2024 IL App (1st) 230755
SECOND DIVISION October 8, 2024
No. 1-23-0755 _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
SHACONTA FOX, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) FOOD AND DRINK CHICAGO, INC., d/b/a Drinkhaus ) Bar & Grill, and ADEMUYIWA “MICHAEL” OGUNDEYI, ) ) No. 20L11127 Defendants ) ) (Food and Drink Chicago, Inc., d/b/a Drinkhaus ) Bar & Grill, Defendant-Appellee). ) Honorable ) Daniel A. Trevino, ) Judge Presiding. _____________________________________________________________________________
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Shaconta Fox, filed a lawsuit against defendants Ademuyiwa “Michael”
Ogundeyi and Food and Drink Chicago, Inc., d/b/a the DrinkHaus Bar (DrinkHaus) for injuries
sustained after she was allegedly struck by Ogundeyi outside the Chicago bar owned and operated
by DrinkHaus. The trial court granted summary judgment for DrinkHaus, finding that plaintiff No. 1-23-0755
could not establish that the alleged criminal action by Ogundeyi was reasonably foreseeable. 1 In
this appeal, plaintiff contends that the trial court erred in granting summary judgment to
DrinkHaus.
¶2 The record shows that plaintiff filed an initial complaint in this action on October 19, 2020,
and an amended complaint thereafter, on December 16, 2020. Plaintiff alleged that in the late
evening and early morning hours of October 26 and 27, 2018, she was a patron at the DrinkHaus
bar in Chicago. She further alleged that another patron, Ogundeyi, was involved in an altercation
inside the bar, and after leaving the bar, Ogundeyi “laid in wait” outside of the premises for
plaintiff and her party. After plaintiff exited the premises, Ogundeyi engaged in an altercation with
a member of plaintiff’s party, and plaintiff was struck in the eye by Ogundeyi, suffering serious
injuries. Plaintiff alleged that, based on Ogundeyi’s conduct, it was reasonably foreseeable to
DrinkHaus that he would cause serious harm to plaintiff and that DrinkHaus was negligent in,
among other things, “fail[ing] to respond to the threatening conduct of” Ogundeyi; “fail[ing] to
respond to the initial altercation”; “fail[ing] to respond to” Ogundeyi “as he laid in wait for
[plaintiff]’s party”; and “fail[ing] to intercede on [plaintiff]’s behalf in response to the threats of
physical violence.”
¶3 During discovery, the parties conducted several depositions, including those of plaintiff,
Ogundeyi, members of their respective parties on the relevant evening, and Ralph Johnson, the
DrinkHaus bar manager.
¶4 Those depositions generally established that plaintiff arrived to DrinkHaus in the late
evening of October 26, 2018, along with her sister, Daja Fox; her brother, Mack Curtis; and
1 Plaintiff’s lawsuit against Ogundeyi remained pending in the trial court after entry of summary
judgment for DrinkHaus, and Ogundeyi is not a party to this appeal.
2 No. 1-23-0755
Curtis’s then-fiancée and current wife, Sharina DuPleiss (n/k/a Sharina Curtis). At some point,
DuPleiss observed Ogundeyi, who she recognized as the husband of one of her friends, Damora
Harris. DuPleiss believed Ogundeyi was flirting with another woman at the bar, and she contacted
Harris, either in a phone call or by text message, to inform her that Ogundeyi was talking with
another woman.
¶5 About 20 minutes thereafter, just after 1 a.m., plaintiff and her party noticed a commotion
break out in the bar area, and security got involved. Curtis described the scene as “chaos,” and he
wanted to make sure the fight did not spill over into the area where plaintiff’s group sat. Plaintiff
remembered the DJ speaking over the intercom to try to calm down the crowd. Although neither
plaintiff nor any of the rest of her party saw Ogundeyi or Harris at that time, they later came to
understand that the commotion they witnessed involved Ogundeyi and Harris. DuPleiss testified
that Harris called her immediately after Harris left the bar. Harris told DuPleiss that she came to
the bar to “call [Ogundeyi] out,” that she fought and argued with him at the bar, and that security
had escorted them out.
¶6 Plaintiff testified that DrinkHaus started closing for the night around 1:40 a.m. There was
only one exit, and DrinkHaus employees directed patrons to leave through that exit. As plaintiff
and her group left the premises, plaintiff saw one security person at an inside door to the foyer area
and two security guards at the outside door.
¶7 As plaintiff walked across the street toward her car, she noticed that DuPleiss was no longer
with her. Plaintiff turned and saw DuPleiss engaged in a “verbal exchange” with Ogundeyi, just a
few feet from the front door to DrinkHaus. DuPleiss testified that as they exited the bar, Ogundeyi
walked up to DuPleiss and stopped her. DuPleiss testified that it appeared that Ogundeyi was
outside waiting for her, and Ogundeyi began “yelling and putting his hands all in [her] face.”
