Hougan v. Ulta Salon Cosmetics and Fragrance, Inc.

2013 IL App (2d) 130270, 999 N.E.2d 792

• Court: Appellate Court of Illinois
• Decided: November 18, 2013
• Docket: 2-13-0270
• Status: Unpublished

Opinion

2013 IL App (2d) 130270 No. 2-13-0270 Opinion filed November 18, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

SUSAN HOUGAN and THOMAS HOUGAN, ) Appeal from the Circuit Court ) of Winnebago County. Plaintiffs-Appellants, ) ) v. ) No. 08-L-316 ) ULTA SALON, COSMETICS AND ) FRAGRANCE, INC. , ) ) Defendant-Appellee ) ) Honorable (Fridh Corporation and Joseph Biddle, ) J. Edward Prochaska, Defendants). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

¶1 This case arises from injuries sustained by Susan Hougan when she was standing on the

sidewalk outside a storefront owned by Fridh Corporation (Fridh) and leased to Ulta Salon,

Cosmetics & Fragrance, Inc. (Ulta1). Joseph Biddle drove into a parking space facing the store but

then accidentally pressed the accelerator rather than the brake, causing the car to jump the curb and

injure two pedestrians, including Susan. Plaintiffs, Susan and her husband, Thomas Hougan,

brought suit against defendants, Ulta, Fridh, and Joseph. The trial court granted Ulta’s motion for

1 We refer to both the company and the store location as “Ulta.” 2013 IL App (2d) 130270

summary judgment, reasoning that any duty to protect Susan from the risk of being struck by an out-

of-control vehicle when she was standing on a common area owned, maintained, and exclusively

controlled by Fridh did not extend to Ulta. The trial court further entered a finding under Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010), allowing plaintiffs to appeal its ruling. We affirm.

¶2 I. BACKGROUND

¶3 Plaintiffs stopped at Ulta on June 29, 2008, so that Susan could make a purchase. It was

raining. Thomas parked in a parking spot facing the store, to the side of Ulta’s front door. He

remained in the car while Susan went inside. She exited after about 10 minutes and stood under an

awning, where sisters Melissa and Laurian Ogle were also standing. Susan tried to get Thomas’s

attention because she was not sure if the car’s doors were unlocked, and she did not want to get wet.

She heard an engine rev and saw a car coming toward her. The front passenger side of the car struck

her. Susan estimated that, from the time she exited the store to the time she was hit, at most two or

three minutes had passed.

¶4 Melissa and Laurian had been out with Melissa’s then-boyfriend, Joseph. They were in a car

belonging to Melissa and Laurian’s mother. They stopped at Ulta, and Melissa and Laurian went

inside while Joseph waited in the car. When the women exited the store, it was raining heavily.

They stood on the sidewalk outside the store, under an awning, and waved to Joseph. Joseph

understood them to be asking him to pick them up. He moved to the driver’s seat and pulled into

a parking spot in front of the store. When he was approaching the front of the spot, he heard Melissa

saying “stop.” Joseph panicked and put his right foot down quickly. Either he pressed the

accelerator or his foot slipped off the brake and onto the accelerator because his shoes were wet. The

car went over the curb, onto the sidewalk, and hit the building. The car struck Melissa’s legs, and

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when Joseph exited he saw that Sudan had also been injured. Joseph was ticketed for negligent

driving, to which he pleaded guilty.

¶5 Ulta’s entrance and exit doors were side by side. The only way for customers to walk to and

from the store and the parking lot was to cross the sidewalk in front of the store. The width of the

sidewalk was seven feet, eight inches. The curb in front of the store was about five inches high.

¶6 Alex Lelli testified in his deposition that he was in charge of real estate, construction, repairs,

and maintenance at Ulta. All of Ulta’s stores were leased, and almost all of them were in shopping

centers. Ulta had employees who would negotiate with landlords regarding leases. Making sure

there was safe passage between the store and the parking lot could be negotiated, though it was

“unlikely” that the installation of bollards would be discussed.

