King v. El Paraiso Del Pacifico, Inc.

2024 IL App (2d) 230026, 241 N.E.3d 524

• Court: Appellate Court of Illinois
• Decided: April 9, 2024
• Docket: 2-23-0026
• Status: Published

Opinion

2024 IL App (2d) 230026 No. 2-23-0026 Opinion filed April 9, 2024 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

DARIUS KING, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 21-L-105 ) EL PARAISO DEL PACIFICO, INC., ) d/b/a Taqueria El Paraiso, and P.A.A. ) PROPERTIES LLC, ) ) Defendants ) ) Honorable (El Paraiso Del Pacifico, Inc., d/b/a Taqueria ) Jorge L. Ortiz, El Paraiso, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE KENNEDY delivered the judgment of the court, with opinion. Presiding Justice McLaren and Justice Jorgensen concurred in the judgment and opinion.

OPINION

¶1 At issue in this appeal is whether the trial court erred in granting summary judgment in

favor of defendant El Paraiso Del Pacifico, Inc., d/b/a Taqueria El Paraiso (defendant or El

Paraiso), on plaintiff Darius King’s claim of negligence against defendant. For the following

reasons, we reverse and remand.

¶2 I. BACKGROUND

¶3 This case arises from a vehicle crash at El Paraiso located at 14 North McAree Road in

Waukegan. It is undisputed that, on August 9, 2020, King was a customer at El Paraiso when 2024 IL App (2d) 230026

Melanie Sanders drove a vehicle through the wall and windows at the front entrance of the

restaurant and struck and injured King.

¶4 King filed his initial complaint for negligence against Sanders and Alberto Leguizamo,

whom he alleged to be the owner and operator of El Paraiso. King named defendant in his first

amended complaint (although he misidentified defendant as Taqueria El Paraiso, Inc.). King’s

second amended complaint was directed only at defendant, 1 alleging negligence in that defendant

had a duty of care to operate and maintain the restaurant premises and breached that duty by

committing one or more of the following acts or omissions: maintaining parking spaces in relation

to the front entrance of the restaurant so as to create a hazard to patrons, failing to provide adequate

protective barriers to prevent vehicle crashes into the restaurant, and failing to prohibit parking in

front of the restaurant.

¶5 On June 6, 2022, defendant moved for summary judgment on King’s second amended

complaint. Defendant argued that it was entitled to summary judgment for two reasons: (1) it did

not owe King a duty to protect against errant drivers by erecting additional barriers and (2) King

could not establish that defendant was a proximate cause of his injuries. Defendant argued that it

was not reasonably foreseeable that a patron would accelerate a car into the restaurant with enough

force to injure a patron. It further argued that it was speculation to claim that additional barriers

would have prevented King’s injuries.

1 Sanders settled with King. Both Sanders and Leguizamo were stricken as defendants by

agreed order on May 25, 2021.

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¶6 We summarize the summary judgment materials as follows. The traffic crash report

indicated that Sanders was the driver of the Nissan Murano that crashed into El Paraiso on August

9, 2020. The report’s narrative provided as follows:

“I made contact with *** Melanie Sanders. Melanie advised she was pulling

into the parking spot in the front of the restaurant. Melanie advised she must have

accidentally hit the gas instead of the brake. Melanie advised she struck someone

inside the restaurant[.] I made contact with *** [King]. 2 [King] advised he was

ordering at the counter when he heard a loud crash and the vehicle came through

the wall and struck him.”

The crash report also contained a diagram of the crash. The diagram depicts five parking spaces

on the east side of the El Paraiso building, which is represented as a hexagon elongated along the

north-south walls. The parking spaces effectively abut the east side, or front, of the building and

are oriented east-west so that a vehicle pulling into a parking space would be facing west, toward

the restaurant. The vehicle in the diagram is depicted as being in the second parking space from

the north end of the lot and having bypassed the front end line marking that space. The summary

judgment materials also included photographs of the scene. The photographs are consistent with

the diagram in the crash report. The photographs show several parking spaces along the front of

the restaurant, delineated by painted markings on the surface of the parking lot. The photographs

depict a wheel stop at the front of each parking space and less than one car length between the

2 The report identified the man struck as Darius Petty, whereas the complaint identifies the

plaintiff as Darius King. This discrepancy is resolved by King’s deposition, where he states that

his full name is Darius Devon King-Petty.

