The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant's motion for summary judgment, to which plaintiff has filed a response and defendant a reply.
According to the first amended complaint, plaintiff was shopping in the gardening area of a Lowe's hardware store in Fairview Heights, Illinois when a "wild bird" flew into the back of her head causing injuries. According to the plaintiff, the defendant provided food for the birds in the form of berries and seeds and provided water for the birds by watering plants in the gardening center.*fn1 Defendant disputes plaintiff's assertion, and argues that it does not care for or provide water to the birds. Plaintiff argues that the defendant did not exercise reasonable care in making the premises safe and that the defendant did not warn customers that the birds were a dangerous condition on the premises.
Plaintiff presents two distinct legal theories for recovery: negligence (Count I) and strict liability under Illinois's Animal Control Act, 510 ILCS 5/16 (Count II). Defendant moves for summary judgment.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as matter of law.See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1998) (citing Celotex, 477 U.S. at 323). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See, id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor.See, Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
"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. 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." Cobb v. Martin IGA & Frozen Food Center, Inc., 785 N.E.2d 942, 946 (Ill. App. Ct. 2003) (cite omitted). "[P]laintiff must establish that defendant owed her a duty of care; that is, she is required to prove that she and defendant stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff."
Sandoval v. City of Chicago, 830 N.E.2d 722, 726 (Ill. App. Ct. 2005) (cites omitted).
"The defendant is not required to . make his premises injury-proof." Sandoval, 830 N.E.2d at 727-28. "In determining whether a legal duty exists, the occurrence involved must not have been simply foreseeable; it must have been reasonably foreseeable. The imposition of a legal duty requires more than a mere possibility of occurrence. 'Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.'" Hartung v. Maple Inv. and Dev. Corp., 612 N.E.2d 885, 887-88 (Ill. App. Ct. 1993) (quoting Cunis v. Brennan, 308 N.E.2d 617, 619 (Ill. 1974)) (emphasis in original).
Here, plaintiff argues that defendant owed her a duty to either protect her from the birds or warn her of the presence of the birds. "In premises liability cases . Illinois courts determine whether a duty of care exists by considering the common law duty factors of (1) reasonable foreseeability of the injury; (2) likelihood of the injury; (3) magnitude of the burden on the defendant of guarding against the injury; and (4) consequences of placing the burden on the defendant." Schmid v. Fairmont Hotel Co.-Chicago, 803 N.E.2d 166, 173 (Ill. App. Ct. 2003) (cites omitted).
"With respect to the first factor, namely, the reasonable foreseeability of injury, we note that Illinois law holds that persons or entities who own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. 'Open and obvious' conditions include those wherein the condition and risk are apparent to and would be recognized by a reasonable person exercising ordinary perception, intelligence and judgment in visiting an area." Sandoval, 830 N.E.2d at 727 (internal citations omitted).
In the instant case, the Court finds as a matter of law that plaintiff's injury was not reasonably foreseeable. Birds are not commonly thought to pose a danger to people. The defendant's affiants state that to their knowledge no bird has ever attacked a customer other than plaintiff (see, Doc. 38, Exs. 1, 2), accordingly, defendant had no notice or expectation that one of the birds could potentially attack a customer. If the Court were to impose such a duty on defendant, the magnitude of the burden on defendant, and all gardening centers, nurseries, and other outdoor retail facilities, would be tremendous. ...