¶7 Ulta signed the lease for the store in June 1995 with the then-owner of the shopping center.

Ulta was the original tenant of the space. About six months later, Fridh purchased the shopping

center and became Ulta’s landlord. The lease remained in effect. Fridh did not alter the parking lot

in any way.

¶8 The leasehold described in the lease is represented in a diagram as the store itself; the

sidewalk and parking lot are not included. The lease states that the landlord constructed the

sidewalks and parking lots and striped the parking lots. The lease refers to these areas, among

others, as “ ‘Common Facilities’ ” and states that they are to be for the use of all shopping center

occupants. The lease states that the landlord will:

“Make all necessary repair and maintenance to the exterior and structural portions of the

improvements on the Leased Premises, including but not limited to roofs, exterior walls, slab

floor, canopies, but excluding Tenant’s signs and doors.”

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The lease further states in relevant part:

“Common Facilities. Landlord shall maintain the Common Facilities in good order,

appearance and repair (including but not limited to all necessary patching and restriping of

the parking areas), provide adequate lighting thereof, and promptly remove all snow, dirt and

debris therefrom, it being understood and agreed that these items shall be common area

charges reimbursable as provided in Section 12.2 hereof.

***

*** Tenant’s Alterations. Tenant may at its expense from time to time make any non-

structural alterations, changes or improvements in, on and to the interior of the Leased

Premises which it may deem necessary and desirable. Tenant may make structural changes

to the Leased Premises with the approval of the Landlord which approval shall not be

unreasonably withheld or delayed, provided that the installation, removal, placement and

relocation of trade fixtures, the change or addition of interior doors, and the changing or

relocation of interior plumbing, electrical, and other lines (including venting) shall not be

deemed structural changes. Tenant shall not be required to, but may, remove any such

alterations, changes or improvements at any time before the termination of this Lease by

lapse of time or otherwise, provided Tenant shall repair any damage caused by such removal.

Notwithstanding anything in this Lease to the contrary, no alteration, change or

improvement shall be made to the exterior of the Leased Premises without [the]Landlord’s

written consent, which consent may be granted or withheld in the Landlord’s sole

discretion.” (Emphases added.)

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¶9 Carolyn Enkstrom, Fridh’s vice president of operations, testified in a deposition that the lease

represented all of Ulta’s rights and obligations regarding the property.

¶ 10 Jeff Holt, Fridh’s commercial property manager, testified to the following in his deposition.

The parking lot and sidewalk were common areas under the lease, and Fridh was responsible for

their maintenance and repairs. Fridh was also responsible for keeping the common areas in a

reasonably safe condition, excluding snow removal for the sidewalks. Fridh’s responsibilities

included maintaining a safe entrance to and exit from the store. Under the lease, Ulta was required

to obtain permission from Fridh for structural changes to the interior of the store, and such approval

could not be unreasonably withheld. Ulta could also request exterior changes, but that approval was

within Fridh’s sole discretion.

¶ 11 Plaintiffs filed a six-count complaint against defendants on September 5, 2008. Counts I and

IV were directed at Ulta. Count I, brought in Susan’s name, alleged as follows in relevant part. Ulta

had a duty to use reasonable care to provide its business invitees with a reasonably safe means of

ingress and egress to its store, and a duty to use reasonable care in keeping its premises in a

reasonably safe condition for such invitees. Ulta further had a duty to use reasonable care for the

safety of business invitees using the ingress/egress sidewalk, to protect them from the foreseeable

risk of injury from out-of-control motor vehicles in the parking lot. Plaintiffs alleged that Ulta

breached this duty because, although Ulta knew or should have known that its customers on the

ingress/egress sidewalk were at foreseeable risk of injury from out-of-control motor vehicles due to

negligent operation in the parking lot, Ulta: (1) operated its store without vertical concrete pillars or

poles, or other sufficient barriers, between the end of the parking lot and the beginning of the

sidewalk in front of Ulta’s doors; (2) operated its store knowing that drivers were permitted to park