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front end of the parking spaces and the front wall of the restaurant building. The front of the

restaurant has an entrance door and several windows on both sides of the entrance door. Other

photographs show that a vehicle breached the front wall of the restaurant, with the front of the

vehicle depicted beyond the end of the parking space. One photograph shows the vehicle

completely inside the restaurant near the back wall of the restaurant.

¶7 Defendant further included the lease for the El Paraiso premises. The lease is dated April

1, 2017, and is between defendant as the tenant and P.A.A. Properties LLC as the landlord. The

lease term extended to March 31, 2022. The lease provided that defendant would have the

responsibility to maintain the premises in good repair during the term of the lease and the

obligation to conduct any construction or remodeling necessary to the use of the premises.

Defendant also was permitted to construct fixtures on the premises to facilitate the premises’

permitted use as a restaurant.

¶8 The final summary judgment material was King’s deposition transcript from January 18,

2022, and we summarize his testimony as follows. At the time of his deposition, King was 30 years

old and was employed at a food service company. Due to the accident at El Paraiso on August 9,

2020, he missed several months of work. He incurred serious injuries to his legs when Sanders’s

vehicle pinned him to the front counter of the restaurant, including fractures of his right femur, left

tibia, and left fibula. He had surgery on both legs, and he was in the hospital from August 9 to

August 20, 2020. At the time of his deposition, King was able to walk, although not as easily as

before the accident. He could no longer run like he could before; he described his attempts to run

as “Now I flop.”

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¶9 King identified a photograph of El Paraiso and the parking spaces out front of the

restaurant. He identified yellow concrete wheel stops at the front of the parking spaces in the

photograph, and he confirmed that they were present on the day of his injury.

¶ 10 King never saw Sanders’s vehicle before it struck him. He was not certain whether the

vehicle drove over the wheel stops, but he assumed it did based on how the vehicle breached the

restaurant. King knew that Sanders reported that she accidentally hit the accelerator, but he

personally did not know what had caused the car crash.

¶ 11 King could not say how fast the car was traveling when it breached the restaurant, but “it

was definitely a heavy impact, very strong and forceful.” After he was released from being pinned

against the counter by the car, he noticed his legs were “all over, like, kind of spaghetti,” and he

went to the ground because his legs would not move.

¶ 12 Before responding to defendant’s motion for summary judgment, King filed his third

amended complaint on June 22, 2022, naming P.A.A. Properties LLC in addition to defendant.

P.A.A. Properties LLC was alleged to be the owner and lessor of the El Paraiso premises. The third

amended complaint again sounded in negligence, alleging that defendant breached its duty of care

in the same three ways alleged in the second amended complaint and added a fourth way: failing

to construct, operate, and maintain the seating area of the restaurant to protect from inadvertent

vehicle crashes. Defendant answered the third amended complaint and asserted two affirmative

defenses: setoff and several liability. P.A.A. Properties LLC asserted the same affirmative defenses

in its answer.

¶ 13 King responded to defendant’s motion for summary judgment on September 28, 2022. He

argued that defendant owed him a duty of care due to the special relationship between El Paraiso

and its customers and that defendant’s acts or omissions proximately caused his injuries.

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¶ 14 On December 7, 2022, the trial court heard defendant’s motion for summary judgment.

Defendant argued that the concrete wheel stops at the front end of each of the parking spaces in

front of El Paraiso complied with the requirements of Waukegan’s local code. Defendant argued,

at least in part, that its compliance with Waukegan’s local code supported that it had no duty of

care. As to the element of proximate cause, defendant argued that King’s position that other

barriers would have prevented his injuries was speculative and required expert testimony.

¶ 15 King responded that the supreme court’s decision in Marshall v. Burger King Corp., 222

Ill. 2d 422 (2006), squarely applied and supported a legal duty of care, and he contended that

defendant’s argument based on the local code went toward the element of breach, not the existence

of a duty. The court interjected and asked defendant’s counsel whether he agreed about the

existence of a duty to protect patrons, and defendant’s counsel agreed that a general duty to protect

patrons existed. The court then asked King’s counsel whether any evidence supported a breach of

defendant’s duty, and King’s counsel responded that defendant’s summary judgment motion did

not challenge the element of breach. He continued that, had defendant raised the issue of a breach

of duty, he would have responded to it, but that was not the case here. As to the element of

proximate cause, King argued that an expert was not needed to tell a jury that a protective barrier

such as a bollard protects against the type of harm in this case, noting that bollards are placed

around courthouses, banks, and other businesses.

