Court of Appeals of Illinois, First District, First Division
NATALIE WITCHER, as Special Administrator for the Estate of Toney Adewoye, Plaintiff-Appellant,
1104 MADISON ST. RESTAURANT d/b/a Plush Chicago, Defendant-Appellee.
from the Circuit Court of Cook County No. 16 L 2919 Honorable
Patricia O'Brien Sheahan Judge Presiding.
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court
with opinion. Justices Hyman and Pierce concurred in the
judgment and opinion.
GRIFFIN, PRESIDING JUSTICE.
1 Toney Adewoye was patronizing Plush, a restaurant and
lounge in Chicago, when he was stabbed in the neck and
killed. The special administrator of Adewoye's estate,
plaintiff Natalie Witcher, brought this case for wrongful
death against defendant 1104 Madison St. Restaurant, the
company that operated Plush. Witcher contends that 1104
Madison failed to provide proper security at the restaurant
in order to prevent Adewoye's death.
2 The trial court entered summary judgment in favor of 1104
Madison. The trial court found that the murder was not
reasonably foreseeable so that 1104 Madison could not be held
to have had a legal duty to prevent the murder. Witcher
appeals, and we affirm.
4 On October 12, 2011, a Wednesday, Toney Adewoye visited
Plush restaurant and lounge located at 1104 W. Madison Street
in Chicago. Adewoye was at the establishment with someone he
referred to as his wife. When Adewoye was getting ready to
leave the establishment, he began to speak with a man who was
unknown to Plush's owner and the restaurant's other
patrons. The encounter seemed cordial until, suddenly, the
unknown man appeared to slap Adewoye's face. The
witnesses did not see any weapon. The unknown man quickly
left the restaurant and Adewoye exited too. Witnesses found
Adewoye outside of Plush soon afterwards and he was bleeding
heavily from his neck. The whole incident happened in a
matter of seconds.
5 The unknown man entered a vehicle that was standing across
the street from Plush and quickly left. Plush's owner
called 911, and a doctor that was patronizing the restaurant
attended to Adewoye. Adewoye bled heavily from the neck and
died from his injuries. The man who stabbed Adewoye was never
identified and never apprehended.
6 Plush had experienced some disturbances in the years
preceding the stabbing. There had been public complaints made
about Plush by members of the community between 2009 and
2011. William Kleronomos, Plush's owner, began to employ
security on Friday and Saturday nights. Kleronomos testified
in a deposition that he employed security on weekends but not
on weeknights because of the increased volume of customers on
weekends. He testified that approximately 30 people were
present on the night of Adewoye's murder whereas about 80
to 100 people would be present on weekend nights.
7 In support of her theory of liability in this case,
plaintiff produced a Chicago Police Department Incident Check
Report which documented the incidents at 1104 W. Madison St.
from January 2006 to October 2011. In the five and a half
years preceding Adewoye's murder, there had been calls to
the police to report 11 battery incidents, one assault, five
thefts, and three motor vehicle thefts that corresponded to
the address where Plush was located. Of those 20 incidents
that occurred at 1104 W. Madison in the five years before the
murder, one was on a Wednesday (the day of the week that the
murder occurred), 13 were on other weeknights, and six were
on a Friday or Saturday.
8 Plaintiff filed this case on the basis that Plush is liable
for Adewoye's death because it failed to provide adequate
security to prevent his death. The parties conducted
discovery, including taking the depositions of Plush's
owner Kleronomos and another eyewitness, Jeffrey Timms, both
of whom were present at Plush on October 12, 2011 and
witnessed the murder. Plaintiff disclosed two expert
witnesses, but the trial court found the expert witness
disclosures to be deficient. The trial court gave plaintiff
leave to amend the expert witness disclosures, but she never
9 Defendant filed a motion for summary judgment arguing that
it did not have a legal duty to prevent Adewoye from being
murdered in its establishment under the circumstances. The
motion for summary judgment was fully briefed and the trial
court conducted a hearing on the motion. The trial
court's ruling, memorialized in a bystander's report
agreed upon by the parties, was that defendant is not liable
because "there was no testimony or other evidence that
the altercation was even remotely foreseeable." The
trial court found that the reports of other disturbances were
insufficient to give rise to a duty on defendant's part
to protect Adewoye from the assailant. The trial court also
reiterated its finding that plaintiffs expert disclosures
were deficient, but stated that even if the court did
consider the experts' affidavits, defendant would still
not have owed a duty of care to Adewoye in this case.
11 On appeal, plaintiff argues that the trial court erred
when it entered summary judgment in defendant's favor.
Summary judgment is appropriate when the pleadings,
depositions, admissions and affidavits, viewed in a light
most favorable to the nonmovant, fail to establish that a
genuine issue of material fact exists, thereby entitling the
moving party to judgment as a matter of law. 735 ILCS
5/2-1005 (West 2012); Fox v. Seiden, 2016 IL App
(1st) 141984, ¶ 12. If disputes as to material facts
exist or if reasonable minds may differ with respect to the
inferences drawn from the evidence, summary judgment may not
be granted. Fox, 2016 IL App (1st) 141984, ¶