Haupt v. Sharkey

• Decision Date: 16 June 2005
• Docket Number: No. 2-04-1146.,2-04-1146.
• Citation: 832 N.E.2d 198
• Parties: Peter A. HAUPT, Plaintiff-Appellant, v. Charles E. SHARKEY, d/b/a Sharkey's Pub, Defendant-Appellee.
• Court: Illinois Supreme Court

832 N.E.2d 198

Peter A. HAUPT, Plaintiff-Appellant, v. Charles E. SHARKEY, d/b/a Sharkey's Pub, Defendant-Appellee.

No. 2-04-1146.

Appellate Court of Illinois, Second District.

June 16, 2005.

Jeffrey L. Hirsch, Briscoe Law Offices, Crystal Lake, for Peter A. Haupt.

Timothy K. Whitham, Brassfield, Krueger & Ramlow, Ltd., Rockford, for Charles E. Sharkey.

Justice KAPALA delivered the opinion of the court:

Plaintiff, Peter A. Haupt, brought a common-law premises liability cause of action in the circuit court of McHenry County to recover damages for personal injuries he sustained when he was attacked outside of Sharkey's Pub, which was owned and operated by defendant, Charles E. Sharkey. The trial court granted summary judgment in favor of defendant. We reverse and remand.

I. BACKGROUND

The discovery depositions of plaintiff and defendant were taken and appended to defendant's motion for summary judgment. The following accounts are gleaned from those depositions.

According to plaintiff, between 10:30 p.m. and 11 p.m. on January 2, 2002, plaintiff walked into Sharkey's Pub in Wonder Lake, Illinois, with a female named Renee Head. At about the same time three men, including John "Bam" Bell (Bam), also walked into Sharkey's Pub. Plaintiff did not know Bam or the other two men. Plaintiff heard later that, on the night in question, Bam was possibly a member of the Outlaws motorcycle club or was attempting to join that organization. Plaintiff also heard that Bam was known to cause trouble and, as a result, had been banned from several bars in town. Around midnight, plaintiff spoke to Bam inside Sharkey's Pub, but plaintiff did not remember the subject of the conversation. Plaintiff remembered only being "tossed across the room" by Bam. Plaintiff indicated that by "tossed" he meant shoved. At that point, defendant told plaintiff, Bam, and Bam's companions that they had to leave his establishment. Bam left Sharkey's Pub ahead of plaintiff. As soon as plaintiff got out of the front door, Bam turned around and struck plaintiff in the face. Plaintiff said that the tavern door was probably shut behind him and that he was in the parking area right outside the door when Bam struck him. As a result of the blow, plaintiff was knocked out, he lost two teeth, and his jaw was wired shut for nine weeks.

During his deposition, defendant explained that he owned Sharkey's Pub as of January 2, 2002, and lived in an apartment above the establishment. That night, defendant came down to the bar around 11:30 p.m. to get a beer and noticed plaintiff walking into the bar with a group of men and women including an individual defendant knew as "Bam Bam," a member of the Chicago Outlaws motorcycle gang. Plaintiff was drinking beer, laughing, and having a good time with the people who walked in with him. Defendant asked plaintiff what he was "doing with such rank company." Plaintiff told defendant, "they're alright; I know them from down at Dockside [Bar]." Defendant was down at the bar for approximately five minutes and then went back upstairs to his apartment. At about 1:30 a.m. or 1:45 a.m. defendant heard a ruckus downstairs in the bar. When he went downstairs, defendant saw plaintiff and Bam fighting. Elaborating further, defendant said that, "basically, Bam was hitting plaintiff." Defendant said that "they were fist and cuff." Defendant told plaintiff and Bam, "that does it, you're done in here, both of you got to leave." Defendant said Bam and plaintiff left the bar and continued to fight outside on county property. Defendant locked the front door and closed all the curtains. Defendant closed the bar and told everyone to leave through the back door "so they would not get involved in anything" and, in any event, because that is the way that people leave at closing time. Defendant explained further that outside the front door of Sharkey's Pub there is a three-foot sidewalk separating the front door and the angle parking area along Handcock Road. The parking area is owned and maintained by the county. On a prior occasion defendant had told Bam to leave Sharkey's Pub because Bam was wearing Outlaws motorcycle gang colors. Defendant did not permit anyone to wear gang colors or insignias in his tavern, because they cause problems. Once or twice prior to January 2, 2002, Bam tried to intimidate people by harassing them in order to get them to fight. On those occasions, defendant told Bam to "knock it off," and he did so. Defendant denied being afraid of Outlaws; he just did not like them because they caused fights and he did not want them in his bar. Defendant did not know if plaintiff was in danger when he left the bar, but, as far as he was concerned, he did not care about either one of them.

In his motion for summary judgment, defendant took the position that he had no duty to protect plaintiff from the criminal attack by Bam, for two reasons. First, defendant argued that the criminal attack was not reasonably foreseeable. Second, defendant argued that the attack did not occur on property owned by him. In plaintiff's response to the motion for summary judgment, he maintained that the criminal attack was reasonably foreseeable and that defendant's duty to protect him extended beyond the front door of Sharkey's Pub.

The trial court ruled as follows:

"On the basis of the briefs submitted, the arguments of counsel, I find that there is no genuine issue of material fact.

The duty of the Defendant in this case did not extend beyond the premises. He owed no duty to extend his vigilance over these two beyond the door of this establishment.

The establishment did not extend into the parking lot and therefore he owed no duty to the Plaintiff.

Summary judgment is entered in favor of the Defendant against the Plaintiff."

Plaintiff timely appeals.

II. ANALYSIS

Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); General Casualty Insurance Co. v. Lacey, 199 Ill.2d 281, 284, 263 Ill.Dec. 816, 769 N.E.2d 18 (2002). While the nonmoving party on a summary judgment motion is not required to prove his case, he must nonetheless present a factual basis that would arguably entitle him to judgment. Lyon Metal Products, L.L.C. v. Protection Mutual Insurance Co., 321 Ill.App.3d 330, 338, 254 Ill.Dec. 455, 747 N.E.2d 495 (2001). If, from the pleadings, depositions, affidavits, and admissions on file, the plaintiff fails to establish an element of his cause of action, summary judgment for the defendant is proper. Lyon Metal Products, L.L.C., 321 Ill.App.3d at 338, 254 Ill.Dec. 455, 747 N.E.2d 495. The standard of review is de novo on an appeal from a grant of summary judgment. Busch v. Graphic Color Corp., 169 Ill.2d 325, 333, 214 Ill.Dec. 831, 662 N.E.2d 397 (1996).

In order to prevail in an action for negligence, a plaintiff must prove the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. Elizondo v. Ramirez, 324 Ill.App.3d 67, 72, 257 Ill.Dec. 497, 753 N.E.2d 1123 (2001). Without a showing from which the court could infer the existence of a duty, no recovery by a plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 215, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988). Whether a duty exists is a question of law. Hills v. Bridgeview Little League Ass'n, 195 Ill.2d 210, 228, 253 Ill.Dec. 632, 745 N.E.2d 1166 (2000).

Generally, no duty exists on the part of the owner or occupier of land to protect entrants from the criminal acts of third parties, absent a special relationship between the parties. Rowe, 125 Ill.2d at 215-16, 126 Ill.Dec. 519, 531 N.E.2d 1358; Ramirez, 324 Ill.App.3d at 72, 257 Ill.Dec. 497, 753 N.E.2d 1123. One special relationship recognized by Illinois courts is that of business invitor and invitee. Rowe, 125 Ill.2d at 216, 126 Ill.Dec. 519 531 N.E.2d 1358. An owner or occupier of land has a duty to protect his or her business invitees against the foreseeable criminal acts of third parties. Ramirez, 324 Ill.App.3d at 72, 257 Ill.Dec. 497, 753 N.E.2d 1123; Osborne v. Stages Music Hall, Inc., 312 Ill.App.3d 141, 147, 244 Ill.Dec. 753, 726 N.E.2d 728 (2000); Shortall v. Hawkeye's Bar & Grill, 283 Ill.App.3d 439, 442-43, 219 Ill.Dec. 90, 670 N.E.2d 768 (1996). However, the existence of a special relationship and foreseeability are not the only factors to be considered in determining whether a duty exists. Our supreme court has repeatedly stated that the factors an Illinois court must consider in determining whether a duty exists in a given negligence case are: (1) the reasonable foreseeability of injury; (2) the reasonable likelihood of injury; (3) the magnitude of the burden that guarding against the injury places on the defendant; and (4) the consequences of placing that burden on the defendant. Blue v. Environmental Engineering, Inc., 215 Ill.2d 78, 95, 293 Ill.Dec. 630, 828 N.E.2d 1128 (2005); Bucheleres v. Chicago Park District, 171 Ill.2d 435, 450, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 526, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). These factors have been applied in negligence cases involving the duty of business owners to their business invitees. See Osborne, 312 Ill.App.3d at 147, 244 Ill.Dec. 753, 726 N.E.2d 728; Badillo v. DeVivo, 161 Ill.App.3d 596, 599, 113 Ill.Dec. 696, 515 N.E.2d 681 (1987); Walton v. Spidle, 137 Ill.App.3d 249, 253, 91 Ill.Dec. 910, 484 N.E.2d 469 (1985).

A. Plaintiff's Business Invitee Status

In this case, after an apparent finding that plaintiff was attacked in a location beyond the property owned by defendant, the trial court held that d...