Appeal from the Circuit Court of Cook County. 96 L 10655 The Honorable Mary Mulhern, Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Plaintiffs John and Amy Perri *fn1 , individually and on behalf of their infant daughter Leah Perri, sued defendant Furama Restaurant, Inc., after Leah was burned by hot tea at defendant's restaurant. Leah's injury occurred when Leah's four-year-old cousin Jordan Marsala spun a lazy susan upon which a pot of hot tea had been placed without the plaintiffs' knowledge. The trial court granted summary judgment in favor of defendant, finding that Jordan's parents had a duty to supervise Jordan and, because of the parents failure to supervise Jordan, defendant owed no duty to protect Leah from the injuries she sustained. Plaintiffs appeal.
On May 21,1995, plaintiffs and their three-month-old daughter Leah met Amy's sister Karen Green, Karen's husband Andrew Marsala, and Karen and Andrew's children Jillian and Jordan for dim sum brunch at defendant's restaurant. The group was led to a large round table with a lazy susan in the center. Leah, asleep in her carriage, was positioned parallel to the table between her parents. So Ching Wong, a waitress at defendant's restaurant, greeted the party as they arrived at the table and then returned to the kitchen to get a pot of hot tea. Wong returned and placed the teapot on the lazy susan approximately halfway between the center and the edge. Wong did not say anything to anyone in the party when she placed the tea on the table and none of the adults at the table noticed the tea. After serving the tea, Wong returned to the kitchen to get ice water for the party.
A short time later *fn3 , Jordan spun the lazy susan, causing the pot of tea to tip over and spill. Amy testified that Jillian was already seated at the time of the accident, but the remainder of the group was "in the process of sitting down." Amy testified that she was "on [her] way down" when hot liquid struck her hand and thigh. Leah began screaming a second or two later and John was struck last. Leah suffered severe burns over 10 percent of her body.
Plaintiffs filed suit against defendant, alleging Wong was negligent for placing a pot of hot tea on a lazy susan without alerting the adults at the table to the presence of the tea. Plaintiffs further alleged that defendant knew or should have known both that: (1) the teapot could tip if the lazy susan were spun; and (2) minor children were present at plaintiffs' table. John, as Leah's father and next friend, filed suit on Leah's behalf seeking damages for his daughter's injuries. John and Amy sued individually pursuant to the Family Expense Act (750 ILCS 65/15 (West 2000)) to recover the expenses they incurred for treatment of Leah's injuries.
Defendant moved for summary judgment, arguing that defendant owed no duty to Leah because Jordan's parents had a duty to supervise their son and therefore defendant could not have foreseen the accident which occurred. Additionally, defendant argued that it was not liable for Leah's injuries because any negligence on its part in placing the teapot on the lazy susan did not proximately cause Leah's injuries but merely furnished a condition which made those injuries possible. Plaintiffs responded that, because the adults at the table were unaware of the pot of tea, the duty of Jordan's parents to supervise him did not absolve defendant of its duty to exercise reasonable care. Plaintiffs further argued that Jordan's actions in spinning the lazy susan were not the sole proximate cause of the accident and that defendant's negligence was a proximate cause and not a mere condition.
Following a hearing, the trial court granted summary judgment in favor of defendant. In reaching her conclusion, the trial judge commented:
"I agree with the Defendant that there was no duty here to safeguard this Leah Perri from the independent intervening act of *** Jordan Marsala.
It is the plaintiffs' position that the restaurant breached its duty of care by placing a teapot on the lazy susan, but I would say that that's what Asian restaurants do. The serve tea whether its ordered or not.
Whether or not the parents were aware of the pot of tea does not make it any less visible. The whole purpose of the shifting of the duty by the Court to the parents to supervise children is precisely what happened in this case. Children, especially age 4, are unpredictable and somewhat powerful, perhaps more so than their size indicates.
The specific rationale for [excepting] from the restaurant's duty is because children must be supervised because they are unpredictable.
Unfortunately being the mother of three children, I can't imagine what the Perri's went through on this, but that doesn't change the fact that [defendant] did nothing which was dangerous or in violation of any ...