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in stalls immediately adjacent to the sidewalk, facing the store; (3) failed to provide a reasonably safe

way for customers to enter and exit the store; (4) operated its store knowing that a sidewalk for use

by customers was immediately adjacent to parking stalls facing the sidewalk and store; and (5) failed

to make necessary arrangements with the landlord to protect its customers using the sidewalk. On

November 2, 2012, plaintiffs amended their complaint to allege that Ulta additionally: (6) knew or

had reason to know that perpendicular storefront parking, without protective barriers, placed

customers at risk of injury due to potential loss of vehicle control by parking drivers; (7) failed to

protect ingressing and egressing business invitees from risk of injury from such drivers; (8) failed

to provide a safe ingress to and egress from the store by use of the sidewalk; (9) failed to maintain

its premises in a reasonably safe condition; and (10) failed to warn business invitees of the risk of

injury.

¶ 12 Count IV, brought in Thomas’s name, restated the allegations of count I and alleged a claim

of loss of consortium.

¶ 13 On April 26, 2012, Ulta moved for summary judgment. According to Ulta: Fridh owned the

shopping center; the sidewalk where Susan was standing when she was injured was a common area

of the shopping center, as was the parking lot in which Joseph was driving; and Ulta’s lease with

Fridh did not convey any authority to Ulta to make changes to the common areas of the shopping

center. Ulta argued that plaintiffs failed to allege that Ulta had any recognized duty to Susan while

she was in one of the shopping center’s common areas. Ulta argued that, even if it owed a duty, Ulta

was not a proximate cause of any injury sustained by Susan.

¶ 14 Plaintiffs retained two expert witnesses who submitted affidavits. Warren VanderHelm, an

expert in parking lot safety and design, opined as follows. Retail store and shopping center operators

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have known for years of the dangers of head-in storefront parking, as pedal error, mechanical error,

and other driver error cause building strikes and injuries or death on a regular basis. Ulta and Fridh

should also have known of inexpensive remedial measures that would have prevented Susan from

being injured. Many retailers and wholesalers around the country, such as Walmart, Target, and

Home Depot, have employed these devices at their entries, as well as eliminated parking aimed at

the front doors.

¶ 15 Robert Reiter, an expert in using bollards and barriers to prevent vehicle strikes to buildings

and pedestrians, opined that the sidewalk in front of Ulta was dangerous to business invitees

because: 40 to 50 pedal error incidents occur daily in the United States, making it highly predictable

that a driver attempting to park in one of the parking stalls in front of Ulta’s doors would lose control

of the car and jump the curb; there were no protective barriers on the sidewalk; and if bollards had

been present, Susan would not have been injured.

¶ 16 The trial court granted summary judgment for Ulta on February 20, 2013, and entered a Rule

304(a) finding. The trial court found that Ulta’s duty to Susan as a business invitee ended once she

left the physical boundaries of the store and entered into the common area defined by the lease and

controlled by Fridh. “Specifically, because Susan had safely exited the premises, and consciously

chose to stand in a ‘common area’ not controlled or operated by [Ulta, the trial court found] that her

egress was complete and the [sic] Ulta owed her no duty at the time she was injured.”

¶ 17 Plaintiffs timely appealed from the trial court’s ruling. Fridh and Joseph are not parties to

this appeal.

¶ 18 II. ANALYSIS

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¶ 19 On appeal, plaintiffs argue that the trial court erred in granting summary judgment for Ulta.

Summary judgment is appropriate only where the pleadings, depositions, admissions, and affidavits

on file, when viewed in the light most favorable to the nonmoving party, show that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 93 (2010). We review de novo a grant of

summary judgment. Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 17.