3 No. 1-23-0755
DuPleiss testified that she felt “trapped” and was scared that Ogundeyi and his friends were going
to “jump” her. Patrons were still leaving through the front door, and security was still outside the
door making sure people were exiting. DuPleiss turned to the security guard, who was standing a
few feet away, and asked for help. The security guard did not do anything, and was “just looking
like *** he didn’t care.”
¶8 After not receiving help from the security guard, DuPleiss called out for help from Curtis.
Plaintiff saw Ogundeyi raise his right hand or arm toward DuPleiss, and Curtis ran to defend
DuPleiss. Curtis recalled Ogundeyi using his right arm to grab DuPleiss’s arm in an “aggressive
posture,” describing him as having her arm in a “vice grip[ ].” When Curtis got to DuPleiss and
Ogundeyi, he was surrounded by four or five other men, who began punching Curtis. When the
fight began, Curtis described it as “raining punches.”
¶9 Plaintiff testified that she and her sister, Daja, rushed over to help their brother. Plaintiff
then saw Ogundeyi punch Daja one time, with a closed fist. As plaintiff tried to get Ogundeyi away
from her sister, Ogundeyi turned and struck plaintiff in the left eye with his right fist. During this
time, no DrinkHaus security guard or other employee ever came to their assistance or tried to
intervene. Plaintiff noticed the security guard standing right outside the door remained there the
entire time, in close proximity to the fight. Curtis also noted DrinkHaus security remained standing
there just to the right of the door, “just chilling, just watching us.” Curtis believed security had
time to intervene because they were watching Ogundeyi “tell [DuPleiss] off,” before punches were
thrown. Curtis testified that, during the altercation, the guard outside the door told them, “[y]ou
guys better move that s*** across the street. Like you all need to move that.” Curtis testified that
security did not engage, did not alert police, did not call 911, even though his group was “getting
our a*** kicked pretty much.” Curtis testified that he could “clearly” see that the security guard
4 No. 1-23-0755
was carrying a gun. Curtis believed that Ogundeyi must have known the security guards because
they did not do anything after Ogundeyi grabbed DuPleiss’s arm. DuPleiss testified that the
DrinkHaus security guard remained standing outside, about two feet away from the fight, doing
nothing. After the fight, Ogundeyi and his group “scattered,” getting into Ogundeyi’s car and
driving away.
¶ 10 Plaintiff further testified to her injuries and the medical treatment required resulting from
the punch to her eye, including that she continues to suffer from partial blindness.
¶ 11 Johnson testified that he was the “assistant manager/bar manager” at DrinkHaus, and he
was working the night of the incident. That night, Johnson and another bartender overheard a
woman say that her friend’s husband was at the bar with another woman, and that she was going
to call the wife to tell her. About 20 to 30 minutes later, Harris arrived. At that point, security was
no longer letting any new guests into the bar because it was near closing time. Harris, however,
pushed her way through the bouncers to confront Ogundeyi. Johnson watched from the bar as the
woman confronted Ogundeyi. Johnson could not hear what Ogundeyi and the woman were saying
to each other, and they did not physically fight, but he “could see them being very animated with
each other.” Security intervened, asked Ogundeyi and his wife to leave, and escorted them out of
the building.
¶ 12 For the next 45 minutes to an hour, Johnson would occasionally look out the window, and
each time, he saw Ogundeyi standing outside. Johnson testified that, at first, he watched as
Ogundeyi and the woman continued to argue. At some point, the woman left, but Ogundeyi
remained.
¶ 13 Johnson testified that the group including the woman who called Ogundeyi’s wife left the
bar just after Ogundeyi and his wife and that the group waited by a car while the husband and wife
5 No. 1-23-0755
argued. After the wife left, Ogundeyi walked up to the group and “started confronting them about
calling his wife.” Ogundeyi first spoke to a woman in the group. Ogundeyi was “very loud” as he
“curs[ed] [the woman] out” and called her and the rest of the group “names.” A man then got out
of the car and told Ogundeyi to “watch his mouth.” Johnson testified that the argument was so
loud that, although Johnson was watching from a window inside the bar, he could hear the
exchange “clear as day.” Johnson could not remember who threw the first punch, but he testified
that two friends of Ogundeyi “jumped” the man, three women came to his assistance, and one of
those women was struck in the face.
¶ 14 Johnson “believe[d]” that he had “call[ed] security to the situation” during the altercation,
but “since it was the end of the night, [security] didn’t go over and intervene because all of our
people were on the inside. But if something like that happened on the outside, we would tell our
guards to keep an eye out.” Johnson’s understanding was that if an altercation
“happens outside of the bar, our people are not to get involved with it because that
would put us in a situation where we would be liable if someone were to get hurt
or if anything harmful were to happen. So when those altercations happen outside,
we are supposed to immediately call the authorities and let them come and handle
it. We are not supposed to get involved in those.”
¶ 15 Johnson also testified that he believed that one of the security guards had called police, but
he did not know which guard. Johnson estimated that the physical altercation lasted about 10 to 15
minutes before police arrived and that the altercation was still taking place when they arrived.
