Pearson v. Pilot Travel Centers, LLC

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Appellate Court Date: 2021.03.24
14:01:47 -05'00'
Pearson v. Pilot Travel Centers, LLC, 2020 IL App (5th) 180505Appellate Court REONA PEARSON, Plaintiff-Appellee, v. PILOT TRAVEL
Caption CENTERS, LLC, a Corporation, Defendant-Appellant.
District & No. Fifth District
No. 5-18-0505
Filed May 18, 2020
Decision Under Appeal from the Circuit Court of St. Clair County, No. 16-L-558; the
Review Hon. Christopher T. Kolker, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on John F. Cooney and Justin S. Zimmerman, of Lewis, Brisbois,
Appeal Bisgaard & Smith LLP, of Edwardsville, for appellant.
Thomas C. Rich, Michelle M. Rich, and Kristina D. Cooksey, of Rich,
Rich, Cooksey & Chappell, P.C., of Fairview Heights, for appellee.
Panel JUSTICE MOORE delivered the judgment of the court, with opinion.
Presiding Justice Welch concurred in the judgment and opinion. *
Justice Wharton dissented, with opinion.**
OPINION
¶1 This appeal arises out of a negligence and premises liability lawsuit from the circuit court
of St. Clair County. The case was tried over a three-day period from July 23, 2018, through
July 25, 2018. At the close of the plaintiff’s case-in-chief and again at the close of all the
evidence, both parties made motions for directed verdicts with the trial court. The trial court
denied the parties’ motions for directed verdicts on both occasions. Ultimately, the jury
returned a verdict in favor of the plaintiff, Reona Pearson, awarding her damages for her
injuries against the defendant, Pilot Travel Centers, LLC (Pilot). Pilot filed a motion for
judgment notwithstanding the verdict (judgment n.o.v.) on September 20, 2018, which was
also denied by the trial court.
¶2 Pilot now appeals, arguing that the trial court erred in denying its motions for directed
verdicts and its motion for judgment n.o.v. For the following reasons, we find that Pilot owed
no duty to the plaintiff under the circumstances presented in this matter and that the trial court
erred in failing to grant Pilot’s motion for judgment n.o.v. Accordingly, we reverse the
judgment and remand with directions that the trial court enter judgment n.o.v. in favor of Pilot.
¶3 I. BACKGROUND
¶4 On the evening of April 7, 2016, the plaintiff was working as a waitress at a Denny’s
restaurant (Denny’s) located inside of a truck stop in East St. Louis, Illinois. The truck stop
was owned by the defendant, Pilot. Both customers and employees of Denny’s had available
to them public restrooms located within Pilot’s truck stop. Denny’s did not have public
restrooms of its own. While working her shift, the plaintiff attempted to use Pilot’s public
restroom around 9 p.m. Upon entering the restroom, the plaintiff headed to the restroom stall
she typically used, which was a designated handicapped stall located farthest away from the
restroom entrance. As she opened the door and entered the stall, the plaintiff was struck on the
top of her head by an industrial-sized roll of toilet paper. There were no other persons in the
restroom at the time of this incident, and as a result, there are no witnesses who directly
observed this event.
¶5 The plaintiff subsequently filed a lawsuit based upon the above event on October 20, 2016,
in an attempt to recover for her injuries. The plaintiff amended her complaint twice before
filing her third amended complaint, which was filed on July 19, 2018, and is the complaint that
*
Justice Barberis was originally assigned to participate in this case. Presiding Justice Welch, who
has been substituted on the panel subsequent to Justice Barberis’s recusal, has read the briefs and
listened to the recording of oral argument.
**
Justice Chapman was also originally assigned to participate in this case. Justice Wharton, who
was substituted on the panel subsequent to Justice Chapman’s retirement, has read the briefs and
listened to the recording of oral argument.
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is applicable to this appeal. The plaintiff’s third amended complaint contained two counts and
named Pilot as the sole defendant.
¶6 The first count of the plaintiff’s complaint was a negligence count, alleging that Pilot was
responsible for the injuries the plaintiff sustained from the falling toilet paper for one or more
of the following reasons: (1) Pilot failed to manage and maintain its premises, specifically, the
restrooms, in a safe condition, (2) Pilot failed to periodically inspect the restrooms for the
presence of a hazardous or dangerous condition, (3) Pilot failed to provide a safe ingress and
egress to the restroom stall, and (4) Pilot allowed and permitted the premises to become and
remain in a hazardous and dangerous condition, which it knew or should have known existed,
namely, by allowing an industrial-sized roll of toilet paper to remain on a door ledge to the
restroom stall on the premises. The plaintiff further alleged in her complaint that the acts or
omissions named previously were the direct and proximate cause of her injuries.
¶7 The second count of the plaintiff’s complaint was based upon the doctrine of
res ipsa loquitur and alleged that the toilet paper that caused the plaintiff’s injuries was under
the management and/or exclusive control of Pilot and that the incident would not have
ordinarily occurred absent negligence on the part of Pilot.
¶8 On July 23, 2018, just prior to the start of trial, Pilot answered the plaintiff’s complaint and
denied liability for the incident and the alleged injuries of the plaintiff. The evidence introduced
during the trial, which is pertinent to the issues on appeal, is summarized as follows.
¶9 Following jury selection and opening statements, the plaintiff was called to testify. The
plaintiff testified that she had been employed by Denny’s for eight years prior to this incident.
On the evening of the incident, the plaintiff was working a 2 p.m. to 11 p.m. shift. Sometime
around 9 p.m. the plaintiff attempted to use the restroom. The plaintiff stated that she always
uses the women’s restroom which is closest to Denny’s while she is working. She testified that
she headed to the farthest stall, which was the handicapped stall and the one she typically used
when it was available. On this occasion, no one else was present in the restroom. As she
approached the stall, she was looking straight ahead and moved in a hurried or “fairly rushing”
manner. The restroom stall door was slightly ajar. Upon reaching the stall, she opened the door
and was struck on the top of her head by a roll of toilet paper. The plaintiff testified she never
saw the object before it struck her. She also testified that she did not know exactly where the
roll came from or exactly where it was positioned. She further testified that she had no idea
why the roll would have been up on the door or how long it would have been up there prior to
it falling on her. After gathering herself, she exited the restroom and saw a Pilot custodian,
Robert Sayles. She informed him of what had occurred, took him into the restroom, and showed
him the toilet paper roll that was lying on the restroom floor. She then reported the incident to
her manager at Denny’s and filled out an incident report.
¶ 10 On cross-examination, the plaintiff admitted that she believed the roll of toilet paper was
an obvious object which she would have noticed if she had been looking up towards the top of
the restroom stall door. She further acknowledged that a fair number of individuals used this
particular women’s restroom throughout a day. She testified that, at the time of the incident,
there was no water or trash on the floor and that the lighting in the restroom was appropriate.
She also testified that she had never before seen a toilet paper roll on top of the restroom stall
door and that she had never had any other employees warn her of such a thing or share with
her that they had seen such a thing. She testified that, on one previous occasion, she had noticed
a roll of toilet paper lying on top of the stall divider inside of the stall.
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¶ 11 Next, Robert Sayles, the Pilot custodian who was on duty the night of the incident, was
called to testify. Sayles testified that he had worked for Pilot for a little over 11 years and that
it was his responsibility to clean and maintain the restrooms on the evening of the incident.
Sayles testified that more than 2500 people use the restrooms daily. He also testified that, on
the evening of April 7, 2016, he was the only custodian on duty. Besides cleaning and
maintaining the restrooms, Sayles was responsible for numerous other tasks such as stocking
and selling ice, waiting on customers outside of the truck stop, maintaining and cleaning the
showers, doing the laundry, filling propane tanks, and emptying trash. Sayles testified that his
shift that day began around 4 p.m. Sayles stated that during his shift, he never cleaned or
inspected the women’s restroom prior to the plaintiff being injured.
¶ 12 Before the incident occurred, Sayles received a complaint regarding the men’s restroom
near Denny’s. It was common for staff at Pilot to get complaints when something was out of
order or in need of cleaning in the restrooms. While cleaning the men’s restroom, Sayles “was
called away because of a spill” elsewhere in the truck stop. While addressing the spill, Sayles
left his supply cart blocking the doorway of the restroom with a sign on it that indicated the
restroom was closed due to ongoing cleaning. Sayles testified that he left his supply cart in this
position while cleaning the restrooms to keep customers out during cleaning. Sometime after
being called away or upon his return to the men’s restroom, Sayles saw the plaintiff, who asked
if she could use the women’s restroom. He indicated that she could and told her he had not
cleaned that restroom yet because he was still cleaning the men’s restroom. Sayles testified
that, based upon this interaction, he believed that the plaintiff’s need to use the restroom was
somewhat urgent. Shortly thereafter, the plaintiff came and told him of the incident and brought
him into the restroom to observe the toilet paper roll on the floor. Sayles testified that the toilet
paper roll that struck the plaintiff was the same type of toilet paper used by Pilot at the truck
stop. Sayles was then asked about where the toilet paper is typically kept. He testified that if
everything is where it should be, then the toilet paper would be located in the custodian’s
supply closet, on the custodian’s supply cart, or in a stall toilet paper dispenser. With regard to
previous issues with toilet paper at the truck stop, Sayles testified that he had previously seen
occasions where the customers had messed with the toilet paper, taken it out of the dispensers,
torn up the toilet paper, and left rolls on the floor, the back of the toilet, and the counter. As a
result, when he is cleaning, he checks to make sure the rolls are in their proper place.
