from the Circuit Court of Lake County. No. 17-L-104 Honorable
Diane E. Winter, Judge, Presiding.
PRESIDING JUSTICE BIRKETT delivered the judgment of the
court, with opinion. Justices Schostok and Spence concurred
in the judgment and opinion.
1 Plaintiff, Kun Mook Lee (Kun Mook), appeals from an order
of the trial court granting summary judgment in favor of
defendant, Young Rok Lee (Young Rok). For the following
reasons, we affirm.
2 I. BACKGROUND
3 On October 11, 2015, Kun Mook and Young Rok were members of
the same church. Seung Jang (Pastor Jang) was their pastor.
On that afternoon, Kun Mook and Pastor Jang appeared at Young
Rok's house even though neither's assistance had been
requested, neither had been invited, and both had been
specifically told not to come to Young Rok's house.
Nevertheless, they arrived at Young Rok's house with
equipment to cut a tree limb on the property. Pastor Jang
provided the equipment. Young Rok did not provide, maintain,
or otherwise supply any of the equipment used in the
subsequent tree trimming efforts.
4 After looking at the tree limb, Kun Mook immediately said
that the work should be left to professionals because the
tree limb was too large and too high and the work would be
dangerous. Nevertheless, Kun Mook and Pastor Jang unloaded
the equipment from the car and began affixing two smaller
ladders together with wire, to reach the needed height. Young
Rok was in the backyard mowing his lawn at that
time. When Young Rok came to the front yard and
saw Pastor Jang and Kun Mook, he immediately told the men to
stop their efforts and not to cut the tree limb, because it
was too high and too dangerous. The two men ignored Young Rok
and continued to try to cut the limb off the tree. Young Rok
eventually assisted them in their efforts.
5 Kun Mook thought that the tree limb might damage the roof
when it fell after being cut, so Young Rok tied a rope around
the limb being cut and tied the other end to another limb so
that the cut limb would not fall and damage the roof. The two
ladders that were tied together were erected and placed
against the very limb to be cut. Kun Mook
volunteered to ascend the ladders-to a height of 20 to 25
feet while wearing dress shoes and carrying an electric
chainsaw-to cut the limb, which was around 8 to 12 inches in
diameter. Kun Mook then climbed the ladders and cut the limb.
He recalled only cutting the limb and falling. Pastor Jang
believed that Kun Mook fell when the limb hit the ladder as
it fell after being cut. Kun Mook sustained life-threatening
injuries as a result of the fall.
6 On February 6, 2017, Kun Mook filed a one-count complaint
sounding in negligence against Young Rok. In the complaint,
Kun Mook alleged that Young Rok failed to provide appropriate
tools, safe instruction, a safe place to perform the work,
and appropriate safety equipment, and failed to adequately
supervise the work and secure the debris. Young Rok answered
the complaint and raised the affirmative defense of
contributory negligence. Kun Mook was given leave to file a
first amended complaint, and that complaint was filed on
September 13, 2017. In the first amended complaint, Kun Mook
added Pastor Jang as a defendant. That complaint also sounded
in negligence, with the same allegations in the original
complaint now directed at Young Rok in count I and Pastor
Jang in count II. Pastor Jang answered the first amended
complaint and raised the affirmative defense of contributory
negligence. Pastor Jang also filed a counterclaim for
contribution. Young Rok also answered that complaint, raised
the affirmative defense of contributory negligence, and filed
a counterclaim for contribution.
7 On March 19, 2018, Kun Mook filed a motion for a good-faith
finding. In the motion, Kun Mook noted that Pastor Jang had
insurance coverage for the incident under his homeowner's
insurance policy and that the insurance company had tendered
the limits of Pastor Jang's policy, $100, 000, to Kun
Mook. The trial court entered a good-faith finding as to the
settlement between Kun Mook and Pastor Jang.
8 On June 8, 2018, Young Rok filed a second affirmative
defense and referred to the open-and-obvious rule.
Specifically, Young Rok alleged that, when Kun Mook fell, Kun
Mook had a duty to exercise ordinary care for his own safety,
including the duty to avoid open-and-obvious dangers.
Notwithstanding that duty, Young Rok alleged, Kun Mook
"breached his duty by carelessly and negligently failing
to appreciate and avoid a danger so open and obvious,
specifically, two ladders affixed together reaching
considerable heights leaned against a tree limb to be cut
with an electric chainsaw, that any person would reasonably
be expected to see it." Young Rok alleged that the
existence of the open-and-obvious condition barred the relief
Kun Mook prayed for in his first amended complaint.
9 On July 13, 2018, Young Rok filed a motion for summary
judgment. After a hearing, the trial court granted the
motion. Kun Mook timely appeals.
10 II. ANALYSIS
11 On appeal, Kun Mook argues that the trial court erred in
granting Young Rok's motion for summary judgment, because
it disregarded his chosen theory of liability (ordinary
negligence) and required him to overcome a defense to a
theory (premises liability) he chose not to plead. Kun Mook
contends that, in Illinois, the open-and-obvious rule applies
only to premises- and product-liability cases. He claims that
no Illinois case has specifically held that the
open-and-obvious rule applies to ordinary-negligence cases,
whereas several cases have "indicated that in Illinois
the open and obvious doctrine does not apply to ordinary
negligence claims." As support for this claim, Kun Mook
cites Smart v. City of Chicago, 2013 IL App (1st)
120901; Chu by Chu v. Bowers, 275 Ill.App.3d 861
(1995); Passarella v. NFI Interactive Logistics,
LLC, No. 12-C-4147, WL 4148674 (N.D. Ill. July 9, 2015);
and Jones v. Union Pacific R.R. Co., No. 12-C-771,
WL 5251993 (N.D. Ill. Sept. 8, 2015).
12 Summary judgment is appropriate where "the pleadings,
depositions, 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 a
judgment as a matter of law." 735 ILCS 5/2-1005(c) (West
2018). While summary judgment provides a swift means to
resolve a lawsuit, it is also a severe means of disposing of
litigation. Monson v. City of Danville, 2018 IL
122486, ¶ 12. Because of this, the court must construe
the record strictly against the moving party and favorably
toward the nonmoving party, and the court should grant
summary judgment only if the moving party's right to