Johnson testified that the police generally would come to DrinkHaus quickly, within 5 minutes
after they were called, because there was a “police academy *** on the same block, like a few
6 No. 1-23-0755
blocks down.” Johnson, along with six or seven DrinkHaus employees, watched the altercation
during those 10 to 15 minutes, from a window inside the bar.
¶ 16 According to Ogundeyi, he went to DrinkHaus around 12:30 a.m., on October 27, 2018, to
celebrate a friend’s birthday. Ogundeyi noticed one bouncer at the door and two bouncers inside
the front entrance. As he entered the bar, Ogundeyi saw his wife’s friend, DuPleiss, waving at him.
Ogundeyi approached DuPleiss and Curtis and spoke to them for about five minutes. DuPleiss
asked Ogundeyi why Harris was not there, and Ogundeyi told her that she could not come because
she had to work in the morning. Ogundeyi then went to join his group of friends, where he began
speaking with a friend’s girlfriend, Walida. Ogundeyi denied that he was flirting with Walida or
any other women at the bar.
¶ 17 About 20 minutes later, Harris appeared at the bar. Ogundeyi testified that she arrived at a
time when people could no longer come into the bar and that he saw Harris “trying to fight her
way in.” One of Ogundeyi’s friends, Pablo, tried to hold Harris back, and she was hitting him
trying to get through to Ogundeyi.
¶ 18 When Harris reached Ogundeyi, she saw that he was talking to Walida, someone Harris
was familiar with and knew. Ogundeyi described Harris as “dumbfounded” when she realized that
Ogundeyi was talking to Walida. Harris told Ogundeyi that DuPleiss had told her that Ogundeyi
was talking to a woman and that she had sent her a video, but Harris was not able to identify the
woman he was talking to in the video. Ogundeyi testified that he did not believe his wife would
have come to the bar if she had realized he was speaking to Walida, a person who she knew.
¶ 19 Meanwhile, bouncers had followed Harris from the entrance. They told Harris that she
needed to leave. Ogundeyi testified that the bouncers tried to “drag her out.” Ogundeyi told them
not to “rough handle her” and that he would walk her out. Ogundeyi and Harris left the bar “very
7 No. 1-23-0755
quickly,” and he walked her to her car. While he was leaving, Ogundeyi thought there was another
argument “somewhere in the bar.” He didn’t see any fights and thought “maybe it was just
something minor.” Ogundeyi was just focused on “taking [his] wife out of the bar.”
¶ 20 After they got outside, Ogundeyi testified that he and Harris spoke for another five to ten
minutes before Harris left in her car. Ogundeyi did not leave with his wife because she was “too
upset.”
¶ 21 Ogundeyi then tried to return to the bar, but the bouncer said he could not go in because
“everyone is coming out already.” Ogundeyi told the bouncer that he was waiting for a friend who
had his car keys. Ogundeyi waited outside, about five feet from the door. He waited outside for 10
minutes before people began exiting, one-by-one. Ogundeyi then saw DuPleiss and Curtis exit the
bar. Ogundeyi approached and asked if he could talk to DuPleiss. Ogundeyi asked her
“why did do you that? I respect you way too much for you to do that. Like are you
trying to break my marriage or what are you trying to gain from this? *** My wife
told me already you made a video of me, you sent it to her. That was why she was
here.”
¶ 22 Ogundeyi testified that DuPleiss responded that she “d[id]n’t know what [he was] talking
about” and asked Curtis to “get [Ogundeyi] out of [her] face.” Curtis punched him, and Ogundeyi
“lost consciousness” and “went straight on the floor.” Ogundeyi looked up and saw his friends
“chasing after” and “jumping” Curtis. At that point, Ogundeyi “just left” in his car. Ogundeyi
testified that his friend had slipped Ogundeyi’s car key into his pocket while he was speaking to
DuPleiss and Curtis.
¶ 23 Ogundeyi testified that he spoke to DuPleiss “calmly,” and he never touched anyone. He
stated that he has a “black belt” in Judo, and he could not fight anyone, or he would “lose his
8 No. 1-23-0755
license.” Ogundeyi claimed to have never seen plaintiff until a February 2018 court appearance.
Ogundeyi also testified that he believed his friend Pablo was the person who hit plaintiff. Ogundeyi
testified that Pablo was no longer living in the United States. Ogundeyi did not know where Pablo
was living, and he did not know Pablo’s last name. Ogundeyi further testified that there was a
bouncer by the door who could “vividly see” the entire altercation.
¶ 24 On July 8, 2022, DrinkHaus moved for summary judgment, arguing that it did not have a
duty to protect plaintiff from the criminal act of a third party “because Ogundeyi’s behavior was
not reasonably foreseeable.”
