No. 2--96--0819
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
RUBY PETERSON, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
) No. 95--L--1238
v. )
)
ALDI, INC., ) Honorable
) Edward R. Duncan, Jr.,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Ruby Peterson, brought this action against
defendant, Aldi, Inc., alleging that, as a result of defendant's
negligence, she was injured when she tripped and fell in one of
defendant's grocery stores. The circuit court of Du Page County
ruled that under section 2 of the Premises Liability Act (Act) (740
ILCS 130/2 (West Supp. 1995)), as amended effective March 9, 1995,
defendant was entitled to summary judgment. Plaintiff filed a
timely appeal from a subsequent trial court order granting summary
judgment in favor of defendant based on that ruling.
On appeal, plaintiff generally contends that the trial court
erred when it granted summary judgment in favor of defendant
because there were genuine issues of material fact that precluded
summary judgment. Plaintiff argues that a jury could have found
that, under section 2 of the Act: (1) the condition on defendant's
premises which caused her to trip and fall was not open and
obvious; and (2) even if the condition was open and obvious,
defendant nonetheless owed her a duty of care with respect to the
condition.
Background
At about 4 p.m. on April 5, 1995, plaintiff entered
defendant's grocery store in Villa Park to purchase groceries.
Plaintiff had previously shopped at the store once or twice.
Plaintiff pushed a cart in front of her as she entered the store.
Inside the store, a turnstile directed entrants to the first
of four parallel aisles. Plaintiff proceeded through the turnstile
and down the first aisle toward the rear of the store. On the left
side of the first aisle were shelves displaying various items.
There was contradictory testimony as to whether there were also
shelves displaying items on the right side of the first aisle or
whether, instead, there were wooden pallets placed next to each
other displaying items. As she went down the first aisle,
plaintiff selected and placed several canned items in her cart.
Upon reaching the end of the first aisle, plaintiff saw a bin
containing grapefruits. This bin was about six or seven feet to
her right in the produce section. The produce section was at the
rear of the store between the second and third aisles.
The shape of the grapefruit bin was round or octagonal. The
grapefruit bin was about three to four feet high and about four to
five feet across. The bin rested on a square wooden pallet which
was about four inches high. The bin was about the same width as
the pallet on which it rested. Other produce was displayed in the
produce section in other bins on other pallets which abutted two
sides of the grapefruit bin pallet.
The grapefruit bin was positioned more or less in the center
of its pallet. The edges of the grapefruit bin were therefore
about even with the edges of the pallet at the middle of each side
of the pallet. Due to the roundish shape of the grapefruit bin,
each of the corners of the pallet it rested on protruded beyond the
edge of the grapefruit bin. Because other pallets were flush
against two sides of the grapefruit bin pallet, only two sides and
one corner of the grapefruit bin pallet were exposed to persons
walking near the grapefruit bin.
After seeing the grapefruit bin, plaintiff pushed her cart
over to the grapefruit bin and stopped her cart right next to it.
Plaintiff turned so that her body faced the grapefruit bin, reached
into the bin, and picked up a grapefruit. Plaintiff decided she
wanted to look at other grapefruits on the other side of the bin
and put the grapefruit she had picked up back into the bin. The
grapefruit bin was too wide to reach across. Plaintiff therefore
began to walk around the grapefruit bin to get to the other side of
the bin. Leaving her cart, plaintiff turned to her left. As she
was taking her first step, plaintiff's foot came into contact with
the exposed corner of the grapefruit bin pallet, and plaintiff
tripped and fell seriously injuring herself.
In her discovery deposition, plaintiff testified that she had
no difficulty seeing as she walked around the store. Plaintiff
stated that when she got to the end of the first aisle and saw the
grapefruit bin she had no difficulty observing the bin because it
was in "clear view."
However, plaintiff testified that she did not see the
grapefruit bin pallet, which she referred to as the "support" or
the "boards," before she tripped and fell on the pallet. Plaintiff
testified that she saw the pallet for the first time only after she
fell and was sitting on the floor. After she fell, plaintiff had
no difficulty seeing the pallet which she stated extended out
beyond the bottom of the grapefruit bin "about a foot." Plaintiff
could not recall if there was anything that blocked her view of the
exposed corner of the grapefruit bin pallet as she approached the
grapefruit bin after first seeing it. Defendant's attorney asked
plaintiff where she was looking as she took the step when she fell.
