King v. El Paraiso Del Pacifico, Inc.

2025 IL App (2d) 230326-U

• Court: Appellate Court of Illinois
• Decided: March 5, 2025
• Docket: 2-23-0326
• Status: Unpublished

Opinion

2025 IL App (2d) 230326-U No. 2-23-0326 Order filed March 5, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

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 ) Jorge L. Ortiz, (P.A.A. Properties LLC, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court erred in granting summary judgment in favor of defendant P.A.A. Properties LLC on the element of proximate cause. Therefore, we reverse and remand.

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

favor of defendant P.A.A. Properties LLC (PAA), on plaintiff Darius King’s claim of negligence.

Specifically, plaintiff contends that the trial court erred in granting summary judgment on the 2025 IL App (2d) 230026-U

contested factual issue of proximate cause. For the following reasons, we reverse the grant of

summary judgment and remand the matter for further proceedings.

¶3 I. BACKGROUND

¶4 This case arises from a vehicle crash at Taqueria El Paraiso (the Taqueria or the premises)

located at 14 North McAree Road in Waukegan. It is undisputed that, on August 9, 2020, King

was a customer at the Taqueria when Melanie Sanders drove a vehicle through the wall and

windows of the restaurant and struck and injured King.

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

alleged owner and operator of the Taqueria. King ultimately settled with Sanders and dismissed

Alberto by agreed order.

¶6 King’s second-amended complaint was directed against only defendant El Paraiso Del

Pacifico, Inc. (El Paraiso), alleging negligence. El Paraiso moved for summary judgment on the

second-amended complaint.

¶7 Prior to responding to El Paraiso’s motion, King filed a third-amended complaint, which

named PAA as a defendant. King alleged that, at all relevant times, PAA was the owner and lessor

of the premises and that, as the owner and lessor, it owed him a duty of care to take reasonable

protective measures against an automobile crash like Sanders’s accident. He alleged that both PAA

and El Paraiso violated their duties of care for the safety of their customers in several ways: (1)

maintaining parking spaces in relation to the front entrance of the restaurant so as to create a hazard

to business invitees; (2) failing to provide adequate protective barriers to preclude a motor vehicle

breaching into the inside of the restaurant; (3) failing to construct, operate, and maintain the seating

area of the restaurant in a manner and location that patrons would be protected from inadvertent

vehicle crashes; and (4) failing to prohibit parking in front of the restaurant.

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¶8 On December 7, 2022, the trial court heard El Paraiso’s motion for summary judgment,

and it granted the motion on December 21, 2022. King appealed, and we reversed. King v. El

Paraiso Del Pacifico, Inc., 2024 IL App (2d) 230026, ¶¶ 56-57.

¶9 On February 10, 2023, while El Paraiso’s appeal was pending, PAA moved for summary

judgment on King’s third-amended complaint on the basis that King failed to establish proximate

cause. PAA argued that Sanders’s “independent and intervening act” absolved it from liability. It

also argued that plaintiff failed to provide evidentiary support that acts such as erecting protective

barriers or prohibiting parking in front of the Taqueria would have prevented his injury. PAA did

not argue that it lacked a duty of care toward King.

¶ 10 King provided a statement of additional material facts as follows. Pedro Leguizamo was

the sole owner and managing member of PAA, and he had purchased the premises in 1997 and

converted it into a Mexican restaurant, incorporating the restaurant as El Paraiso Del Pacifico, Inc.

PAA leased the premises to El Paraiso, and Pedro’s brother and sister operated the Taqueria and

paid rent to PAA.

¶ 11 King’s additional statement of material facts continued that PAA had installed bollards at

other restaurants, including bollards at the nose of several parking spaces abutting the building of

the La Flor restaurant in Elgin, and that the Taqueria had bollards in its parking lot around the trash

enclosure to protect from commercial garbage trucks. 1 King stated that a motor vehicle accident

at El Paraiso had occurred in 2005 or 2006, causing a crack in its rear brick wall. King further

stated that vehicles can roll over wheel stops at speeds of less than five miles per hour, whereas

1 In King’s response to PAA’s motion for summary judgment, he attached photographs as exhibits

depicting bollards at La Flor and around the trash enclosure at the Taqueria.