¶ 25 In ruling, the court explained that the “issue here *** [is] whether or not there is an
existence of a duty owed to” plaintiff, and that whether there was a duty depended on whether the
criminal action by Ogundeyi was “reasonably foreseeable.” The court explained that the “initial
altercation *** occurred inside of the establishment, and that was between Michael Ogundeyi and
his wife” and there was no altercation between Ogundeyi and plaintiff or her party inside the bar.
After Ogundeyi and his wife were “escorted out,” Ogundeyi was “outside of the establishment, on
the sidewalk or in the street *** for a period of time.” The court continued:
“Subsequently, after about 45 minutes, the plaintiff and her party exit DrinkHaus.
Plaintiff proceeds in the direction of her car across the street, and in that intervening period
of time, Michael Ogundeyi gets into a dispute with [DuPleiss], and then subsequently
[Curtis] comes up to the scene and *** [plaintiff] is watching all this, and all of a sudden
things start to get physical as between [Ogundeyi] and [Curtis], and *** [Ogundeyi] may
have touched [DuPleiss] right before that. And then at that point, the plaintiff, Shaconta
Fox, leaves the area of her car, which was across the street. *** [S]he said she was standing
across the street as she observed [DuPleiss] and [Ogundeyi] having their exchange.
9 No. 1-23-0755
Then she’s asked *** ‘Before you were hit, you intentionally went over to the scene
and got involved, correct?’ ‘Yes,’ is her answer. Then she was asked, ‘You physically
could have walked away from the scene before you were hit, is that correct?’ And she says,
‘Yes, I could have.’ And *** the plaintiff is asked, ‘And you made the decision to intervene
yourself?’ And the plaintiff, Shaconta Fox, answers, ‘I did, in defense of my sister and
brother. Absolutely.’ ”
¶ 26 The court concluded that plaintiff was an invitee of DrinkHaus, but noted that the first
altercation inside the bar did not involve plaintiff, and that the second altercation outside
“starts with other people, and then the plaintiff based on her own sworn testimony, states
that she intentionally went to the scene and got involved.
This set of facts is undisputed. And under this factual scenario, foreseeability has
not been established, and cannot be established on the part of [DrinkHaus], and for these
reasons, the motion for summary judgment is granted.”
¶ 27 On December 7, 2022, plaintiff filed a motion to reconsider the court’s order entering
summary judgment against her. Plaintiff alleged that the trial court erred in its application of
existing law because plaintiff’s involvement in the initial altercation was not required to establish
foreseeability and because plaintiff’s voluntary actions were not relevant to whether a duty existed.
¶ 28 On March 30, 2023, the court held a hearing on the motion to reconsider. After hearing
argument from the parties, the trial court ruled:
“this Court does not find that the plaintiff has met the standard for this Court to reconsider
its decision. The *** ruling granting the motion for summary judgment stands as this Court
does not find that plaintiff movant has been persuasive in her argument that the Court
misapplied existing Illinois law.”
10 No. 1-23-0755
¶ 29 The following day, the trial court entered a written order denying plaintiff’s motion to
reconsider. Because plaintiff’s claims involving Ogundeyi remained, the court also entered a
finding pursuant to Illinois Supreme Court Rule 304(a) (Mar. 8, 2016), providing that there was
no just reason for delaying enforcement or appeal, or both, of its summary judgment order.
¶ 30 Plaintiff filed a timely notice of appeal from that order, and in this court, plaintiff contends
that the trial court erred in granting summary judgment for DrinkHaus. Before turning to the merits
of that appeal, however, we must address DrinkHaus’s request to strike plaintiff’s statement of
facts contained in her appellant’s brief, based on alleged violations of the supreme court rules
regarding briefing. DrinkHaus contends that those violations are “so substantial, [that DrinkHaus]
moves to have [plaintiff’s statement of facts] stricken in its entirety, in part or it should be
disregarded by this Court.”
¶ 31 DrinkHaus specifically argues that plaintiff’s statement of facts “refers to materials that are
not relevant, admissible or evidence in this case.” DrinkHaus contends that the “most egregious”
violation in plaintiff’s statement of facts can be found in two footnotes, in which plaintiff cites a
website, which she describes as containing a news article about DrinkHaus shutting down after its
owners “fac[ed] a license revocation case for failing to adhere to their operation plan submitted to
the city[,] and for staying open after hours” and after other “violent fights broke out inside and
outside the venue.” DrinkHaus asserts that the website is not part of the record on appeal, and
DrinkHaus asks this court to strike or disregard plaintiff’s statement of facts “in its entirety, [or]
in part” as a sanction for citing extra-record materials. Plaintiff responds that this court may take
judicial notice of the article because it comes from a publication that identifies itself as a “news
organization *** delivering reliable, nonpartisan and essential coverage” of Chicago
neighborhoods.
11 No. 1-23-0755
¶ 32 Presumably, plaintiff cites the news article in its brief to show DrinkHaus’s alleged
improper conduct in other circumstances, to suggest that they also acted improperly here. Even if
the article in the footnote contains relevant evidence that would tend to show DrinkHaus’s alleged
negligence in this circumstance, this court is not the proper forum for introducing such evidence.
