554 N.E.2d 223 (Ill. 1990), 68962, Ward v. K Mart Corp.

Docket Nº:68962.
Citation:554 N.E.2d 223, 136 Ill.2d 132, 143 Ill.Dec. 288
Party Name:George WARD, Appellant, v. K MART CORPORATION, Appellee.
Case Date:April 18, 1990
Court:Supreme Court of Illinois

Page 223

554 N.E.2d 223 (Ill. 1990)

136 Ill.2d 132, 143 Ill.Dec. 288

George WARD, Appellant,



No. 68962.

Supreme Court of Illinois.

April 18, 1990.

Page 224

[136 Ill.2d 135] [143 Ill.Dec. 289] Phebus, Tummelson, Bryan & Knox, Urbana (Joseph W. Phebus and Jeffrey W. Tock, of counsel), for appellant.

Robert P. Moore and David R. Moore, Champaign, for appellee.

Justice RYAN delivered the opinion of the court:

Plaintiff, George Ward, sued in the circuit court of Champaign County, seeking damages for injuries he sustained when he walked into a concrete post located just outside a customer entrance to a department store operated by defendant, K mart Corporation. At the time of the injury, plaintiff was carrying a large mirror which he had purchased from defendant. Following a jury trial and a verdict in favor of plaintiff, the circuit court entered judgment for defendant notwithstanding the jury's verdict on the ground that defendant had no duty to warn plaintiff of, or otherwise protect him from, the risk of colliding with the post. The appellate court, with one [136 Ill.2d 136] justice dissenting, affirmed the judgment n.o.v. and held that defendant owed no duty to plaintiff under the circumstances of this case because defendant could not reasonably have been expected to foresee that plaintiff, while carrying the mirror, would fail to see or remember the post, which was an obvious condition on defendant's premises, and which plaintiff had previously encountered. (185 Ill.App.3d 153, 163, 133 Ill.Dec. 170, 540 N.E.2d 1036.) Plaintiff appeals to this court pursuant to our Rule 315 (107 Ill.2d R. 315). We hold that defendant's duty to exercise reasonable care extended to the risk that one of its customers would collide with the post while leaving the store carrying a large, bulky item. Accordingly, we reverse and remand.

Defendant operates a department store in Champaign, Illinois. The store contains a home improvements department. Toward the northern end of the east side of the store is an overhead, garage-type door. Over this door is a large sign which states "Home Center." Facing this large door from the outside, approximately four feet to the right, there is a smaller door approximately 36 inches wide. On this smaller

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[143 Ill.Dec. 290] door is a sign which states "Customer Entrance." Both doors are orange in color, while this section of the outside wall is blue. Outside the smaller customer entrance door, and on either side of it, are two concrete posts, painted dark brown, and which stand approximately five feet high and three feet apart. Both posts are approximately 19 inches from the outside wall of the K mart building, and are presumably intended to protect the doorway from damage or interference by backing or parked vehicles. When the customer entrance door is opened, the door will clear the southern post by approximately four inches, but will collide with the northern post. When exiting the customer door, there is a downward step of approximately six inches. There are no windows or transparent panels on or near [136 Ill.2d 137] the customer door which would permit viewing the posts from the interior of the store. At the time plaintiff sustained his injuries the large overhead door was closed.

On October 11, 1985, plaintiff drove to defendant's store and parked near the customer entrance door to the Home Center section of the store. Plaintiff walked past the posts and entered the store through the customer entrance door. Plaintiff testified at trial that he did not recall entering the store through this door prior to the date of his injury, but that it was possible he had. Plaintiff testified that he is a self-employed parking lot designer and striper. He stated that he had done work on the parking lot area of the K mart store at which he was injured, but had done no work in the area of the door at which he incurred his injuries. On direct examination, when asked whether he saw the posts as he entered the store, plaintiff responded, "Yes, sir. I mean they were there. Subconsciously, I guess--they were there when I went out, so, evidently, they were there when I went in." Plaintiff's counsel then asked plaintiff if he had made a mental note of the presence of the posts as he entered the store. Plaintiff responded, "Yes, I guess. I don't know. I mean--they were there. I just don't--." On cross-examination, plaintiff testified as follows concerning his encounter with the posts when he entered the store:

"Q. And you noticed these posts when you went inside did you not?