¶ 16 On December 21, 2022, the trial court granted summary judgment in favor of defendant.

Regarding the issue of defendant’s duty of care, the court examined the supreme court’s decision

in Marshall and found it applicable to the facts of this case. It explained that King was an invitee

of defendant at El Paraiso and thus stood in a special relationship to defendant, the invitor. The

trial court further explained that the mere existence of a duty of care did not depend on whether

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defendant was required to erect a specific type of barrier—such a question went toward the issue

of a breach of duty. Accordingly, the trial court concluded that defendant owed King a duty of

reasonable care.

¶ 17 Although the trial court concluded that defendant owed King a duty of care, it held that

summary judgment was proper because King could not prove proximate cause for three reasons.

First, the court reasoned that King’s allegations—that to prevent King’s injury, defendant should

have installed barriers, redesigned the parking lot, reinforced the building walls, or redesigned the

interior of the restaurant—were conjecture. It explained that King had identified no law that made

such measures necessary. Second, the court characterized Sanders’s driving as an independent,

intervening cause that broke the causal connection between defendant’s breach, if any, and King’s

injuries. And third, the court reasoned that King did not present any expert opinion that barriers or

alternative parking designs would have prevented his injuries. The court specifically found that

the lack of such testimony was a deficiency that, in and of itself, defeated King’s claim that

defendant proximately caused his injuries.

¶ 18 Last, the trial court expressly found that no just reason existed to delay enforcement or

appeal or both. 3 This timely appeal followed.

¶ 19 II. ANALYSIS

¶ 20 King raises several arguments that the trial court erroneously granted summary judgment

in favor of defendant: (1) Sanders’s vehicle crash did not sever the causal connection between

3 Following King’s notice of appeal, P.A.A. Properties LLC remained as a party and moved

for summary judgment several weeks after King’s January 1, 2023, notice of appeal. P.A.A.

Properties LLC and its motion for summary judgment are not subjects of this appeal.

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defendant’s acts or omissions and his injuries, (2) expert testimony was unnecessary to create a

triable issue of fact, and (3) a genuine issue of material fact existed on the element of proximate

cause.

¶ 21 Summary judgment is proper where, when viewed in the light most favorable to the

nonmoving party, the pleadings, depositions, affidavits, and admissions on file show that there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter

of law. 735 ILCS 5/2-1005(c) (West 2022); Home Insurance Co. v. Cincinnati Insurance Co., 213

Ill. 2d 307, 315 (2004). A genuine issue of material fact exists where the material facts are disputed

or when the material facts are undisputed but reasonable persons can draw different inferences

from the facts. Williams v. Bruscato, 2019 IL App (2d) 170779, ¶ 15. Summary judgment is a

drastic measure and should be granted only when the movant is clearly entitled to judgment. Id.

We review de novo a grant of summary judgment. U.S. Bank N.A. v. Gold, 2019 IL App (2d)

180451, ¶ 7.

¶ 22 Before turning to King’s several arguments, we note that defendant’s summary judgment

motion was limited to the negligence elements of duty and proximate cause and that this appeal

concerns only the element of proximate cause. 4 See generally Choate v. Indiana Harbor Belt R.R.

Co., 2012 IL 112948, ¶ 22 (in a negligence action, a plaintiff must establish that the defendant

owed the plaintiff a duty, that the defendant breached that duty, and that the breach proximately

4 Defendant admits as much in its brief, stating that “[t]he issue of duty, which was the

entire focus point of Marshall, is not the issue presently. Rather this appeal is based solely on the

issue of proximate cause, of which the Marshall case says very little.” (Emphasis added.)

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caused injury to the plaintiff). Thus, our disposition is limited to whether summary judgment was

appropriate on the issue of proximate cause, and we offer no opinion on the element of breach or

defendant’s ultimate liability in this suit.

