FIRST DIVISION DECEMBER 11, 2006
No. 1-05-2749
JAYLYN HARLIN, a Minor by and ) through her Mother and Next Friend ) Appeal from the Wanda Harlin, and WANDA HARLIN ) Circuit Court of Individually, ) Cook County. ) Plaintiffs-Appellants, ) ) v. ) No. 03 L 7923 ) SEARS ROEBUCK AND COMPANY, ) The Honorable ) Michael J. Hogan, Defendant-Appellee. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Plaintiff Jaylyn Harlin, a minor, by and through plaintiff
Wanda Harlin, her mother and next friend, and Wanda Harlin,
individually, filed suit against the defendant Sears Roebuck and
Company after Jaylyn sustained injuries after falling and hitting
her head on a display stand at a Sears department store. The
trial court granted Sears's motion for summary judgment. The
plaintiffs appeal, contending: (1) the trial court made
procedural errors in granting summary judgment; (2) issues of
material fact exist to preclude summary judgment; and (3) the
trial court erred by in effect precluding the plaintiffs from
filing an amended complaint. For the reasons that follow, we
affirm. 1-05-2749
BACKGROUND
On April 19, 2002, Wanda Harlin, her mother, Mattie Jackson,
and Wanda's two-year-old daughter, Jaylyn Harlin, went to the
Sears department store at North and Harlem Avenues in Chicago.
Jaylyn, who could walk on her own, was not put in a stroller but
instead held Wanda's hand as they walked through the store. As
Jaylyn and Wanda passed through the hosiery department, Jaylyn
fell for unknown reasons and struck her head on a corner of a
stand used for displaying merchandise, causing a laceration above
her eye. An ambulance took Jaylyn to West Suburban Hospital,
where she received stitches.
The plaintiffs filed a two-count complaint seeking over
$50,000 in damages. Count I alleged that Wanda and Jaylyn were
present in a retail establishment owned or operated by Sears
pursuant to a specific invitation to the public, that Jaylyn
tripped and fell, "striking her face upon an unreasonably sharp
edge or section of an object used by Defendant to display its
merchandise," that Sears had a duty to maintain its premises in a
reasonably safe manner, and that Jaylyn's fall resulted in
serious injury. The plaintiffs alleged Sears carelessly,
negligently and improperly: (1) maintained its premises; (2)
failed to correct a condition that it knew or should have known
posed serious risks to its customers, especially those of tender
years; (3) failed to prevent customers and the general public
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from coming in contact with said dangerous condition; and/or (4)
displayed its merchandise upon equipment that it knew, or should
have known, posed serious risk to its customers, especially those
of tender years. Count II sought recovery under the family
expense statute of the Rights of Married Persons Act (750 ILCS
65/15 (West 2002)) for expenses Wanda incurred.
Sears moved for summary judgment, arguing it owed no duty to
Jaylyn, that the display stand was open and obvious, and that it
exercised reasonable care in maintaining its premises.
Attached to Sears's motion was Wanda's deposition. Wanda
stated that before the fall occurred, she and Jaylyn were walking
in the middle of the hosiery department. Wanda was walking
straight ahead on a clear path toward the elevators, where Mattie
was talking to a friend. Wanda was holding Jaylyn's left hand in
her right hand. As they passed a display stand on Jaylyn's
right, Jaylyn fell. Wanda did not see what caused Jaylyn to fall
and did not actually see Jaylyn fall. However, before Jaylyn
fell, Wanda saw the display stand, which she described as a tall,
brown, wooden stand "with metal on the bottom" that was not
circular. The stand had socks and merchandise hanging from it
and nothing blocked her view of it. Similar stands were located
throughout the hosiery department. Before Jaylyn fell, Wanda did
not perceive anything dangerous about the stand.
Jaylyn fell face down and struck her head on the edge of the
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corner part of the stand toward the bottom, receiving a "big
gash" above her right eyebrow that was bleeding. Wanda showed a
female Sears employee where the fall occurred, but was not sure
whether the photograph of a stand taken on April 19, 2002, was
the same stand upon which Jaylyn struck her head.
The plaintiffs responded to Sears's motion and argued that
under Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836 (1955), Sears had a duty to make sure its public areas were free
from dangers to children of tender years who were prone to falls.
The plaintiffs also argued the stand was dangerous because it was
empty and therefore acted as an obstacle to foot traffic. They
also argued Sears failed to meet its burden in demonstrating the
applicability of the open and obvious doctrine.
