McDonald v. Frontier Lanes, Inc.

• Decision Date: 30 July 1971
• Docket Number: Gen. No. 70--91
• Parties: Allce McDONALD, Plaintiff-Appellee-Appellant, v. FRONTIER LANES, INC., a corporation, et al., Defendants-Appellants-Appellees.
• Court: United States Appellate Court of Illinois

Page 369

272 N.E.2d 369

1 Ill.App.3d 345

Allce McDONALD, Plaintiff-Appellee-Appellant, v. FRONTIER LANES, INC., a corporation, et al Defendants-Appellants-Appellees.

Gen. No. 70--91.

Appellate Court of Illinois, Second District.

July 30, 1971.

Rehearing Denied Sept. 9, 1971.

Carbary, Carbary & Chapski, Elgin, Alschuler, Putnam, McWethy, Weiss & Weiler, Aurora, for appellant.

Horwitz, Anesi, Ozmon & Associates, Chicago, Smith & McCracken, Geneva, Dario A. Garibaldi, Flossmoor, for appellees.

NASH, Justice.

Defendants, Frontier Lanes, Inc. and Northern Illinois Gas Company, appeal from judgments entered against them upon jury verdicts in favor of plaintiff, Alice McDonald. Plaintiff brings a separate appeal from the judgment entered upon the verdict in favor of defendant, Tony Ceresa.

Plaintiff was injured when she stepped into a hole in a parkway owned by the City of Elgin located across a public sidewalk from the parking lot maintained by Frontier for its tavern and bowling patrons. (The city was a defendant at trial and after verdict against it the court entered judgment n.o.v. from which no appeal has been taken.)

Frontier and Northern Illinois both urge on appeal that the trial court should have directed verdicts in their favor or entered judgments n.o.v. and, in the alternative new trials should be granted because the verdicts are against the manifest weight of the evidence. In addition, Frontier alleges error in the rulings of the trial court on two instructions and in not allowing it to file a counterclaim against Northern Illinois during trial. Plaintiff in her separate appeal contends defendant, Ceresa, is personally liable for her damages by reason of his status as a corporate officer of Frontier and as owner of the land it occupied.

There is little conflict in the evidence. In early 1965, Ceresa subdivided land owned by him in the City of Elgin improving it with a paved street named Ceresa Drive, running in north-south directions, and with a sidewalk along the east side of the street. Between the sidewalk and curb was a six-foot wide parkway which he graded, seeded and planted with small trees and which, together with the street and sidewalk improvements, was dedicated to and accepted by the city at that time. In late 1965, Ceresa commenced construction of a tavern and bowling alley building on a 5 1/2 acre tract of vacant land owned by him on the east side of Ceresa Drive. He did some of the work himself and let portions to plumbing, heating, paving and other contractors who also worked on the premises.

On January 21, 1966, Ceresa requested Northern Illinois to provide gas service for heating the building and it sent to the premises a four man crew to install a gas line from its main in the parkway to the building. The ground was frozen and covered with snow. The building was still under construction with various kinds of building material piled between it and the sidewalk west of the building. The gas crew noticed several mounds of dirt piled at intervals along the parkway between the sidewalk and the street. The Northern Illinois crew dug a trench across the parkway, under the sidewalk and sixty feet across the future parking lot to the building, on a line a few feet south of the front door of the building, and installed the gas pipe. Three members of the crew returned January 24th, completed the pipe connections, and filed in the trench with frozen earth. Northern Illinois made no charges to Ceresa for its work. Ceresa observed the work and testified that after filling the trench there remained a three-inch depression in the parkway while Northern Illinois employees testified they mounded the earth one to two feet above the sidewalk level over the hole dug in the parkway. The gas crew leader also testified that from nine to eighteen inches of settling could be expected in a trench of that size. The testimony is that neither Ceresa, Frontier or Northern Illinois did any further work or maintenance in the parkway until after plaintiff's injury, when Northern Illinois returned to fill in the settled ground at that place.

After installation of the gas line, Ceresa continued his work on the building, including the blacktopping of the area from the sidewalk to the building for a parking lot, until August, 1966, when construction was completed. At that time Ceresa formed defendant, Frontier Lanes, Inc. of which he became president and sole shareholder and, as owner, he leased the premises to the corporation which then, as tenant, opened the tavern and bowling lanes for business. Ceresa served as manager of the business and was doing so at the time of plaintiff's injury.