¶ 20 To succeed in an action for negligence, the plaintiff must establish that: (1) the defendant

owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the breach proximately caused

injury to the plaintiff. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. Whether a

duty exits under a particular set of circumstances is a question of law for the court to decide. Id. If

a duty does not exist, the plaintiff cannot recover as a matter of law. Id. While the existence of a

duty is a question of law, the issues of whether the defendant breached that duty and whether the

breach proximately caused the plaintiff’s injury are factual matters for the trier of fact to decide,

provided there is a genuine issue of material fact regarding those issues. Marshall v. Burger King

Corp., 222 Ill. 2d 422, 430 (2006).

¶ 21 In determining whether a duty exists, courts look to four factors: (1) the reasonable

foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding

against injury; and (4) the consequences of placing that burden on the defendant. Simpkins v. CSX

Transportation, Inc., 2012 IL 110662, ¶ 18. These four factors encompass the “relationship”

between the plaintiff and the defendant, and the court must determine whether the plaintiff and the

defendant stood in such a relationship that the law imposed upon the defendant an obligation of

reasonable conduct for the plaintiff’s benefit. Id. “The determination of such a ‘relationship,’ as

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sufficient to establish a duty of care, requires considerations of policy inherent in the consideration

of these four factors and the weight accorded each of these factors in any given analysis depends on

the circumstances of the case at hand.” Id.

¶ 22 Certain special relationships, including the relationship between a business invitor and

invitee, can give rise to an affirmative duty to protect another against an unreasonable risk of

physical harm. Marshall, 222 Ill. 2d at 438-39 (citing Restatement (Second) of Torts § 314A

(1965)). The duty to protect against the unreasonable risk of physical harm includes harm caused

by a third party’s innocent, negligent, intentional, or criminal misconduct. Id. at 439-40 (citing

Restatement (Second) of Torts § 314A, cmt. d, § 344 (1965)). A business owner also generally has

a duty to provide a reasonably safe means of ingress to and egress from the business. Reed v. Galaxy

Holdings, Inc., 394 Ill. App. 3d 39, 42 (2009).

¶ 23 Plaintiffs argue that Ulta owed Susan a duty of care because, before and at the time of the

accident, she was a business invitee. Plaintiffs rely extensively on Marshall. There, a driver in a

Burger King parking lot backed into a lamppost. When she then drove forward, her accelerator

stuck, resulting in the car hitting the sidewalk and becoming airborne. Marshall, 222 Ill. 2d at 425.

The car crashed through the brick and glass exterior of the restaurant, killing a patron inside. Id.

The plaintiff, the decedent’s father, brought suit, alleging, among other things, that Burger King and

its franchisee did not exercise reasonable care in designing, constructing, and maintaining the

restaurant, and that their failure to do so proximately caused the decedent’s death. Id. at 424. The

defendants moved to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

(West 2002)), arguing that the plaintiff had failed to state a cause of action, because they had no duty

to protect the decedent from such an accident. Marshall, 222 Ill. 2d at 427. The trial court granted

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the motion. Id. The appellate court reversed and remanded, and the supreme court affirmed. Id. at

424.

¶ 24 The supreme court initially found that the defendants had forfeited their argument regarding

lack of proximate cause. Id. at 430. It further noted that, because the parties did not present

arguments regarding the theories of negligent design and negligent construction alleged in the

complaint, the supreme court was confining its analysis to whether the defendants owed a duty to

the decedent in their alleged capacities as “owners and operators of the restaurant.” Id. at 432-33.

The supreme court stated that, based on the plaintiff’s allegations, the duty of care that a business

invitor owes to invitees to protect them against the unreasonable risk of physical harm clearly applied

to the case. Id. at 440. Specifically, the complaint alleged that, while the decedent was a customer

at a restaurant owned and operated by the defendants, he was injured by the negligent act of a third

person. Id. The supreme court considered the four factors involved in the traditional duty analysis

only to address the defendants’ argument that it should create an exemption from the duty of care

a business invitor owes to an invitee. The supreme court concluded that no such exemption should

exist, stating that: “it is reasonably foreseeable, given the pervasiveness of automobiles, roadways,

and parking lots, that business invitees will, from time to time, be placed at risk by automobile-

related accidents”; the likelihood that invitees will be injured in such instances is high; and any

extensive costs to businesses and the public that would arise by not creating an exemption from the

applicable duty of care were speculative at best. Id. at 442-43.

