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Green v. Jewel Food Stores

September 09, 2003


Appeal from the Circuit Court of Cook County No. 99 L 11742 Honorable David G. Lichtenstein, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill


Plaintiffs Robert and Doris Green appeal from an order of summary judgment entered in favor of defendant, Jewel Food Stores, Inc. Plaintiffs contend that the trial court erred in disposing of their negligence complaint by finding that defendant owed no duty to the plaintiffs. We believe the undisputed facts of this case fall within the distraction exception set out in Ward v. K mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990), and require that the question of duty be resolved against defendant. We reverse and remand.

The Greens filed a complaint seeking damages for injuries sustained when Doris fell while exiting defendant's store in Oaklawn, Illinois. Plaintiffs alleged that defendant negligently maintained an inherently unsafe environment at the store's exit where there were unattended shopping carts and a one-inch ridge in the pavement. Doris claimed that the unsafe conditions were the proximate cause of her injury, a broken patella (kneecap). Her husband Robert sought damages for loss of consortium. The trial court granted defendant's motion for summary judgment, finding: (1) defendant did not breach a duty of care owed to plaintiffs; (2) the record was uncontested with no unanswered questions of fact; and (3) there was no unreasonably unsafe condition on defendant's property as a matter of law.

The pleadings, depositions and photographs of record show that Doris and her husband's cousin, Eleanor Hastie, entered defendant's store at about 9:30 a.m. on November 16, 1997. Doris was visiting from Michigan and had not previously shopped at that store. Robert waited in the car while the women shopped. Doris exited the store, carrying her purse over her shoulder and a plastic shopping bag containing one or two items in her hand. Hastie was behind Doris. A customer exiting in front of Doris pushed an empty shopping cart toward a cart storage area. When Doris noticed the cart was rolling down a slope toward the parking lot, she grabbed it by the handle to stop it. She then fell.

In a recorded statement on November 20, 1997, Doris said as she and Hastie exited the store, a man ahead of them "just gave his cart a shove." Doris said, "I grabbed for [the cart] so it wouldn't be out in the cars or hit a car." When asked why she thought she fell, Doris replied, "I really don't know what caused it *** unless it was this bump that [Robert] said was there." The bump referred to a ridge between the cement sidewalk and the asphalt paving of the parking lot that Robert noticed and photographed when he returned to the scene the next day. Doris later stated in a discovery deposition on September 19, 2000, "[t]here was a ridge, but I think [it was] the cart that made me fall." She estimated the ridge to have been about one inch high.

Robert also gave a deposition on September 19, 2000. He said he saw Doris exit the store and then saw her on the ground. He did not see her fall but believed she fell because "when she grabbed that cart I think she didn't notice this little ridge" where the cement was "a little higher" than the asphalt. He said he did not notice the ridge until he returned to the scene the next day.

Hastie gave a deposition on May 23, 2001. She said she was walking 10 to 12 feet behind Doris and she believed Doris fell because she lost her balance as she reached out to grab the empty cart.

Ginger Lane, defendant's employee, gave a recorded statement on December 8, 1997, in which she said she saw Doris after the fall. Lane said Doris was on the ground on an incline that was dry and clean with no cracks in the pavement.

The standard of review of a trial court's grant of a motion for summary judgment is de novo. Morris v. Margulis, 197 Ill. 2d 28, 35, 754 N.E.2d 314 (2001). We construe all evidence strictly against the moving party and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995).

A plaintiff states a cause of action for negligence by establishing: (1) that the defendant owed a duty of care to the plaintiff; (2) the defendant breached the duty; (3) an injury occurred; and (4) the injury was proximately caused by the defendant's breach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207, 608 N.E.2d 882 (1993). Whether a duty of care exists is a question of law which may be decided on a motion for summary judgment. Curatola, 154 Ill. 2d at 207.

A business operator generally owes his customers a duty to exercise reasonable care to maintain his premises in a reasonably safe condition. Ward, 136 Ill. 2d at 141. To decide whether a duty exists, we consider: (1) the foreseeability that the defendant's conduct will result in injury to another; (2) the likelihood of injury; (3) the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Curatola, 154 Ill. 2d at 214. A party who owns or controls land is not required to foresee injuries if the potentially dangerous condition is open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48, 665 N.E.2d 826 (1996).

The term "obvious" means that " 'both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.' " Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239 (1990), quoting Restatement (Second) of Torts § 343A, Comment b, at 219 (1965). In Deibert, however, the supreme court noted that, even though a deep rut in the ground at a construction site was an obvious hazard, it was foreseeable that the injured employee's attention would be distracted by the possibility of construction debris being thrown from an adjacent balcony. Deibert, 141 Ill. 2d at 438.

Plaintiffs rely on the reasoning that governed our supreme court's decision in Ward, 136 Ill. 2d at 147. Plaintiffs argue that open and obvious conditions do not necessarily relieve a defendant of a duty of reasonable care. In Ward, the supreme court held that a property owner owed a duty of care to a customer even though the customer was injured after encountering an obvious condition, if the defendant should reasonably anticipate that the plaintiff would be distracted. There, the plaintiff was injured when, while carrying a large mirror he had just purchased at defendant's store, he walked into a concrete post located just outside the store entrance. Ward, 136 Ill. 2d at 138. The court concluded that the defendant owed the plaintiff a duty of care because it was reasonable to expect that the plaintiff's attention might be distracted from the ...

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