2015 IL App (1st) 150166-B
FIRST DIVISION August 29, 2016
No. 1-15-0166
SAIME SEBNEM BULDUK and ) Appeal from the ABDULLAH BULDUK, ) Circuit Court of ) Cook County Plaintiffs-Appellants, ) ) v. ) No. 12 L 001069 ) WALGREEN COMPANY, an Illinois ) corporation, ) Honorable ) Daniel T. Gillespie, Defendant-Appellee. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.
OPINION
¶1 Plaintiff Saime Sebnem Bulduk appeals the order of the trial court granting defendant,
Walgreen Company's (Walgreen) motion for summary judgment on her complaint alleging
negligence, negligent spoliation of evidence, and res ipsa loquitur. On appeal, plaintiff argues
that the trial court erred in granting summary judgment because a genuine issue of material fact
exists as to whether the dangerous condition on defendant's property was open and obvious.
Plaintiff also argues that Walgreen's spoliation of its surveillance tapes prevented her from
establishing the facts necessary to support her negligence claim, and alternatively, that the
doctrine of res ipsa loquitur applies to establish her negligence claim. No. 1-15-0166
¶2 On October 15, 2015, this court issued an opinion affirming in part, and reversing in part,
the trial court's judgment. Defendant filed a petition for rehearing which this court denied.
Defendant then filed a petition to the supreme court which was denied on March 30, 2016.
However, the supreme court issued a supervisory order directing this court to vacate its judgment
in the matter, and to reconsider in light of Bruns v. City of Centralia, 2014 IL 116998.
Accordingly, we vacated our October 15, 2015, judgment and issue this opinion in its stead.
Upon reconsideration, we find Bruns distinguishable and therefore, for the following reasons, we
reverse the judgment of the trial court on the negligence claim and affirm on the claim for
negligent spoliation of the evidence, and remand for further proceedings.
¶3 JURISDICTION
¶4 The trial court entered its final order disposing of the case on December 15, 2014.
Plaintiffs filed their notice of appeal on January 13, 2015. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final
judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶5 BACKGROUND
¶6 On April 28, 2010, plaintiff entered a Walgreen store to purchase cosmetics products.
The cosmetics display began near the door of the store and continued "all the way almost to the
end." Plaintiff entered the store to purchase nail polish and browse the makeup selection. While
in the cosmetics aisle, plaintiff noticed a large, plugged-in cleaning machine placed in the middle
of the aisle. She "went around it, and [she] was looking at this [sic] items in the wall – on the
wall" when "something hit [her] right where the tailbone is. It was a very heavy piece of
equipment, and [she] noticed that it was just falling on [her]." After the incident, plaintiff
experienced intense pain in her neck, lower back, and occasionally in her leg. She stated in her
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deposition that she still experiences pain and is "only living like ten – 20 to 30 percent of [her] life
the way [she] used to live."
¶7 Nathan John Tauber was the store manager when the incident occurred. He stated that he
did not generally give directions to employees of Brite Site, an independent company Walgreen
hired to clean the store in question. He stated, however, that he would not "allow them to park
[the cleaning machines] in front of – in front of the entrance or exit where people can't get in" and
that the store's policy is to not allow Brite Site to "run the machines while the store is open."
¶8 On January 31, 2012, plaintiff filed her original negligence complaint against defendant
Walgreen. Thereafter, plaintiff filed several amended complaints and in her third and final
amended complaint, she alleged four counts against Walgreen: (1) negligence, (2) negligent
spoliation of evidence, (3) res ipsa loquitur, and (4) loss of consortium. With respect to
negligence, plaintiff alleged that while browsing the cosmetics aisle at a Walgreen store, she was
hit by a cleaning machine that had been left in the middle of the aisle. The machine had fallen and
hit her lower back, causing permanent injuries. Plaintiff's negligent spoliation of evidence claim
alleged that Walgreen failed to download or preserve camera footage from the store's surveillance
system on the day of the incident. Plaintiff also alleged that a presumption of negligence existed,
pursuant to res ipsa loquitur, because the injury resulted from a cleaning machine under
Walgreen's control and the individuals operating the machine on the day in question left the
country after learning of their forthcoming depositions. Finally, plaintiff alleged loss of
consortium for her husband, plaintiff Abdullah Bulduk, based on her injuries.