Before August, 1967, patrons of the business parked their cars both on the parking lot and on Ceresa Drive. There were no bumpers or fencing between the parking lot and sidewalk to prevent cars from being driven between the street and parking lot over the parkway and Ceresa observed them doing so without using the driveway towards the south end of the premises. Customers of the business also commonly parked in the street and walked to and from the front door on the west side of the building across the parking lot, sidewalk and parkway at various places, there being no designated walk area between the door and sidewalk or street. There were floodlights 140 feet apart on the roof of the single floor building and some lights at the door. There was no other illumination of the parking lot or at the street.

On August 26, 1967, plaintiff came to the premises near midnight and after driving through the parking lot and finding it full, parked her car on Ceresa Drive south of the building and walked in across the parking lot. She looked for an acquaintance in the tavern, had one or two drinks, then left shortly before closing time by the west front door she had entered. There were cars parked in the lot both beside the building and along the street side and cars were being driven through the parking lot. Other persons were also leaving the premises walking across the parking lot towards the sidewalk and street.

Plaintiff walked westerly from the door across the lot veering south as she approached the sidewalk in order to pass between cars parked on the lot and sidewalk. On crossing the sidewalk between the parked cars she stepped onto the parkway into a hole twelve inches deep and some two feet wide extending from the sidewalk to the curb across the parkway. It was dark and the hole was obscured by grass and weeds. As she fell she grasped the fender of the car parked next to her and the injury occurred. The hole was at the place the gas pipe had been installed in the parkway. Ceresa testified he had known of a defect at that place for some time but not its extent.

We consider first Frontier's contention that it was error for the trial court to deny its motion for directed verdict and judgment n.o.v. because all the evidence, viewed in its aspect most favorable to plaintiff, so overwhelmingly favored this defendant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504. In essence, Frontier urges that it owed no duty to protect plaintiff from injury at a place not within the boundaries of its premises.

Frontier submits no authority contesting plaintiff's status as an invitee stating it assumes that status for purposes of argument. Under the evidence we believe this to be a correct assumption. Starns v. Postawko, 347 Ill.App. 77, 106 N.E.2d 145. Frontier also recognizes a duty to provide reasonably safe means of ingress and egress to its invitees, but would limit its application to premises owned or controlled by it.

As stated in Altepeter v. Virgil State Bank, 345 Ill.App. 585, at page 598, 104 N.E.2d 334, at page 340:

'The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.'

Included within the rule is a similar duty to provide an invitee with reasonably safe means of ingress and egress, both within the confines of the premises owned or controlled by the inviter (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47; Jones v. Granite City Steel Co., 104 Ill.App.2d 379, 383, 244 N.E.2d 427) and, within limitations dictated by the facts of the case, beyond the precise boundaries of such premises. (Cooley v. Makse, 46 Ill.App.2d 25, 196 N.E.2d 396; Stedman v. Spiros, 23 Ill.App.2d 69, 161 N.E.2d 590; Thomas v. Douglas, 1 Ill.App.2d 261, 117 N.E.2d 417; Steinberg v. Northern Illinois Tel. Co., 260 Ill.App. 538; Mauzy v. Kinzel, 19 Ill.App. 571.)

In Cooley, plaintiff was injured in a fall on a defective, city-owned sidewalk at a place two or three feet from defendants' tavern building. The sidewalk was the only means of ingress and egress to the building and, while defendants did not cause the defect, they had knowledge of it. The court described the rule in this language, 46 Ill.App.2d at page 30, 196 N.E.2d at page 398:

'We think the duty of the defendants to use due care not to negligently injure invitees upon their premises carries with it a corollary duty to get such invitees safely on or off their premises. It is abundantly clear from the pictures that injuries to invitees might reasonably have been anticipated from the condition of this walk, particularly after dark. The defendants, whether lawfully or not, had assumed the right to use, enjoy and employ the sidewalk as a necessary adjunct of their possession, control and ownership of the tavern building. The exercise of that right necessarily incubates the duty to see that it may be safely exercised by their invitees. * * * the duty of ...