¶ 13 On cross-examination, Sayles testified that when he was in the restroom with the plaintiff
after the incident, he noted that the bathroom was dirty but that there was no overflowing trash.
While he did not check all of the restroom stalls, he did check the dispensers in the handicap
restroom stall and confirmed that no toilet paper rolls were missing. He also testified that there
was no business-related reason for a Pilot employee to place the toilet paper on top of the door.
Sayles was then asked if he had ever seen a roll of toilet paper on top of a door in his 11 years
of working for Pilot. Sayles replied, “That’s weird. No, I never, never, never, never seen that
before.” He later stated, “I would say it’s unusual, very, very unusual, but you know—it’s
unusual. In my eleven years I never have seen anything like it before. So, yes, sir, it’s unusual.”
He ended his testimony by stating that he had received no complaints about the women’s
restroom prior to the incident.
¶ 14 The plaintiff next called witness Roshawn Berry, who was one of the Pilot store managers
working on April 7, 2016. Berry testified it was her job to supervise the employees at Pilot on
the evening of the incident, including Sayles. Berry had worked with Pilot for nearly two years
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and testified that Pilot had a company policy of inspecting and cleaning the restrooms every
hour. Berry testified that the plaintiff reported the incident to her on that evening and that she
had the plaintiff fill out an incident report. Berry could not recall if the women’s restroom had
been inspected by anyone prior to the incident. She testified that the toilet paper was the same
as that used by Pilot.
¶ 15 On cross-examination, Berry testified that she always uses the same women’s restroom
that the plaintiff used on April 7. She believed she would have used the restroom sometime
that day prior to the incident. She further testified that she had never before seen toilet paper
on top of restroom stall doors. She testified that no complaints were made about the women’s
restroom to any Pilot employees.
¶ 16 The plaintiff next called Tiffany Powell, another Pilot store manager who was working at
the time of the incident. Powell had worked for Pilot for 11 months. She also confirmed that
Pilot had an hourly inspection policy for the restrooms. She testified that the truck stop was a
busy location and that it had a large number of customers. She testified that the plaintiff also
reported the incident to her. She testified that she did not know if the restroom was inspected
prior to the incident. She confirmed that if everything is going properly, then the toilet paper
rolls would either be in the custodian’s supply closet, on the custodian’s supply cart, or in a
toilet paper dispenser. Powell testified that the custodian’s supply cart is accessible to the
public at times when the custodian is cleaning the bathrooms or when the custodian is using
the cart to close the unfinished restroom while he or she is away. It was her testimony that if
someone was so inclined, he or she could steal the toilet paper off of the supply cart.
¶ 17 On cross-examination, Powell testified that she had never seen toilet paper placed on top
of a restroom stall door before in her life. It was her testimony that customers would go in and
out of the restrooms every 5 to 10 minutes and that there would never be an hour-long gap in
time where a customer was not in the restroom. She further testified that she believed the
handicap stall is the most preferred of the restroom stalls by individuals who use the women’s
restroom. She stated that it was common for unsafe conditions or hazards to be reported by
customers to management or Pilot employees. She testified that she believed it was Pilot’s
responsibility to check if the toilet paper is on top of the restroom stall doors and that she would
have noticed it had it been there when she used the restroom.
¶ 18 Benjamin Fischer, a mechanical engineer and the plaintiff’s controlled expert, was next
called to testify. Fischer testified that he conducted an inspection of the truck stop premises.
Fischer described the size of the roll of toilet paper that was involved in the incident. He
testified that the roll was nine inches in diameter, 3½ inches tall, and weighed slightly less than
two pounds. According to Fischer, there were only two possible positions that the toilet paper
could have been in prior to falling on the plaintiff. He testified that it would have been possible
for the toilet paper roll to have been placed on the stall divider inside of the restroom stall.
However, from that location, the toilet paper roll would not have fallen merely from an act of
opening the stall door. Instead, it was his opinion that someone would have had to have pushed
the roll of toilet paper off that ledge, and since no one else was present in the bathroom at the
time of the incident, this hypothesis was not probable.
¶ 19 Fischer then discussed the second possible position, which is that the roll of toilet paper
was placed on top of the restroom stall door which was left slightly ajar. He testified that the
roll of toilet paper could have been placed on top of the door and that he was able to do so
without much difficulty. He also testified that with the roll in this position and door slightly
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ajar, nothing appears out of the ordinary as you approach to enter it. Fischer then discussed a
demonstration that he conducted where he placed the roll on top of the stall door and then
opened the door in a manner he believed to be consistent with someone entering a restroom
stall. The result was the toilet paper roll falling from the top of the stall door down towards the
path of the individual attempting to enter the stall. He filmed this demonstration, and the video
was shown to and discussed with the jury. He testified that, based upon his experience on that
day and his observations, the toilet paper was not obvious because “[t]here was very little
contrast *** you had a white roll on a beige or a white, very light background.”
¶ 20 Based upon Fischer’s investigation, it was probable that the toilet paper roll could have
been placed on the door and that it could have fallen and struck the plaintiff as she described.
Fischer testified that Pilot’s expert, Alex Rigoni, did not even consider the second scenario.
Instead, Rigoni ended his evaluation of the case after determining the first scenario, with the
toilet paper roll on the stall divider, was not probable. Fischer further testified that he was
unaware of any business purpose for a toilet paper roll to be placed upon a bathroom stall door.
In his opinion, the only reason he believed a roll of toilet paper would be up in such a position
would be a prank. After the close of Fischer’s testimony, the plaintiff rested her case-in-chief.
At that time, both the plaintiff and Pilot moved for directed verdicts. The trial court denied
both the plaintiff’s and Pilot’s motions.
¶ 21 Following the denial of the motions for directed verdicts, Pilot called its first witness,
mechanical engineer and Pilot’s controlled expert, Alex Rigoni. Rigoni testified that he
conducted his investigation of the incident by first inspecting the truck stop and restroom at
issue. This inspection included taking measurements and photographs of the relevant areas. He
testified that, based upon his investigation, he believed there was no area sufficient to constitute
a “ledge” outside of the restroom stall where the roll could have been placed. He then testified
that he turned his attention to the ledge created by the dividing wall, between the stalls, that
was located on the inside of the handicapped stall. He testified that in his expert opinion, based
upon the plaintiff’s testimony that he had read from her discovery deposition, it was not
possible for the roll to have been located on the stall divider and to have struck the plaintiff in
the head. Rigoni’s testimony focused on the amount of time it would have taken for the toilet
paper roll to fall, the amount of time that it would take the plaintiff to open up the restroom
stall door, and the amount of time it would then take for the plaintiff to proceed into the
restroom stall. It was his opinion that, based upon these times, there was no way for the plaintiff
to have been struck by a falling roll of toilet paper as described because she would have had to
pause or slow her speed into the stall in order to open the door before she could proceed forward
to the point where she claimed to have been struck in the head.
¶ 22 On cross-examination, Rigoni testified that he had only the plaintiff’s discovery deposition
available to him to review before conducting his investigation. He denied reviewing any of the
other witnesses’ testimony. Rigoni testified that he considered a number of hypotheses as to
how the incident might have occurred but concluded based upon his calculations of her travel
and the speed of the falling toilet paper that she could not have been struck. The plaintiff’s
counsel then asked, “Would you agree that it would be more probable that a roll of toilet paper
resting on the top of the door would be dropped on Reona’s head versus on the inside ledge?”
Rigoni responded, “I wouldn’t speculate. I’ve never seen anything like this before.”