¶ 25 The supreme court continued:

“Recognizing that the duty of reasonable care that businesses owe to their invitees applies

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to cases where invitees are injured by out-of-control automobiles is not the same as

concluding the duty has been breached because a business failed to take a certain level of

precaution. Nor is it the same as concluding that the breach was the proximate cause of an

invitee’s injuries. In short, merely concluding that the duty applies does not constitute an

automatic, broad-based declaration of negligence liability.” Id. at 443.

The supreme court cautioned against conflating the concepts of duty of care and breach of that duty.

Id. It stated:

“Thus, the issue in this case is not whether defendants had a duty to install protective poles,

or a duty to prevent a car from entering the restaurant, or some such other fact-specific

formulation. Because of the special relationship between defendants and the decedent, they

owed the decedent a duty of reasonable care. The issue is whether, in light of the particular

circumstances of this case, defendants breached that duty. That question cannot be answered

at this stage of proceedings.” Id. at 443-44.

The supreme court further stated that, even if, arguendo, a business invitor’s lack of knowledge of

prior, similar incidents should limit his duty of care, the plaintiff alleged that, based on the place and

character of the defendants’ business, they had reason to know that the negligent conduct of third

persons was likely to endanger its customers. Id. at 445-46.

¶ 26 Plaintiffs argue that, in both Marshall and the instant case, the foreseeable risk of invitee

injury due to vehicular loss of control in the parking lot is the same. Ulta counters that Marshall is

inapplicable here because plaintiffs rely on a cause of action for the negligent design and

construction of the building, which was not at issue in Marshall. Plaintiffs respond that their action

is based upon the duty Ulta owes as an operator of a business. We agree with plaintiffs that the

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complaint’s allegations can be construed as being directed at Ulta’s duty as a business invitor, rather

than on theories of negligent construction and design.

¶ 27 Ulta additionally argues that Marshall is distinguishable because the decision was on a

motion to dismiss, whereas this case involves a motion for summary judgment. We agree that this

is a notable difference between the cases. See also id. at 450 (distinguishing out-of-state cases in

part because they were at the summary judgment stage). The more important distinction raised by

Ulta is that the Marshall plaintiff alleged that the defendants owned, operated, controlled, and

maintained the restaurant, whereas here Susan’s injury occurred on a sidewalk not owned, operated,

controlled, or maintained by Ulta under its lease with Fridh. That is, had Susan been injured by an

out-of-control car while she was still inside the store, the business invitor’s duty discussed in

Marshall would clearly apply. In contrast, Marshall does not answer the question of whether Ulta

owed Susan such a duty when she was standing on property owned and controlled by Fridh.

¶ 28 To this end, plaintiffs cite Haupt v. Sharkey, 358 Ill. App. 3d 212 (2005), for the proposition

that Ulta’s duty to protect its invitees from the foreseeable risk of harm caused by negligent acts of

third parties did not stop at Ulta’s doors. In Haupt, the defendant tavern owner told both the plaintiff

and another patron to leave after the patron shoved or hit the plaintiff. Id. at 214-15. The defendant

had, on prior occasions, reprimanded the patron for harassing other people and had once told him

to leave for wearing motorcycle gang colors. Id. at 215. As soon as the plaintiff and the patron left,

the defendant locked the front door, closed the curtains, and told other customers to leave through

the back door. When the plaintiff stepped outside, the patron struck and injured him. Id. at 214.

The sidewalk and parking area outside of the tavern were owned by the county. Id. at 215.