Attached to the plaintiffs' response was the affidavit of
Julius Holmes, who at the time of Jaylyn's fall, was a loss
prevention agent at the Sears store at North and Harlem and, at
the time of his deposition, was a loss prevention manager of a
different Sears store. Julius testified that on April 19, 2002,
he was notified by a Sears employee that a little girl had
fallen. He obtained a first aid kit from the security office and
went to the cosmetics area, where he saw Wanda talking to the
employee. Julius applied an ice pack to Jaylyn's brow and went
with Wanda to the scene of the fall. Wanda showed Julius the
place where Jaylyn hit her head, which Julius described as a base
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of a fixture. Julius inspected the area for blood or debris that
Jaylyn may have slipped on, but found none. He retrieved a
Polaroid camera from the security office and photographed the
area where Jaylyn fell. He was unsure whether Wanda was there
when he took the photos. Julius identified a photograph of an
empty display stand as the one Wanda pointed out as where Jaylyn
hit her head. He did not notice anything unusual about the
corner, which he described as "a 90-degree piece of metal that's
along the corner of that base." He also did not know whether
that particular corner was rougher or smoother than the other
three corners, but testified it looked the same as the other
three.
Julius did not know why the display stand was empty and
testified it was not unusual to see stands empty. His duties as
an asset prevention agent required him to monitor the store for
safety, including looking at the condition of display equipment
to make sure it was presentable to customers and free of chips or
loose pieces. He testified that an empty display stand would
strike him as being a "safety concern." Although he would assume
a display stand was empty only temporarily, he would talk to the
head of the particular department where it was placed if it
remained empty for more than 24 hours. Julius did not know how
long the stand Wanda pointed out had been empty.
The trial court granted Sears's motion for summary judgment
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and disposed of the case. The record does not contain a report
of proceedings, certified bystander's report, or an agreed
statement of facts of the summary judgment proceedings. The
trial court thereafter denied the plaintiffs' motion to
reconsider after hearing arguments from the parties.
ANALYSIS
I
The purpose of a summary judgment motion is to determine
whether a genuine issue of material fact exists. Purtill v.
Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Summary
judgment is proper where "the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
735 ILCS 5/2-1005(c) (West 2002). In determining whether a
genuine issue of material fact exits, a court must construe the
materials of record strictly against the movant and liberally in
favor of the non-moving party. Perri v. Furama Restaurant, Inc., 335 Ill. App. 3d 825, 829, 781 N.E.2d 631 (2002). The grant of
summary judgment is reviewed de novo. Perri, 335 Ill. App. 3d at
829.
II
We first address several issues presented in the parties'
briefs. We initially note the plaintiffs' attorney's improper
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reliance on material that is not part of the appellate record.
In fact, we previously granted Sears's motion to strike a
transcript of a tape-recorded statement made by Sears employee
Yvette Figueroa, which was attached to the plaintiffs' brief but
not included in the record on appeal, and therefore not
considered by the trial court during the summary judgment
proceedings. The plaintiffs' attorney also takes issue with the
trial court's findings in granting summary judgment. However,
this court can review the trial court's factual findings only if
we have been provided with a sufficiently complete record of the
trial proceedings. Dargis v. Paradise Park, Inc., 354 Ill. App.
3d 171, 176, 819 N.E.2d 1220 (2004). While this court has been
provided with transcripts from the reconsideration proceedings,
no report of proceedings, certified bystander's report, or agreed
statement of facts pursuant to Supreme Court Rule 323 (Official
Reports Advance Sheet No. 2 (January 18, 2006), R.323, eff.
December 13, 2005) has been provided of the summary judgment
hearing.
We also disagree with the plaintiffs' contention that
Sears's motion for summary judgment did not address every
allegation in the complaint. Sears moved for summary judgment on
the basis that it owed no duty to protect Jaylyn against any
injury from falling on the display stand and, in any event, the
condition of the display stand was open and obvious. The open
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and obvious doctrine speaks to the duty element which, as
discussed below, is a central element of any negligence claim.
See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447,
665 N.E.2d 826 (1996) (reaffirming "the continued viability of
the open and obvious doctrine in the analysis of a landowner's
duty to persons injured while on the landowner's property"). We
additionally note, in reference to the plaintiffs' attack on the
trial court's findings in granting summary judgment and in
denying reconsideration, that this court may affirm a trial
court's grant of summary judgment on any basis apparent in the
record, regardless of whether the trial court relied on that
basis or whether the court's reasoning was correct. Castro v.
Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 552, 732
N.E.2d 37 (2000); Stevens v. Riley, 219 Ill. App. 3d 823, 834,
580 N.E.2d 160 (1991). Further, although the plaintiffs intimate
in their reply brief that Sears raises issues and relies on cases
not presented during the summary judgment proceedings, "[i]t is
quite established that 'the appellee may urge any point in
support of the judgment on appeal, even though not directly ruled
on by the trial court, so long as the factual basis for such
point was before the trial court.'" Beahringer v. Page, 204 Ill. 2d 363, 370, 789 N.E.2d 1216 (2003), quoting Shaw v. Lorenz, 42
Ill. 2d 246, 248, 246 N.E.2d 285 (1969).
Having clarified that we are considering only materials
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included in the appellate record, that we are reviewing the
ruling and not the reasoning of the trial court, and that we may
affirm the grant of summary judgment on any factual basis
supported by the record, we turn to the merits of this appeal.
III
The plaintiffs contend summary judgment was improper in this
negligence action. To state a cause of action for negligence, a
plaintiff must establish the existence of a duty, the defendant's
breach of that duty, and that the breach was the proximate cause
of the plaintiff's resulting injuries. Mt. Zion State Bank &
Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116,
660 N.E.2d 863 (1995); Ward v. K Mart Corp., 136 Ill. 2d 132,
140, 554 N.E.2d 223 (1990).
The issue in this case is whether Sears owed a duty to
exercise due care to remedy the condition of the display stand or
otherwise protect Jaylyn, a two-year-old child, from any
resulting injury. The imposition of a duty depends on: (1) the
foreseeability of injury; (2) the likelihood of injury; (3) the
magnitude of the burden of guarding against the injury; and (4)
the consequences of placing that burden on the defendant. Ward, 136 Ill. 2d at 140-41; Kay v. Ludwick, 87 Ill. App. 2d 114, 117-
18, 230 N.E.2d 494 (1967). The determination of the existence of
a duty presents a question of law appropriately determined by
summary judgment. Green v. Jewel Food Stores, Inc., 343 Ill.
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App. 3d 830, 832, 799 N.E.2d 740 (2003).
The touchstone of a court's duty analysis is to determine
whether the defendant and the plaintiffs stood in such a
relationship to each other that the law imposed upon the
defendant an obligation of reasonable conduct for the benefit of
the plaintiffs. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d
179, 186, 766 N.E.2d 1118 (2002). Generally speaking, an owner
or occupier of land owes no greater duty to small children than
the duty owed to adults. Perri, 335 Ill. App. 3d at 830. The
primary responsibility for the safety of a child rests with his
or her parent, "whose [responsibility] it is to see that the
child is not placed in danger." Mt. Zion, 169 Ill. 2d at 116,
citing Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 79, 219
N.E.2d 483 (1966).
The plaintiffs have not provided this court with any case
involving a factual situation similar to that presented in this
appeal. They contend, however, that Sears's duty arises under
our supreme court's decision in Kahn, which, along with its progeny, "established the foreseeability of harm to children as
the cornerstone of liability." Corcoran v. Libertyville, 73 Ill.
2d 316, 326, 383 N.E.2d 177 (1978). Under Kahn, a duty will be
imposed on an owner or occupier of land to exercise due care to
remedy a dangerous condition on the land or otherwise protect
children from injury due to the dangerous condition where: (1)
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the owner or occupier knows or should know that children
habitually frequent the property; (2) a defective structure or
dangerous condition is present on the property; (3) the defective
structure or dangerous condition is likely to injure children
because they are incapable, due to their age and immaturity, of
appreciating the risk involved; and (4) the expense and
inconvenience of remedying the defective structure or dangerous
condition is slight when compared to the risk to children. Mt. Zion, 169 Ill. 2d at 117, citing Kahn, 5 Ill. 2d at 625.
Kahn is usually addressed in cases where the injured minor
is trespassing or unaccompanied. See Corcoran, 73 Ill. 2d at 326
(the essence of Kahn is to impose a duty "to remedy conditions
which, although considered harmless to adults, are dangerous to
children who foreseeably wander onto the premises"). However,
Kahn has been discussed and applied in cases like this where the
injured child is accompanied by a parent. See Perri, 335 Ill.
