Witcher v. 1104 Madison St. Restaurant

          Appeal 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.

          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.

         ¶ 3 BACKGROUND

         ¶ 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 did so.

         ¶ 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.

         ¶ 10 ANALYSIS

         ¶ 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, ¶ ...