¶ 23 The final witness called was Jamie Abbott, who was the general manager of the truck stop
at the time of this incident. Abbott testified that she was not working at the time of the incident
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but learned of it once she arrived for her next scheduled shift. Abbott confirmed that Pilot had
a policy of checking the restrooms hourly but also testified that it was not uncommon for other
more pressing issues to arise which would interfere with that policy. Abbott then testified to
the size and nature of this particular truck stop. She testified that this Pilot Travel Center had
28 fuel pumps, parking spots for 202 full-sized semi-tractor trailers, service areas at each diesel
pump for diesel exhaust fluid, a CAT weigh scale, propane fill service, 15 showers and 4
restrooms, a Cinnabon station, a deli station, a Denny’s restaurant, a fax and transfers station,
a money recycler, and a gaming room and lounge area. She testified that approximately 2500
people visited the truck stop on an average day. Abbott stated that she had never heard of an
instance where a roll of toilet paper was found on top of a restroom stall door at her location
before April 7, 2016. Abbott testified further that she was unaware of any complaints regarding
the restroom at issue on the day of the incident. She believed that there was no business purpose
for the roll of toilet paper to have been on top of the door. Abbott also testified, “I’ve worked
for the company for 15 years in four different facilities, and I’ve never seen or heard [of] it.”
¶ 24 Abbott also testified that she was unaware as to whether any of the employees on duty
checked the bathroom in the five hours prior to the incident. She testified that she could not
recall if she asked the team members if they had inspected the restroom or not; all she knew
was that no one said that there were any operational problems with the women’s restroom or
cleanliness problems with the women’s restroom that were known on April 7, 2016. She further
stated that if she had found anything on the camera system indicating that an employee had
inspected the restroom prior to the incident, she would have notified Pilot to pull the footage.
Abbott testified that based upon her experience at the truck stop, she thought it was
“completely unreasonable based on the demands of the business, based on the fact that
we do have breaks and lunches that all those team members go on and that they do—
are required to go in there and check it when they’re there. So I find it very hard to
believe that there would be any length of time whatsoever that no one was in there.”
¶ 25 Abbott confirmed that the toilet paper that the plaintiff was claiming struck her was the
same as that used at Pilot. She also confirmed that the toilet paper should be in one of three
places: the supply closet, the restroom dispensers, or the supply cart. She confirmed that it was
appropriate for Sayles to have the toilet paper rolls on his supply cart, as he did on that day.
She testified that the custodian’s supply cart is allowed to be left unattended if another situation
arises that requires his or her response. She further elaborated that it would be unrealistic to
place the custodian’s supply cart back in the supply closet every time something required his
or her attention because the supply closet was located on the opposite side of the Pilot from
where the restrooms at issue were located.
¶ 26 Following Abbott’s testimony, Pilot rested its case. Both parties moved for a directed
verdict a second time, and the trial court denied both motions. After closing arguments, the
jury was instructed as to the applicable law to be considered when deciding the case. The jury
deliberated and returned a verdict in favor of the plaintiff, finding Pilot liable for her injuries.
Following the trial, on August 23, 2018, Pilot filed a motion for judgment n.o.v. On September
20, 2018, the trial court denied Pilot’s motion for judgment n.o.v. without stating any specific
findings. Pilot filed a timely notice of appeal on October 18, 2018. Additional facts will be
provided as necessary in the remainder of this opinion.
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¶ 27 II. ANALYSIS
¶ 28 We begin our analysis with an outline of the applicable standards of review. In order for
one to prevail in a cause of action based on negligence, the plaintiff must prove the essential
elements of the existence of a duty owed by the defendant to the plaintiff, a breach of that duty,
and an injury caused by that breach. Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). “It is
well established that where a plaintiff has obtained recovery against a defendant based on
negligence, a judgment notwithstanding the verdict is required if the defendant did not owe the
plaintiff a duty.” Schmid v. Fairmont Hotel Co.-Chicago, 345 Ill. App. 3d 475, 483 (2003).
Whether a duty exists is a question of law for the court to decide, which is subject to de novo
review. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010). “If the evidence,
viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the moving
party that no contrary verdict could stand, a judgment notwithstanding the verdict should be
granted.” Schmid, 345 Ill. App. 3d at 483.
¶ 29 A. Duty
¶ 30 Pilot argues on appeal that the circuit court erred in denying its motion for a judgment
n.o.v. because it did not owe a duty to prevent the plaintiff’s injuries. “Where no duty exists,
the plaintiff cannot recover as a matter of law.” Cooke v. Maxum Sports Bar & Grill, Ltd., 2018
IL App (2d) 170249, ¶ 54. It is well settled in Illinois that “ ‘the concept of duty in negligence
cases is very involved, complex and indeed nebulous.’ ” Ward, 136 Ill. 2d at 140 (quoting
Mieher v. Brown, 54 Ill. 2d 539, 545 (1973)). “Whether a duty exists is also an inquiry shaped
by public policy [citations] since we must decide whether defendant and plaintiff stand in such
a relationship to one another that the law imposes on defendant an obligation of reasonable
conduct for the benefit of plaintiff [citation].” (Internal quotation marks omitted.) Osborne v.
Stages Music Hall, Inc., 312 Ill. App. 3d 141, 146-47 (2000).
¶ 31 In determining duty, the first step is to analyze the nature of the relationship of the parties
to determine if the “plaintiff and [the] defendant stood in such a relationship to one another
that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of
the plaintiff.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 436 (2006). If such a relationship
exists, then the court must look to policy considerations and certain factors recognized by
Illinois courts which are relevant to the existence of a duty. The factors to be considered when
determining whether a duty exists or whether an “exemption” should be created are (1) the
reasonable foreseeability that the defendant’s conduct will result in injury to another, (2) the
likelihood of injury, (3) the magnitude of guarding against the injury, and (4) the consequences
of placing that burden upon defendant. Id. at 436-37; Ward, 136 Ill. 2d at 140-41.
¶ 32 1. Relationship of the Parties
¶ 33 As to Pilot’s relationship with the individual who placed the toilet paper roll and directly
caused the plaintiff’s injuries, the identity of that individual is unknown. All of the employees
who testified that they were present on the day of the incident denied placing the toilet paper
on top of the restroom stall door or knowing of anyone else who did. In fact, no witness could
articulate a business-related reason for placing the toilet paper in such a position. Further, at
the time of trial, the plaintiff did not name any individuals as defendants in her complaint, and
she did not make any direct allegations in her complaint that any Pilot employees placed the
toilet paper in the position which resulted in her injuries. Thus, without evidence of a Pilot
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employee being responsible for the placement of the toilet paper, we must analyze this matter
as though the toilet paper was placed by a third party.
¶ 34 We next examine Pilot’s relationship to the plaintiff. In general, a landowner has no duty
to affirmatively protect persons from harm or the actions of third parties on his property unless
there is a “special relationship” between the parties. See Restatement (Second) of Torts § 314A
(1965). However,
“Illinois courts recognize four special relationships which impose a legal duty to warn
or protect a person from harm, i.e., (1) carrier-passenger; (2) innkeeper-guest;
(3) business inviter and invitee, and (4) one who voluntarily takes custody of another
in such a manner that it deprives the person of his normal opportunities for protection.”
Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 569 (1990).
¶ 35 In this matter, plaintiff argues that a special relationship did exist between her and Pilot at
the time of the incident. The plaintiff argues that she was an employee of Denny’s located
within Pilot’s truck stop. She was not an employee of Pilot, itself. Thus, because Pilot held
itself out for business and provided restrooms for the use of the public at the time of the
incident, Pilot and the plaintiff stood in the relationship of business invitor and invitee. The
plaintiff argues that because Pilot owed a general duty of care to the plaintiff as an invitee, it
had a duty to guard against the condition that caused her injuries.
¶ 36 Pilot, in its answer to the plaintiff’s third amended complaint, denied the allegations made
by the plaintiff relating to the business invitor and invitee relationship. However, after this
initial denial, it does not appear in the record if Pilot ever again expressly raised its objection
that a special relationship did not exist at the time of the incident, or more fully articulated its
reasons for denying the allegations relating to such a relationship in the plaintiff’s third
amended complaint. Pilot also does not address the issue in its appeal briefs. Additionally, it
does not appear in the record that the trial court ever heard arguments on the issue or expressly
found that such a relationship existed. Based upon this court’s review of the record and the
case law relied upon by the parties before this court, it appears that after the denial of the
special relationship allegations contained in the plaintiff’s complaint, the parties, and perhaps
the trial court, moved forward assuming the special relationship existed at the time of the
incident between the parties and was applicable to this case.
¶ 37 The fact that this issue was not more thoroughly developed at the trial court level raises
serious concern for this court. The general rule, as stated above, is that a landowner has no
duty to affirmatively protect persons from harm or the actions of third parties on his or her
property unless there is a “special relationship” between the parties. Hills v. Bridgeview Little
League Ass’n, 195 Ill. 2d 210, 228 (2000). Thus, if such a relationship is not present, Pilot
would not owe a duty to the plaintiff to protect her from the acts of third parties on its premises.
