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Hougan v. Ulta Salon, Cosmetics & Fragrance, Inc.

Court of Appeals of Illinois, Second District

November 18, 2013

SUSAN HOUGAN and THOMAS HOUGAN, Plaintiffs-Appellants,
v.
ULTA SALON, COSMETICS AND FRAGRANCE, INC., Defendant-Appellee Fridh Corporation and Joseph Biddle, Defendants.

Appeal from the Circuit Court of Winnebago County. No. 08-L-316 Honorable J. Edward Prochaska, Judge, Presiding.

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

SPENCE JUSTICE

¶ 1 This case arises from injuries sustained by Susan Hougan when she was standing on the sidewalk outside a storefront owned by Fridh Corporation (Fridh) and leased to Ulta Salon, Cosmetics & Fragrance, Inc. (Ulta[1]). Joseph Biddle drove into a parking space facing the store but then accidentally pressed the accelerator rather than the brake, causing the car to jump the curb and injure two pedestrians, including Susan. Plaintiffs, Susan and her husband, Thomas Hougan, brought suit against defendants, Ulta, Fridh, and Joseph. The trial court granted Ulta's motion for summary judgment, reasoning that any duty to protect Susan from the risk of being struck by an out-of-control vehicle when she was standing on a common area owned, maintained, and exclusively controlled by Fridh did not extend to Ulta. The trial court further entered a finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), allowing plaintiffs to appeal its ruling. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiffs stopped at Ulta on June 29, 2008, so that Susan could make a purchase. It was raining. Thomas parked in a parking spot facing the store, to the side of Ulta's front door. He remained in the car while Susan went inside. She exited after about 10 minutes and stood under an awning, where sisters Melissa and Laurian Ogle were also standing. Susan tried to get Thomas's attention because she was not sure if the car's doors were unlocked, and she did not want to get wet. She heard an engine rev and saw a car coming toward her. The front passenger side of the car struck her. Susan estimated that, from the time she exited the store to the time she was hit, at most two or three minutes had passed.

¶ 4 Melissa and Laurian had been out with Melissa's then-boyfriend, Joseph. They were in a car belonging to Melissa and Laurian's mother. They stopped at Ulta, and Melissa and Laurian went inside while Joseph waited in the car. When the women exited the store, it was raining heavily. They stood on the sidewalk outside the store, under an awning, and waved to Joseph. Joseph understood them to be asking him to pick them up. He moved to the driver's seat and pulled into a parking spot in front of the store. When he was approaching the front of the spot, he heard Melissa saying "stop." Joseph panicked and put his right foot down quickly. Either he pressed the accelerator or his foot slipped off the brake and onto the accelerator because his shoes were wet. The car went over the curb, onto the sidewalk, and hit the building. The car struck Melissa's legs, and when Joseph exited he saw that Sudan had also been injured. Joseph was ticketed for negligent driving, to which he pleaded guilty.

¶ 5 Ulta's entrance and exit doors were side by side. The only way for customers to walk to and from the store and the parking lot was to cross the sidewalk in front of the store. The width of the sidewalk was seven feet, eight inches. The curb in front of the store was about five inches high.

¶ 6 Alex Lelli testified in his deposition that he was in charge of real estate, construction, repairs, and maintenance at Ulta. All of Ulta's stores were leased, and almost all of them were in shopping centers. Ulta had employees who would negotiate with landlords regarding leases. Making sure there was safe passage between the store and the parking lot could be negotiated, though it was "unlikely" that the installation of bollards would be discussed.

¶ 7 Ulta signed the lease for the store in June 1995 with the then-owner of the shopping center. Ulta was the original tenant of the space. About six months later, Fridh purchased the shopping center and became Ulta's landlord. The lease remained in effect. Fridh did not alter the parking lot in any way.

¶ 8 The leasehold described in the lease is represented in a diagram as the store itself; the sidewalk and parking lot are not included. The lease states that the landlord constructed the sidewalks and parking lots and striped the parking lots. The lease refers to these areas, among others, as " 'Common Facilities' " and states that they are to be for the use of all shopping center occupants. The lease states that the landlord will:

"Make all necessary repair and maintenance to the exterior and structural portions of the improvements on the Leased Premises, including but not limited to roofs, exterior walls, slab floor, canopies, but excluding Tenant's signs and doors."

The lease further states in relevant part:

"Common Facilities. Landlord shall maintain the Common Facilities in good order, appearance and repair (including but not limited to all necessary patching and restriping of the parking areas), provide adequate lighting thereof, and promptly remove all snow, dirt and debris therefrom, it being understood and agreed that these items shall be common area charges reimbursable as provided in Section 12.2 hereof.
* * * Tenant's Alterations. Tenant may at its expense from time to time make any non-structural alterations, changes or improvements in, on and to the interior of the Leased Premises which it may deem necessary and desirable. Tenant may make structural changes to the Leased Premises with the approval of the Landlord which approval shall not be unreasonably withheld or delayed, provided that the installation, removal, placement and relocation of trade fixtures, the change or addition of interior doors, and the changing or relocation of interior plumbing, electrical, and other lines (including venting) shall not be deemed structural changes. Tenant shall not be required to, but may, remove any such alterations, changes or improvements at any time before the termination of this Lease by lapse of time or otherwise, provided Tenant shall repair any damage caused by such removal. Notwithstanding anything in this Lease to the contrary, no alteration, change or improvement shall be made to the exterior of the Leased Premises without [the]Landlord's written consent, which consent may be granted or withheld in the Landlord's sole discretion." (Emphases added.)

¶ 9 Carolyn Enkstrom, Fridh's vice president of operations, testified in a deposition that the lease represented all of Ulta's rights and obligations regarding the property.

ΒΆ 10 Jeff Holt, Fridh's commercial property manager, testified to the following in his deposition. The parking lot and sidewalk were common areas under the lease, and Fridh was responsible for their maintenance and repairs. Fridh was also responsible for keeping the common areas in a reasonably safe condition, excluding snow removal for the sidewalks. Fridh's responsibilities included maintaining a safe entrance to and exit from the store. Under the lease, Ulta was required to obtain permission from Fridh for structural changes to the interior of the store, and ...


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