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

Court of Appeals of Illinois, Second District

November 18, 2013

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

Held [*]

In an action for the injuries plaintiff suffered when she was standing on the sidewalk outside defendant’s salon while waiting for her husband after making a purchase inside and she was struck by a motorist who was parking in a space facing the storefront when his car accidentally accelerated and jumped the curb, the trial court properly granted summary judgment for the store, since the sidewalk and parking area were controlled by the store’s landlord, the landlord had a duty to exercise reasonable care to keep those premises in a reasonably safe condition, and the store had no duty to warn plaintiff of the possibility of being struck by an out-of-control motorist entering one of the parking spaces facing the store.

Appeal from the Circuit Court of Winnebago County, No. 08-L-316; the Hon. J. Edward Prochaska, Judge, presiding.

Frank A. Perrecone, of Ferolie & Perrecone, Ltd., of Rockford, for appellants.

Edward M. Maher, of Guyer & Enichen, P.C., of Rockford, for appellee.

Panel 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 Susan 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 ...

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