¶9 Walgreen filed motions for summary judgment as to the negligence, negligent spoliation of
evidence, and res ipsa loquitur counts. It also filed a motion to dismiss plaintiff's claim for loss of
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consortium. 1 In its motion for summary judgment as to negligence, Walgreen claimed that the
cleaning equipment injuring plaintiff was owned by Brite Site, a company Walgreen hired to clean
the store in question. Walgreen argued that it did not owe a duty to plaintiff since it exercised no
control over Brite Site employees, their work, or Brite Site's cleaning machines. Walgreen
further argued that Brite Site was an independent contractor that retained control over its own
activities, and its employees were not employees, agents, or servants of Walgreen. In response,
plaintiff argued that Walgreen was liable because it retained a supervisory power to prevent Brite
Site from using its cleaning machines in a harmful manner, and Walgreen provided cleaning
supplies to Brite Site which were required for the operation of the cleaning machine at issue.
Walgreen replied that it did not supervise the work of Brite Site and therefore had no liability.
¶ 10 In its motion for summary judgment as to negligent spoliation of evidence, Walgreen
claimed that it did not have a duty to preserve evidence unless plaintiff could establish that an
agreement, contract, statute, special circumstance, or voluntary undertaking had given rise to a
duty to preserve the evidence, and that a reasonable person in Walgreen's position should have
foreseen that the evidence was material to a potential civil action. Walgreen argued that plaintiff
could not establish these factors because the surveillance footage at issue did not record the area of
the store where the injury occurred, and therefore a reasonable person would not foresee that such
evidence would be relevant to a cause of action. Plaintiff responded that based on the evidence, a
minimum of three cameras could have captured the incident and the only surveillance downloaded
was the tape by the entrance of the store.
¶ 11 In its motion for summary judgment as to res ipsa loquitur, Walgreen argued that it did not
owe plaintiff a duty of care, and thus the claim must fail. Plaintiff responded that Walgreen
1 Loss of consortium is not an issue on appeal.
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exercised control over the cleaning machine at issue and allowed Brite Site to bring the machine in
the store while customers were shopping, thus rendering the doctrine of res ipsa loquitur
applicable.
¶ 12 The trial court granted Walgreen's motions for summary judgment as to the negligence
claim, the negligent spoliation of evidence claim, and the res ipsa loquitur claim. We assume
each of these motions were granted without a hearing, as no transcripts of any hearings are
included in the record on appeal. Plaintiff now appeals.
¶ 13 ANALYSIS
¶ 14 Plaintiff contends that the trial court erred in granting summary judgment in favor of
Walgreen on plaintiffs' negligence claims. Summary judgment is proper where the pleadings,
depositions, admissions and affidavits on file, viewed in the light most favorable to the
nonmoving party, show that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Cochran v. George Sollitt Construction Co., 358 Ill.
App. 3d 865, 872 (2005). Summary judgment is not proper where material facts are in dispute
or reasonable persons might draw different inferences from the undisputed facts. Adams v.
Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review the trial court's grant of
summary judgment de novo. Cochran, 358 Ill. App. 3d at 872.
¶ 15 To state a cause of action for negligence, plaintiff must show that defendant owed her a
duty, defendant breached that duty, and defendant's breach was the proximate cause of plaintiff's
injury. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000). Generally, a
business operator owes its invitees a duty to exercise reasonable care in maintaining the premises
in a reasonably safe condition for use by its invitees. Ward v. K mart Corp., 136 Ill. 2d 132,
141 (1990). To determine whether a duty exists, we consider the following factors: (1) the
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foreseeability that defendant's conduct will result in injury to another; (2) the likelihood of
injury; (3) the burden of guarding against injury; and (4) the consequences of placing such a
burden on defendant. Green v. Jewel Food Stores, Inc., 343 Ill. App. 3d 830, 832 (2003).