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¶ 29 On an appeal from a grant of summary judgment for the defendant, this court recognized that

a business invitor has a duty to protect business invitees against foreseeable criminal acts by third

parties. Id. at 216. We cited Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d 141 (2000), where

the appellate court held that the defendant’s duty to its patrons did not automatically stop at its

premises’ doors, especially where the defendant used the sidewalk to control entry by its customers.

Haupt, 358 Ill. App. 3d at 218. We further cited Shortall v. Hawkeye’s Bar & Grill, 283 Ill. App.

3d 439 (1996), where we had held that a tavern owner could not avoid the duty to protect invitees

from criminal attack by third parties simply because the attack occurred just outside the front door,

especially where the owner contributed to the attack by sending patrons out. Haupt, 358 Ill. App.

3d at 218. We stated in Haupt that the plaintiff retained his status as a business invitee because he

was still egressing from the establishment, and, under the aforementioned cases, the exact location

of the attack in the case did not resolve the duty issue. Id. at 219. Applying the four factors involved

in the traditional duty analysis, we stated that the latter three had been forfeited by the defendant.

Regarding the first factor, we determined that the attack was reasonably foreseeable because the

defendant ejected both men after the patron had been physically aggressive toward the plaintiff and

the defendant arguably knew of the patron’s propensity toward violence. Id. at 219-20.

¶ 30 Plaintiffs argue that, like the plaintiff in Haupt, who was a few feet off of the tavern’s

property, Susan maintained her status as an invitee while she momentarily stood under the awning

on the ingress-egress sidewalk. Plaintiffs also maintain that, while Haupt involved a duty to protect

patrons from foreseeable criminal acts of third parties, the Marshall court held that a business

invitor’s liability for the acts of a third person also extends to negligent acts, where the invitor failed

to use reasonable care. See Marshall, 222 Ill. 2d at 439-40.

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¶ 31 Plaintiffs’ argument is not persuasive, as Marshall did not involve an injury that occurred

outside of the invitor’s property. Moreover, we did not hold in Haupt that a business invitor is

always liable for acts occurring just outside its property, but rather that the invitor’s duty does not

automatically stop at its threshold. In extending the duty beyond the threshold, Haupt and the cases

cited within all involved the invitor contributing to the injury by choosing to send patrons out when

it was likely that they would be injured based on prior fighting, and/or situations where the invitor

was using the sidewalk to control entry. Here, in contrast, nothing occurred immediately prior to the

accident such that Ulta should not have let Susan exit at the time she did, and Ulta did not take any

affirmative actions to control the sidewalk.

¶ 32 Plaintiffs cite McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345 (1971), and Cooley v.

Makse, 46 Ill. App. 2d 25 (1964), in arguing that the sidewalk where Susan’s injury occurred was

an ingress-egress sidewalk for exclusive use by Ulta’s invitees and that Susan was still Ulta’s invitee

at the time she was struck, because she had not completed her egression from the store to her car.

In McDonald, the plaintiff was injured when she stepped into a hole in a parkway owned by the City

of Elgin. McDonald, 1 Ill. App. 3d at 348. This court stated that the evidence showed that a bowling

alley had assumed use of the sidewalk and the parkway for the ingress and egress of its patrons.

¶ 33 In Cooley, the plaintiff fell on a deteriorated brick walkway in front of a tavern. Cooley, 46

Ill. App. 3d at 26-27. The walkway was on a city-owned easement, which the city had never used.

Id. The only way to access the tavern was from the walkway (id. at 30), and the walkway had no

other useful purpose (id. at 28). This court stated that the “defendants, whether lawfully or not, had

assumed the right to use, enjoy and employ the sidewalk as a necessary adjunct of their possession,

control and ownership of the tavern building.” Id. at 30. We stated, “Having prescribed the route

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to their invitees for ingress and egress to and from their building, it was their duty to properly

illuminate, give adequate warning of, or cause to be repaired a known, dangerous condition.” Id. at

32.