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safety barriers such as six-inch diameter steel bollards can stop a vehicle traveling at speeds of up

to 27 miles per hour.

¶ 12 King responded to PAA’s motion for summary judgment on June 9, 2023, arguing that

PAA sought summary judgment solely on the issue of proximate cause and that he had adduced

sufficient evidence to establish a triable issue of material fact on the issue of proximate cause. As

an exhibit to his response, he attached the affidavit and report of Rob Reiter. Reiter averred as

follows. He had been active for more than 25 years in the fields of perimeter security, pedestrian

safety, protection of crowded spaces, and permanent and temporary means of protecting against

accidental or deliberate vehicle incursions. He explained that bollards are posts typically made of

steel and embedded vertically to prevent vehicles from crashing into pedestrians, buildings, or

property. Storefront and public parking lot crashes occurred more than 36,000 times per year in

the United States, with as many as 2,600 killed and 16,000 injured, and he specifically stated that

vehicle-into-building crashes are common in Illinois and have occurred in Waukegan.

¶ 13 Reiter continued to aver that he had reviewed the facts of Sanders’s crash into the Taqueria

and prepared a report on the matter. He believed that wheel stops, such as those in front of the

Taqueria, were ineffective and inadequate at stopping vehicles where a driver like Sanders presses

the wrong pedal. Safety barriers, such as bollards or landscaping walls are “proven, common, and

readily available in Illinois,” and he opined that six-inch diameter steel bollards properly installed

in front of the Taqueria would have stopped a vehicle like Sanders’s Nissan Murano traveling at a

speed of up to 27 miles per hour from breaching the storefront.

¶ 14 The other summary judgment materials included the traffic crash report, which indicated

that Sanders was the driver of the Nissan Murano that crashed into the Taqueria on August 9, 2020.

The reporting officer’s narrative provided as follows:

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“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]. [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 contained a diagram of the crash site. The diagram depicts five parking spaces on

the east side of the premises, which is represented as a hexagon elongated along the north-south

walls. The parking spaces abut the east side of the building and are oriented so that a vehicle would

enter the parking space heading west toward the east side of the building. The vehicle in the

diagram is depicted as having bypassed the endline of the second-most northern parking space and

breached the east wall of the restaurant with the front of the car.

¶ 15 King also included the lease for the Taqueria. The lease is dated April 1, 2017, signed by

Aide Leguizamo on behalf of the tenant 2 and Pedro Leguizamo on behalf of PAA as the landlord.

The lease term ran to March 31, 2022. The lease provided that the use of the premises was “only

for a restaurant” and that the tenant 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.

¶ 16 Pedro Leguizamo testified at his deposition as follows. He was the managing member of

PAA. When he purchased the premises, the building was not occupied, and he renovated the

2 Although the lease listed the tenant as Taqueria Paraiso Del Pacifico, Inc., we understand that the

tenant was actually defendant El Paraiso Del Pacifico, Inc., d/b/a Taqueria El Paraiso.

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building to make it a restaurant. He operated the Taqueria until sometime around 2007, when his

brother and sister-in-law, Alberto and Aide, 3 took over its operations. Pedro stated that he and his

wife sold the Taqueria to Alberto and Aide in 2008, although he later stated that it was not sold

for money but instead was leased to Alberto and Aide for monthly rent payments.

¶ 17 When asked about the purpose of bollards at one of his restaurants, Pedro answered that

“it’s protection against a car going on—a car going in or going—going in.” After a follow-up

question, he agreed that bollards protected against a vehicle going into the building and could also

protect against a vehicle going onto a sidewalk and injuring someone. At his La Flor restaurant, as

part of a remodeling of the building, he had bollards installed between some parking spots and the

building wall pursuant to an architect’s plans. At the Taqueria, there were preexisting bollards

around the trash corral, and he understood that their purpose was to prevent the garbage truck from

knocking down the corral door. Pedro was aware of a prior vehicle accident where a car struck the

back brick wall of the Taqueria and caused a crack in the wall.