However, under common law there is no duty to protect invitees against dangers which are
known to them or from dangerous conditions which are open and obvious. Ward, 136 Ill. 2d at
142.
¶ 16 An exception to the open and obvious danger rule exists when one " 'has reason to expect
that the invitee's attention may be distracted, so that [she] will not discover what is obvious, or
will forget what [she] has discovered, or fail to protect [herself] against it.' " Id. at 149-50
quoting Restatement (Second) of Torts § 343A, cmt f, at 220 (1965). In these cases, the fact
that the danger is known or obvious is not " 'conclusive in determining the duty of the possessor,
or whether [it] has acted reasonably under the circumstances.' " Id. at 150 (quoting Restatement
(Second) of Torts § 343A, cmt. F (1965)). The supreme court in Ward held that in determining
whether the distraction exception applies, the proper inquiry is "whether the defendant should
reasonably anticipate injury to those entrants on [its] premises who are generally exercising
reasonable care for their own safety, but who may reasonably be expected to be distracted *** or
forgetful of the condition after having momentarily encountered it." Id. at 152. As will be
discussed later in the opinion, we find it reasonably foreseeable that a customer at a Walgreen
store would actually be distracted while searching for items on a shelf and not notice the open
and obvious danger posed by a large cleaning machine left in the middle of the shopping aisle.
¶ 17 Bruns is distinguishable on the facts and does not compel a different result. In Bruns,
the plaintiff parked on the street in front of an eye clinic where she had an appointment. Bruns,
2014 IL 116998, ¶ 4. As she walked toward the clinic she stubbed her toe on a crack in the
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sidewalk, which caused her to fall and injure her arm, leg and knee. Id. When she fell, the
plaintiff was looking at the door of the clinic and the steps. She noticed the defect in the
sidewalk on her visits to the clinic in the past three months, and was certain she noticed it on the
day of the incident. Id.
¶ 18 The plaintiff filed a negligence complaint against the city for failure to maintain, inspect
and repair the sidewalk, and for permitting it to remain in a dangerous condition. The city filed
a motion for summary judgment, arguing that the defect was an open and obvious danger and
therefore it was not required to foresee, or protect the plaintiff from, the dangerous condition.
Id., ¶¶ 5, 6. The trial court granted the summary judgment motion, but on appeal the appellate
court reversed, finding that the city had a duty to fix the defect and whether it breached its duty
was a question of fact. Id., ¶ 9. The appellate court also found that the distraction exception
to the open and obvious danger argument applied. Id.
¶ 19 The supreme court discussed the distraction exception, noting that the exception applied
only "where evidence exists from which a court can infer that plaintiff was actually distracted."
Id., ¶ 22. The court then acknowledged that it "has not adopted a precise definition of what
constitutes 'distraction' for purposes of" the distraction exception, but it would review case law
for "general observations" about the exception. Id., ¶ 23.
¶ 20 The supreme court looked at Ward, 136 Ill. 2d 132 (1990) (plaintiff injured when he
collided with a five-foot tall post located outside the customer entrance while carrying a large
mirror he purchased); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d430 (1990)
(plaintiff injured when he stepped into a deep tire rut as he exited a portable bathroom because
he was looking out for material being thrown off a nearby balcony); Rexroad v. City of
Springfield, 207 Ill. 2d 33 (2003) (plaintiff injured when he stepped into a hole in a parking lot
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adjacent to the football field after being instructed to take a helmet to a player); and American
National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14 (1992)
(plaintiff, a billboard painter, was electrocuted when he came into contact with a low-hanging
high-voltage power line while walking on the walkrail). Id., ¶¶ 24-27.
¶ 21 After analyzing these cases, the court concluded that "[i]n each of these cases, some
circumstance was present that required the plaintiff to divert his or her attention from the open
and obvious danger" and the defendant could reasonably foresee the distraction. Id., ¶¶ 28, 29.