¶ 23 A. Intervening Act

¶ 24 King first argues that the trial court erred in finding that the act of Sanders crashing her

vehicle into El Paraiso was an intervening cause of his injuries, because the vehicle crash was

foreseeable, or at least the foreseeability of the crash was a question of fact for the jury. We agree

with King that the act of Sanders crashing her vehicle into El Paraiso was reasonably foreseeable

and that therefore the trial court erred in concluding as a matter of law that Sanders’s act of pressing

the gas pedal instead of the brake pedal broke the causal connection between defendant’s breach

of duty, if any, and King’s injury. In other words, Sanders’s automobile accident was not a

superseding cause of King’s injuries as a matter of law.

¶ 25 “The negligence of a defendant will not constitute a proximate cause of a plaintiff’s injuries

if some intervening act supersedes the defendant’s negligence, but if the defendant could

reasonably foresee the intervening act, that act will not relieve the defendant of liability.” Bentley

v. Saunemin Township, 83 Ill. 2d 10, 15 (1980). “[A] ‘superseding cause’ is a natural force or act

of a third party that intervenes between the defendant’s tortious conduct and the injury at issue to

absolve the defendant of liability.” Thomas v. Khoury, 2021 IL 126074, ¶ 5. In a superseding-cause

situation, both the superseding cause and the defendant’s conduct are causes in fact of the injury,

but the defendant’s conduct is no longer considered the legal cause for reasons of fairness. Id. Not

every intervening act amounts to a superseding cause: the intervening act must be both independent

of the defendant’s actions and “ ‘so extraordinary as to fall outside of the class of normal events.’ ”

Id. (quoting Restatement (Second) of Torts § 443, cmt. b, at 473 (1965)). That is, an intervening

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act must be not only independent in origin but also unforeseeable. Id. (citing Staub v. Proctor

Hospital, 562 U.S. 411, 420 (2011)).

¶ 26 In reaching our holding that Sanders’s crash was not a superseding cause of King’s injuries

as a matter of law, we begin by reviewing defendant’s duty of care, which the trial court properly

found, relying on Marshall, 222 Ill. 2d 422. In Marshall, the supreme court held that, where the

complaint alleged that the decedent was a customer at the defendants’ restaurant when a third party

drove a car through the restaurant wall and killed him, the defendants owed the decedent a duty of

care that a business invitor owes its invitees. Id. at 440. The court explained that the defendants

stood in a special relationship with their customers, as the restaurant was an establishment open to

the general public for business purposes, and the duty of care of a business invitor encompassed

the type of risk present in the case, i.e., the negligent act of a third person. Id.

¶ 27 The Marshall court declined to create an exemption to a business invitor’s duty of care

such that the invitor “ha[s] no duty to protect invitees against out-of-control drivers.” Id. at 442.

Rather, the court stated 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.” Id. at 442. The court continued that what must be foreseeable is not

the precise nature or manner of the occurrence but only the general character of the event or harm.

Id.

¶ 28 The Marshall court also addressed the difference between a duty of care and a breach of

the duty of care. Id. at 443. It explained that “the issue in this case [was] 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 formula.” Id. Rather, the defendants owed the decedent a duty of

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reasonable care, and whether the defendants breached that duty would depend on the particular

circumstances of the case. Id. at 443-44.

¶ 29 Here, there is no dispute that El Paraiso was a business open to the public and that King

was a customer at El Paraiso when he was injured by Sanders’s vehicle. Thus, under Marshall,

defendant owed King a duty of reasonable care to protect against the negligent acts of third parties,

including foreseeable automobile-related accidents.

¶ 30 Consistent with our supreme court’s clear pronouncement that automobile-related

accidents at restaurants are foreseeable, we hold that Sanders’s automobile accident was not of

such an extraordinary nature as to constitute an unforeseeable intervening act as a matter of law.

We recognize that the Marshall court was discussing foreseeability in the context of a legal duty,

but foreseeability is a factor in both duty and proximate cause analyses (Cannon v. Commonwealth

Edison Co., 250 Ill. App. 3d 379, 384 (1993)). The only explanation in the record for Sanders’s

accident was that she pressed the gas pedal instead of the brake pedal, and this kind of driver error

is the type of negligent third-party act that falls within a business invitor’s duty of care envisioned

in Marshall.