¶ 18 Lastly, we summarize King’s deposition transcript from January 18, 2022. At the time of

his deposition, King was 30 years old and was employed at a food service company. Due to the

accident at the Taqueria 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. 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.” He had surgery on both legs, and he was in the hospital from August 9 to August

3 In the deposition, she is referred to as Aida, but on the lease for the Taqueria she is listed as Aide

and signed as Aide.

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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 the injury; he described his attempts to run

as “Now I flop.”

¶ 19 On August 8, 2023, the trial court heard PAA’s motion for summary judgment. PAA

argued that King had failed to create a genuine issue of material fact on whether it proximately

caused his injuries, attacking Reiter’s credentials and contending that he improperly asserted legal

conclusions and failed to provide sufficient admissible evidence for trial. PAA further argued that,

at most, it furnished a condition that made Sanders’s accident possible, but her act of pressing the

accelerator instead of the brake pedal was an independent act that constituted an intervening cause

and broke the causal connection between PAA’s acts or omissions and King’s injuries.

¶ 20 King responded that the pertinent question was whether it was foreseeable that a driver like

Sanders would have an accident by driving into the storefront, and that, based on the evidence in

this case and the relevant case law, it was foreseeable. King cited Reiter’s affidavit and opinions,

including that Pedro Leguizamo had bollards at other restaurants he owned but not at the Taqueria.

¶ 21 On September 12, 2023, the trial court granted summary judgment in favor of PAA. Citing

and agreeing with numerous out-of-state decisions, the trial court stated that landowners are not

insurers of their invitees’ safety and that landowners are not liable for injuries caused to business

invitees by out-of-control drivers because such incidents are unforeseeable as a matter of law. The

trial court also found that Reiter’s affidavit and report failed to comply with Illinois Supreme Court

Rule 191 (eff. Jan. 4, 2013). It explained that many of Rieter’s assertions lacked foundation and

that Reiter repeatedly drew conclusions that the accident was foreseeable, which was an improper

legal conclusion. The court continued that, regardless of its deficiencies, Reiter’s affidavit did not

provide sufficient evidence of foreseeability to establish proximate cause. The court concluded

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that it was “not willing to find that this event was foreseeable” and it would be an unreasonable

burden on PAA to know which type of barrier to place to protect against such an event.

¶ 22 This timely appeal followed.

¶ 23 II. ANALYSIS

¶ 24 King argues that the trial court erroneously granted summary judgment in favor of PAA on

the issue of proximate cause. He contends that Sanders’s accident was both foreseeable and

preventable and that Reiter’s affidavit and report created a triable issue of material fact on the

element of proximate cause. PAA responds that King failed to present evidence that prohibiting

building-adjacent parking would have prevented his injuries; that the intervening-cause defense

was available to defeat King’s negligence claim; that Reiter’s affidavit was deficient and his

opinions speculative; and that PAA complied with applicable ordinances regarding parking lots

and barriers.

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

180451, ¶ 7.

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¶ 26 We first note that PAA’s summary judgment motion was limited to the negligence element

of proximate cause. 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 caused injury to the plaintiff).

Accordingly, our disposition is limited to whether summary judgment was appropriate on the issue

of proximate cause.

¶ 27 In King’s prior appeal from summary judgment entered in favor of defendant El Paraiso,

we decided several issues relevant to this appeal. First, Sanders’s act of driving her vehicle into

the Taqueria was not an intervening act, i.e., it was not a superseding cause of King’s injuries as a

matter of law. King, 2024 IL App (2d) 230026, ¶¶ 23-33. Second, expert testimony was not

required to survive summary judgment. Id. ¶¶ 34-39 (stating that a jury does not require expert

testimony to understand that bollards can protect against wayward vehicles, that sturdier walls can

prevent vehicle incursions, or that prohibiting parking in front of the building can prevent an

accident such as Sanders’s when she tried to pull into a spot directly in front of the restaurant).

