Richardson v. Vaughn

622 N.E.2d 53, 251 Ill. App. 3d 403, 190 Ill. Dec. 643
CourtAppellate Court of Illinois
DecidedOctober 7, 1993
Docket2-92-1302
StatusPublished
Cited by17 cases

This text of 622 N.E.2d 53 (Richardson v. Vaughn) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Vaughn, 622 N.E.2d 53, 251 Ill. App. 3d 403, 190 Ill. Dec. 643 (Ill. Ct. App. 1993).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Thomas Richardson, filed a complaint in the circuit court of Kane County against defendants, Donald L. Vaughn and Dennis E. Parker, d/b/a The Aurora Athletic Club, Lewis Dekker, Roy Titzel, and Con-Way Central Express, a foreign corporation, alleging negligence. Prior to trial, all defendants, except Vaughn and Parker, settled and were dismissed with prejudice. These remaining defendants timely appeal from a judgment entered on a jury verdict in favor of plaintiff and from the denial of their post-trial motion.

Defendants raise the following issues: (1) whether there was sufficient evidence to support the trial court’s determination that defendants owed a duty to safeguard plaintiff from an open and obvious danger; (2) whether the verdict in favor of plaintiff was against the manifest weight of the evidence; and (3) whether the trial court erred in denying defendants’ motion for a directed verdict at the close of plaintiff’s case in chief.

The following relevant facts were adduced at trial. Defendants own and operate the Aurora Athletic Club in Aurora, Illinois. As part of its business, the club would rent its facility to various groups for social events, including picnics. Included in the facility rental was the use of club-supplied athletic equipment, including volleyballs and nets, horseshoes, softballs and bats.

North of the club property line was a vacant field onto which club patrons would occasionally venture. Luke Norwood, a club employee who was hired to maintain the picnic area, admitted that it was not an unusual occurrence for picnickers to play baseball and conduct games on the north field. Norwood further testified that he would occasionally mow the grass north of the club property line. In order to prevent people from driving their vehicles into the north field, Nor-wood installed a rusty, brown-colored cable between two trees. The cable spanned a distance of either 30 or 140 feet (the record is not clear) and hung approximately 2 to 3 feet at the ends and sagged to a height of 2 to 2V2 feet in the middle. Norwood admitted that after he installed' the cable, and immediately prior to the date of the accident, he did not suspend any flags or signs to alert persons to the cable’s presence. Norwood stated, however, that the cable was clearly visible and, to his knowledge, no one in the past had tripped over it.

On the date of the accident, plaintiff’s employer, Con-Way Central Express, held a company picnic at the Aurora Athletic Club. Plaintiff cooked food at the picnic. Following his cooking duties, plaintiff was seated near a picnic table where he observed some children, and then adults, playing with water balloons. Plaintiff testified that after about 15 to 20 minutes he became aware that he was about the only dry person in the area. He then noticed two fellow employees, Titzel and Dekker, standing 15 to 20 yards from his position; both were holding water balloons. They made eye contact with each other, and then they made eye contact with him; it appeared to plaintiff that he was going to be the next one to be doused.

When Titzel began running towards him, plaintiff jumped from his chair and began running as fast as he could in a northerly direction towards the open field. While running, plaintiff looked over his right shoulder to see how close Titzel was getting and observed that he was gaining ground. When plaintiff looked back in the direction he was running he observed a cable two to three feet off the ground. Sensing that he was unable to stop, plaintiff hurdled the cable and cleared it entirely. Prior to that time, plaintiff had not observed the cable, and he observed it for the first time when he was approximately five yards from it. On cross-examination, plaintiff stated that after he got up from his chair he took one or two steps, looked over his shoulder and continued to run while looking over his shoulder until he was about five yards from the cable. From the time he looked over his shoulder, after one or two steps, he was not looking in the direction he was running until he was about five yards from the cable, at which time he made the decision to jump. Upon landing, plaintiff’s foot came down on an uneven spot, whereupon he heard a loud snap and then fell to the ground. As a consequence of his fall, plaintiff suffered injuries to his left knee requiring extensive medical and surgical treatment.

At the close of plaintiff’s evidence, defendants’ motion for a directed verdict was denied by the trial court. The defense rested and closing arguments were heard. The jury returned a verdict in favor of plaintiff in the amount of $355,000 reduced by 15% for plaintiff’s contributory negligence, thus resulting in a total award of $301,750. Defendants appeal from the judgment entered on the jury verdict and the denial of their post-trial motion.

Defendants’ first contention is that plaintiff failed to present evidence sufficient to establish the existence of a duty. In order to state a cause of action for negligence, plaintiff must establish that defendants owed him a duty, a breach of that duty, and an injury proximately caused by the breach. (See Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 207.) Whether a duty exists is a question of law to be determined by the court. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) The factors relevant to the question of whether to impose a duty are (1) foreseeability that the defendants’ conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant. Curatola, 154 Ill. 2d at 214; Lance v. Senior (1967), 36 Ill. 2d 516, 518.

Defendants contend that they owed no duty to plaintiff because their liability was contingent upon plaintiff’s presenting evidence demonstrating that the condition on defendants’ property was latent, concealed, or one which plaintiff could not have been expected to discover. Defendants argue that various witnesses testified that they had seen the cable earlier in the day, and had plaintiff himself not seen the cable he would not have jumped over it as he attempted to evade his pursuer. The thrust of defendants’ argument is that because the cable was an open and obvious danger, they owed no duty to plaintiff to warn of, or otherwise safeguard against, any hazard presented by the outstretched cable.

In Ward v. K mart Corp. (136 Ill. 2d 132), a customer exiting a retail store sustained injuries when he walked into a concrete post located in close proximity to a customer exit. At the time of the injury, the customer was carrying a large mirror recently purchased from the defendant’s store which, according to plaintiff’s testimony, obstructed his view. In holding that the defendant’s duty of reasonable care encompassed the risk that one of its customers, while carrying a large bulky item, might collide with the post, the court rejected the application of a per se rule that the owner or occupier of land owed no duty of reasonable care, under any circumstances, to lawful entrants on its premises where the danger was known or obvious to the entrants. (136 Ill. 2d at 145, 147.) Recognizing the harsh nature of the rule as it then existed, the court modified the open and obvious rule to encompass additional considerations relevant to determining whether to impose a duty upon owners or occupiers of land.

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Cite This Page — Counsel Stack

Bluebook (online)
622 N.E.2d 53, 251 Ill. App. 3d 403, 190 Ill. Dec. 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-vaughn-illappct-1993.