App. 3d 825 (infant injured while accompanied by her parents at
the defendant restaurant); Stevens, 219 Ill. App. 3d 823 (accompanied minor injured while a social guest at the
defendants' home); Kay, 87 Ill. App. 2d 114 (same); Stankowitz v.
Goldblatt Brothers, Inc., 43 Ill. App. 2d 173, 193 N.E.2d 97
(1963) (accompanied minor injured at the defendant department
store). In light of the plaintiffs' contentions, we will assume
without further discussion that the Kahn doctrine applies in this
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case.
We first address the threshold determination under Kahn: whether a dangerous condition existed on Sears's property. The
dangerous condition alleged in this case was an "unreasonably
sharp edge or section" of the display stand. A dangerous
condition under Kahn is one which is likely to cause injury to
children, who, by reason of their age and immaturity, would not
be capable of appreciating the risk involved. Mt Zion, 169 Ill. 2d at 120. However, even where landowners are aware that
children frequent the premises, "the law does not require [the
landowner] to protect against the omnipresent possibility that
children will injure themselves on obvious or common conditions."
Barrett v. Forest Preserve District, 228 Ill. App. 3d 975, 979,
593 N.E.2d 990 (1992). Put another way, if the condition
involves an obvious risk children would generally be expected to
appreciate and avoid, the owner or occupier of the land has no
duty to remedy the condition. Cope v. Doe, 102 Ill. 2d 278, 286, 464 N.E.2d 1023 (1984); Stevens, 219 Ill. App. 3d at 829.
Dangers that children are expected to appreciate include those
presented by fire, water, or falling from height. Cope, 102 Ill.
2d at 286-87, citing Restatement (Second) of Torts §339, Comment
J, at 203 (1965).
The plaintiffs contend that the corner of the display stand
constituted a latent dangerous condition that a two-year-old
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child could not be expected to appreciate. The plaintiffs'
contention demonstrates the difficulty of applying the Kahn
doctrine in this case, as cases relying on Kahn generally involve
a dangerous condition that a child actively encounters. In this
case, however, there was no evidence that the corner of the
display constituted a dangerous condition in the absence of
Jaylyn falling upon it. Of course, Jaylyn had no control over
what she would encounter when she fell. That she would strike
any particular object and would sustain injuries other than those
associated with a fall itself was unforeseeable, in the absence
of any evidence that the stand itself caused the fall. Given
that the injury to Jaylyn occurred during an involuntary act of
falling, her age and immaturity had no bearing on appreciating
the risk of injury in falling on the corner of the display.
Additionally, as Sears points out, that an injured child was
under the care or control of a parent will sometimes absolve
defendants of their duty toward the child. Compare Stevens, 219 Ill. App. 3d 823, and Kay, 87 Ill. App. 2d 114, with Perri, 335
Ill. App. 3d 825. While a mere allegation that an injured child
was accompanied by his or her parent is not enough to relieve the
landowner of his or her duty, the landowner will be absolved of a
duty where the child was injured due to an obvious danger while
under the supervision of his or her parent, "or when the parents
knew of the existence of the dangerous condition that caused the
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child's injury." Stevens, 219 Ill. App. 3d at 832.
In Stevens, a child, not yet 18 months old, was a social guest with her parents at the defendants' home, fell into a pond
located in the defendants' backyard and suffered brain injury.
The trial court granted summary judgment in favor of the
defendants, finding they owed no duty to the child. In affirming
the trial court's decision, the reviewing court first addressed
whether a dangerous condition existed on the premises. Although
bodies of water have been found to constitute obvious dangers to
children, the plaintiffs argued that the danger of the pond was
not obvious because it was obscured by weeds and had a sudden
drop-off. The reviewing court agreed with the plaintiffs'
contention that a very young child may not be expected to avoid
the dangers of drowning, but found that because the child's
parents were aware of the water, a visible dangerous condition,
and the weeds, the defendants were relieved of their duty to
protect the child. Stevens, 219 Ill. App. 3d at 833. See also
Kay, 87 Ill. App. 2d 114 (holding the defendant landowner owed no
duty to a four-year-old child who severed her heel attempting to
climb the back of a riding lawn mower where the use of the mower
was either fully known or patently obvious to the mother, who
observed no harm in allowing her child to play near the operating
mower).