In order for a business invitor/invitee relationship to exist, a person must enter or be present
on the land of another by express or implied invitation, the entry must be connected with the
owner’s business or with an activity conducted by the owner on the land, and the owner must
receive a benefit. Gonzalez v. Kennedy Mobil Service, Inc., 274 Ill. App. 3d 1077, 1084 (1995).
Unfortunately, because this issue appears to not have been adequately addressed by the parties
prior to this appeal and Pilot has not addressed the issue in its briefing on appeal, we are unable
to properly analyze to determine whether the plaintiff and Pilot would have in fact met the
requirements required for the existence of a business invitor/invitee special relationship and
must find that Pilot has failed to sufficiently preserve its denial contained within its answer to
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the plaintiff’s complaint. Thus, we must move forward with our analysis under the assumption
that the business invitor/invitee relationship was in existence at the time of the plaintiff
suffering her injury. 1
¶ 38 Section 314A of the Restatement (Second) of Torts discusses these special relationships,
including that of a landowner to business invitees, and the general duty to aid or protect which
may arise out of them. Restatement (Second) of Torts § 314A (1965). Section 344 of the
Restatement (Second) of Torts discusses the specific duty that may arise for landowners when
they hold their business or premises open to the public to protect invitees from harmful acts of
third persons. Restatement (Second) of Torts § 344 (1965). Section 344 “represents a specific
statement of the general rule articulated in section 314A of the Restatement *** that certain
special relationships may give rise to an affirmative duty to aid or protect another against
unreasonable risk of physical harm.” Marshall, 222 Ill. 2d at 438.
¶ 39 Section 344 reads as follows:
1
While we continue our analysis under the premise that a special relationship existed due to Pilot’s
failure to sufficiently preserve the issue, the court must note that it cannot determine with certainty
from the facts presently before it whether, in fact, such a relationship was present. This case presents a
unique factual circumstance due to the plaintiff’s status as an employee of Denny’s, located within the
premises owned by Pilot, who was on duty at the time of her injury, where Denny’s did not have its
own restrooms for its employees and customers to use. This court has no information or evidence before
it as to what the relationship was between Pilot and Denny’s. No lease agreement or purchase agreement
has been produced for review. No evidence specifically relating to how the companies coexist in the
space is available to us. This leaves us with unanswered questions about what benefit Pilot received
from allowing employees and customers of Denny’s to use its restrooms, whether Denny’s purchased
the space from Pilot or leased the space, and whether the restroom issue was addressed in the Denny’s
lease or purchase agreement, among others.
Illinois case law is clear that certain requirements must be met before an individual can be
considered a business invitee. Specifically, here, it is not readily apparent how the plaintiff’s use of
Pilot’s restroom would constitute her being present for “business related activities.” Even less apparent
is how Pilot benefited from the plaintiff using its restroom. For a proper finding of the plaintiff’s status
to occur, the agreement controlling the leasing or purchase of the property would need to be reviewed.
In factually similar cases, the courts have relied on agreements between tenants and landlords to help
determine status. See Jackson v. Shell Oil Co., 272 Ill. App. 3d 542 (1995) (a service station attendant
whose employer leased a service station from an oil company was not a “business invitee” of the
defendant oil company, for the purposes of his premises liability claim against the oil company for
personal injuries sustained as a result of a third person’s criminal acts, as the attendant was not the oil
company’s employee and he was on the premises with the consent of his employer, not the consent of
the oil company); see also Hayes v. Bailey, 80 Ill. App. 3d 1027 (1980) (under the terms of the lease, a
defendant lessee was responsible for maintaining public restrooms that were open to patrons of the
restaurant and the defendant had a duty to maintain the restrooms in a reasonably safe condition for the
benefit of business invitees of the restaurant). Without any evidence of the nature of the relationship
between Denny’s and Pilot, we are left to speculate as to what that nature may be and how it could
impact the plaintiff’s status in this case.
Examining the known facts that the plaintiff worked in the Pilot building for eight years, she used
the Pilot restroom as part of her employment with Denny’s, and she was on duty at the time of the
incident involved in this lawsuit—there was no evidence of her shopping while in the Pilot area of the
building—this court has doubts that the plaintiff could fulfill the requirements for a business
invitor/invitee relationship to be established.
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“A possessor of land who holds it open to the public for entry for his business
purposes is subject to liability to members of the public while they are upon the land
for such a purpose, for physical harm caused by the accidental, negligent, or
intentionally harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise
to protect them against it.” Restatement (Second) of Torts § 344 (1965).
¶ 40 Comments in both sections 314A and 344 further elaborate on the applicable duty, stating
that even if a special relationship is present, the duty imposed upon a landowner or property
owner is not infinite in scope. Comment e of section 314A of the Restatement (Second) of
Torts states as follows:
“The duty in each case is only one to exercise reasonable care under the circumstances.
The defendant is not liable where he neither knows nor should know of the
unreasonable risk, or of the illness or injury. He is not required to take precautions
against a sudden attack from a third person which he has no reason to anticipate, or to
give aid to one whom he has no reason to know to be ill.” Restatement (Second) of
Torts § 314A cmt. e (1965).
¶ 41 Comment f of section 314A reiterates comment e, stating, “[t]he defendant is not required
to take any action until he knows or has reason to know that the plaintiff is endangered, or is
ill or injured.” Restatement (Second) of Torts § 314A cmt. f (1965). Further, comment f of
section 344 states:
“Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no
duty to exercise any care until he knows or has reason to know that the acts of the third
person are occurring or are about to occur. He may, however, know or have reason to
know, from past experience, that there is a likelihood of conduct on the part of third
persons in general which is likely to endanger the safety of the visitor, even though he
has no reason to expect it on the part of any particular individual. If the place or
character of his business, or his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of third persons, either generally or
at some particular time, he may be under a duty to take precautions against it, and to
provide a reasonably sufficient number of servants to afford a reasonable protection.”
Restatement (Second) of Torts § 344 cmt. f (1965).
¶ 42 Thus, as highlighted by the above comments, “no duty to protect against [third-party]
criminal acts will be imposed unless the incident should reasonably have been foreseen by the
owner.” Osborne, 312 Ill. App. 3d at 147 (citing Rowe v. State Bank of Lombard, 125 Ill. 2d
203, 215-16 (1988)). In other words, the property owner must have either “actual” or
“constructive” notice of a dangerous condition in order to impose liability. Tomczak v.
Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038 (2000). Therefore, it is to the issues of
foreseeability and notice that we next turn.
¶ 43 2. Foreseeability and Notice
¶ 44 In order for a duty to exist, “[i]t is essential that the incident is not just foreseeable, but
reasonably foreseeable.” Osborne, 312 Ill. App. 3d at 147. In other words, the incident must
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be “objectively reasonable to expect, not merely what might conceivably occur.” (Internal
quotation marks omitted.) Id. “ ‘Where injury results from freakish, bizarre or fantastic
circumstances, no duty is present and no negligence claim can be asserted.’ ” Id. (quoting
Washington v. City of Chicago, 188 Ill. 2d 235, 240 (1999)). The determination of
foreseeability must be considered in terms of what the defendant knew at the time of the
incident, not what was learned or later discovered. Cooke, 2018 IL App (2d) 170249, ¶ 69.
Whether a particular incident or injury is foreseeable is ultimately dependent upon the facts
and circumstances of each individual case. Osborne, 312 Ill. App. 3d at 147.
¶ 45 After reviewing all of the evidence presented in this matter, described in detail above, we
find that it was not reasonably foreseeable that a third party would obtain a roll of toilet paper
and balance it on top of a restroom stall door so as to booby trap the entryway into the stall in
some sort of prank or intentional attack upon the plaintiff. All of the testimony at trial
demonstrated that this was the only plausible explanation of what occurred, and no witness had
ever seen or heard of this type of injury occurring before. Indeed, Abbott, the general manager
for Pilot, stated that she had never seen such a thing, despite working for Pilot for 15 years and
in four different locations. The plaintiff herself—who had worked at Denny’s for eight years,
and thus, had used the Pilot restrooms for eight years—testified that she had never seen the
toilet paper in such a position. Further, on the day in question, no complaints were made by
any customers with regard to the condition of the women’s restroom.
¶ 46 The only evidence that the plaintiff points to in support of a finding of foreseeability is that
Pilot had notice that patrons would occasionally pick the lock on the toilet paper dispensers,
would take the toilet paper rolls out, and would “mess with” the toilet paper by tearing the
toilet paper, leaving pieces on the floor, or leaving the roll itself in places other than the
dispenser, such as on the back of the toilet or the sink counter. Pilot employees admitted they
were aware of this action and that it was one of the things they would check on when inspecting
the restrooms. The plaintiff argues that this knowledge constituted the notice required to
impose a duty on Pilot. We disagree. As set forth above, the property owner or occupier must
have either “actual” or “constructive” notice of the dangerous condition to impose liability.