Third, assuming a breach of duty as alleged by King, those breaches “would not be mere conditions

making King’s injuries possible” but instead “they would be material and substantial elements in

bringing about his injuries.” Id. ¶¶ 48-53. Finally, King provided sufficient evidence to create a

triable issue of fact on the element of proximate cause against El Paraiso. Id. ¶¶ 45-47 (the evidence

included the traffic crash report indicating that Sanders attempted to pull into a parking space

directly in front of the Taqueria, and a jury could find that prohibiting parking directly in front of

the building or installing protective barriers in front of the building could have prevented Sanders’s

accidental vehicle incursion into the Taqueria).

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¶ 28 We will not revisit these questions. The only potentially significant difference in the facts

of this appeal is the position of PAA as the lessor of the premises. However, the parties have not

disputed or litigated whether PAA owed King a duty of care in its position as the landlord, only

whether an assumed breach of PAA’s duty could constitute a proximate cause of King’s injuries.

In fact, the third-amended complaint alleged the same acts and omissions proximately causing

King’s injuries against both PAA and El Paraiso: (1) maintaining parking spaces in relation to the

front entrance of the restaurant so as to create a hazard for business invitees; (2) failing to provide

adequate protective barriers to prevent motor vehicles from accidentally crashing into the seating

area of the restaurant; (3) failing to construct, operate, and maintain the seating area in a manner

and location protected from inadvertent vehicle crashes; and (4) failing to prohibit vehicle parking

in front of the restaurant. Thus, we have no reason to depart from our proximate cause analysis in

King’s prior appeal.

¶ 29 Regarding Reiter’s affidavit, even if the trial court properly disregarded the affidavit, we

have already held that expert testimony was unnecessary to create a triable issue of fact on

proximate cause under the facts of this case. Id. ¶ 39. In addition to the sufficient evidence King

adduced in conjunction with El Paraiso’s motion for summary judgment, including the traffic crash

report and photographs of the scene, King provided Pedro Leguizamo’s deposition in response to

PAA’s motion. Pedro admitted to installing bollards at another restaurant he owned and having

bollards around the trash corral at the Taqueria, and he understood the purpose of bollards was to

prevent vehicle incursions. Moreover, he was aware of a separate vehicle crash at the Taqueria,

where a vehicle struck the back brick wall of the restaurant. These facts further support the

foreseeability of a motor vehicle accident at the Taqueria and that readily available measures—

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like bollards or a sturdier front wall—existed to prevent or reduce the risk of harm to business

invitees posed by the negligent acts of third-party drivers.

¶ 30 We also reject the contention that PAA’s compliance with local ordinances precludes a

finding of proximate cause on King’s negligence claim. See Vancura v. Katris, 238 Ill. 2d 352,

377 (2010) (explaining that compliance with a statute does not preclude a finding of negligence;

“the mere existence of a statute establishing legal duties *** does not foreclose the possibility of

a common law negligence action based on an extra-statutory duty of care”); Belvidere National

Bank & Trust Co. v. Leisher, 83 Ill. App. 3d 179, 186 (1980) (“Although violation of statutes,

ordinances[,] or codes is conclusive to show defendant’s breach of duty (leaving only the question

of proximate cause), compliance with codes and safety regulations is not conclusive evidence on

the question of negligence.”). PAA’s alleged compliance with local ordinances, including the use

of wheel stops, would not be conclusive on the element of duty, much less on the disputed element

¶ 31 In sum, there is no dispute that business invitees like King are generally owed a duty of

care to protect against the negligent acts of third parties, including foreseeable motor vehicle

accidents. King, 2024 IL App (2d) 230026, ¶ 29 (relying on Marshall v. Burger King Corp., 222

Ill. 2d 422 (2006)). We have already decided that the facts of this case created a triable issue on

the element of proximate cause with respect to El Paraiso, and we have no basis to hold differently

here with respect to PAA. We note that, because the parties have not raised or litigated the issues,

we offer no opinion on whether PAA owed defendant a duty of care in its position as lessor or

whether it breached its duty of care as alleged; we hold only that, under the facts of this case, the

trial court erred in granting summary judgment on the element of proximate cause.

¶ 32 Accordingly, the trial court’s grant of summary judgment in favor of PAA is reversed.

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¶ 33 III. CONCLUSION

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

judgment and remand for further proceedings.

¶ 35 Reversed and remanded.

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