Plaintiff responded, "I had just looked up and just started to turn
to walk. I didn't even look down." Plaintiff acknowledged that if
she had looked down, she would have been able to see the exposed
corner of the grapefruit bin pallet.
During plaintiff's deposition, the following colloquy occurred
between defendant's attorney and plaintiff:
"Q. Do you have any criticism of the display bin that
was in the Aldi store that afternoon?
A. Yes, There was boards that jutted out from
underneath it that I tripped over.
Q. What was improper about those?
A. Well, they were right out. A person could trip over
them easily like I did if they hadn't noticed them.
Q. I take it that those wooden boards were observable
when you looked at them that afternoon after the accident?
A. Yes.
Q. So when you did look down or did look at those
wooden supports, they were open and obvious to you?
A. Yes."
In its motion for summary judgment, defendant contended that
it was entitled to summary judgment based on plaintiff's deposition
testimony. Defendant asserted that plaintiff's testimony showed
that the exposed corner of the grapefruit bin pallet was open and
obvious or could have reasonably been discovered by plaintiff.
Defendant maintained that under section 2 of the Act (740 ILCS
130/2 (West Supp. 1995)) it had no duty to warn or otherwise
protect an entrant on its premises, such as plaintiff, from
conditions on the premises that were open and obvious or could
reasonably be expected to be discovered by the entrant. Defendant
argued that it therefore had no duty to plaintiff, under section 2,
with respect to the exposed corner of the grapefruit bin pallet and
was entitled to summary judgment.
In her response to defendant's motion for summary judgment,
plaintiff took the position that whether the exposed corner of the
grapefruit bin pallet was open and obvious should be decided by a
jury because a jury could conclude that plaintiff reasonably did
not look at the floor before starting to move to the other side of
the grapefruit bin. Plaintiff also contended that, even if a jury
found that the exposed corner of the grapefruit bin pallet was open
and obvious, a jury could still conclude that defendant owed a duty
of care to entrants such as plaintiff because it was foreseeable
that they could fail to discover the condition. For these reasons,
plaintiff argued that the record raised sufficient genuine and
material issues of fact to deny defendant's motion for summary
judgment.
The trial court granted defendant's motion for summary
judgment, stating that it found that there were no genuine issues
of material fact. Following a hearing on the matter, the court
based its decision on its determination that under section 2 of the
Act defendant was entitled to summary judgment.
Analysis
Our supreme court recently set out the principles guiding a
reviewing court in determining whether a trial court properly
granted summary judgment. The court stated:
"As in all cases involving summary judgment, we conduct
a de novo review of the evidence in the record. (Outboard
Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill.
2d 90, 102.) Specifically, the court must consider the
affidavits, depositions, admissions, exhibits, and pleadings
on file and must construe them strictly against the movant and
liberally in favor of the non-moving party. (In re Estate of
Hoover (1993), 155 Ill. 2d 402, 410-11; Outboard, 154 Ill. 2d
at 131-32.) Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party's right to
judgment is clear and free from doubt. (Hoover, 155 Ill. 2d
at 410; Outboard, 154 Ill. 2d at 102.) Although summary
judgment is encouraged to aid the expeditious disposition of
a lawsuit, it is a drastic means of disposing of litigation.
(Hoover, 155 Ill. 2d at 410; Purtill v. Hess (1986), 111 Ill.
2d 229, 240.) Therefore, where reasonable persons could draw
divergent inferences from the undisputed material facts or
where there is a dispute as to a material fact, summary
judgment should be denied and the issue decided by the trier
of fact. Hoover, 155 Ill. 2d at 411; Pyne v. Witmer (1989),
129 Ill. 2d 351, 358." Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 113-14 (1995).
In a negligence action, the plaintiff must establish that the
defendant owed the plaintiff a duty of care, that the defendant
breached that duty, and that the defendant's breach proximately
caused the plaintiff's injuries. Espinoza, 165 Ill. 2d at 114.