Tomczak, 315 Ill. App. 3d at 1038. Constructive notice may be demonstrated by evidence that
the landowner had notice of prior accidents, or “[s]uch notice can be inferred through evidence
of previous, similar accidents.” (Emphasis added.) Perminas v. Montgomery Ward & Co., 60
Ill. 2d 469, 473-74 (1975). While the plaintiff relies on Perminas to support her argument that
Pilot had constructive notice, we find that case to be distinguishable.
¶ 47 In Perminas, the defendant, through its employee, had knowledge of the misuse of the
object that caused plaintiff’s injury. Id. at 472-74. Specifically, it had knowledge that the object
was misused in a manner that could cause injury (riding the object like a skateboard) and that
the object was displayed near the location in which the object caused the injury (a low shelf
near the floor). Id. Both of these facts alone would give notice to a reasonable person that an
injury could occur. In the case at bar, however, Pilot had only the knowledge that the toilet
paper was occasionally removed from the dispenser and placed in areas outside of the dispenser
(bathroom floor, sink counter, back of toilet) and that on occasion the toilet paper was shredded
or pieces were left on the ground. Those facts do not logically lead a reasonable person to
expect that a patron may steal a roll of toilet paper and balance it on the restroom stall door in
a manner that would result in the roll falling and striking a patron on the head after she opened
the stall door.
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¶ 48 Instead, we find this case to be more analogous to Schmid, 345 Ill. App. 3d at 476, where
a hotel guest was injured when he turned on a vanity light switch that shocked him. The
plaintiff presented evidence that the hotel employees were aware that on occasion the vanity
light fixtures in the hotel rooms would short out. The defendant argued that it was not
foreseeable that an electric short in the light fixtures would pose a danger of an electrical shock
at the light switch, and thus, no duty existed. Id. at 480-82. The court ruled in favor of the hotel,
finding that the plaintiff failed to “present evidence of anyone at Fairmont ever being shocked
at the light switch, including other occurrences when the vanity lights short-circuited.
Consequently, the electric shock to plaintiff was not objectively reasonably foreseeable to
Fairmont.” Id. at 492. In other words, the hotel’s knowledge of previous issues with the flow
of electricity to its light fixtures was not sufficient to find it had notice or should have foreseen
issues with the flow of electricity to the light switch when no issues regarding light switches
were previously known. Similarly, here, knowledge of patrons “messing with” the toilet paper
alone is not sufficient for this court to find that Pilot should have foreseen someone using the
toilet paper to prank or injure someone by booby trapping a restroom stall.
¶ 49 We find that the plaintiff’s argument that Pilot’s agents and employees would have
discovered the roll of toilet paper if only they had properly followed Pilot’s policy of inspecting
the restrooms on an hourly basis does not bear on the issue of duty. “ ‘[W]here the law does
not impose a duty, one will not generally be created by a defendant’s rules or internal
guidelines. Rather, it is the law which, in the end, must say what is legally required.’ ” Doe v.
Coe, 2019 IL 123521, ¶ 36 (quoting Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238
(1996)). To the extent that the plaintiff is arguing that Pilot’s failure to inspect the restrooms
should result in constructive notice being imputed upon Pilot, under the facts of this case, we
disagree.
¶ 50 If the condition that causes injury is created by a third person or there is no clear showing
of how the condition arose, “liability may be imposed if it appears that the proprietor or his
servant knew of its presence, or that the [condition] was there a sufficient length of time so that
in the exercise of ordinary care its presence should have been discovered.” Thompson v.
Economy Super Marts, Inc., 221 Ill. App. 3d 263, 265 (1991). In this matter, where the
evidence shows that no Pilot employees knew of the toilet paper being on top of the restroom
stall door, no one from Pilot placed the toilet paper on top of the door, no complaints were
made to employees regarding the women’s restroom, and none of the employees were aware
of any missing rolls of toilet paper, there is no actual notice. Thus, we turn to the time element
to determine if the condition existed long enough for this court to find that Pilot had
constructive notice.
¶ 51 The evidence shown in this case suggests that the toilet paper roll was not present for a
significant amount of time. Testimony from Pilot employees indicated that this was a busy
restroom that would have been used by patrons on average every 5 to 10 minutes and would
have been available to approximately 1250 customers a day (assuming an equal distribution of
men and women). In fact, manager Powell testified that there would never be a period of more
than an hour that the restroom was not used. When one considers that testimony in light of
testimony from the plaintiff and other female Pilot employees that the handicapped stall at
issue was the most used and the most preferred stall, the evidence suggests that it is highly
likely that the handicap stall was used by a patron within the hour preceding the incident. If
the toilet paper had been present for a significant amount of time, logic dictates that another
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customer would have been injured or would have noticed the issue and reported it to
management. Because the plaintiff failed to establish that the toilet paper roll was on top of the
door for a period of time long enough that Pilot should have or could have discovered it, we
cannot find that Pilot had constructive notice of the condition. See, e.g., Hayes v. Bailey, 80
Ill. App. 3d 1027, 1030 (1980); Milevski v. Ingalls Memorial Hospital, 2018 IL App (1st)
172898, ¶ 30; Tomczak, 315 Ill. App. 3d at 1039-41.
¶ 52 As the Illinois case law and facts discussed above demonstrate, this was an unusual, bizarre,
and unexpected event that neither the plaintiff nor anyone from Pilot had ever seen or heard of
before. When taken as a whole, the evidence requires a conclusion that it was not reasonably
foreseeable for Pilot to expect that a third party would take a roll of toilet paper and figure out
a way to balance it on top of a restroom stall door so that the next individual who used the stall
would be struck on the head by the object in some sort of prank or malicious act. Further, in
line with the act not being foreseeable, there is no evidence which would give rise to a finding
of constructive notice of the dangerous condition on the part of Pilot. Therefore, the factor of
foreseeability favors a finding of no duty.
¶ 53 3. Remaining Duty Factors
¶ 54 Other than foreseeability, we must also consider the three remaining factors: the likelihood
of injury, the magnitude of the burden of guarding against the injury, and the consequences of
placing the burden on the defendant in guarding against the injury. Ward, 136 Ill. 2d at 140-
41. As to the likelihood of injury, individual’s taking such action in an attempt to prank or
harm an unsuspecting Pilot customer is highly unlikely. This is evidenced by the testimony of
all the witnesses, including the expert witnesses, who stated they had never encountered this
type of event before in their lives. Further, a toilet paper roll is not a dangerous object in itself
and is not an object that one would anticipate being used in a way that could result in harm to
someone.
¶ 55 The magnitude of the burden of guarding against the injury is high. In order to ensure that
this did not occur again, Pilot would be forced to retain employees to act as restroom monitors
so that the happenings inside of the restroom could be observed continuously throughout all
hours of operation of the store. Additionally, Pilot would have to have employees readily
available throughout its store to guard against other pranks and third party acts which may
injure other patrons.
¶ 56 The consequences of placing such a burden on Pilot would be substantial. Defendants such
as Pilot may cease to have restrooms that are open to the public or may limit access. If they do
offer public restrooms, the privacy patrons enjoy in the restroom would be infringed upon by
employees monitoring the restrooms. The modern conveniences customers experience would
be restricted. Facilities offered by defendants may be withheld, limited, or made more difficult
to access.
¶ 57 4. Analysis Under Marshall v. Burger King
¶ 58 We recognize our supreme court in Marshall, 222 Ill. 2d at 436-41, articulated the duty
analysis by first finding a duty of reasonable care based upon the special relationship of
business invitor and invitee and then analyzing the duty factors to determine whether an
“exemption” to the duty exists. Prior cases use the duty factors to determine whether a duty
exists, rather than identifying the duty factors as exemptions. See, e.g., Ward, 136 Ill. 2d at
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140-41 (factors that are relevant to the existence of a duty include foreseeability, likelihood of
injury, magnitude of the burden of guarding against it, and the consequences of placing that
burden upon the defendant). 2 Whether we employ a Ward analysis, using the factors to
determine whether a duty exists, or a Marshall analysis, using the duty factors as exemptions
to the general duty rule, our conclusion is the same. As explained above, the unforeseeability
and unlikelihood of the injury sustained by the plaintiff, as well as the magnitude of the burden
of guarding against it, leads to the conclusion that no duty exists under a Ward analysis, in the
same way it would lead us to conclude that an “exemption” exists to the duty of care owed by
Pilot under the Marshall analysis.
¶ 59 Ultimately, the facts, when considered as a whole, do not support the finding of a duty on
the part of Pilot. As the plaintiff states in her opening brief on appeal,
“Simply put, no reasonable person entering a restroom stall would do so with the
expectation that a large roll of industrial-sized toilet paper would be placed on top of
the stall door, or that she was exposed to the risk of being struck by a large roll of toilet
paper falling from overhead as she opened the restroom stall door.”