Unlike the plaintiffs in those cases, the plaintiff in Bruns "failed to identify any circumstance,
much less a circumstance that was reasonably foreseeable by the City, which required her to
divert her attention from the open and obvious sidewalk defect***." (Emphasis in the original)
Id., ¶ 30. Rather, the only distraction was that the plaintiff was looking at the door and steps of
the clinic rather than at the sidewalk. The supreme court concluded "that the mere fact of
looking elsewhere does not constitute a distraction." Id., ¶ 22.
¶ 22 Defendant Walgreen welcomes customers like plaintiff to its store to browse and
purchase items. Plaintiff here stated that she was in the store for the purpose of browsing and
purchasing cosmetics. The large cosmetics section started near the door and continued "all the
way almost to the end." Plaintiff browsed the makeup selection and noticed a large, plugged-in
cleaning machine placed in the middle of the aisle. She "went around it," as she continued to
browse the section looking for her items. While she reached for items on the shelf, plaintiff
alleges that the cleaning machine struck her in her back. She alleges that her focus on finding the
cosmetic items she wanted to purchase distracted her from noticing the danger the machine
posed.
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¶ 23 Unlike the plaintiff in Bruns, plaintiff was performing a task, supported by defendant, in
looking at the cosmetics on the shelf; she was not merely "looking elsewhere." Defendant also
knew the cleaning machines were being used at its store on the day in question, and recognized
that the machines could pose a risk to customers. The store manager stated that he would not
"allow them to park [the cleaning machines] in front of – in front of the entrance or exit where
people can't get in" and that the store's policy is to not allow Brite Site to "run the machines while
the store is open."
¶ 24 The parties disagree on whether plaintiff was actually distracted so as to invoke the
distraction exception to the open and obvious danger rule. Although plaintiff acknowledges she
noticed the cleaning machine, she alleges that she was distracted by the task at hand from
recognizing the danger it posed. "Whether in fact the condition itself served as adequate notice
of its presence or whether additional precautions were required to satisfy the defendant's duty are
questions properly left to the trier of fact." Ward, 136 Ill. 2d at 156. "[W]hen a court cannot
conclude as a matter of law that a condition posed an open and obvious danger, then 'the
obviousness of the danger is for the jury to determine.' " Duffy v. Togher, 382 Ill. App. 3d 1, 8
(2008) quoting Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994). Since a genuine
issue of material fact exists, the trial court's grant of summary judgment was erroneous.
¶ 25 Defendant disagrees, citing True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676,
680 (2000), Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 259 (2010), and Kuhn
v. Goedde, 26 Ill. App. 2d 123, 126 (1960). However, these cases are distinguishable. In True
and Kleiber, the plaintiffs offered no evidence or testimony that they were distracted from
noticing the dangerous conditions. In Kuhn, there was no evidence that the land owner even
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knew that the tractor causing the injury was on the premises on the day of the accident. We are
not persuaded by defendant's argument here.
¶ 26 Our dissenting colleague (infra ¶ 35) states, "there was no question that the presence of
the cleaning machine" in the middle of the aisle was an open and obvious danger. However,
like the trial court's ruling, that is a conclusion based on personal opinion without any
explanation as to how and upon what factors the "open and obvious danger" conclusion was
reached. We can only say that without question there existed a cleaning machine in the middle
of the aisle. Upon hearing all the evidence reasonable persons may very well conclude either
result, but most importantly it is a question of fact to be determined by the trier of fact.
Furthermore, "[t]he existence of an open and obvious danger is not an automatic per se bar to the
finding of a legal duty on the part of a defendant." Bruns, 2014 IL 116998, ¶ 19 (courts must
still apply traditional duty analysis to the particular facts of a case, even where the danger was
open and obvious). We have already discussed foreseeability. If there was a reasonable
likelihood of injury from accidents involving the large machine, the burden of guarding against
such injury for defendant would not be significant or costly. Defendant need only ensure that
the machines are not out or in use while the store is open to customers, which appears to be its
normal policy according to the store manager's testimony. Therefore, finding a duty on the part
of defendant here to protect its customers from the dangers of a cleaning machine regularly used
in its business is justified, even if the machines pose an open and obvious danger.