The existence of a duty is a question of law for the court to
decide. Espinoza, 165 Ill. 2d at 114. If the plaintiff fails to
establish an element of the cause of action, including a duty,
summary judgment for the defendant is proper. Espinoza, 165 Ill.
2d at 114. A plaintiff is not required to prove his case at the
summary judgment stage; however, to survive a motion for summary
judgment, the nonmoving party must present a factual basis which
would arguably entitle him to a judgment. Allegro Services, Ltd.
v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256
(1996).
On appeal, plaintiff essentially contends that the trial court
misconstrued or misapplied section 2 of the Act when the court
determined that under section 2 defendant was entitled to summary
judgment. The general issue raised by plaintiff's appeal is
whether under section 2 defendant had a duty to warn or otherwise
take reasonable steps to protect plaintiff from the condition on
its premises of the exposed corner of the grapefruit bin pallet.
Section 2 of the Act provides, in relevant part, as follows:
"§2. The distinction under the common law between
invitees and licensees as to the duty owed by an owner or
occupier of any premises to such entrants is abolished.
The duty owed to such entrants is that of reasonable care
under the circumstances regarding the state of the premises or
acts done or omitted on them. The duty of reasonable care
under the circumstances which an owner or occupier of land
owes to such entrants does not include any of the following:
a duty to warn of or otherwise take reasonable steps to
protect such entrants from conditions on the premises that are
known to the entrant, are open and obvious, or can reasonably
be expected to be discovered by the entrant ***." 740 ILCS
130/2 (West Supp. 1995).
The parties first dispute the meaning of the words "open and
obvious" in section 2 of the Act. Defendant contends that we
should give the words their plain meaning. Defendant asserts that
the plain meaning of the words, as defined by Black's Law
Dictionary, is "patent, visible and apparent." Using this
definition, defendant argues that plaintiff's deposition testimony
showed that the exposed corner of the grapefruit bin pallet was
open and obvious to plaintiff and that, under section 2, defendant
therefore had no duty to plaintiff with respect to the exposed
pallet corner.
Plaintiff responds that we should determine the meaning of the
words "open and obvious" in section 2 by considering Illinois cases
which have decided whether specific conditions were open and
obvious. Plaintiff contends that the holding of these cases show
that a jury should decide whether the condition was open and
obvious. Plaintiff asserts that Illinois case law would allow a
jury to decide not only whether a reasonable person in plaintiff's
position had a foreseeable opportunity to observe the exposed
pallet corner, but also, even if the condition were observable,
whether defendant should have anticipated that a reasonable person
in plaintiff's position might not have discovered and appreciated
the exposed pallet corner while moving around the bin. Plaintiff
maintains that a jury could decide that plaintiff reasonably did
not look down at the floor to discover the exposed pallet corner
before beginning to move to the other side of the grapefruit bin,
and before tripping and falling on the exposed pallet corner.
Plaintiff argues that we should therefore reverse the trial court
order granting defendant summary judgment because it cannot be said
as a matter of law that the condition that caused plaintiff's
injuries was open and obvious.
The fundamental canon of construction in interpreting a
statute is to ascertain and give effect to the intention of the
legislature. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). The
most reliable indicator of legislative intent is the language of
the statute which is given its plain and ordinary meaning. Boaden
v. Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996).
Where the language of the statute is clear and unambiguous, we must
give it effect as written, without reading into it exceptions,
limitations, or conditions that the legislature did not express.
Garza v. Navistar International Transportation Corp., 172 Ill. 2d
373, 378 (1996). Courts should not, under the guise of statutory
construction, add requirements or impose limitations that are
inconsistent with the plain meaning of the statute. Nottage, 172
Ill. 2d at 392. The construction of the statute is an issue of law
and our review is therefore de novo. Boaden, 171 Ill. 2d at 237.
Under these principles, we must give the words "open and
obvious," as used in section 2, their plain and ordinary meaning.
The word "open," in its usual sense, means, as defendant asserts,
patent, visible, and apparent. Black's Law Dictionary 1090 (6th
ed. 1990). The word "obvious" means easily discovered or seen,
readily perceived by the eye, patent, or apparent. Black's Law
Dictionary 1078 (6th ed. 1990).