In the same vein, no reasonable defendant would expect such a situation to occur. Given all of
the above, we cannot find that Pilot owed a duty to the plaintiff to prevent a third party from
stealing a roll of toilet paper and using it to booby trap one of its restroom stalls in an attempt
to prank or hurt someone, without some type of previous instance occurring or some sort of
notice to the defendant of the condition.
¶ 60 5. Pilot’s Other Arguments
¶ 61 Because we have found that Pilot owed no duty to the plaintiff, we need not address the
issue of whether the toilet paper roll on top of the restroom stall door constituted a condition
that was open and obvious. Further, because there is no duty, we need not address the issue of
whether Pilot’s failure to inspect the restrooms on an hourly basis was the proximate cause of
the plaintiff’s injuries. Because the record does not support a finding of duty on the part of
Pilot to protect the plaintiff from the injuries she sustained, the trial court erred when it denied
Pilot’s motion for a judgment n.o.v. on the plaintiff’s negligence claim.
¶ 62 B. Res Ipsa Loquitur
¶ 63 Count II of the amended complaint alleges a cause of action against Pilot based on
res ipsa loquitur. When analyzing a claim where the doctrine of res ipsa loquitur has been
invoked, the trial court must first decide whether the doctrine applies at all. Taylor v. City of
Beardstown, 142 Ill. App. 3d 584, 592-93 (1986). The doctrine will not apply unless a duty of
care is owed by the defendant to the plaintiff. Id. at 593. It is important to note that
“rather than being a separate legal theory, res ipsa loquitur is simply ‘a type of
circumstantial evidence which permits the trier of fact to infer negligence when the
precise cause of injury is not known.’ [Citation.] Thus, because res ipsa loquitur is
merely an alternate method of proving negligence, no cause of action can lie under the
2
We note that Marshall in no way explicitly overrules Ward or any case that applies the duty
analysis in the manner that the Ward court did. In fact, the Marshall court did not explain why it was
deviating from its previous method of analysis. See Marshall, 222 Ill. 2d at 429-42.
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doctrine unless a duty of care is owed by the defendant to the plaintiff.” Beattie v.
Lindelof, 262 Ill. App. 3d 372, 381 (1994).
Here, because Pilot owes no duty to the plaintiff, the plaintiff’s res ipsa loquitur count is not a
viable form of relief.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed,
and the matter is remanded with directions that the circuit court enter judgment n.o.v. in favor
of the defendant.
¶ 66 Reversed and remanded with directions.
¶ 67 JUSTICE WHARTON, dissenting:
¶ 68 I respectfully dissent. For the reasons that follow, I believe my colleagues give too little
weight to the significance of the recognized special relationship that existed between the
parties. I also believe that in finding that the plaintiff’s injuries were not foreseeable, they
incorrectly focused on the precise manner in which she was injured rather than the “ ‘general
character’ ” of the harm. See Marshall, 222 Ill. 2d at 442 (quoting Bigbee v. Pacific Telephone
& Telegraph Co., 665 P.2d 947, 952 (Cal. 1983)). In addition, I believe my colleagues have
conflated the concepts of duty and breach, something our supreme court cautioned against in
the seminal case of Marshall. In so doing, I believe they have created an overly broad
exemption from the duty a business invitor owes its invitees, something the supreme court also
cautioned against in Marshall.
¶ 69 As my colleagues correctly observe, the key question in determining the existence of a duty
is “whether defendant and plaintiff stand in such a relationship to one another that the law
imposes on defendant an obligation of reasonable conduct for the benefit of plaintiff.” (Internal
quotation marks omitted.) Osborne, 312 Ill. App. 3d at 146-47; see also Marshall, 222 Ill. 2d
at 436. The relationship of business invitor and invitee is one of the four special relationships
that Illinois law recognizes as imposing a duty to warn or protect from harm. See Marshall,
222 Ill. 2d at 438-39 (citing Restatement (Second) of Torts § 314A (1965)). Here, Pilot denied
in its pleadings that the plaintiff was its business invitee. However, it did not pursue that
assertion at trial, and it does not argue on appeal that the invitor-invitee relationship did not
exist. For these reasons, my colleagues assume the existence of this special relationship for
purposes of their analysis.
¶ 70 Despite this assumption, the majority expresses doubt that the plaintiff could establish the
existence of a business invitor-invitee relationship. I disagree. I note that the presence of a
Denny’s restaurant on Pilot’s premises clearly serves business purposes. Patrons who stop to
eat in the restaurant must go through Pilot’s store to use the restrooms. In doing so, they may
decide to purchase items there. Moreover, many travelers are more likely to stop at a facility
where they can eat a meal and purchase gas in one stop. Obviously, a restaurant cannot operate
without its employees. Thus, the plaintiff was on Pilot’s premises for business purposes
regardless of whether she personally shopped in Pilot’s convenience store. See Hills, 195 Ill.
2d at 250-51 (explaining that the key question is whether an invitee is present on the premises
for business purposes, as stated in section 344 of the Restatement (Second) of Torts, not
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whether there is a direct pecuniary benefit to the invitor). I therefore believe that the record is
adequate to establish a business invitor-invitee relationship between the parties.
¶ 71 It is important to consider the nature of the duty that arises by virtue of that recognized
special relationship. Under both Marshall and section 344 of the Restatement (Second) of
Torts, a business invitor owes two duties to invitees on its premises. First, it has the duty to
exercise reasonable care to protect its invitees from harm that may occur as a result of the
negligent or intentional acts of third persons on the premises or to provide them with adequate
warning of the danger of such harm. Second, a business invitor also has a duty to exercise
reasonable care to “ ‘discover that such acts are being done or are likely to be done.’ ”
Marshall, 222 Ill. 2d at 438 (quoting Restatement (Second) of Torts § 344 (1965)). As the
supreme court explained in Marshall, section 344 “represents a specific statement of the
general rule articulated in section 314A of the Restatement, and long recognized by [the
supreme] court, that certain special relationships give rise to an affirmative duty to aid or
protect another against unreasonable risk of physical harm.” Id. (citing Restatement (Second)
of Torts § 314A (1965)).
¶ 72 Marshall is still controlling law with respect to duty and the special relationship between
a business invitor and invitee. It is also instructive due to its enlightening discussion of the
concept of duty in general and the application of that concept in the context of the special
relationship between a business invitor and its invitees. There, the plaintiff’s decedent was
eating at a Burger King restaurant when a driver lost control of her vehicle in the parking lot
and crashed through the wall of the restaurant. The vehicle struck the decedent, causing his
fatal injuries. Id. at 425. Burger King and its franchisee filed a motion to dismiss the plaintiff’s
negligence complaint. The trial court granted their motion, and the appellate court reversed
that ruling. Id. The issue before the supreme court was whether Burger King and its franchisee
owed the decedent a duty of care. Id.
¶ 73 The supreme court began its analysis of that question by acknowledging that a great deal
of confusion exists over the concept of duty and its proper role in the law of negligence. Id. at
435-36. The court explained that whether a duty should be imposed is a question that turns
largely on considerations of public policy. Id. at 436. The court further explained that “the
policy considerations that inform this inquiry” are often discussed in terms of the four duty
factors that my colleagues focused on in the majority opinion. Id. at 436-37. The court
emphasized, however, that the “touchstone” of duty analysis is whether the relationship
between the parties is such “that the law impose[s] upon the defendant an obligation of
reasonable conduct for the benefit of the plaintiff.” Id. at 436. The court then explained that,
as I have already noted, the relationship of a business invitor and its invitees is recognized by
Illinois courts as a special relationship that imposes a duty of care on the invitor for the benefit
of its invitees. Id. at 438-39.
¶ 74 The court went on to discuss the policy reasons underlying our longstanding recognition
of this rule. In doing so, the court considered its prior decision in Hills. The issue in Hills was
whether two Little League associations owed a duty to a coach to protect him from the criminal
act of an opposing coach. Id. at 439 (citing Hills, 195 Ill. 2d at 212-13). The Hills court
ultimately found that no such duty existed because the coach was not a business invitee. See
Hills, 195 Ill. 2d at 251-52. Before reaching this conclusion, however, the court discussed the
basis for the duty of care owed by a business invitor to its invitees. The court stated as follows:
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“ ‘[P]laces to which the general public are invited might indeed anticipate, either from
common experience or known fact, that places of general public resort are also places
where what men can do, they might. One who invites all may reasonably expect that
all might not behave, and bears responsibility for injury that follows the absence of
reasonable precaution against that common expectation.’ ” Id. at 245-46 (quoting Feld
v. Merriam, 485 A.2d 742, 745 (Pa. 1984)).