In Perri, the parents of a three-month-old girl sued a
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restaurant after a four-year-old boy at their table, who was
accompanied by his parents, spun a lazy susan upon which a pot of
hot tea had been placed and burned the infant. A waitress had
placed the tea on the table unbeknownst to the adults in the
party. The trial court granted summary judgment in favor of the
defendant restaurant. This court reversed, holding that the hot
tea on the lazy susan was a dangerous condition because a four-
year-old could not be expected to appreciate the risk presented
by it and because it was foreseeable that a four-year-old would
play with the lazy susan. The presence of the parents did not
absolve the restaurant of its duty because the parents were only
required to exercise due care in the face of obvious risks. The
tea was not an obvious risk because the parents were not aware
that it had been placed on the table. Further, even if it was an
open and obvious risk, it was reasonable for the restaurant to
anticipate the danger, as the hot tea was placed on the table as
the party was being seated and the adults may have been
distracted. Perri, 335 Ill. App. 3d at 832, citing Ward, 136 Ill. 2d at 156.
Applying the reasoning of Stevens, Kay, and Perri to this
case, we find that even if the corner of the display stand
constituted a dangerous condition, Sears did not owe Jaylyn a
duty. Wanda testified she saw the display stand, which she
described as tall, wooden, not circular, and as having metal on
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the bottom, before Jaylyn fell. She also testified it was
similar to the numerous stands throughout the hosiery department.
This case is therefore unlike Perri, where the parents were
unaware that the hot tea had been placed on their table. Rather,
as in Stevens, in this case the parent was made aware of any
dangerous condition, even if the injured child could not be
expected to appreciate it. As in Kay, Wanda apparently saw no harm in letting her daughter walk on her own near the display
stand. Although Wanda testified she did not perceive anything
dangerous about the stand, we find that it is a matter of common
sense that two year olds often fall and may get hurt when they
land on noncircular objects with metal at the bottom. See Young
v. Chicago Housing Authority, 162 Ill. App. 3d 53, 57, 515 N.E.2d
779 (1987) (children who fall from monkey bars at playgrounds can
be expected to appreciate the "commonsense principle *** : if you
fall, you might get hurt"). Unlike in Perri, in this case the
plaintiffs do not argue they were distracted.
This is not a case where a store negligently maintained its
display stands in a manner such that it would be foreseeable that
children would attempt to climb upon and swing from them. See
Wal-Mart Stores, Inc. v. Lerma, 749 S.W.2d 572 (Tx. App. 1988). Rather, in this case, a child tripped for unknown reasons and
injured herself. While it is always unfortunate when a child is
injured, we find that summary judgment was properly granted in
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this case.
The plaintiffs argue that the deposition testimony and
photographic evidence in the record present a factual dispute
about whether the display stand was empty. They also argue
Julius Holmes's testimony indicating a stand left empty for more
than 24 hours constituted a "safety concern" established the
placement of the stand was improper. While we agree with the
plaintiffs that a factual dispute exists about whether the stand
was empty or full, we do not find this factual dispute to be
material in light of Wanda's testimony that she saw the stand
before Jaylyn fell.
IV
The plaintiffs' final contention is that the trial court
erred by in effect precluding them from filing an amended
complaint. Section 2-1005(g) of the Code of Civil Procedure
provides "[b]efore or after the entry of a summary judgment, the
court shall permit pleadings to be amended upon just and
reasonable terms." 735 ILCS 5/2-1005(g) (West 2002). A trial
court's decision whether to permit amendment is reviewed for an
abuse of discretion. In re Estate of Hoover, 155 Ill. 2d 402, 416, 615 N.E.2d 736 (1993).
We initially disagree with the plaintiffs contention that
the trial court precluded them from filing an amended complaint.
Our reading of the record shows that the trial court did, in
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fact, leave open the possibility of the filing of an amended
complaint. Further, our supreme court has set forth a four-
pronged test to determine whether amendment should be permitted.
Hoover, 155 Ill. 2d at 416. The test, however, is premised on
the filing of a proposed amended complaint. The plaintiffs in
this case never sought leave to file an amended complaint, and no
proposed amended complaint was submitted to the trial court.
Under these circumstances, the trial court cannot be said to have
abused its discretion. See Frantzve v. Joseph, 150 Ill. App. 3d 850, 853, 502 N.E.2d 396 (1986) (plaintiffs who fail to seek
leave to file an amended complaint waive any right to question
the trial court's dismissal of a complaint without permitting
amendment).
CONCLUSION
For these reasons, the decision of the circuit court of Cook
County is affirmed.
Affirmed.
McBRIDE, P.J., and CAHILL, J., concur.