¶ 27 Plaintiff also contends that the trial court erred in granting summary judgment on her
negligent spoliation claim. A defendant may owe "a duty of due care to preserve evidence if a
reasonable person in the defendant's position should have foreseen that the evidence was material
to a potential civil action." Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195 (1995).
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Furthermore, in a negligence claim involving the loss or destruction of evidence, plaintiff must
allege sufficient facts showing that such loss or destruction caused her to be unable to prove her
underlying suit. Id. at 196.
¶ 28 In her complaint, plaintiff alleged "[o]n information and belief" that video evidence of the
accident existed but was not preserved by defendant. However, in its motion for summary
judgment, defendant stated that all surveillance video footage from the evening of the accident
was reviewed, and any footage showing plaintiff was sent to the insurer. The only footage
showing plaintiff was when she entered and exited the store. The two cameras that would have
captured footage in the cosmetics area were not focused on the section where plaintiff was
injured. This testimony is undisputed. Since the video footage did not record the incident, its
loss or destruction could not cause plaintiff to be unable to prove her case. Therefore, summary
judgment as to the negligent spoliation claim was proper. Due to our disposition of the case,
we need not address plaintiff's contention in the alternative that the doctrine of res ipsa loquitur
applies to establish her negligence claim.
¶ 29 For the foregoing reasons, the judgment of the circuit court is affirmed in part and
reversed in part, and the cause remanded for further proceedings.
¶ 30 Affirmed in part and reversed in part; remanded for further proceedings.
¶ 31 JUSTICE CONNORS, dissenting.
¶ 32 The majority opinion concludes that summary judgment in favor of Walgreen was
improper on plaintiff's claim of negligence because she established a triable issue as to whether
Walgreen owed her a duty. As the majority notes, there are certain factors that our supreme court
has identified as relevant to the existence of a duty: the "reasonable foreseeability" of injury, the
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likelihood of injury, the magnitude of the burden of guarding against it and the consequence of
placing that burden upon defendant. Ward v. K Mart Corp., 136 Ill. 2d 223, 226-27 (1990).
¶ 33 The first factor in determining duty is foreseeability, as no legal duty arises unless the harm
is reasonably foreseeable. Kleiber v. Freeport Farm and Fleet, Inc., 406 Ill. App. 3d 249, 256
(2010). In a situation where a plaintiff alleges that an injury was caused by a condition of the
defendant's property, and the plaintiff was an invitee on the property, whether the injury is
reasonably foreseeable is governed by section 343 of the Restatement (Second) of Torts, which
sets forth the general rule on the duty of care owed by possessors of land to invitees. Id. Section
343 provides:
"A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger."
¶ 34 An exception to this general rule is set forth in section 343A of the Restatement, which
provides as follows:
"A possessor of land is not liable to his invitees for physical harm caused by
any activity or condition on the land whose danger is known or obvious to them, unless
the possessor should anticipate the harm despite such knowledge or obviousness."
Restatement (Second) of Torts § 343A(1) (1965).
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¶ 35 Illinois courts adopted this "known and obvious" danger rule as an exception to the duty of
care owed by possessors of land to invitees, recognizing that it was not foreseeable to a possessor
of land that an invitee would be injured when the condition or danger was open and obvious.
Kleiber, 406 Ill. App. 3d at 257. Our supreme court has noted, and the comments section 343A
state, that the word "known" denotes the existence of the condition or activity, as well as the
danger it involves, and that the word "obvious" means that both the condition and the risk would be
recognized by a reasonable man exercising ordinary perception, intelligence, and judgment.