The Marshall court noted that negligent acts, such as those involved in both Marshall and this
case, are more foreseeable than criminal misconduct, such as the attack at issue in Hills.
Marshall, 222 Ill. 2d at 440.
¶ 75 What is clear from this discussion is that there are two related policy reasons underlying
the duty the law imposes on a business invitor for the benefit of its invitees. First, it is inherently
reasonably foreseeable that harm may result from the negligence of members of the public
unless the business takes appropriate precautions to mitigate the risk of such harm. Second, the
risk of such harm is created, in part, because the business opened its premises to the general
public. See id. at 439 (explaining that when a property owner “opens his premises to the public
for business purposes, he must recognize the risk that has been created”). The Marshall court
observed that these policy considerations clearly justified the imposition of a duty of
reasonable care on a business invitor to protect its invitees from the negligence of third parties
on its premises. Id. at 441. Because the complaint in that case alleged that the decedent was
the defendants’ invitee, the court therefore concluded that it alleged sufficient facts to establish
that the defendants owed him a duty of care. Id.¶ 76 It was only after reaching this conclusion that the Marshall court considered the four duty
factors. The court explained that by referring to those four factors, the defendants in that case
“essentially asked [the court] to create an exemption from the duty of care that stems from the
special relationship between a business invitor and invitee.” Id.; see also Nelson v. Aurora
Equipment Co., 391 Ill. App. 3d 1036, 1039 (2009). The court considered the four duty factors
and found that they did not provide a sound public policy basis for creating such an exemption.
Marshall, 222 Ill. 2d at 437, 441.
¶ 77 The court first considered the reasonable foreseeability of the harm and the likelihood of
the injury. The court emphasized that it is the “ ‘general character’ ” of the harm that must be
foreseeable, “ ‘not its precise nature or manner of occurrence.’ ” Id. at 442 (quoting Bigbee,
665 P.2d at 952). With this standard in mind, the court found that, “given the pervasiveness of
automobiles” in modern society, it was reasonably foreseeable that a business invitee might be
placed at risk due to automobile-related negligence. Id. The court also found that likelihood of
injury from such incidents was high. Id.¶ 78 The court rejected the defendants’ argument that comment f to section 344 of the
Restatement (Second) of Torts supported a finding that they owed the decedent no duty.
Comment f states that, because a property owner “is not an insurer of the visitor’s safety,” the
duty to exercise reasonable care on behalf of a business invitee exists only when the invitor
has reason to know that third persons are likely to engage in conduct that is likely to endanger
the safety of invitees. Restatement (Second) of Torts § 344 cmt. f, at 225 (1965). The comment
further states that a business owner might have reason to know such conduct is reasonably
likely either based on past experience or because “the place or character of [the] business ***
is such that he should reasonably anticipate careless or criminal conduct on the part of third
persons.” Id. at 226. The defendants in Marshall argued that, pursuant to these principles, the
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harm to the decedent was not foreseeable because they had no notice of any prior similar
incidents. Marshall, 222 Ill. 2d at 444.
¶ 79 The supreme court rejected this argument, finding that the “plaintiff’s complaint clearly
[fell] within [the] purview” of comment f. Id. at 445. The court pointed out that the complaint
alleged that the defendants were aware that their restaurant was located in an area with a high
volume of traffic and that aspects of the building’s design made it susceptible to out-of-control
vehicles. Id. at 445-46. The supreme court explained that these allegations were, in essence,
allegations that, based on the place and character of their business, the defendants had reason
to anticipate that the negligent conduct of third persons was reasonably likely to pose a danger
to its customers. Id. at 445.
¶ 80 The court next considered the defendants’ arguments concerning the magnitude of the
burden of guarding against vehicle-related injuries and the consequences of placing that burden
on the defendants. The defendants argued that the protective measures necessary to protect
invitees from out-of-control vehicles would impose an enormous financial burden on
businesses and result in buildings that were “less aesthetically pleasing.” Id. at 443. The
supreme court rejected these arguments, finding them to be “speculative at best.” Id. at 442.
¶ 81 More importantly for purposes of this appeal, the court also noted that the defendants’
arguments were “based on mistaken assumptions about the nature of a duty of care.” Id. at 443.
The court explained, “Recognizing that the duty of reasonable care that businesses owe to their
invitees applies to cases where invitees are injured by out-of-control automobiles is not the
same as concluding the duty has been breached because a business failed to take a certain level
of precaution.” Id. The court emphasized that the duty owed by the defendants to the decedent,
as their business invitee, was simply a duty of reasonable care. Id. The court explained that the
question was not whether they had a duty to install protective poles or take any other specific
precautions; rather, the question was whether, in light of the particular facts of the case, the
defendants breached their duty of reasonable care. Id. at 443-44. The court stated, “It is
inadvisable for courts to conflate the concepts of duty and breach in this manner.” Id. at 443.
¶ 82 Because Marshall involved an appeal from a ruling on a motion to dismiss, the court noted
that the question of whether the defendants breached their duty of reasonable care could not be
answered at that stage in the proceedings. Id. at 444. By contrast, this case was tried to verdict,
so that question can be answered here. Nevertheless, that is not the only reason the Marshall
court found it to be “inadvisable for courts to conflate the concepts of duty and breach.” See
id. at 443. The court also emphasized that no-duty rules “ ‘can easily be made too broad or too
narrow.’ ” Id. at 441-42 (quoting 1 Dan B. Dobbs, The Law of Torts § 227, at 579 (2001)).
Quoting from Dobbs’s treatise on tort law, the court explained that because no-duty rules are
“ ‘rules of law, not decisions about particular cases, they cover all cases in the category to
which they are addressed. *** Consequently, no-duty rules should be invoked only when all
cases they cover fall substantially within the policy that frees the defendant of liability.’ ” Id.
at 442 (quoting Dobbs, supra, at 579). In this case, I believe that the majority opinion conflates
the concepts of duty and breach and, in doing so, draws a broad no-duty rule in contravention
of the Marshall court’s advice to the contrary.
¶ 83 In addressing the first duty factor—the reasonable foreseeability of the harm—the majority
concludes “that it was not reasonably foreseeable that a third party would obtain a roll of toilet
paper and balance it on top of a restroom stall door so as to booby trap the entryway into the
stall in some sort of prank or intentional attack upon the plaintiff.” Supra ¶ 45. As our supreme
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court explained in Marshall, however, while “ ‘the general character of the event or harm’ ”
must be reasonably foreseeable, it is not necessary that the “ ‘precise nature or manner of
occurrence’ ” likewise be foreseeable. Marshall, 222 Ill. 2d at 442 (quoting Bigbee, 665 P.2d
at 952). Thus, the question is not whether it was reasonably foreseeable that a travel plaza
patron would place a roll of toilet paper in the precise location the plaintiff’s expert believed
the roll was placed in this case. Rather, the question is whether it was reasonably foreseeable
that a patron might place a toilet paper roll anywhere it might pose a risk to other patrons or
otherwise cause a dangerous condition in the restrooms. Although the evidence on that
question in the record before us is not overwhelming, I believe it is adequate to support the
trial court’s apparent conclusion that the plaintiff’s injury was reasonably foreseeable.
¶ 84 I reach this conclusion for two reasons. First, the record contains evidence that Pilot was
aware that dangerous conditions had been present in its restrooms on prior occasions and
evidence that Pilot was also aware that patrons frequently removed toilet paper rolls and left
them in places they did not belong. Although she was not asked to elaborate, Pilot’s general
manager, Jamie Abbott, testified that she was “absolutely” aware of dangerous conditions in
Pilot’s restrooms in the past. Likewise, the custodian, Robert Sayles, testified that it was
“common” for patrons to remove toilet paper rolls from their dispensers. He further testified
that he had observed toilet paper rolls on the counters, the floor, and the backs of toilets. I
acknowledge that, although the plaintiff testified that she saw a roll of toilet paper on top of
the dividing wall between two stalls, there was no evidence that Pilot was made aware of this
incident or any other instances of a toilet paper roll being left someplace high. Nevertheless, I
believe the knowledge that Pilot clearly did have was sufficient to make it reasonably
foreseeable to Pilot that a patron might be injured due to a misplaced industrial-sized toilet
paper roll or some other dangerous condition caused by the carelessness of another patron.
¶ 85 Second, the record also contains evidence that the character of Pilot’s business is such that
Pilot reasonably should have anticipated such careless conduct on the part of some of its
patrons. See id. at 444 (citing Restatement (Second) of Torts § 344 cmt. f, at 226 (1965)). There
was testimony that more than 2500 people used Pilot’s restrooms each day. Our supreme court
has found the risk of third-party negligence to be inherently foreseeable when premises are
open to the general public for business purposes (see id. at 439; Hills, 195 Ill. 2d at 245-46),
and this volume of use obviously magnifies that inherent risk. The risk is further magnified by
the fact that not only adults but also children and teenagers had easy access to the custodian’s
cart. Teenagers are particularly likely to engage in pranks or careless acts.