Judicial notice cannot be extended to permit the introduction of new factual evidence not presented
to the trial court. Ashland Savings & Loan Ass’n v. Aetna Insurance Co., 18 Ill. App. 3d 70, 77-79
(1974). A reviewing court must determine the issues before it on appeal, solely on the basis of the
record made in the trial court (People v. Reimolds, 92 Ill. 2d 101, 106-07 (1982)), and accordingly,
we will not consider the offending footnotes in resolving this appeal.
¶ 33 We do not, however, find that violation, or the other alleged violations of which DrinkHaus
complains, to be so egregious as to warrant striking the statement of facts in whole or in part.
DrinkHaus also complains that plaintiff’s statement of facts violates Illinois Supreme Court Rule
341(h)(6) (Oct. 1, 2020), which requires that the statement of facts be set out “accurately and fairly
without argument or comment.” DrinkHaus alleges that plaintiff’s fact section improperly contains
“a summary of her arguments” regarding summary judgment. However, recounting the arguments
made by the parties in the trial court is generally necessary to setting out the relevant facts and to
assist this court in a full understanding of the proceedings in the trial court. In her brief, plaintiff
set out the arguments she made against summary judgment, and she also set out DrinkHaus’s
arguments for summary judgment. Based on our review of plaintiff’s brief and the record, we do
not find that plaintiff’s recounting of her arguments made in the trial court ran afoul of Rule
341(h)(6).
¶ 34 DrinkHaus also contends that plaintiff’s statement of facts should be stricken because it
contains an “untrue and baseless inference” that the commotion in the bar involved Ogundeyi and
12 No. 1-23-0755
his wife. DrinkHaus contends that the record does not support an inference that the commotion
was between Ogundeyi and Harris, when plaintiff and her group admit that they did not personally
observe the altercation between Ogundeyi and Harris and where Ogundeyi testified that “there was
a completely unrelated commotion taking place as Ogundeyi and his wife left the bar.”
¶ 35 As will be explained further below, DrinkHaus’s argument on this point suggests the
existence of a factual dispute. Plaintiff’s position is that the commotion in the bar involved
Ogundeyi and his wife, while DrinkHaus contends that the commotion they observed involved
unrelated patrons. And the evidence and deposition testimony suggest that there is evidentiary
support from which a trier of fact could make either inference. Although Ogundeyi testified that
he noticed another altercation in the bar as he and Harris left, he described the other altercation as
“something minor” that he did not pay much attention to, which would be inconsistent with what
appeared to plaintiff and her group as a more significant altercation. Johnson also testified
regarding the altercation between Ogundeyi and Harris and did not mention any other significant
altercation between other patrons around the same time period. Ogundeyi minimizes the severity
of the altercation in the bar with his wife, suggesting that she calmed down upon realizing with
whom he was speaking; however, the altercation inside the bar between Harris and Ogundeyi was
significant enough that both were escorted out of the bar, and Ogundeyi was not permitted to
reenter. Ogundeyi also testified that he did not leave with Harris because she was still “too upset,”
and Johnson testified that he watched as Ogundeyi and Harris continued to argue outside the bar.
¶ 36 Although plaintiff’s statement of facts contains her inference based on the evidence that
the “commotion and argument occurred largely with [Ogundeyi] and his wife,” she almost
immediately acknowledged the conflicting evidence from Ogundeyi, that he “believed *** there
was another altercation or argument in the bar” occurring while he and his wife were being escorted
13 No. 1-23-0755
out. Where plaintiff set forth the evidence supporting both inferences in her appellate brief, we do
not find a violation of Rule 341(h)(6), and we do not find striking plaintiff’s statement of facts to
be necessary or appropriate based on the allegedly offending statement.
¶ 37 We now turn to the merits of plaintiff’s appeal. Plaintiff asserts that the trial court erred in
granting summary judgment based on its conclusion that DrinkHaus did not owe a duty to plaintiff.
Plaintiff maintains that a genuine issue of material fact existed as to whether the criminal attack
by Ogundeyi was reasonably foreseeable and that summary judgment was not appropriate in such
circumstances.
¶ 38 Summary judgment is appropriate where there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). The purpose of summary judgment is not to try
a question of fact but, rather, to determine whether a genuine issue of material fact exists. Adams
v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). In reviewing a grant of summary
judgment, this court must construe the pleadings, depositions, admissions, and affidavits strictly
against the moving party and liberally in favor of the nonmoving party. Williams v. Manchester,
228 Ill. 2d 404, 417 (2008). Where reasonable persons could draw divergent inferences from the
undisputed material facts or where there is a dispute as to a material fact, summary judgment
should be denied and the issue decided by the trier of fact. Espinoza v. Elgin, Joliet & Eastern Ry.
Co., 165 Ill. 2d 107, 114 (1995). Summary judgment is a drastic measure, which should not be
granted if the movant’s right to judgment is unclear or where reasonable people could draw
divergent inferences from undisputed facts. Outboard Marine Corp., 154 Ill. 2d at 102; Forsythe
v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). A reviewing court will reverse the trial court’s
granting of summary judgment if it determines that a genuine issue of material fact does exist.