¶ 31 This court has long recognized that negligent automobile accidents are foreseeable. In

Marquardt v. Cernocky, 18 Ill. App. 2d 135, 146 (1958), this court concluded that a question of

fact existed for the jury as to whether the defendants, who owned and operated a picnic ground,

were the proximate cause of the plaintiffs’ injuries because the defendants failed to take any

precautions with respect to vehicles on their steeply sloping parking area. There, the third-party

driver had parked on the defendants’ sloped parking area, and his car had rolled down the hill and

struck one of the plaintiffs, resulting in the loss of her leg. Id. at 142-43. Although the driver

believed that he had placed the car in reverse to hold the car in place, the gear lever on the car was

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found to be in neutral after the accident, and the driver had not set the hand brake. Id.at 140-41. In

reaching our holding, we explained that the defendants, who operated the grounds as a business,

owed their patrons, as business invitees, a duty of reasonable care for their safety. Id. at 142. We

continued that a jury could have reasonably found that the defendants could have reasonably

foreseen the injury to one of the defendants’ patrons as a probable result of their “total failure to

take precautions with vehicles on their steeply sloping parking area.” Id. at 146. It was not

necessary that the defendants could have foreseen the plaintiffs’ precise injuries; it was enough

that it was foreseeable that uncontrolled movements of cars parked on the hill could threaten the

safety of the defendants’ patrons. Id. Therefore, we held that the trial court did not err in denying

the defendants’ motion for judgment notwithstanding the verdict and affirmed the jury verdict in

favor of the plaintiffs. Id. at 148.

¶ 32 Like with the plaintiffs’ injuries in Marquardt, the precise nature and occurrence of King’s

injuries did not need to be foreseeable. See Blue v. St. Clair Country Club, 7 Ill. 2d 359, 364 (1955)

(explaining that, for a negligent act to be a proximate cause of an injury, it is unnecessary that the

particular injury and manner of its occurrence be reasonably foreseeable). If we were to require

that the particular manner of Sanders’s accident was foreseeable, we effectively would be

curtailing the business invitor’s duty—as recognized in Marshall—by limiting the possibility of

liability to only those injuries foreseeable in their precise manner and occurrence. See Marshall,

222 Ill. 2d at 442 (only the general character of the harm need be foreseeable). This would impose

a duty to guard against harm generally but permit liability only when the precise harm is foreseen

specifically. To be sure, we do not hold that any manner of automobile crash on a business invitor’s

premises is reasonably foreseeable. Rather, we hold only that the type of automobile accident in

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this case, like the type of accident in Marquardt, was not so extraordinary as to make it an

unforeseeable intervening act as a matter of law.

¶ 33 In short, we conclude that Sanders’s accident was reasonably foreseeable and therefore her

act of driving into the restaurant was not a superseding cause of King’s injury as a matter of law.

In reaching this conclusion, we reject the applicability of defendant’s argument that it was not the

proximate cause of King’s injury because it merely furnished a condition that made his injury

possible. Proximate cause encompasses two distinct requirements: cause in fact and legal cause.

Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004). The question of whether a defendant merely

furnished a condition is relevant to only part of a proximate cause analysis, namely, whether the

defendant’s actions were the cause in fact of the alleged injury. See First Springfield Bank & Trust

v. Galman, 188 Ill. 2d 252, 257-59 (1999) (equating examination of whether a defendant merely

furnished a condition to an examination of whether the defendant’s conduct was a cause in fact of

the injury, i.e., whether the conduct was a material and substantial element in bringing about the

injury); Kramer v. Szczepaniak, 2018 IL App (1st) 171411, ¶¶ 30-31 (explaining that, however the

“condition/cause analysis” is styled, it is the same “cause-in-fact analysis”). However, the question

of whether an intervening act constitutes a superseding cause goes toward proximate cause’s other

requirement, legal cause. Thomas, 2021 IL 126074, ¶ 5. Thus, our holding on the issue of

superseding cause is properly based on the intervening act’s foreseeability and not on whether

defendant merely furnished a condition making King’s injuries possible. See Berke v. Manilow,

2016 IL App (1st) 150397, ¶ 33 (unlike cause in fact, legal cause involves an assessment of

foreseeability). Although defendant’s furnished condition argument does not apply to our

superseding-cause analysis, we do consider the argument in part C, where we discuss whether

King created a genuine issue of material fact on the element of proximate cause.