¶ 86 At this point, it is worth emphasizing that, under our supreme court’s holding in Marshall,
the no-duty rule created by the majority is an exemption from the duty that Pilot otherwise
owes its invitees. For the reasons I have discussed, I find that the incident that led to the
plaintiff’s injury was reasonably foreseeable. However, even if I agreed that the incident was
not foreseeable enough to justify the imposition of a duty absent a special relationship, I would
not find it to be so unforeseeable that it justifies an exemption from the duty that otherwise
exists because the parties in this case do have a recognized special relationship.
¶ 87 I likewise disagree with my colleagues’ conclusions regarding the three remaining duty
factors. First, I do not believe the risk of injury is low enough to warrant an exemption from
the duty Pilot owed its invitees. While I agree with my colleagues that a roll of toilet paper—
even an industrial-sized roll weighing nearly two pounds—is not an inherently dangerous
object, the risk is not negligible. A misplaced roll could easily fall and strike a patron, as
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occurred in this case. The plaintiff’s injury in this case was not minor; it involved two herniated
discs requiring a surgical procedure. A misplaced roll of toilet paper could also easily fall on
the floor and pose a risk of tripping.
¶ 88 Second, I believe my colleagues’ analysis of the magnitude of guarding against the harm
and the consequences of placing that burden on Pilot conflates the concepts of duty and breach.
In finding the magnitude of the burden to be high, the majority posits that requiring Pilot to
take reasonable precautions to guard against the harm would force it “to retain employees to
act as restroom monitors” and to post additional employees “throughout [the] store to guard
against other pranks and third party acts which may injure other patrons.” Supra ¶ 55. As our
supreme court explained in Marshall, however, “[r]ecognizing that the duty of reasonable
care” applies to the circumstances of the case “is not the same as concluding [that] the duty
has been breached because a business failed to take a certain level of precaution.” Marshall,
222 Ill. 2d at 443.
¶ 89 Similarly, in finding the consequences of placing the burden on Pilot to be substantial, my
colleagues predict that if businesses like Pilot are not exempted from their duty to protect their
invitees from the negligent acts of other patrons, they might stop offering public restrooms
altogether or infringe on the privacy of patrons by hiring employees to act as restroom
monitors. I believe these dire predictions are highly speculative. See id. at 442 (rejecting
similar claims about the level of safety precautions needed to avoid liability). They are also
based on a presumption that jurors will always find a breach unless a business takes the
somewhat extreme measures set forth in the majority opinion. As the supreme court explained
in Marshall, however, “merely concluding that the duty applies does not constitute an
automatic, broad-based declaration of negligence liability.” Id. at 443.
¶ 90 Finally, I note that, as my colleagues explained, “ ‘the concept of duty’ ” is “ ‘complex and
indeed nebulous.’ ” Id. at 435 (quoting Mieher, 54 Ill. 2d at 545); Ward, 136 Ill. 2d at 140. As
my colleagues also explained, the question of whether a duty exists “involves considerations
of public policy.” Marshall, 222 Ill. 2d at 436; see also Osborne, 312 Ill. App. 3d at 146-47.
Public policy considerations weigh in favor of imposing upon businesses such as Pilot an
obligation to take reasonable precautions to provide restrooms that are clean and safe for
employees and members of the public alike.
¶ 91 My evaluation of the four duty factors leads me to conclude that there is no sound policy
basis for exempting Pilot from its duty to take reasonable precautions to protect its invitees
from the negligent acts of other patrons. I would therefore hold that Pilot owed the plaintiff a
duty of care.
¶ 92 Because my colleagues found that Pilot did not owe the plaintiff a duty of care, they did
not need to determine whether the plaintiff satisfied the other elements of a cause of action for
negligence. They also did not need to address the question of whether the toilet paper roll
constituted an open and obvious danger. I address these issues briefly.
¶ 93 As stated earlier by my colleagues, the essential elements in a negligence claim are the
existence of a duty of care, a breach of that duty, and an injury that was proximately caused by
the defendant’s breach of its duty. Ward, 136 Ill. 2d at 140. Although the existence of a duty
is a question of law to be decided by the court, breach and proximate cause are factual matters
to be decided by the jury. Marshall, 222 Ill. 2d at 430. In this case, a jury found that the plaintiff
proved her case with respect to those elements, and Pilot moved for a judgment n.o.v. A motion
for a judgment n.o.v. should be entered only if “all of the evidence, when viewed in its aspect
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most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary
verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.
2d 494, 510 (1967). Applying that standard to the evidence in this case, I believe the trial court
properly denied Pilot’s motion.
¶ 94 The record contains ample evidence to support the jury’s finding that Pilot breached its
duty of reasonable care. There is no dispute that the restroom had not been serviced in over
five hours. Servicing the restrooms of a busy travel plaza more frequently would have been a
reasonable precaution. In fact, Pilot acknowledged that it was in violation of its own policy to
service the restrooms once every hour. Although this fact is not dispositive, it shows that there
were reasonable steps Pilot could have taken in the exercise of reasonable care. In addition,
Pilot could have used a custodian’s cart that allowed it to better secure the toilet paper and
other cleaning supplies.
¶ 95 Furthermore, I reiterate that the duty of a business invitor to its invitees includes an
obligation to take reasonable steps to discover that third parties are engaging in negligent or
intentional acts on its premises that might pose a risk. See Marshall, 222 Ill. 2d at 438 (citing
Restatement (Second) of Torts § 344 (1965)). The record contains substantial evidence that
Pilot breached this aspect of its duty. Sayles’s testimony makes clear that Pilot relied on its
patrons to alert its staff to dangerous or unsanitary conditions in the restroom. He testified that
customer complaints about the conditions of the restrooms were common. He further testified
that on the night the plaintiff was injured, he had not yet serviced the women’s restroom
because he had other pressing duties to attend to and no one had complained about that
restroom. When the plaintiff was injured, Sayles was cleaning the men’s room. He described
the condition of the men’s room as “horrible.” He noted that there was urine to clean up. It is
significant that no Pilot employee was aware of these conditions until a patron complained.
¶ 96 The record also contains undisputed evidence that the plaintiff was injured as a result of
the roll striking her. The plaintiff’s orthopedic surgeon, Dr. Gornet, testified that the plaintiff’s
cervical disc herniation and resultant surgery were causally connected to the accident. He
further testified to the reasonable and customary charges for the plaintiff’s related medical
expenses, past and future. The plaintiff was awarded $560,563.68. Of that amount, $407,441
was based on Dr. Gornet’s testimony.
¶ 97 The evidence that Pilot’s breach of its duty of care was the proximate cause of the plaintiff’s
injury was sufficient to support the jury’s verdict. A defendant’s breach of its duty is the
proximate cause of a plaintiff’s injury if the injury is “the natural and probable result” of the
defendant’s negligent acts or omissions and the injury is reasonably foreseeable. Neering v.
Illinois Central R.R. Co., 383 Ill. 366, 380 (1943). As I have already discussed, the injury was
reasonably foreseeable. Further, Pilot’s failure to service the restrooms for over five hours
made the plaintiff’s injury “natural and probable” in two ways. First, it made it more likely that
stalls would run out of toilet paper, thereby making it more likely that patrons might remove
rolls from the cart or from other stalls. Second, it made it more likely that Pilot would fail to
discover misplaced rolls and remedy the situation.
¶ 98 Pilot argues, however, that servicing the restroom more frequently would not have
prevented the plaintiff’s injury because the evidence suggested that the toilet paper roll had not
been in place for more than a short period of time. In support of this claim, Pilot relies on
testimony opining that it was unlikely for the stall to have been unoccupied for more than an
hour. However, this evidence is speculative. Indeed, there was no evidence that any of Pilot’s
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employees checked the restroom at all during the five-hour period at issue. I do not find that
the evidence as a whole so overwhelmingly favors Pilot on the questions of breach and
proximate cause that the jury’s verdict in favor of the plaintiff cannot stand.
¶ 99 I likewise do not believe that a judgment n.o.v. would have been proper based on Pilot’s
contention that the toilet paper roll constituted an open and obvious danger. The plaintiff
acknowledged on cross-examination that she believed she likely would have seen the roll had
she been looking up when she entered the stall. However, her expert witness opined that the
roll would not have been easy to see. Moreover, people do not typically look up when entering
the stall in a public restroom. Thus, I would not find as a matter of law that the roll constituted
an open and obvious danger.
¶ 100 For these reasons, I conclude that the court properly refused to enter judgment n.o.v. in
favor of Pilot. I would therefore affirm the judgment of the trial court.
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