Contrary to plaintiff's position, the cases cited by plaintiff
used definitions of "open and obvious" that are consistent with the
terms' plain meaning. See, e.g., Ward v. K mart Corp., 136 Ill. 2d
132, 142 (1990) ("obvious" means "apparent" or easily
discoverable); Deibert v. Bauer Brothers Construction Co., 141 Ill.
2d 430, 435 (1990) (adopting definition of "obvious" used in the
Restatement (Second) of Torts §343A, Comment b, at 219 (1965),
i.e., "both the condition and the risk are apparent to and would be
recognized by a reasonable [person], in the position of the
visitor, exercising ordinary perception, intelligence, and
judgment"). Thus, plaintiff's assertion that these cases somehow
broaden the definition of "open and obvious" beyond its plain
meaning is unconvincing.
Applying the plain meaning of the words "open and obvious," as
used in section 2 of the Act, shows that the exposed corner of the
grapefruit bin pallet was open and obvious to plaintiff.
Plaintiff's deposition testimony showed that, when she got to the
end of the first aisle in defendant's store, she had a clear view
of the grapefruit bin which was about six or seven feet away.
Although plaintiff testified that she did not see the pallet that
supported the grapefruit bin until after she fell over its exposed
corner, nothing indicates that plaintiff's view of the pallet was
obscured or that the pallet was concealed or hidden. Rather,
plaintiff's own testimony indicated that if she had looked down she
would have been able readily to see the exposed pallet corner.
Following the same reasoning, the court determined, in
Deibert, that tire ruts left in the ground by construction
equipment which caused the plaintiff in that case to trip and fall
were open and obvious. The court based its determination on (1)
the plaintiff's testimony that if he had watched where he was
walking he could have seen the rut, and (2) the lack of evidence
that the rut was concealed in any way. Deibert, 141 Ill. 2d at
438.
Plaintiff next takes the position that the part of the
Restatement (Second) of Torts definition of open and obvious
requiring that a reasonable person be able to recognize the risk
associated with the condition in question introduces an element
into the definition which is somehow a jury question. Plaintiff
reasons that, unlike the generally recognized risks associated with
open and obvious conditions, such as a body of water or fire, an
unknown and unanticipated condition like the exposed pallet corner
cannot be said to be open and obvious as a matter of law.
We disagree. Nothing in plaintiff's testimony suggests that
if she had looked down and seen the exposed pallet corner she would
not have recognized that she could trip over the pallet corner
unless she avoided it.
Plaintiff next contends that, even if a condition is deemed
open and obvious, that does not end the inquiry as to whether a
defendant owed a plaintiff a duty to warn against or otherwise
protect the plaintiff from the condition. In support of this
contention, plaintiff relies on three supreme court cases that
address this issue.
In the first of these cases, Ward v. K mart Corp., 136 Ill. 2d
132 (1990), the plaintiff was injured when he walked into a five-
foot-tall post near the door through which he was exiting a store
carrying a large mirror that he had purchased in the store. 136
Ill. 2d at 135. The court recognized that the post was obvious and
not hidden and noted that the plaintiff admitted that he was at
least subconsciously aware of the presence of the post. 136 Ill.
2d at 152-53.
However, the court concluded that the "open and obvious rule"
(no duty to protect entrants on premises from obvious conditions)
was not a per se rule. 136 Ill. 2d at 147. Rather, the court held
that in such cases courts must inquire further as to whether a
defendant landowner or occupier should have reasonably anticipated
that entrants on the premises might be injured by obvious
conditions if they were reasonably distracted or forgetful of the
condition. 136 Ill. 2d at 152. The court then applied this
approach and determined that the defendant storeowner in Ward
should have foreseen that a customer would collide with a post near
a store entrance while carrying merchandise from the store because
a customer could momentarily forget the presence of the post. 136
Ill. 2d at 153-54. The court concluded that, even though the post
in Ward was obvious, the defendant had a duty to warn the plaintiff
against or otherwise protect the plaintiff from the danger of the
post. 136 Ill. 2d at 155-56.
In Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430
(1990), the plaintiff was a construction worker on a construction
site who was injured when he stepped out of a portable toilet and
stumbled on a tire rut in the ground outside the toilet. 141 Ill.
2d at 433. The plaintiff testified that when he came out of the
toilet he looked up, not down, because workers had previously
thrown construction materials off of a balcony located near and
above the toilet. 141 Ill. 2d at 433.
As noted above, the court determined that the rut that caused
the plaintiff's injury was obvious. 141 Ill. 2d at 438. Citing
Ward, the Deibert court then concluded that the defendant general
contractor nonetheless owed the plaintiff a duty of care with
respect to the ruts because the contractor could have reasonably
anticipated that a person in plaintiff's position, exercising
reasonable care for his own safety, could have been distracted by
the fear of possibly falling debris and stumbled in the rut which
he otherwise would have noted and avoided. 141 Ill. 2d at 439-40.
In American National Bank & Trust Co. v. National Advertising
Co., 149 Ill. 2d 14 (1992), the plaintiff's decedent (the
plaintiff) was electrocuted when he contacted a high-voltage power
line while standing or walking on a walkrail on a billboard he was
painting. The billboard was leased to the defendant. 149 Ill. 2d
at 17-18. A negligence count in the complaint alleged that the
defendant breached its duty of care by placing the walkrail on the
billboard too close to the power line. 149 Ill. 2d at 25. The
defendant responded that it had no duty to warn of the presence of
the power line because it was an open and obvious danger.
The court noted that there was conflicting testimony as to
whether the danger was open and obvious and therefore concluded
that the question should have been determined by the fact finder.
149 Ill. 2d at 27. However, citing Ward and Deibert, the court
determined that, even if the danger was open and obvious, the
defendant owed the plaintiff a duty of care because the defendant
should have foreseen that a worker in the plaintiff's position
would have to watch his footing when negotiating the walkrail and
could not simultaneously look down at his feet and up at the nearby
power line. 149 Ill. 2d at 28-29.
Plaintiff argues that these cases stand for the proposition
that merely determining that a dangerous condition on a premises is
open and obvious does not end the inquiry as to whether the
landowner or occupier owes a duty of care to invitees or licensees
on the premises with respect to the condition. We agree that Ward,
Deibert, and American National Bank stand for that proposition.
Plaintiff next contends that section 2 of the Act does not
limit the holdings of these cases. In plaintiff's view, section 2
specifically excludes a duty to warn or otherwise protect entrants
against only known conditions, open and obvious conditions, and
conditions which an entrant can reasonably be expected to discover.
Plaintiff's reading of section 2 does not exclude a duty to warn
against or otherwise remedy a condition that a landowner can
foresee an entrant might overlook. Plaintiff argues that nothing
in section 2 requires inserting such an exclusion.
Defendant asserts the contrary position that the plain
language of section 2 effectively forecloses any inquiry relating
to the special foreseeability of danger factors which the supreme
court in Ward, Deibert, and American National Bank considered in
allowing the plaintiffs to seek recovery even in the face of open
and obvious conditions. Were we to adopt defendant's
interpretation of section 2, we would conclude without further
analysis that the trial court correctly entered summary judgment
because, as a matter of law, the condition of the grapefruit bin
pallet must be regarded as open and obvious.
However, under the present facts, we deem it unnecessary to
reach defendant's contention that, under section 2, a determination
of an open and obvious condition obviates further analysis because
we conclude that, even if Ward, Deibert, and American National Bank
were applicable to this case, plaintiff has failed to show that
defendant owed her a duty of care with respect to the exposed
pallet corner.
Relying on the principles established in those cases,
plaintiff contends that a jury must be allowed to decide whether
defendant should have foreseen that plaintiff would not discover
the exposed grapefruit bin pallet corner in time to avoid injury.
Plaintiff asserts that the record shows that defendant chose to
display grapefruit in a round bin resting on a pallet with an
exposed corner which extended into the area a customer would
normally and naturally move along to get to the other side of the
bin; defendant was aware the grapefruit bin was too wide to reach
across to examine grapefruit on the other side of the bin; and
defendant knew customers would be pushing carts in front of them as
they served themselves from the various displays in the store.