14 No. 1-23-0755
Cerniglia v. Farris, 160 Ill. App. 3d 568, 573 (1987). A triable issue precluding summary judgment
exists where material facts are disputed or where the material facts are undisputed but reasonable
persons might draw different inferences from the undisputed facts. Id. at 572-73. Plaintiffs need
only present evidence sufficient to show a genuine dispute about a factual issue; they “are not
required to prove their case at the summary judgment stage.” Thompson v. Gordon, 241 Ill. 2d 428
438 (2011). This court reviews an order granting summary judgment de novo (Outboard Marine
Corp., 154 Ill. 2d at 102), meaning that we “perform the same analysis that a trial court would and
that we owe no deference to the trial court’s decision” (Ruda v. Jewel Food Stores, Inc., 2024 IL
App (1st) 230582, ¶ 37).
¶ 39 In the case at bar, plaintiff seeks recovery from DrinkHaus based on DrinkHaus’s alleged
negligence. To recover, plaintiff must plead and later prove (1) a duty owed by defendant to
plaintiff, (2) a breach of that duty, and (3) an injury proximately resulting from that breach.
Carney, 2016 IL 118984, ¶ 26. In this appeal, only DrinkHaus’s duty to plaintiff is disputed.
¶ 40 Generally, Illinois imposes no duty to protect others from the criminal acts of third parties
unless a special relationship exists between the parties, and the criminal attack was reasonably
foreseeable. Jackson v. Shell Oil Co., 272 Ill. App. 3d 542, 547 (1995). A special relationship
exists between an owner of land and an invitee who enters the premises for the purpose of
conducting business. Loomis v. Granny’s Rocker Nite Club, 250 Ill. App. 3d 753, 758 (1993). And
while the owner’s duty usually ends when the invitee leaves the owned premises (Lewis v.
Razzberries, Inc., 222 Ill. App. 3d 843, 850 (1991)), this court has recognized that a bar owner’s
duty to protect its patrons from criminal acts of third parties does not end at the bar’s property line.
Haupt v. Sharkey, 358 Ill. App. 3d 212, 218 (2005). In particular, “an owner or operator of premises
has a duty to provide a reasonably safe means of ingress and egress both on his premises and,
15 No. 1-23-0755
within limitations dictated by the facts of the case, beyond the precise boundaries of such
premises.” Id.
¶ 41 In this case, DrinkHaus does not appear to contest that a special relationship existed
between DrinkHaus and plaintiff, arguing only that Ogundeyi’s actions were not foreseeable. A
criminal attack by a third person is reasonably foreseeable when the circumstances put a reasonably
prudent person on notice of the probability of an attack or when a serious physical altercation has
already begun. Lucht v. Stage 2, Inc., 239 Ill. App. 3d 679, 686 (1992). The supreme court has
explained that imposing a duty to protect business invitees from a reasonably foreseeable criminal
attack is based on the idea that “when a possessor of land opens his premises to the public for
business purposes, he must recognize the risk that has been created.” Marshall v. Burger King
Corp., 222 Ill. 2d 422, 439 (2006). The business:
“might indeed anticipate, either from common experience or known fact, that places of
general public resort are also places where what men can do, they might. One who invites
all may reasonably expect that all might not behave, and bears responsibility for injury that
follows the absence of reasonable precaution against that common expectation.” (Internal
quotation marks omitted.) Id.
¶ 42 Before conducting our de novo review of the evidence in the record, we note that the trial
court appears to have based its conclusion that Ogundeyi’s criminal action was not reasonably
foreseeable—and, accordingly, that DrinkHaus owed no duty to plaintiff—almost entirely on two
factors: (1) that plaintiff was not involved in the initial altercation inside the bar and (2) that
plaintiff intentionally involved herself in the altercation outside the bar. This court finds, however,
that consideration of the above factors does not support the entry of summary judgment.
16 No. 1-23-0755
¶ 43 First, the fact that plaintiff was not directly involved in the altercation that occurred inside
the bar does not preclude the bar’s liability to support the entry of summary judgment for
DrinkHaus. This court has previously reversed a directed verdict in favor of a nightclub, finding
that there was evidence to support a conclusion that the criminal attack on the plaintiff was
reasonably foreseeable, even though the plaintiff had not been involved in the initial altercation
inside the nightclub that led to her attacker being ejected. Osborne v. Stages Music Hall, Inc., 312
Ill. App. 3d 141, 149 (2000). And although plaintiff was not directly involved in the initial
altercation, DrinkHaus was aware, through its employees, that plaintiff and her group were
connected to that altercation. Johnson and a bartender were aware of the communication by
DuPleiss that led to Harris coming to the bar to confront Ogundeyi and had knowledge that
Ogundeyi had a reason to be angry at DuPleiss and her group while he waited outside the bar for
45 minutes to an hour.