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¶ 34 B. Expert Testimony

¶ 35 King also argues that the trial court erred in requiring that he provide expert testimony to

create a disputed issue of material fact on the element of proximate cause. We agree.

¶ 36 In an ordinary negligence case like the one before us, expert testimony is generally not

necessary to establish the standard of care and that its breach caused the plaintiff’s injury. Jones v.

Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 296 (2000). Not only are expert opinions generally

unnecessary but they may also be inadmissible on matters of common knowledge, unless the

subject is difficult to comprehend or explain. Hernandez v. Power Construction Co., 73 Ill. 2d 90,

98-99 (1978) (no expert testimony was necessary on the question of whether the plaintiff’s fall

from a scaffold could have been prevented if guardrails were installed, as the question dealt with

a matter of common knowledge).

¶ 37 Here, King has alleged four breaches of duty that proximately caused his injuries:

(1) maintaining parking spaces in front of the restaurant entrance so as to create a hazard,

(2) failing to provide protective barriers in front of the restaurant, (3) failing to construct, operate,

and maintain the seating area of the restaurant in a way to protect against vehicle crashes, and

(4) failing to prohibit parking in front of the restaurant. 5 None of these alleged breaches required

expert testimony to create a triable issue of fact on whether the breach proximately caused King’s

injuries. In fact, several likely involve matters of common knowledge unamenable to expert

5 As mentioned, supra ¶ 24, the issue of breach has not been litigated below or on appeal.

Thus, although defendant does not admit that any alleged breach of duty occurred, its position on

appeal can be fairly understood as, even if it did breach its duty, no breach was the proximate cause

of King’s injuries.

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testimony. To wit, the jury would not need an expert to explain that, had parking been prohibited

or otherwise unavailable directly in front of El Paraiso, Sanders likely would not have crashed

through the front of the restaurant while attempting to park.

¶ 38 Furthermore, while it is possible that expert testimony could help a jury discern whether a

particular protective barrier or structural change to the restaurant would have prevented King’s

injuries, we disagree with defendant that expert testimony was necessary to survive summary

judgment. A jury does not need expert guidance to understand that protective measures, such as

bollards designed to prevent wayward automobiles or sturdier restaurant walls or a prohibition on

parking immediately in front of glass walls, can prevent an automobile from breaching the inside

of a restaurant. See Ray v. Cock Robin, Inc., 10 Ill. App. 3d 276, 280-81 (1973) (holding that the

trial court did not err in refusing to permit expert testimony of a traffic engineer when an average

person would know and comprehend that guardrails, barriers, or blocks have the effect of slowing,

stopping, or deflecting a vehicle from coming onto the premises).

¶ 39 In sum, if a jury were to agree with King that defendant breached its duty in any of the

ways alleged, the jury would not need an expert witness to explain how the alleged breach

proximately caused King’s injuries. Therefore, the trial court erred in requiring King to provide

expert testimony to survive summary judgment on the issue of proximate cause.

¶ 40 C. Proximate Cause

¶ 41 King’s final argument is that he created a triable issue of fact on the issue of proximate

cause, asserting that a reasonable jury could find that additional protections at the restaurant likely

would have prevented his injuries. For instance, King directs us to photographs of El Paraiso’s

parking lot and argues that even simple changes, such as having the parking spaces in front of the

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restaurant run parallel to the building or prohibiting parking in that area, would have significantly

reduced the risk of the accident in this case.

¶ 42 Defendant responds that King failed to present sufficient evidence on proximate cause and

relied improperly on conjecture and speculation. It contends that King has failed to identify any

support—such as a statute or local code—for why defendant had to take additional protective

measures. Further, defendant argues that, at most, it furnished a condition that made King’s injuries

possible and, therefore, it cannot be the proximate cause of his injuries.