Plaintiff argues that, under these circumstances, a jury could
decide that defendant should have reasonably foreseen that a
customer in plaintiff's position would not look down to check for
exposed pallet corners before moving along the edge of the
grapefruit bin to reach the fruit on the other side of the bin.
We disagree. Plaintiff has not pointed to anything in the
record showing that the exposed pallet corner was concealed or
obscured. Furthermore, plaintiff has not pointed to anything in
the record indicating that she did not see the exposed pallet
corner, before she tripped and fell over it, because she was
distracted by something or forgetful of something. Plaintiff
testified in her deposition that she simply did not look down
before she started to walk around the grapefruit bin. Plaintiff
did not specify why she did not look down before moving around the
bin. Thus, even if plaintiff is correct that the principles of
Ward, Deibert, and American National Bank are still viable, those
principles do not require us to impose a duty on defendant in this
case because circumstances analogous to those cases, such as
foreseeable distraction or forgetfulness, are not present here.
Because defendant did not owe plaintiff a duty of care with
respect to the pallet corner, defendant was entitled to summary
judgment.
Based on the foregoing, the judgment of the circuit court of
Du Page County is affirmed.
Affirmed.
GEIGER, P.J., concurs.
JUSTICE RATHJE, dissenting:
I respectfully dissent. In effect, the majority proceeds
under the assumption that Ward v. K mart Corp., 136 Ill. 2d 132
(1990), and its progeny are still good law, and I shall do the
same.
The Ward court stated in relevant part:
"Our holding does not impose on defendant the impossible
burden of rendering its premises injury-proof. Defendant can
still expect that its customers will exercise reasonable care
for their own safety. We merely recognize that there may be
certain conditions which, although they may be loosely
characterized as 'known' or 'obvious' to customers, may not in
themselves satisfy defendant's duty of reasonable care. If
the defendant may reasonably be expected to anticipate that
even those customers in the general exercise of ordinary care
will fail to avoid the risk because they are distracted or
momentarily forgetful, then his duty may extend to the risk
posed by the condition. Whether in fact the condition itself
served as adequate notice of its presence or whether
additional precautions were required to satisfy the
defendant's duty are questions properly left to the trier of
fact. The trier of fact may also consider whether the
plaintiff was in fact guilty of negligence contributing in
whole or in part to his injury, and adjust the verdict
accordingly." (Emphasis added.) Ward, 136 Ill. 2d at 156-57.
The majority mistakenly concludes that plaintiff's deposition
testimony precludes plaintiff's cause of action from going forward.
The fact that she did not precisely state, "My attention was
distracted by the grapefruit in the bin," is not dispositive.
Plaintiff testified that she pushed her shopping cart over to
the self-service bin of grapefruit. She reached down to pick up a
grapefruit, which, after inspecting it, she put back. The bin was
too wide to reach across, and she was interested in looking at the
grapefruit on the other side. So she went to her left to walk
around the bin. As she did, she tripped over the exposed corner of
the pallet and fell. Her testimony indicates that she was likely
behaving as shoppers typically do, i.e., she was intent upon the
object(s) of her interest.
Displays of goods, such as the grapefruit in the bin, have
been viewed as distractions possibly requiring precautions.
As the Ward court stated:
"A rule more consistent with an owner's or occupier's
general duty of reasonable care, however, recognizes that the
'obviousness' of a condition or the fact that the injured
party may have been in some sense 'aware' of it may not always
serve as adequate warning of the condition and of the
consequences of encountering it. It is stated in Prosser &
Keeton on Torts:
'[I]n any case where the occupier as a reasonable person
should anticipate an unreasonable risk of harm to the
invitee notwithstanding his knowledge, warning, or the
obvious nature of the condition, something more in the
way of precautions may be required. This is true, for
example, where there is reason to expect that the
invitee's attention will be distracted, as by goods on
display ***." (Emphasis added.) Ward, 136 Ill. 2d at
148-49.
In this instance, the questions of whether the exposed pallet
corner served as adequate notice of its presence or whether
additional precautions were necessary to satisfy defendant's duty
of reasonable care should be decided by the trier of fact.