¶ 44 The trial court also placed great emphasis on its conclusion that plaintiff “intentionally
went to the scene and got involved.” However, plaintiff’s motivations and actions in intervening
in a physical altercation between Ogundeyi and her siblings were not proper considerations on
summary judgment as to DrinkHaus’s duty, as it does not bear on whether Ogundeyi’s criminal
action was reasonably foreseeable. If anything, the plaintiff’s decision to involve herself in the
altercation to protect her siblings could go to plaintiff’s degree of culpability in her own injuries.
Indeed, DrinkHaus has asserted an affirmative defense of contributory negligence, based on
plaintiff’s alleged “fail[ure] to exercise reasonable care for her own safety,” by, among other
things, “[i]ntentionally and purposefully insert[ing] herself into a dangerous and threatening
situation” and by “[i]ntentionally and purposefully inserting herself into a verbal argument.”
Whether DrinkHaus can sustain its burden as to the affirmative defense of contributory negligence
17 No. 1-23-0755
is not a proper consideration on summary judgment as to DrinkHaus’s duty to plaintiff. See Vroegh
v. J&M Forklift, 165 Ill. 2d 523, 530 (1995) (An affirmative defense admits the legal sufficiency
of the cause of action but asserts new matter by which the plaintiff’s right to recovery is defeated.).
¶ 45 Based on our de novo review of the record, construing the evidence against DrinkHaus and
resolving all inferences in plaintiff’s favor, we find that a genuine issue of material fact exists as
to whether DrinkHaus owed a duty to plaintiff and that the attack by Ogundeyi was reasonably
foreseeable.
¶ 46 In so holding, this court finds several cases instructive. In Shortall v. Hawkeye’s Bar &
Grill, 283 Ill. App. 3d 439 (1996), the appellate court reversed summary judgment in favor of a
bar, holding that there was a genuine issue of material fact as to whether the bar may have had a
duty to protect the plaintiff from a stabbing that occurred approximately 15 minutes after the
plaintiff left the bar to go to his car, 60 feet from the bar’s property. Id. at 441, 444. The court
concluded that the bar “was under the same duty as if the fight had occurred inside the bar” and
that the criminal attack was reasonably foreseeable. Id. at 445. The bartender saw three men
verbally and physically harassing the plaintiff and another patron inside the bar before a fight
erupted outside, and the bar escalated the situation by ushering some patrons outside into the fight,
while the bar’s bouncers watched the fight through a window and did nothing. Id. at 443-44. The
appellate court explained that “tavern owners may not avoid application of the duty to act to protect
invitees from criminal attack[s] by third parties simply because the disturbance giving rise to the
duty occurs just out the front door, especially where the owner contributes to the altercation by
sending patrons out into it.” Id. at 444.
¶ 47 Similarly, in Osborne, 312 Ill. App. 3d at 145, a nightclub patron was criminally attacked
by another patron who had been ejected from the nightclub earlier in the evening. After being
18 No. 1-23-0755
ejected, the attacker and his friend pounded on the doors and yelled profanities at the bouncers. Id.
When the plaintiff and a friend walked out of the nightclub, plaintiff’s friend was slapped by one
of the men, and, when plaintiff ran toward her friend, the attacker kicked her in the face. Id. at 145.
The trial court directed a verdict in favor of the nightclub, finding that it owed no duty to the
plaintiff because the incident occurred on the sidewalk and concluding the attacker’s actions were
not reasonably foreseeable. Id. at 146. The appellate court reversed and remanded, holding that
“[w]hether the assault takes place in or outside the actual premises of the business owner, the
dispositive factor remains the reasonable foreseeability of the actions taken by the third party.” Id.
at 148. The Osborne court explained that there was evidence to support a conclusion that the attack
was reasonably foreseeable—the bouncers knew the attackers were “combative, and angry” and
involved in an earlier physical altercation inside the club. Id. at 149. After ejecting the attackers,
“the bouncers exported the club’s problems to the sidewalk and then ignored the troublemakers
while allowing two female patrons to leave through locked doors into the path of potentially
dangerous men.” Id.
¶ 48 Additionally, in Haupt v. Sharkey, 358 Ill. App. 3d at 219, the appellate court again
reversed summary judgment for a tavern owner, finding that a tavern could be liable for a criminal
attack against one of its patrons which occurred just outside the tavern’s property in a parking area.
The tavern owner knew that the attacker had a propensity for fighting, saw the attacker start a fight
with the plaintiff inside the tavern, and then kicked out both men at the same time. Id. at 219-20.
The court explained that there “is no bright-line rule that a tavern owner’s duty to protect its patrons
from criminal acts of third parties absolutely ends at the precise property line of the tavern.” Id. at
218. The court held that a tavern’s duty “to provide a reasonably safe means of ingress and egress
19 No. 1-23-0755
to patrons,” and the foreseeability of the criminal attack that occurred as the patron was evicted
from the tavern precluded summary judgment in the tavern’s favor. Id. at 219-220.
