CENTER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 96 L 15221 The Honorables Alfred Paul and Sophia Hall, Judges Presiding.

The opinion of the court was delivered by: Justice Cousins

Not Released For Publication

DONALD LUU, AS FATHER AND NEXT FRIEND OF BILLY LUU, A MINOR, PLAINTIFF-APPELLANT,
v.
PETER KIM AND EDMUND KIM, P-K MALL INC., AN ILLINOIS CORPORATION D/B/A P-K DISCOUNT MALL, BUSCHMAN CONVEYORS, AMERICAN NATIONAL BANK, AS TRUSTEE, AND PILSEN PARK SHOPPING CENTER, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County No. 96 L 15221 The Honorables Alfred Paul and Sophia Hall, Judges Presiding.

The opinion of the court was delivered by: Justice Cousins

This action was brought for damages resulting from minor-plaintiff Billy Luu's injuries suffered after becoming entangled in a moving conveyor belt at P-K Mall in the Pilsen Park Shopping Center. Plaintiff's father brought suit against P-K Mall, Peter Kim, Edmund Kim, Pilsen Shopping Center (collectively, defendant-landlords), and Buschman Conveyors (defendant-manufacturer or Buschman). All defendants brought motions for summary judgment. All motions were granted in favor of the defendants. Plaintiff's motion to reconsider was denied. The issue upon appeal is whether the trial court erred in granting summary judgment in favor of all defendants. Plaintiff asserts: (1) under the Kahn doctrine (Kahn v. James Burton Co., 5 Ill. 2d 615, 126 N.E.2d 836 (1955)), the owner-landlords should have foreseen harm to the child; (2) defendant-landlords owed plaintiff a duty of reasonable care under the circumstances and did not meet that duty; (3) defendant-landlords' negligence was the proximate cause of the injuries; (4) the affidavit of mechanical engineer Seiji Joji should have been admitted; (5) Buschman was the apparent manufacturer of the conveyor belt and as such should be held liable for the injuries; and (6) Buschman negligently designed the component parts of the conveyor belt and should be held liable for the injuries.

 We affirm.

BACKGROUND

On November 25, 1995, nine-year-old Billy Luu was inside P-K Mall in Chicago, Illinois, with his father Donald Luu. Donald Luu leased space in the mall for his business, "Don's Fashions." On that day, Donald gave Billy money to play with the video games located in the southeast corner of the mall, adjacent to the concession stand. Donald instructed Billy not to go too far and not to go out of the mall. Billy's cousin, Jimmy Le, accompanied Billy.

Adjacent to the game room was the doorway and stairwell leading to the second-floor storage area. During his deposition, Jimmy stated that the door to the stairwell was open when the boys approached, it was open on its own, and he did not notice a string or wire on the doorknob. The boys walked up the stairs because Billy thought "there were games up there." There was a conveyor belt in the room but the machine could not be seen from the top of the stairs. Jimmy stated that he heard a machine go on and immediately thereafter, he heard Billy scream. Jimmy stated that he did not see whether Billy turned the belt on. When he did see Billy, Jimmy noticed that Billy was "twitching." Billy was injured when his arm got caught in the conveyor belt system. According to a letter written by Dr. John Oldershaw, Billy suffered three fractures to his left arm, shoulder and back strain, and severe head trauma.

During Billy Luu's deposition, Billy stated that he had never been on the second floor of the mall and did not know that there was a conveyor belt on the premises until the day of the accident.

During deposition, Donald Luu stated that he was notified about Billy's accident approximately 15 minutes after giving Billy the money to play with the video games. Billy was already away from the conveyor belt when his father saw him. Donald stated that he was aware of the belt but had never operated the belt in the presence of Billy.

Edmund Kim was the real estate manager and partial owner of P-K Mall in November 1995. Kim licensed portions of the premises to persons so they could conduct retail activities. He testified that his father, Peter Kim, does not sign any of the license agreements with mall vendors and does not have a day-to-day management role of P-K Mall. He stated that the management office of P-K Mall was responsible for the maintenance and upkeep of the second floor storage area. Kim testified that the vendors had to enter into a separate rental agreement if they wanted to use the storage area on the second-floor. Kim recalled "telling people the conveyor belt is for moving merchandise only." He testified that there had never been any other reports of anyone getting anything caught in the conveyor belt. He also was not aware of any automatic stop mechanism on the conveyor belt. Kim stated that in all the time that he worked there, since the summer of 1993, the conveyor belt had performed as expected except when the belt had to be tightened. Kim stated that he was aware that vendors would use a wire or other device to hold the storage room door open. He also observed graffiti on the walls of the storage room, but did not know who put it there. He was aware that vendors would sometimes bring their family members with them to the mall. Kim was asked, "Have you ever seen any of those children accompanying their parents up to the second-floor?" Kim responded, "I haven't, no." Counsel further inquired, "Are you aware that they do?" Kim responded, "Yes *** I have been informed *** [b]y my assistant."

Kim testified that had seen Billy Luu in the video game area in 1991 and 1992 and had, on occasion, played video games with Billy. Since the accident, Kim has posted caution signs around the storage area and had a locking mechanism installed on the control button of the conveyor belt. Kim believed that he spoke with Harry Lake, the operating partner for the landlords of P-K Mall, regarding Billy's accident.

The landlord of P-K Mall is Pilsen Park Shopping Center. The landlord's responsibilities are limited to maintaining the exterior of the center (parking lot, sidewalks, lighting in the lot, and the fence). Harry Lake is the operating partner of the premises. Lake testified that he was aware that a previous tenant, Zayre, acquired the conveyor belt for the storage area. He further testified that the landlord had no responsibility for maintaining the second-floor storage area, unless the roof leaked or there was some other structural problem.

Ronald Knoerzer's deposition indicates that the Buschman Company (Buschman) manufactures conveyor belts, which are also assembled by Buschman. Buschman does not manufacture all of its component parts. Knoerzer testified that, normally, the operating instructions that are delivered with the ...


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