¶ 34 Plaintiffs argue that, as in Cooley, the only purpose of the sidewalk here was for Ulta’s

invitees to walk between the store and the parking lot. Plaintiffs argue that, consequently, Susan did

not lose her status as a business invitee by momentarily standing near the exit door, and Ulta owed

Susan a duty to provide safe egress while she was using the sidewalk to get to the parking lot.

¶ 35 As with the other cases plaintiffs rely on, McDonald and Cooley are distinguishable in

significant respects. Most importantly, contrary to plaintiffs’ assertions, the exhibits on file show

that there is no genuine issue of material fact that the sidewalk here was not for the exclusive use of

Ulta’s patrons. Aside from the lease designating the sidewalk as a common area, patrons for the

next-door Carpet One store, or even other stores in the shopping center, could easily park in front

of Ulta and make use of the same sidewalk to reach their destinations. Indeed, Cooley itself labels

as inapposite “[c]ases where the landlord reserved a common areaway for the use of multiple

tenants.” Id. at 28.

¶ 36 Ulta argues that this case is more analogous to St. Phillips v. O’Donnell, 137 Ill. App. 3d 639

(1985). We agree. There, the plaintiff and a man named Trent O’Donnell were patrons at a tavern

in a shopping mall. Id. at 640. O’Donnell became involved in two fights with patrons other than

the plaintiff and was escorted out. A few minutes later, the plaintiff went to the parking lot and

moved his car to a closer spot. When he exited the vehicle, O’Donnell attacked him. Id. at 640-41.

The tavern’s lease provided that the parking lot, walkways, and roadways were common areas,

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subject to the landlord’s rules and regulations, and that the operation and maintenance of the

common areas were at the landlord’s sole discretion. Id. at 641.

¶ 37 This court found that the tavern owed no legal duty toward the plaintiff. Id. at 644. We

stated that the tavern leased premises from its landlord pursuant to a written lease, but the injury did

not occur on the leased premises. Id. at 643. We stated that, while the lease gave the tavern and its

customers a right to use the parking lot, the landlord expressly retained control of the common areas,

including the lot. Id. at 644. We continued:

“Under these facts, defendant could not undertake measures to control the operation of the

common parking areas in order to protect plaintiff and control third persons’ actions once

they were off the premises defendant leased. The landlord here has retained the right to

control and to operate the common areas in the shopping center and is best able to prevent

harm to others on the common areas. Additionally, this is not a case where defendant in fact

exercised control over the common area or negligently performed a voluntary undertaking.

*** Normally, where only a portion of the premises is rented and the landlord retains

control of other parts for the common use of tenants, the landlord has the duty to exercise

reasonable care to keep those premises in a reasonably safe condition and is liable for a

foreseeable injury from a failure to perform such duty.” Id.

¶ 38 Plaintiffs argue that St. Phillips is distinguishable because the tavern did not expose its

invitees to an ongoing risk of foreseeable third-party harm once it opened for business. This

argument is without merit, as injuries from fights between bar patrons are at least as foreseeable as

injuries from out-of-control cars. Plaintiffs also argue that the tavern owner could not take measures

to control the operations of the parking lot where the plaintiff was injured, whereas in this case

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Ulta’s lease negotiators could have negotiated safe passage to and from the parking lot. However,

that Ulta could have theoretically asked for the installation of bollards or a particular parking lot

design does not mean that Fridh would have agreed to such a request, and any lessee arguably could

attempt such negotiations even after a shopping center has been built.

¶ 39 Plaintiffs cite Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill. App. 3d 935 (1990), for

the proposition that Ulta’s lease with Fridh did not exempt it from the duty of care it owed as a

business invitor to Susan. In Cochran, the plaintiff fell on a ramp located at the defendant’s door;

the ramp was part of a parking lot used in common by all patrons of a shopping mall. Id. at 936-37.

