Jackson v. Hilton Hotels Corp.

• Decision Date: 29 December 1995
• Docket Number: No. 1-93-2961,1-93-2961
• Citation: 660 N.E.2d 222,277 Ill.App.3d 457
• Parties: , 214 Ill.Dec. 31 James O. JACKSON and Mary Jackson, Plaintiffs-Appellants, v. HILTON HOTELS CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 222

660 N.E.2d 222

277 Ill.App.3d 457, 214 Ill.Dec. 31

James O. JACKSON and Mary Jackson, Plaintiffs-Appellants, v. HILTON HOTELS CORPORATION, Defendant-Appellee.

No. 1-93-2961.

Appellate Court of Illinois First District, Fifth Division.

Dec. 29, 1995.

[277 Ill.App.3d 458] Shawn A. Warner, Patrick J. Kenneally, Ltd., Chicago, for Plaintiff-Appellant.

Timothy J. McKay, Paul A. Tanzillo, Johnson & Bell, Ltd., Chicago (Thomas E. Fegan, Kelly N. Warnick, of counsel), for Defendant-Appellee.

Justice GORDON delivered the opinion of the court:

BACKGROUND

The plaintiffs-appellants James Jackson and his wife Mary Jackson appeal from the trial court's dismissal with prejudice of their two-count second amended complaint. In Count I James Jackson sought damages from the defendant-appellee Hilton Hotels Corporation for its alleged negligence in causing a back injury he received in attempting to lift an object from its loading dock onto a truck. In Count II, Mary Jackson sought recovery from the defendant for loss of consortium arising from James Jackson's injury.

FACTS

The second amended complaint alleged as follows: On April 4, 1991 the defendant owned or operated the Palmer House Hotel located at 17 East Monroe in Chicago. On that date, James Jackson was lawfully on those premises in the course of performing his duties for his employer (apparently an entity other than the defendant) at which time he injured his back in attempting to lift a "gang box" from the Palmer House loading dock onto a truck, the bed of which was approximately ten inches higher than the dock. At the time of Jackson's injury the defendant maintained a "portable dockplate" in the loading dock area but that portable dockplate was not available for his use by reason of its being chained and locked. (At oral argument the plaintiffs informed us that a dockplate is a device which is used as a ramp between the bed of a truck or trailer and the surface of a loading dock.)

The second amended complaint further alleged that the Palmer House loading dock was defective in that it did not meet flush with the rear of delivery trucks, that the defendant failed to provide him with access to a dockplate (portable or otherwise), that the defendant failed to provide him with supervision or assistance in lifting the gang box onto the truck, and that the defendant failed to warn him of the danger of lifting the gang box. The complaint averred further that the defendant assumed a duty to provide a portable dockplate by maintaining the chained and locked portable dockplate in the loading dock area.

The trial court dismissed the second amended complaint, with prejudice, for failure to state a cause of action pursuant to the defendant's 2-615 motion. (See 735 ILCS 5/2-615 (West 1992).) The original and first amended complaints had earlier been dismissed, with leave to amend, for failure to state a cause of action.

The plaintiffs subsequently filed a motion to reconsider to which they appended the affidavit of James Jackson as an offer of proof of facts which could be plead if the court were to allow further amendment. That affidavit contained the following averments beyond those which were contained in the second amended complaint. At the time and place of his injury James Jackson was accompanied by a helper and had backed his employer's truck, the rear of which was equipped with a hydraulic lift, into one of the loading dock's bays to within several feet of the dock itself. The loading bay sloped downward, causing the front of the truck to be at least one foot higher than its rear. Jackson determined that, due to the downward incline of the bay, the edge of the hydraulic lift would have been several inches below the edge of the loading dock even when fully raised. The design of the loading dock, moreover, made it impossible to roll or drag materials from the dock's surface to the ground level so that the hydraulic lift could be used. Jackson then backed the truck flush against the loading dock.

The affidavit further averred that Jackson then looked at the security booth on the loading dock and noticed that no one was inside of it. Jackson and his helper then looked for wood in the loading dock area with which to make a ramp but, upon finding none, they went to a storage area on the premises and rolled the gang box (it was equipped with casters) to their truck. Jackson then looked at the loading dock security booth again, saw that it was still empty, and further noticed that he and his helper were the only persons in the loading dock area.

Jackson and the helper then attempted to lift the gang box from the loading dock onto the truck whereupon Jackson injured his back. After the gang box was unlocked Jackson discovered that it had been filled to capacity with pipe fittings and other materials, "making it much heavier than [he] had expected." The trial court denied the plaintiffs' motion to reconsider, stating that the matters contained in James Jackson's affidavit would not suffice to cure the second amended complaint's deficiency.

OPINION

The sole issue in this appeal is whether the second amended complaint sufficiently alleged a duty owed by the defendant to the plaintiffs. As in all 2-615 dismissals, the appeal is from a determination of issues of law and therefore appropriately subjected to a de novo review. See Baker v. Miller (1994), 159 Ill.2d 249, 255, 201 Ill.Dec. 119, 122, 636 N.E.2d 551, 554; Fulton-Carroll Center, Inc. v. Industrial Council (1993), 256 Ill.App.3d 821, 824, 195 Ill.Dec. 657, 660, 628 N.E.2d 1121, 1124.

Section 2-615 of the Code of Civil Procedure authorizes the trial court to dismiss complaints which are "substantially insufficient in law." (735 ILCS 5/2-615(a) (West 1992).) In Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 152 Ill.Dec. 121, 565 N.E.2d 654, our supreme court restated the principles to be followed in reviewing the propriety of the dismissal of a complaint:

"A trial court should dismiss a[n] action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] When the legal sufficiency of all or part of a complaint is challenged by a section 2-615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true [Citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A motion to strike a portion of a complaint does not admit conclusions of law or fact unsupported by the specific factual allegations upon which such conclusions rest. [Citation.]" 139 Ill.2d at 504-05, 152 Ill.Dec. at 124, 565 N.E.2d at 657.

A complaint based upon negligence must allege facts sufficient to show the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and injury proximately resulting from the breach. (See DiBenedetto v. Flora Township (1992), 153 Ill.2d 66, 70, 178 Ill.Dec. 777, 779, 605 N.E.2d 571, 573; Ziemba v. Mierzwa (1991), 142 Ill.2d 42, 45, 153 Ill.Dec. 259, 260, 566 N.E.2d 1365, 1366.) Whether a duty exists is a question of law for the court and depends upon whether the parties stood in such a relationship that the law would impose an obligation upon the defendant to act reasonably for the plaintiff's protection. Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 542, 163 Ill.Dec. 842, 846, 582 N.E.2d 108, 112; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 953, 513 N.E.2d 387, 396.

It is clear that the general duty of a possessor of land is to exercise reasonable care for the safety of those who lawfully enter his premises. (Smith v. Chicago Park District (1995), 269 Ill.App.3d 812, 817, 207 Ill.Dec. 243, 247, 646 N.E.2d 1330, 1334; Stephen v. Swiatkowski (1994), 263 Ill.App.3d 694, 697-98, 200 Ill.Dec. 658, 661, 635 N.E.2d 997, 1000; see also the Premises Liability Act, 740 ILCS 130/1 et seq. (West 1992).) Traditionally a possessor's duty of reasonable care was generally held not to encompass hazardous conditions (1) of which the entrant has been made aware or (2) which are obvious. See Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 468-69, 343 N.E.2d 465, 472; Calvert v. Springfield Electric Light & Power Co. (1907), 231 Ill. 290, 293, 83 N.E. 184, 185; Longnecker v. Illinois Power Co. (1978), 64 Ill.App.3d 634, 640, 21 Ill.Dec. 382, 387, 381 N.E.2d 709, 714; Stambaugh v. Central Illinois Light Co. (1976), 42 Ill.App.3d 582, 585-86, 1 Ill.Dec. 148, 151, 356 N.E.2d 148, 151; Ragni v. Lincoln-Devon Bounceland, Inc. (1968), 91 Ill.App.2d 172, 176, 234 N.E.2d 168, 170.

In the leading case of Ward v. K mart Corp. (1990), 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, our supreme court limited the scope of the exclusion of known or obvious conditions from the possessor's general duty of reasonable care. In that case, the plaintiff was carrying a large mirror as he exited the defendant's store. In exiting he walked into a five foot tall post which was located approximately nineteen inches from the store's outer wall and which was near the exit. 136 Ill.2d at 136-38, 143 Ill.Dec. at 290, 554 N.E.2d at 225.

The supreme court in Ward noted as a preliminary matter that section 343 of the Restatement (Second) of Torts accurately sets forth Illinois law with regard to the liability of possessors of land to invitees. (136 Ill.2d at 145-46, 143 Ill.Dec. at 294, 554 N.E.2d at 229.) Section 343 provides that:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees,...