Brown v. Jewel Companies, Inc.

530 N.E.2d 57, 175 Ill. App. 3d 729, 125 Ill. Dec. 139, 1988 Ill. App. LEXIS 1449
CourtAppellate Court of Illinois
DecidedOctober 6, 1988
Docket4-88-0226
StatusPublished
Cited by3 cases

This text of 530 N.E.2d 57 (Brown v. Jewel Companies, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Jewel Companies, Inc., 530 N.E.2d 57, 175 Ill. App. 3d 729, 125 Ill. Dec. 139, 1988 Ill. App. LEXIS 1449 (Ill. Ct. App. 1988).

Opinion

PRESIDING JUSTICE

GREEN delivered the opinion of the court:

On October 26, 1987, plaintiff filed suit in the circuit court of Macon County against defendants Jewel Companies, Inc., and Oseo Drug, Inc. After that complaint was dismissed on defendants’ motion, an amended complaint was filed against the same defendants, who again moved to dismiss for failure to state a cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) On March 2, 1988, the court allowed that motion, granting plaintiff a further opportunity to amend. Plaintiff elected to stand on the amended complaint and, on March 23, 1988, the court entered judgment in bar of action in favor of both defendants. Plaintiff has appealed. We determine that each count contains allegations of a cause of action but also purports to impose liability based on allegations which do not set forth a tort. Accordingly, we reverse the order of dismissal and remand for further proceedings with directions that much of the complaint be ordered stricken.

Plaintiff’s amended complaint is apparently directed against each defendant in separate counts, but each count makes the same allegations because plaintiff contends defendants together were the operators of a combined grocery and drug store in a mall in Decatur on April 7, 1987, the date of the alleged incident in question. She alleged defendants employed security guards to protect against shoplifting. She also alleged the “guards customarily pursued and apprehended suspected shoplifters on the store premises,” and “some of *** [those apprehended] had fled or attempted to flee through the exit” of the store in the past. The amended complaint further set forth that defendants (1) knew their self-service method of operation made shoplifting on the premises more likely, and (2) should have anticipated shoplifters would be pursued by the guards and injure customers in the course of their flight.

The amended complaint then alleged: (1) on April 7, 1987, plaintiff was a customer in defendants’ store, and was in the process of leaving, when a suspected shoplifter, being chased by guards, knocked plaintiff through a door and onto a sidewalk, whereupon a chasing security guard kicked or stepped on plaintiff’s foot, injuring her further. That complaint maintained the security guard had stopped the accused shoplifter near the exit to the store, but the guard’s effort to seize the shoplifter was unsuccessful.

The complaint further alleged defendants were negligent and violated their duty under section 2 of the Premises Liability Act (111. Rev. Stat. 1985, ch. 80, par. 302), in that their security guard:

“(a) *** failed to restrain the suspect;
(b) *** failed to block the suspect’s path to the exit;
(c) *** pursued the suspect when he knew or should have known that customers would thereby be endangered;
(d) *** failed to keep a proper lookout while pursuing the suspect;
(e) *** failed to avoid plaintiff’s foot;
(f) *** failed to apprehend the suspect at a place where her flight would not jeopardize other persons on the store premises; [and]
(g) [defendants] failed to properly train [their] security guard in the restraint and pursuit of suspected shoplifters.”

Finally, the complaint contained allegations of proximate cause and plaintiff’s injury.

Any contention that the complaint here is multifarious because any cause of action for the pursuing security guard’s negligence in stepping on or colliding with plaintiff was separate from a cause of action for the defendants’ negligence arising from the suspected shoplifter’s flight from the security guard and collision with plaintiff is not of significance. Sections 2—603(b) and 2—613(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2—603(b), 2—613(a)) require separate causes of action to be stated in separate counts. However, the failure of defendants to raise that issue in the trial court waives any such claim of error on appeal. (Valario v. Heldson (1978), 66 Ill. App. 3d 1014, 384 N.E.2d 502.) Because of the nature of our decision here, no question of duplicity will exist on remand.

Section 2 of the Premises Liability Act abolishes the common law distinction between invitees and licensees in regard to duty owed by owners and occupiers of premises to such persons and describes the duty owed to both invitees and licensees as “that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 80, par. 302.) The allegation contained in the two counts which charges the pursuing guard with failing to keep a proper lookout during the chase and failing to avoid plaintiff’s foot sets forth a cause of action in favor of plaintiff for an act of negligence by that guard which was a proximate cause of injury to plaintiff. Clearly, under the allegations, the guard owed a duty to plaintiff to use care not to injure her while chasing the shoplifter.

We hold that no other grounds for relief were stated in plaintiff’s complaint because the defendants owed no duty to plaintiff in regard to the other allegations of commission or omission. In Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077, the supreme court again set forth the elements for determining whether one has a duty to exercise care in regard to another. The most important element was stated to be foreseeability, provided the foreseeability was reasonable. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619.) The court then recited with continuing approval the other factors set forth in the leading case of Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233. These include the likelihood of injury, the weight of the burden in guarding against the injury, and the consequences of putting the burden on the defendant.

The substance of the charges, besides those which we deem sufficient to state a cause of action, are that (1) defendants should have anticipated shoplifters would be in their store; (2) upon stopping a suspected shoplifter, defendants’ guard should have restrained the shoplifter; (3) once the shoplifter ran, the guard should not have chased the shoplifter; and (4) defendants should have trained their guards how to properly restrain and pursue shoplifters. Because we conclude the allegations fail to set forth ultimate facts giving rise to the other elements imposing a duty on defendants, we need not decide whether defendants should reasonably have foreseen shoplifters would (1) frequent their store; (2) run, if apprehended and not restrained; and (3) run into and injure customers while they ran.

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Cite This Page — Counsel Stack

Bluebook (online)
530 N.E.2d 57, 175 Ill. App. 3d 729, 125 Ill. Dec. 139, 1988 Ill. App. LEXIS 1449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-jewel-companies-inc-illappct-1988.