The jury found in favor of the plaintiff, and the defendant argued that the trial court erred in

excluding evidence that, under its lease, the landlord had the duty to maintain and repair the parking

lot. Id. at 937. The appellate court held that the trial court did not abuse its discretion in excluding

the evidence, because the issue at trial was the defendant’s common-law duty, and whether the

landlord also had a duty was not relevant. Id. at 937-38.

¶ 40 We agree with Ulta that Cochran is inapposite because it involved coextensive duties of the

landlord and the lessee to maintain and repair the parking lot where the plaintiff fell. Here, in

contrast, the lease gave Fridh sole discretion over the areas outside of Ulta’s leased premises. That

is, Ulta is not relying on the lease to attempt to create an exception to a duty to Susan while she stood

on the sidewalk, but rather the terms of the lease are relevant to determining whether there was such

a duty in the first place. See also Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 47 (2004)

(“Courts reason that a person’s duty can extend no further than the person’s right, power, and

authority to implement it.”).

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¶ 41 Plaintiffs argue that, at a minimum, Ulta had a duty to warn its business invitees of the risk

of injury from drivers losing control of their vehicles while parking in the store-facing stalls. The

duty to warn was not at issue in St. Phillips. Even if, arguendo, Ulta had such a duty to warn its

customers in general,2 that duty did not apply to Susan, based on her deposition testimony. Susan

testified that she had commented to her husband and Ulta clerks that it was dangerous for cars to be

able to drive so close to the store’s doors, because they could come up onto the sidewalk. As the

Seventh Circuit Court of Appeals has stated, there can “be no duty to warn *** against possible

consequences about which [a person] already knew because knowledge of the danger is equivalent

to prior notice. No one needs notice of that which he already knows.” Borowicz v. Chicago Mastic

Co., 367 F.2d 751, 758 (7th Cir. 1966). Given that Susan already thought that the parking stalls were

dangerous because they were located close to the store’s doors and cars could drive up onto the

sidewalk, Ulta did not have a duty to warn Susan of such a danger.

¶ 42 Based on our holding that Ulta did not owe Susan a duty at the time she was injured, we do

not address Ulta’s alternative argument that it was entitled to summary judgment additionally

because it did not proximately cause Susan’s injury.

¶ 43 III. CONCLUSION

¶ 44 In sum, we recognize that the duty to provide safe ingress and egress to invitees can, at times,

extend beyond the precise boundaries of a landowner’s property. Hanks v. Mount Prospect Park

District, 244 Ill. App. 3d 212, 218 (1993). The cases relied on by plaintiffs extended businesses’

duties beyond their property lines because the businesses had taken affirmative actions to appropriate

2 We express no opinion as to whether, or in what situations, a business invitor would have

a duty to warn its customers of an alleged danger on adjacent property that it does not own or control.

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the sidewalk; the walkway was in disrepair and exclusively used to access the business; or the

business directly and immediately contributed to the injury such as by simultaneously expelling

fighting patrons. This case does not fit into any of these scenarios. Rather, as in St. Phillips, Ulta

did not owe a duty of care to Susan when she was injured, because the sidewalk on which she was

standing, as well as the allegedly dangerous parking lot, were under Fridh’s exclusive control.

Where the landlord retains such control, “the landlord has the duty to exercise reasonable care to

keep those premises in a reasonably safe condition and is liable for a foreseeable injury from a failure

to perform such duty.” St. Phillips, 137 Ill. App. 3d at 644.3 Finally, Ulta had no duty to warn Susan

of the potential dangers of store-facing parking stalls, as Susan testified in her deposition that she

was already aware of such dangers. Therefore, the trial court correctly granted summary judgment

for Ulta.

¶ 45 For the foregoing reasons, we affirm the decision of the Winnebago County circuit court.

¶ 46 Affirmed.

3 We express no opinion as to whether the sidewalk was in a reasonably safe condition or

whether Susan’s injury was reasonably foreseeable.

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