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Cobb v. Martin IGA & Frozen Food Center

February 10, 2003

DELORES COBB, PLAINTIFF-APPELLANT,
v.
MARTIN IGA & FROZEN FOOD CENTER, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Effingham County. No. 99-L-26 Honorable Steven P. Seymour, Judge, presiding.

The opinion of the court was delivered by: Justice Maag

Unpublished

Delores Cobb (plaintiff) filed a personal-injury action against Martin IGA & Frozen Food Center, Inc. (defendant), in the circuit court of Effingham County. Plaintiff sought compensation for damages she sustained when a young boy ran into her with a grocery cart while she was shopping in defendant's store. Defendant filed a motion for a summary judgment asserting that it had no duty to protect plaintiff from the type of harm she had suffered. The trial court granted the motion and entered a summary judgment in favor of defendant. On appeal, plaintiff contends that the trial court erred in granting the summary judgment because there was a jury question of whether defendant was or was not negligent.

Plaintiff filed a negligence action against defendant for injuries she had sustained while she was a customer in defendant's grocery store. The amended complaint alleged that on August 6, 1997, plaintiff was a customer shopping in defendant's store, that an unsupervised child ran into plaintiff with a shopping cart while she was shopping, that plaintiff suffered serious injuries to her foot and ankle as a result of the incident, and that defendant was negligent and breached its duty to exercise reasonable care to protect its customers under the Premises Liability Act (740 ILCS 130/1 et seq. (West 1996)). The amended complaint further alleged that defendant had been negligent in one or more of the following ways:

"a. Negligently failed to supervise the delivery of shopping carts to customers and other individuals on the premises so as to prevent the use of said carts by children who were inexperienced operators;

a. Negligently failed to supervise the operation of shopping carts by customers and other individuals on the premises so as to prevent the use of said carts by children who were inexperienced operators; [and]

b. Negligently failed to supervise the operation of shopping carts by customers and other individuals on the premises so as to prevent the use of said carts by children who were inexperienced operator [sic]."

After the trial court resolved a series of motions attacking the sufficiency of the complaint, discovery ensued. During the discovery phase of the case, plaintiff sought and was granted leave to add the following allegation of negligence:

"d. Negligently adopted and followed a policy of permitting young children to operate shopping carts."

Plaintiff and Kenneth Lansing, defendant's general manager, were deposed during the discovery period. A summary of the pertinent portions of the testimony of plaintiff and Mr. Lansing follows.

In her deposition, plaintiff testified that she went to defendant's store on August 6, 1997, to purchase some groceries. While she was shopping, a young boy pushed a shopping cart into her left foot and ankle. Plaintiff testified that she had first noticed the boy in the pickle aisle. He was pushing a cart and running fast toward her. He was not screaming or making any noises. She did not see any adult with or near the boy. Plaintiff changed direction in an attempt to avoid him. Had she followed her regular routine, she would have gone to the deli and then to the meat counter. Instead, she stopped at a display of greeting cards in order to maintain some distance from the boy. Plaintiff explained why she initially was not afraid that she would be harmed: "[The boy] was far enough away and I saw him and he saw me and I thought he had plenty of time to stop, but apparently he was going too fast[;] he couldn't." The boy pushed the cart into plaintiff and knocked her down to the floor. Plaintiff testified that the boy stopped for a few seconds, said that he was sorry, and then ran off. Plaintiff stated that the boy appeared to be between 8 and 10 years old. She did not know him and she did not get his name.

Plaintiff testified that she had been a customer of defendant's store for several years before this incident. She shopped there about once a week. Plaintiff testified that prior to this incident, she had never seen a young child pushing a shopping cart without adult supervision in defendant's store. She stated that she had not heard anyone complain that defendant did a poor job of policing the use of its shopping carts. Plaintiff stated that she had no information that defendant had any problems with this boy or any other children running around its store with shopping carts. Plaintiff also testified that she had not seen any store employees in the area prior to the incident. She had no information indicating that any employee had seen the boy running with the cart prior to the incident.