Deibert v. Bauer Bros. Const. Co., Inc., 141 Ill. 2d 430, 435 (1990); Restatement (Second) of Torts
§ 343A, comment b (1965). Here, plaintiff's own testimony during her deposition was that she
saw the cleaning machine in the middle of the aisle, and that it was on stable ground and did not
look like it was going to fall. Accordingly, I would find that there was no question that the
presence of the cleaning machine, and any danger it may have presented, was known and obvious.
See True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676, 680 (2000) (evidence showed that
the fan was plainly visible, that plaintiff saw the fan when she entered the room and initially
walked past it without any problem, and nothing obstructed her view).
¶ 36 However, there are two limited exceptions to this "known and obvious" danger rule. The
exception applicable to the case at bar is the distraction exception, which is that foreseeability may
be found where a landowner knows or should know that an entrant may be distracted such that the
entrant may fail to discover the known and obvious danger, or will forget what she has discovered.
Kleiber, 406 Ill. App. 3d at 257.
¶ 37 In True, 316 Ill. App. 3d at 680, this court found that the distraction exception did not apply
where plaintiff offered no evidence that she was distracted when she tripped over a fan that was
plainly visible, and that plaintiff saw when she entered the room and initially walked past without
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any problem. Similarly in Bruns v. City of Centralia, 2014 IL 116998, ¶ 30, our supreme court
found that the plaintiff, who tripped on a defect in the sidewalk while walking into a clinic, failed
to identify any circumstances, much less one that was reasonably foreseeable by the City, which
required her to divert her attention from the open and obvious defect, or otherwise prevented her
from avoiding the defect. In Bruns, the only circumstance upon which plaintiff relied was that
she was not looking at the sidewalk, but rather toward the door and steps of the clinic. Bruns,
2014 IL 116998 at ¶ 30. Our supreme court found that simply looking elsewhere does not
constitute a legal distraction, and that if it did, the distraction exception would swallow the open
and obvious rule. Id. at ¶ 34.
¶ 38 Here, there was no evidence presented in the pleadings that would establish that plaintiff
was distracted at the time of her alleged injury such that she failed to discover the cleaning
machine in the aisle, or that she forgot that it was there. In fact, as stated above, plaintiff admitted
in her deposition testimony that she saw the cleaning machine in the middle of the aisle and that
she purposefully walked around the cleaning machine to avoid coming in contact with it. Plaintiff
also failed to present any evidence or testimony that she became so distracted after having
encountered the cleaning machine or that she had forgotten about its presence. While plaintiff
alleged that she was looking at merchandise, this should not negate the fact that she saw the
cleaning machine and purposely walked around it. The presence of merchandise on the shelves
should not automatically constitute a legal distraction to customers. To me, this is not a set of
circumstances in which the narrow distraction exception would apply, and I would find that
plaintiff's injury was not reasonably foreseeable.
¶ 39 Turning to the remaining three factors in the duty analysis as cited above, the likelihood of
plaintiff's injuries, the magnitude of the burden defendant would bear if the duty were placed on
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defendant, and the consequences of placing the burden on defendant, I would then note that the
likelihood of injury is generally considered to be slight when a condition is open and obvious
because it is assumed that a person encountering the condition will appreciate and avoid the risk it
presents. Id. at 260 (citing True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676, 677
(2000)). Since the cleaning machine sitting in the middle of the aisle was open and obvious, I
would find that the likelihood of injury in this case was slight.
¶ 40 I also would find that to impose a duty with regard to the cleaning machine would impose a
great burden on Walgreen. It would require Walgreen to constantly monitor the aisles and
immediately remove anything from the aisles that a customer might come in contact with. See
True, 316 Ill. App. 3d at 677-78 (although the cost of removing the fan, the open and obvious
danger, when not in use would be slight, the cost of taking like measures with respect to other
similar objects with which visitors might collide would be great).
¶ 41 In light of the foregoing considerations, I would find that Walgreen did not owe a duty to
plaintiff and that the trial court did not err in granting summary judgment on the issue of
negligence in favor of Walgreen.
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