¶ 43 In an action for negligence, a plaintiff must establish that the defendant owed a duty of

care, that the defendant breached that duty, and that the plaintiff suffered injuries proximately

caused by the defendant’s breach. Espinoza v. Elgin, Joliet and Eastern Ry. Co., 165 Ill. 2d 107,

114 (1995). The existence of a duty is a question of law for the court to decide, but the issues of

breach and proximate cause are factual matters for a jury, so long as a genuine issue of material

fact exists. Id.

¶ 44 We hold that King presented a triable issue of fact on the element of proximate cause. First,

we find unavailing defendant’s argument that, to survive its summary judgment motion, King was

required to put forth evidence showing that defendant was required to take the alleged protective

measures. Defendant’s argument thus asserts that King failed to create a triable issue on the

element of breach. Although King undoubtedly has the burden to show a breach of defendant’s

duty, defendant never challenged the element of breach on summary judgment, and whether King

created a genuine dispute of material fact on the element of breach was not litigated below or

argued on appeal. Accordingly, our review is limited to the element of proximate cause.

¶ 45 Next, based on the breaches alleged in the third amended complaint, a reasonable jury

could find that those breaches proximately caused King’s injuries. The evidence on file includes

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the traffic crash report, which indicates that Sanders was pulling into one of the parking spaces

directly in front of El Paraiso when the accident occurred. Sanders advised the reporting officer

that, when she was pulling into the parking spot, she must have accidentally hit the gas instead of

the brake, and she admitted striking someone inside the restaurant. Photographs show parking

spaces in which a vehicle would have to drive toward the glass wall of the restaurant in order to

park, wheel stops at the front of the parking spaces but no other barriers in front of the restaurant,

and a distance between the front of the parking spaces and the restaurant of less than one car length.

When Sanders’s car stopped, the photographs show it was fully inside the restaurant, having

smashed through the front wall and windows.

¶ 46 Viewing this evidence in the light most favorable to King, a reasonable jury could find that

several measures could have prevented his injuries. For one, prohibiting parking immediately in

front of the building almost certainly would have prevented King’s injury, as it is unlikely that

Sanders would have tried to park in a no-parking zone. Alternatively, if the parking spots were

rearranged differently, perhaps parallel to the restaurant as King suggests, it is unlikely that

Sanders’s car would have ended up striking King inside the restaurant, even if she lost control of

the vehicle by accelerating forward.

¶ 47 Regarding protective barriers, there is no doubt that measures exist, such as installing

certain bollards or substantially reinforcing the restaurant’s front wall, that could have prevented

Sanders’s car from breaching El Paraiso and injuring King. Whether defendant was required to

take such measures is a different question—a question of breach—and, as mentioned previously,

we offer no opinion on that matter. We conclude only that it is not speculation or conjecture to

assert that protective barriers could have slowed, stopped, or deflected Sanders’s vehicle and thus

prevented King’s injuries.

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¶ 48 Last, we turn to defendant’s argument that it merely furnished a condition that made King’s

injuries possible. In determining whether a defendant is the proximate cause of an injury, Illinois

courts have drawn a distinction between a condition and a cause, explaining that, “if the negligence

charged does nothing more than furnish a condition by which the injury is possible, and that

condition causes an injury by the subsequent, independent act of a third person, the creation of the

condition is not the proximate cause of the injury.” Galman, 188 Ill. 2d at 257. Moreover, the test

to be applied in all proximate cause cases is whether the defendant might have anticipated the

“intervening efficient cause as a natural and probable result” of its negligence. Id. Our supreme

court has explained that, when courts examine whether the defendant’s conduct simply furnished

a condition that made the injury possible, “they are in effect asking whether the defendant’s

conduct was a material and substantial element in bringing about the injury.” Id. at 259. And, when

courts ask whether the defendant might have anticipated the intervening cause, “they are in effect

asking whether the intervening efficient cause was of a type that a reasonable person would see as

a likely result of his or her conduct.” Id.

¶ 49 We find defendant’s argument unpersuasive. Notably, none of the cases defendant cites

involved a defendant who stood in a special relationship as a business invitor to an invitee. In

Thompson v. County of Cook, 154 Ill. 2d 374, 376 (1993), the proximate cause of a vehicle

passenger’s death was alleged to be the county’s failure to provide adequate signage warning of a

curve in the road. In rejecting this argument, the supreme court noted that the driver was drunk,

speeding, eluding the police, and disregarding traffic signs. Id. at 383. Thus, the court concluded

that the sole proximate cause of the accident was the driver’s actions. Id.