Kenneth Lansing was the manager of defendant's Effingham store. In his deposition, Mr. Lansing testified that there was no written policy or document regarding the use of carts within the store, the delivery of carts to customers, or the storage of carts. During their training, employees were instructed to return carts that had been abandoned in the store or were otherwise not in use to a storage area at the front of the store. Mr. Lansing stated that the store did not have an attendant assigned to deliver carts to customers entering the store and that it did not have a surveillance system to monitor the entire store. At the time of the incident, there was a surveillance system for the purpose of monitoring shoplifting in high-risk sections of the store, such as near cigarette displays and health and beauty counters. There was no surveillance in the area where this incident occurred. In a supplemental discovery deposition, Mr. Lansing stated that employees were expected to monitor inappropriate behavior of adults and children. He testified that the store did not have a policy against children using shopping carts. He explained that there are many children who shop for their families in defendant's stores.

Mr. Lansing signed an affidavit that was filed in support of defendant's summary judgment motion. The affidavit states in pertinent part as follows:

"Prior to August 6, 1997, there had never been an incident or accident at any of the Martin's I.G.A. stores involving circumstances where a patron was injured as a result of a fellow patron, child or adult, running into the other person with or without a shopping cart. Also, Martin's I.G.A. had never received a complaint prior to August 6, 1997, that the Martin's I.G.A. employees failed to supervise the delivery of carts to adults or children. With regard to this case, no one, including Delores Cobb, has come forward with any information concerning the identity of the boy who was pushing the cart at the time of the incident. Furthermore, no one, including Delores Cobb, has come forward with any information concerning where the unidentified boy obtained the cart, whether the cart was obtained by his parent or guardian, or the period of time the boy had been pushing the cart prior to the accident."

In its motion for a summary judgment, defendant alleged that plaintiff failed to allege and failed to produce evidence establishing that defendant owed a duty of care under the circumstances of the case. Defendant argued that plaintiff failed to produce any evidence to suggest that it knew or should have known that a young child would negligently or recklessly push a cart into another customer. Defendant also argued that imposing a duty to prohibit children from operating carts in its store would be unduly burdensome.

Following a hearing, the trial court entered an order granting defendant's motion for a summary judgment. In its order, the trial court noted that defendant had filed a motion to dismiss the complaint on the ground that it owed no duty to plaintiff under the circumstances. The court explained that the standard used to assess a motion to dismiss is different from that used to assess a motion for a summary judgment. The court stated that it had denied the motion to dismiss at an earlier stage of the proceedings because "it was conceivable that a set of facts could have been developed under which a duty could have been found to exist with regard to the plaintiff by the defendant." The trial court found that during the time allotted for discovery, plaintiff "totally failed to develop any facts that would suggest that the defendant was placed on notice of either other children between the ages of eight and ten running into customers with shopping carts or the particular minor involved running into customers with shopping carts." The court also found that the imposition of a duty to prohibit all unsupervised children from using shopping carts or, alternatively, to monitor all children pushing shopping carts, as suggested by plaintiff, would create an intolerable burden on defendant.

A summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). A summary judgment is properly granted when the pleadings, depositions, admissions, and permissible inferences therefrom, construed in the light most favorable to the nonmoving party, so clearly favor the movant that no fair-minded individual could dispute the movant's right to a judgment in his or her favor. Wysocki v. Bedrosian, 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344 (1984). Appellate review of summary judgment rulings is de novo. Outboard Marine Corp., 154 Ill. 2d at 102, 607 N.E.2d at 1209.

In order to recover under a negligence theory, a plaintiff must offer evidence which establishes that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach proximately caused the plaintiff's injuries. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). The existence of a duty and the range of protection of that duty in a particular case are questions of law to be resolved by the court. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226. The resolution of these questions depends on whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation to act reasonably for the benefit of the plaintiff. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226; Loomis v. Granny's Rocker Nite Club, 250 Ill. App. 3d 753, 755, 620 N.E.2d 664, 665-66 (1993). In determining whether a duty exists in a specific case, a court must weigh the ...


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