A. Subconsciously.

Q. Well, would it be fair to say that you noticed them more or less, yes?

A. More or less. Yes, sir.

Q. You didn't have trouble getting around those posts on the way in, did you, sir?

A. Not that I recall."

[136 Ill.2d 138] Plaintiff remained in the store for approximately one-half hour, during which time he purchased a large bathroom mirror, which was 5 feet long and approximately 1 1/2 feet wide. The mirror was packed in a cardboard holder, but the face of the mirror was not covered. Plaintiff testified that after he paid for the mirror he left the cash register, carrying the mirror vertically and "kind of to the side." He stated that he did not have the mirror in front of his eyes at that time. When plaintiff reached the door, a store clerk released a security lock, which permitted customers to exit through the door by which plaintiff had entered. Apparently, the door is designed so that customers may freely enter through it during business hours, but as a means of preventing shoplifting, a security lock must be released in order for customers to exit through the door. Plaintiff opened the door by pressing against it with his left shoulder. Plaintiff estimated that he had taken from a half step to a full step through the door when he "just saw stars, and a--a bad pain, and then saw stars. That was the last I recall." First the mirror, and then plaintiff's head and face, collided with the concrete post. Plaintiff testified that he could not see the post as he exited the store because the mirror blocked his view. He stated he was not in a hurry at the time. Prior to exiting the K mart store, plaintiff was not warned by way of a sign or otherwise of the existence of the posts outside the door.

As a result of the collision, plaintiff sustained a cut to his right cheek. Immediately after the collision, plaintiff could not see out of his right eye. Although part of the

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[143 Ill.Dec. 291] vision in that eye has since returned, the center vision in that eye is still obscured. Plaintiff has also experienced severe headaches of a kind which he did not experience before the collision with the post.

[136 Ill.2d 139] A K mart employee who worked in the Home Center department at the time of plaintiff's injuries testified at trial that on any given day, from one to 50 people would use the door through which plaintiff exited. He further testified that he had seen some people brush up against the post, but that prior to October 11, 1985, he had never seen anyone injured as a result of colliding with the post while leaving through the customer entrance door.

At the conclusion of the trial, the jury found for plaintiff and assessed plaintiff's damages at $85,000. The jury further found plaintiff 20% comparatively negligent, resulting in a verdict of $68,000.

The circuit court then granted defendant's motion for judgment notwithstanding the jury's verdict. The circuit court found that it should have allowed defendant's motion for a directed verdict. In entering the judgment n.o.v., the circuit court concluded that defendant had no reason to expect that plaintiff's attention would be distracted when he exited the door or that plaintiff would forget about the posts outside the door. The circuit court further stated that the posts were not inherently dangerous and that they became dangerous only when acted upon by some external force. The court concluded that the only distractions involved in the case were those induced by plaintiff himself. The appellate court affirmed the judgment n.o.v., with one justice dissenting, holding that defendant could not reasonably have been expected to foresee that plaintiff would fail to see or to remember the post, which was an obvious condition and which plaintiff had previously encountered. 185 Ill.App.3d at 163, 133 Ill.Dec. 170, 540 N.E.2d 1036.

Directed verdicts or judgments n.o.v. ought to be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary [136 Ill.2d 140] verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) The essential elements of a cause of action based on common law negligence may be stated briefly as follows: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387; Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307. See also W. Keeton, Prosser & Keeton on Torts § 30, at 164-65 (5th ed. 1984).) The sole inquiry before us concerns the existence of a duty, i.e., whether defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff. (See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387.) Whether a duty exists in a particular case is a question of law to be determined by the court. Kirk, 117 Ill.2d at 525...

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