Day v. Menard, Inc. ( 2008 )

No. 3--07--0730
_________________________________________________________________
Filed December 2, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
MARJORIE DAY, a/k/a MARJORIE ) Appeal from the Circuit Court
CURTIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois,
Plaintiff-Appellant, )
)
v. ) No. 05--AR--493
)
MENARD, INC., ) Honorable
) Mark A. Vandeweile,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
________________________________________________________________
The plaintiff, Marjorie Day, filed a negligence action
against the defendant, Menard, Inc. The trial court granted
summary judgment for the defendant, and the plaintiff appeals.
We affirm.
FACTS
The parties do not dispute the facts. On August 11, 2004,
the plaintiff purchased landscaping materials from the
defendant's store. After making the purchase, the cashier at the
defendant's store told the plaintiff to drive her pickup truck to
a secured area where another employee would place the merchandise
in her car. The plaintiff expected the employee to lower the
tailgate of her truck and load the merchandise because she asked
the cashier if the employee would do so.
The plaintiff exited the store and drove her pickup truck to
the secured area. The defendant's employees failed to assist
her, and after about 15 minutes, the plaintiff decided to load
the merchandise herself. The plaintiff attempted to open the
tailgate, but it would not open. She tugged on it, and she fell
backward when it opened. The plaintiff hit her head on the
ground and suffered a concussion and bruises on her hip and the
side of her leg. The plaintiff opened the tailgate often and did
not recall having trouble with it before this incident.
On August 22, 2004, the plaintiff filed a negligence action
against the defendant, alleging that the defendant was negligent
because: (1) it failed to open the tailgate of her truck and load
landscaping materials into the truck after the plaintiff
requested such assistance and the defendant promised to assist;
(2) it failed to warn the plaintiff of the difficulty and danger
of loading landscaping materials; and (3) it carelessly owned,
operated, and controlled its premises. The defendant filed a
motion for summary judgment, which the trial court granted. The
trial court found that the proximate cause of the plaintiff's
injuries was the defective tailgate of her truck, not the breach
of a duty by the defendant.
The plaintiff appeals.
ANALYSIS
On appeal, the plaintiff argues that the trial court erred
in granting the defendant's motion for summary judgment because
the defendant's negligence was the proximate cause of her
injuries.
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Summary judgment is proper "if the pleadings, depositions,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." 735 ILCS 5/2--1005(c) (West 2006). In determining whether
a genuine issue as to any material fact exists, pleadings,
depositions, and admissions are construed against the party
moving for summary judgment. Williams v. Manchester, 228 Ill. 2d
404, 888 N.E.2d 1 (2008). Summary judgment is inappropriate
"where the material facts are disputed or where, the material
facts being undisputed, reasonable persons might draw different
inferences from the undisputed facts." Williams, 228 Ill. 2d at
417, 888 N.E.2d at 9. Summary judgment is appropriate where the
plaintiff cannot establish any element of the cause of action.
Williams, 228 Ill. 2d 404, 888 N.E.2d 1. We review de novo the
granting of summary judgment. Williams, 228 Ill. 2d 404, 888
N.E.2d 1.
To recover damages for a defendant's alleged negligence, a
plaintiff must allege and prove that: (1) the defendant owed the
plaintiff a duty of care; (2) the defendant breached that duty;
and (3) the breach was the proximate cause of the plaintiff's
injuries. Pageloff v. Gaumer, 365 Ill. App. 3d 481, 849 N.E.2d
1086 (2006). Here, the plaintiff seeks recovery under three
theories: (1) premises liability; (2) failure to warn; and (3)
voluntary undertaking. The plaintiff's premises liability and
failure to warn arguments must fail because the plaintiff did not
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stand in such a relationship that the law would impose
obligations on the defendant under the facts and circumstances of
this case. See Marshall v. Burger King Corp. 222 Ill. 2d 422,
856 N.E.2d 1048 (2006), Lance v. Senior 36 Ill. 2d 516, 224 N.
E. 2d 231, (1967). The plaintiff’s injury was caused by the
tailgate on the plaintiff's truck, not a condition on the land or
the landscaping materials. Moreover, the evidence shows that the
defendant did not know and would not have discovered that the
tailgate posed an unreasonable risk of harm, as it was in the
plaintiff's possession and control. See Restatement (Second) of
Torts §343, at 215-16 (1965) ("A possessor of land is subject to
liability for physical harm caused to his invitees by a condition
on the land if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and should realize
that it involves an unreasonable risk of harm to such invitees,
and (b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and (c)
fails to exercise reasonable care to protect them against the
danger."). Thus, it appears that the plaintiff's only viable
theory of negligence is the voluntary undertaking theory.
Under the voluntary undertaking theory, a duty, limited to
the extent of the undertaking, may be imposed on a person who
voluntarily agrees to perform a service necessary for the
protection of another person or their property. Buerkett v.
Illinois Power Co., 384 Ill. App. 3d 418, 893 N.E.2d 702 (2008).
The person undertaking the service must perform the service so as
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to not increase the risk of harm to the other person. Buerkett,
384 Ill. App. 3d 418, 893 N.E.2d 702. If the person is negligent
in the undertaking, he or she will be liable for the foreseeable
consequences of the act if another person suffers harm because
they relied on the other's undertaking. Buerkett, 384 Ill. App.