¶ 49 Finally, and most recently, in Cooke v. Maxum Sports Bar & Grill, Ltd., 2018 IL App (2d)
170249, ¶ 77, the second district appellate court found that the trial court had “properly determined
that [the nightclub] owed plaintiffs a duty to protect plaintiffs” from the criminal attack of another
patron. The nightclub argued that the criminal attack was not reasonably foreseeable because
“prior to the attack [the attacker] had not been involved in a fight or threatened anyone and [the
nightclub] had no history of fights on its premises that put it on notice of any danger to plaintiffs
while they were on the premises.” Id. ¶ 71. The court found, however, that the nightclub had
knowledge, through its employees, “that [the attacker] was angry that night.” Id. ¶ 72. The attacker
had been arguing with other patrons, had been shouting obscenities, and had “grabbed [the
plaintiff] outside [the nightclub’s] front entrance.” Id. Additionally, the plaintiff and his friend
“had asked one of the bouncers for help dealing with” the attacker. Id. The attacker had been
removed from the “premises for bad behavior” but the nightclub employees allowed him to leave
in the same direction as the plaintiff and his friend, “about one minute after they left.” Id. The court
found that, “[g]iven these facts and the bouncers’ inaction, [the attacker’s] criminal attack was
reasonably foreseeable to [the nightclub].” Id.
¶ 50 Similar to the above cases, there is evidence in the record from which a trier of fact could
conclude that DrinkHaus owed a duty to plaintiff and that Ogundeyi’s criminal attack was
reasonably foreseeable.
¶ 51 Specifically, there was deposition testimony showing that upon entering DrinkHaus,
Ogundeyi saw DuPleiss, who was a friend of his wife, Harris, at the bar. After speaking to
Ogundeyi, DuPleiss contacted Harris to tell her that Ogundeyi was flirting with another woman.
20 No. 1-23-0755
Harris arrived at the bar approximately 20 minutes later, pushed her way inside, and repeatedly hit
one of Ogundeyi’s friends to get to Ogundeyi. Johnson testified that he watched the interaction
between Ogundeyi and Harris, that they were being “very animated with each other,” and that two
security guards intervened, escorting Ogundeyi and Harris out of the bar.
¶ 52 The evidence also showed that Johnson, the bar manager, was aware of the communication
by DuPleiss that led to Harris coming to the bar to confront Ogundeyi. Despite DrinkHaus
employees knowing that Ogundeyi had a reason to be angry at DuPleiss and her group, DrinkHaus
employees let Ogundeyi remain just outside the bar’s exit for up to an hour and directed plaintiff
and her group to exit the bar where Ogundeyi was waiting. Then, DrinkHaus employees watched
from mere feet away, as Ogundeyi confronted DuPleiss, yelling and acting aggressively toward
her. DuPleiss asked for help from the security guard, who was standing a few feet away and was
ignored. DrinkHaus employees continued to watch as a physical altercation lasting as long as 15
minutes occurred, during which Ogundeyi and his companions attacked multiple individuals in
plaintiff’s group. During this altercation, Ogundeyi punched plaintiff in the eye, leaving her with
lasting injuries. DrinkHaus employees, several of whom watched the entire 15-minute altercation,
did not intervene at any point, and one guard outside the door merely told the group to move the
fight elsewhere.
¶ 53 Although DrinkHaus will undoubtedly dispute some of the evidence above, or suggest that
the factfinder should draw different inferences from the evidence—in particular regarding the
severity of the initial altercation inside the bar, whether the significant “commotion” observed by
plaintiff and her party involved Ogundeyi and his wife, and Ogundeyi’s motivations for standing
outside the bar—such issues are factual issues that are inappropriate to resolve at the summary
judgment stage. See Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 396 (2008) (“With a
21 No. 1-23-0755
summary-judgment motion, the trial court does not decide a question of fact but, rather, determines
whether one exists. Thus, a court cannot make credibility determinations or weigh evidence in
deciding a summary-judgment motion.”).
¶ 54 In sum, construing the pleadings and evidentiary material in the record strictly against
DrinkHaus, as the movant, we conclude that the trial court erred in granting DrinkHaus’s motion
for summary judgment. Genuine issues of material fact exist in this case regarding DrinkHaus’s
duty to plaintiff and the foreseeability of Ogundeyi’s criminal action. Accordingly, we reverse the
trial court’s order granting DrinkHaus’s motion for summary judgment and remand this case for
further proceedings.
¶ 55 Reversed and remanded.
22 No. 1-23-0755
Fox v. Food & Drink Chicago, Inc., 2024 IL App (1st) 230755
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-L- 11127; the Hon. Daniel A. Trevino, Judge, presiding.
Attorneys Robert G. Black, of Law Offices of Robert G. Black, P.C., of for Naperville, for appellant. Appellant:
Attorneys Stacy D. Fulco, of Bodell Bove LLC, of Oak Brook, for for appellee. Appellee: