Kun Mook Lee v. Young Rok Lee

• Decision Date: 03 September 2019
• Docket Number: No. 2-18-0923,2-18-0923
• Citation: 149 N.E.3d 551,2019 IL App (2d) 180923,440 Ill.Dec. 1
• Parties: KUN MOOK LEE, Plaintiff-Appellant, v. YOUNG ROK LEE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180923

149 N.E.3d 551

440 Ill.Dec. 1

KUN MOOK LEE, Plaintiff-Appellant,

v.YOUNG ROK LEE, Defendant-Appellee.

No. 2-18-0923

Appellate Court of Illinois, Second District.

Opinion filed September 3, 2019

Michael M. Cushing, of Cushing Law Offices, P.C., of Chicago, for appellant.

Marc L. Srodulski, of Beverly & Pause, of Chicago, for appellee.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Kun Mook Lee (Kun Mook), appeals from an order of the trial court granting summary judgment in favor of defendant, Young Rok Lee (Young Rok). For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On October 11, 2015, Kun Mook and Young Rok were members of the same church. Seung Jang (Pastor Jang) was their pastor. On that afternoon, Kun Mook and Pastor Jang appeared at Young Rok's house even though neither's assistance had been requested, neither had been invited, and both had been specifically told not to come to Young Rok's house. Nevertheless, they arrived at Young Rok's house with equipment to cut a tree limb on the property. Pastor Jang provided the equipment. Young Rok did not provide, maintain, or otherwise supply any of the equipment used in the subsequent tree trimming efforts.

¶ 4 After looking at the tree limb, Kun Mook immediately said that the work should be left to professionals because the tree limb was too large and too high and the work would be dangerous. Nevertheless, Kun Mook and Pastor Jang unloaded the equipment from the car and began affixing two smaller ladders together with wire, to reach the needed height. Young Rok was in the backyard mowing his lawn at that time.¹ When Young Rok came to the front yard and saw Pastor Jang and Kun Mook, he immediately told the men to stop their efforts and not to cut the tree limb, because it was too high and too dangerous. The two men ignored Young Rok and continued to try to cut the limb off the tree. Young Rok eventually assisted them in their efforts.

¶ 5 Kun Mook thought that the tree limb might damage the roof when it fell after being cut, so Young Rok tied a rope around the limb being cut and tied the other end to another limb so that the cut limb would not fall and damage the roof. The two ladders that were tied together were erected and placed against the very limb to be cut . Kun Mook volunteered to ascend the ladders—to a height of 20 to 25 feet while wearing dress shoes and carrying an electric chainsaw—to cut the limb, which was around 8 to 12 inches in diameter. Kun Mook then climbed the ladders and cut the limb. He recalled only cutting the limb and falling. Pastor Jang believed that Kun Mook fell when the limb hit the ladder as it fell after being cut. Kun Mook sustained life-threatening injuries as a result of the fall.

¶ 6 On February 6, 2017, Kun Mook filed a one-count complaint sounding in negligence against Young Rok. In the complaint, Kun Mook alleged that Young Rok failed to provide appropriate tools, safe instruction, a safe place to perform the work, and appropriate safety equipment, and failed to adequately supervise the work and secure the debris. Young Rok answered the complaint and raised the affirmative defense of contributory negligence. Kun Mook was given leave to file a first amended complaint, and that complaint was filed on September 13, 2017. In the first amended complaint, Kun Mook added Pastor Jang as a defendant. That complaint also sounded in negligence, with the same allegations in the original complaint now directed at Young Rok in count I and Pastor Jang in count II. Pastor Jang answered the first amended complaint and raised the affirmative defense of contributory negligence. Pastor Jang also filed a counterclaim for contribution. Young Rok also answered that complaint, raised the affirmative defense of contributory negligence, and filed a counterclaim for contribution.

¶ 7 On March 19, 2018, Kun Mook filed a motion for a good-faith finding. In the motion, Kun Mook noted that Pastor Jang had insurance coverage for the incident under his homeowner's insurance policy and that the insurance company had tendered the limits of Pastor Jang's policy, $100,000, to Kun Mook. The trial court entered a good-faith finding as to the settlement between Kun Mook and Pastor Jang.

¶ 8 On June 8, 2018, Young Rok filed a second affirmative defense and referred to the open-and-obvious rule. Specifically, Young Rok alleged that, when Kun Mook fell, Kun Mook had a duty to exercise ordinary care for his own safety, including the duty to avoid open-and-obvious dangers. Notwithstanding that duty, Young Rok alleged, Kun Mook "breached his duty by carelessly and negligently failing to appreciate and avoid a danger so open and obvious, specifically, two ladders affixed together reaching considerable heights leaned against a tree limb to be cut with an electric chainsaw, that any person would reasonably be expected to see it." Young Rok alleged that the existence of the open-and-obvious condition barred the relief Kun Mook prayed for in his first amended complaint.

¶ 9 On July 13, 2018, Young Rok filed a motion for summary judgment. After a hearing, the trial court granted the motion. Kun Mook timely appeals.

¶ 10 II. ANALYSIS

¶ 11 On appeal, Kun Mook argues that the trial court erred in granting Young Rok's motion for summary judgment, because it disregarded his chosen theory of liability (ordinary negligence) and required him to overcome a defense to a theory (premises liability) he chose not to plead. Kun Mook contends that, in Illinois, the open-and-obvious rule applies only to premises- and product-liability cases. He claims that no Illinois case has specifically held that the open-and-obvious rule applies to ordinary-negligence cases, whereas several cases have "indicated that in Illinois the open and obvious doctrine does not apply to ordinary negligence claims." As support for this claim, Kun Mook cites Smart v. City of Chicago , 2013 IL App (1st) 120901, 397 Ill.Dec. 891, 43 N.E.3d 532 ; Chu by Chu v. Bowers , 275 Ill. App. 3d 861, 212 Ill.Dec. 113, 656 N.E.2d 436 (1995) ; Passarella v. NFI Interactive Logistics, LLC , No. 12-C-4147, 2015 WL 4148674 (N.D. Ill. July 9, 2015) ; and Jones v. Union Pacific R.R. Co. , No. 12-C-771, 2015 WL 5251993 (N.D. Ill. Sept. 8, 2015).

¶ 12 Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2018). While summary judgment provides a swift means to resolve a lawsuit, it is also a severe means of disposing of litigation. Monson v. City of Danville , 2018 IL 122486, ¶ 12, 425 Ill.Dec. 526, 115 N.E.3d 81. Because of this, the court must construe the record strictly against the moving party and favorably toward the nonmoving party, and the court should grant summary judgment only if the moving party's right to judgment is clear and free from doubt. Id. Appellate review of a summary judgment ruling is de novo . AUI Construction Group, LLC v. Vaessen , 2016 IL App (2d) 160009, ¶ 16, 409 Ill.Dec. 288, 67 N.E.3d 500.

¶ 13 To proceed in an action for negligence, the plaintiff must establish that the defendant owed a duty to the plaintiff, that the duty was breached, and that the breach proximately caused the injuries that the plaintiff sustained. Choate v. Indiana Harbor Belt R.R. Co. , 2012 IL 112948, ¶ 22, 366 Ill.Dec. 258, 980 N.E.2d 58. A legal duty is a prerequisite to liability. Bucheleres v. Chicago Park District , 171 Ill. 2d 435, 447, 216 Ill.Dec. 568, 665 N.E.2d 826 (1996). The existence of a duty is a question of law, and, in determining whether a duty existed, the trial court considers whether a relationship between the parties existed that imposed a legal obligation upon one party for the benefit of the other party. Rowe v. State Bank of Lombard , 125 Ill. 2d 203, 215, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988). Without a showing from which the court could infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. Haupt v. Sharkey , 358 Ill. App. 3d 212, 216, 295 Ill.Dec. 47, 832 N.E.2d 198 (2005).

¶ 14 In 2012, our supreme court held that relationship-induced duty was the sum of four factors: "(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant." Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, ¶ 18, 358 Ill.Dec. 613, 965 N.E.2d 1092.

¶ 15 Section 343 of the Restatement (Second) of Torts provides as follows:

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

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

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts § 343 (1965).

¶ 16 The Illinois Supreme Court adopted section 343 of the Restatement in Ward v. K Mart Corp. , 136 Ill. 2d 132, 150-51, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). The Ward court also adopted the open-and-obvious exception to the duty of care as set forth in section 343 of the Restatement. That exception provides:

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343(A)(1) (1965)

See also Bruns v. City of Centralia , ...