3d 418, 893 N.E.2d 702. The voluntary undertaking theory applies
to a failure to perform the undertaking--nonfeasance--as well as
negligent performance of the undertaking--misfeasance. Bourgonje
v. Machev, 362 Ill. App. 3d 984, 841 N.E.2d 96 (2005); see
Restatement (Second) of Torts §323, at 135 (1965) (regarding
negligent performance of an undertaking to render services).
While a voluntary undertaking may establish a duty between
parties, a plaintiff, as stated above, must also establish a
breach of duty and proximate cause to recover. Buerkett, 384
Ill. App. 3d 418, 893 N.E.2d 702. Proximate cause, which
includes both cause in fact and legal cause, is generally a
question of fact, but a court may find a lack of proximate cause
as a matter of law where the facts fail to establish both cause
in fact and legal cause. Buerkett, 384 Ill. App. 3d 418, 893
N.E.2d 702.
"Cause in fact exists where there is a reasonable certainty
that a defendant's acts caused the injury or damage." Rice v.
White, 374 Ill. App. 3d 870, 888, 874 N.E.2d 132, 148 (2007).
"Under a voluntary undertaking theory, to establish proximate
cause of the injury, the cause-in-fact component requires a
showing that a plaintiff relied on the defendant's conduct."
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Rice, 374 Ill. App. 3d at 889, 874 N.E.2d at 148; see
Restatement (Second) of Torts §323(b), at 135 (1965) (stating
that the harm suffered must have been caused by the individual's
reliance on the voluntary undertaking of the other individual).
" 'Reliance may reasonably be placed where there is a
deceptive appearance that performance had been made, or
where a representation of performance has been communicated
to plaintiff by defendant, or where plaintiff is otherwise
prevented from obtaining knowledge or substitute performance
of the undertaking.' [Citations.] Moreover, 'to justify
reliance, [a] plaintiff must be unaware of the actual
circumstances and not equally capable of determining such
facts.' " Bourgonje, 362 Ill. App. 3d at 1005, 841 N.E.2d
at 114-15, quoting Chisolm v. Stephens, 47 Ill. App. 3d 999,
1007, 365 N.E.2d 80, 86 (1977).
In this case, the defendant, through its agent, voluntarily
accepted the task to lower the tailgate of the plaintiff's truck
and load merchandise but failed to perform the undertaking within
15 minutes of plaintiff’s arrival to the secured area. The
plaintiff knew that the defendant failed to perform the
undertaking, decided to do it herself, and suffered injuries.
Under these circumstances, the plaintiff cannot show that she
relied on the defendant's promise and suffered harm because of
that reliance. Knowing that the defendant had not performed the
undertaking, the plaintiff could have obtained substitute
performance of the undertaking by, for example, asking one of the
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defendant's employees for help before doing it herself. See
Bourgonje, 362 Ill. App. 3d 984, 841 N.E.2d 96 (finding that the
plaintiff relied on landlord's promise to provide security lights
because she entered into the lease in part because of the promise
and remained at the premises out of reasonable expectation of
their imminent repair, forgoing opportunities to undertake her
own safety precautions; McCoy ex rel. Jones v. Chicago Housing
Authority, 333 Ill. App. 3d 305, 775 N.E.2d 168 (2002) (finding
that the plaintiff did not rely on the defendant's promise to
repair the window lock where the defendant failed to fulfill its
promise over a number of years and told the plaintiff a month
before the accident that it could not fix the lock, and where the
plaintiff attempted to call the defendant to repair the window
lock on the date of the accident and provided no evidence to show
that the promise prevented her from seeking other precautions
against the risk). Therefore, the plaintiff cannot show that
there was a reasonable certainty that the defendant's failure to
perform caused her injury, and we find the trial court properly
granted the defendant's motion for summary judgment.
We also note that the defendant did not breach its duty to
the plaintiff. Only 15 minutes passed before the plaintiff
decided to perform the undertaking herself. A 15-minute wait,
although arguably poor customer service, is not unreasonable in a
busy store with limited staff.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
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of Rock Island County is affirmed.
Affirmed.
HOLDRIDGE, J. concurring.
JUSTICE SCHMIDT, specially concurs:
I write separately only because of the statement of the
majority opinion that plaintiff's premises liability argument
must fail because "the plaintiff did not stand in such a
relationship that the law would impose obligations on the
defendant under the facts and circumstances of this case." Slip
op. at 3-4. Plaintiff alleged that she was a customer at
defendant's store and, therefore, it is clear that the law did
impose a duty on defendant to make sure that there was no
condition on the premises that would expose the plaintiff or any
other business invitee to the unreasonable risk of injury. That
being said, it is clear that plaintiff fails to plead a cause of
action under premises liability as she does not plead and cannot
plead any breach of defendant's duty to keep the premises
reasonably safe.
It is clear what happened. Plaintiff was trying to open the
tailgate of her own truck, which just happened to be on
defendant's premises. The tailgate was stuck, plaintiff kept
tugging on it until the tailgate finally gave way and opened.
Plaintiff went flying and struck her head. The complaint alleges
that plaintiff was injured while lifting landscaping materials.
Discovery established that this allegation was false. Both the
lawsuit and this appeal are frivolous. I would sanction
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plaintiff and her attorneys for this appeal. 155 Ill. 2d R. 137.
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