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Simmons v. American Drug Stores

March 25, 2002


Appeal from the Circuit Court of Cook County. No. 97 L 16195 The Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cohen


Plaintiff filed a personal injury action against defendants American Drug Stores, Inc., d/b/a Osco, B&N Realty Corp., and Jack Zimmerman, an agent of B&N Realty Corp. for injuries plaintiff sustained when he fell while exiting an Osco store. The trial court granted summary judgment in favor of defendants. Plaintiff appeals, contending that: (1) the danger presented by certain "cartnapper" barriers was not open and obvious; (2) even if the danger was open and obvious, plaintiff was distracted at the time he fell; and (3) plaintiff was forced to confront the alleged danger because he exited through the only exit from the store. For the reasons that follow, we reverse and remand for further proceedings.


On October 21, 1996, plaintiff was attempting to pass through a "cartnapper" barrier outside an Osco drug store when he became stuck in the barrier, fell, and broke his foot. Plaintiff sued defendants, alleging that the "cartnapper" barriers presented a dangerous condition. Defendants moved for summary judgment, arguing that they owed plaintiff no duty because the "cartnapper" barriers presented an open and obvious danger and that plaintiff was not distracted when he encountered that danger. Defendants further asserted that plaintiff did not raise a genuine issue of material fact as to whether the "cartnapper" gates proximately caused plaintiff's injury.

In support of their motion for summary judgment, defendants submitted transcripts from the depositions of plaintiff and plaintiff's expert witness, John Fotsch, Jr. The deposition transcripts were accompanied by deposition exhibits, which included several photographs of the scene of the occurrence and a letter from Fotsch to plaintiff's attorney regarding his analysis of the "cartnapper" barriers.

The Osco store where plaintiff fell was located in a small strip mall containing several other businesses. A single doorway provided customers ingress and egress to the Osco. "Cartnapper" barriers, intended to prevent the removal of shopping carts from the Osco premises, were imbedded in a concrete slab between Osco's single doorway and the parking lot. The letter from Fotsch to plaintiff's counsel indicates that the concrete slab ended approximately 4½ inches beyond the barriers, then dropped 4 3/4 inches to the asphalt parking lot. The photographic exhibits show that the "cartnapper" barriers consisted of several sections of iron fencing, each of which was several feet high. Gaps between the barrier sections allowed customers to enter and exit the area between the doorway and the parking lot; however, the gaps were too narrow to permit shopping carts to pass through the barriers. A rectangular protrusion extended into each gap from both sides at the top portion of the fencing. The letter from Fotsch to plaintiff's counsel indicates that the narrowed portion of the barrier gaps between these protrusions ranged from 15 to 17 inches wide. A photograph included in the record incorporates a tape measure demonstrating a gap of approximately 16 inches.

Plaintiff testified that he had frequented the Osco store without incident on numerous occasions before he was injured. Plaintiff also testified he had previously exited the store while carrying packages without incident. Around 9 p.m. on the date of his fall, plaintiff purchased two six-packs of nonalcoholic beer from the Osco store. Each six-pack was placed in a separate plastic bag. Plaintiff exited the store holding one bag in each hand and intending to put the six-packs in his car, which was parked somewhere in the mall lot. Plaintiff did not remember whether he was looking straight ahead as he tried to pass through the gap between the barriers, but he said that he was not distracted when he encountered the barriers and that nothing blocked his vision.

Plaintiff testified:

"I was walking through there [the gap between two "cartnapper" barriers], and I didn't fit. I got stuck. There wasn't enough room. * * * That's what threw me off was the fact that there wasn't enough room. * * * The reason I couldn't fit through the gate? * * * Would be my arms."

Plaintiff was holding the bags down at his sides and did not lift the bags up over the barrier. Plaintiff then lost his balance and fell off the curb into the parking lot, suffering injury to his foot. In response to a question about what caused him to fall, plaintiff replied, "I don't know. I don't know what reason--I mean, the gates were there." Plaintiff testified that he did not know exactly how the injury to his foot occurred because "[i]t happened so fast." After counsel refreshed plaintiff's memory with a note in his doctor's record, plaintiff agreed that at the time of the accident plaintiff's leg got stuck on the side of a post, causing him to lose his balance and fall.

Plaintiff's expert, John Fotsch, Jr., is an architect with extensive professional experience in building design. In a letter from Fotsch to plaintiff's counsel, which was included as an exhibit to Fotsch's deposition, Fotsch indicated that the 15 to 17 inch gap between the protrusions at the top of the barriers was "far less than any minimum allowable egress width allowed by the City of Chicago Building Code." Fotsch further opined that the barriers "constitute a dangerous obstruction in the existing means of travel." Fotsch noted that, with vision obstructed, the 4 3/4 inch curb "most certainly could cause serious injury."

At his deposition, Fotsch indicated that he could not cite any provision of the City of Chicago Building Code precluding use of the barriers. Fotsch, however, also testified:

"I think there could be some interpretation of egress codes and their wording that these cart-nabber gates potentially could violate. It's just that there is no place that is definitive that we have found yet that defines how far past ...

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