¶ 50 In In re Estate of Elfayer, 325 Ill. App. 3d 1076, 1078 (2001), the plaintiff sued the City of

Chicago for failing to maintain a traffic median barrier so that it was high enough to prevent traffic

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from crossing over into the oncoming lane. The reckless driver 6 in Elfayer was driving on the

elevated overpass at 3800 South Damen Avenue while he was high on cocaine with a blood-

alcohol level of 0.206, when he blacked out and lost control of his vehicle. Id. He hit the overpass

median and crossed over the barrier, colliding with the victim’s vehicle and killing him. Id. The

appellate court held that the driver’s reckless driving was the sole act proximately causing the

victim’s death. Id. at 1083-84. The court further explained that, regarding medians and crossover

accidents, the City of Chicago did not have a duty to construct median barriers to ensure no

crossover accidents would occur. Id. at 1084 (citing Hull v. City of Chicago, 236 Ill. App. 3d 405,

406 (1992)). In fact, the City of Chicago had no duty to erect medians at all. Id. Rather, a plaintiff

would have to prove that the median created a new danger causing the accident, not merely that it

failed to prevent the crossover. Id.

¶ 51 Last, Newsome v. Thompson, 202 Ill. App. 3d 1074, 1075-76 (1990), involved a motorist

who collided with the plaintiff motorcyclist on a street that was undergoing construction. The

appellate court noted that, even if the City of Chicago was negligent for failing to post barriers

along the street, the City of Chicago was immune under the Local Governmental and

Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85 ¶ 3-104). Newsome, 202

Ill. App. 3d at 1079. Thus, the foreseeability of the plaintiff’s injury was “of no consequence,” but

even if it were, the injury was not foreseeable. Id. at 1080. The court explained that the construction

was merely a condition that made the plaintiff’s injury possible, and it was the motorist’s act of

making an illegal U-turn that proximately caused the plaintiff’s injury. Id. at 1081-82.

6 The driver pled guilty to reckless homicide and driving while intoxicated. Estate of

Elfayer, 325 Ill. App. 3d at 1078.

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¶ 52 The contexts of these cases, all involving automobile accidents on public roadways and

suits against public entities, are clearly distinguishable from the facts of this case. The drivers in

those cases were all doing something illegal, even criminal, clearly rendering the defendants’

alleged breaches immaterial to the plaintiffs’ injuries. For instance, it is unreasonable to believe

that a warning sign for a curve would matter to a driver who is drunk, speeding, eluding the police,

and ignoring other traffic signs. Moreover, in two of the three cited cases, the defendant either had

no duty or was immune from liability.

¶ 53 In contrast, defendant here was a private business with a clear duty to protect its business

invitees from the foreseeable negligent acts of third parties, including automobile accidents, while

invitees were on its premises. If we assume defendant breached its duties as alleged by King, the

breaches would not be mere conditions making King’s injuries possible; they would be material

and substantial elements in bringing about his injuries. As already explained, had defendant

prohibited parking in front of the restaurant or rearranged the parking spots in its parking lot,

Sanders likely would not have been driving toward the front of the restaurant and, had protective

barriers been in place, her vehicle likely would not have breached the restaurant. Given the context

of this case, we refuse to conflate defendant’s alleged omissions with furnished conditions.

¶ 54 Accordingly, King created a triable issue of fact on the element of proximate cause and the

trial court erred in granting defendant summary judgment to defendant.

¶ 55 III. CONCLUSION

¶ 56 For the reasons stated, we reverse the Lake County circuit court’s grant of summary

judgment and remand for further proceedings.

¶ 57 Reversed and remanded.

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King v. El Paraiso Del Pacifico, Inc., 2024 IL App (2d) 230026

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 21-CF-105; the Hon. Jorge L. Ortiz, Judge, presiding.

Attorneys Elizabeth M. Bartolucci, of Bartolucci Law, LLC, of Oak Park, for for appellant. Appellant:

Attorneys Robert K. Scott and Andrew J. Meyer, of Meagher & Geer, for P.L.L.P., of Chicago, for appellee. Appellee:

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