Mick v. Kroger Co.

• Decision Date: 29 March 1967
• Docket Number: No. 40182,40182
• Citation: 224 N.E.2d 859,37 Ill.2d 148
• Parties: , 21 A.L.R.3d 926 Helen MICK et al., Appellees, v. The KROGER COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 859

224 N.E.2d 859

37 Ill.2d 148, 21 A.L.R.3d 926

Helen MICK et al., Appellees, v. The KROGER COMPANY, Appellant.

No. 40182.

Supreme Court of Illinois.

March 29, 1967.

Hill & Hill, Benton (W. Joe Hill, Benton, of counsel), for appellant.

Benedict W. Eovaldi, Benton, for appellees.

UNDERWOOD, Justice.

The principal issue in this case is whether a merchant can be said to have a duty to assist customers in carrying large packages of groceries from its store by virtue of the fact that it customarily did so. The circuit court of Franklin County and the Fifth District Appellate Court (73 Ill.App.2d 155, 218 N.E.2d 654) ruled that the jury could properly find such a duty in this case. We granted defendant's petition for leave to appeal.

Helen Mick instituted this action against the Kroger Company for personal injuries alleged to have been sustained when she fell while carrying a bag of groceries which she had just purchased from defendant's Benton, Illinois, store. Her husband joined in the action, seeking to recover for loss of consortium and for money alleged to have been spent because of his wife's injuries.

Throughout the several years during which Mrs. Mick had shopped at this store, it had maintained a carry-out service for its customers. On September 10, 1963, she purchased groceries which were placed in a large bag. When informed that no one was available to help her take the groceries out to the family car, she lifted the 30-pound bag and carried it outside. Finding that her husband, who had been waiting for her in their car, had left defendant's parking lot to pick up their children from school, she rested the bag on the fender of a nearby car. When her husband returned, she picked up the bag and stepped off the sidewalk and onto the parking-lot pavement. In doing so she fell, suffering the injuries for which she sued.

The complaint alleged that for years at its Benton store, without being requested to do so, defendant furnished one or more employees to assist its customers, including plaintiff, in carrying out their groceries. It further alleged that on September 10, 1963, defendant was negligent in failing to do this for Mrs. Mick, proximately causing the injuries alleged to have been sustained.

The jury returned a $4,000 verdict for plaintiff, but found against her husband. Defendant alone appealed from the judgment entered thereon. In affirming, the appellate court ruled: 'The Kroger Company owed to Mrs. Mick, an invitee on its premises, the duty to exercise reasonable care under the circumstances. Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A., N.S., 1118; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469, 173 N.E.2d 443. From the evidence taken as a whole, a jury could and did find that the failure to provide a carry-out service for Mrs. Mick constituted an unreasonable risk of harm and a breach of its duty to exercise reasonable care for her protection as a customer. In this day and age, shoppers generally frequent the modern, self-service supermarkets, where they are furnished with a large cart which they wheel through the store and in which they place large amounts of groceries. It is not unreasonable for a jury to find that, under some circumstances, it would be the duty of a store to furnish assistance to its customers in carrying out their groceries, especially where it has been the custom and practice to do so. Indeed, courtesy, politeness, and proper consideration for a customer's needs are inducements for a customer's trading in a particular store.'

As a prerequisite to a successful action for negligence the plaintiff must establish that the defendant owed a duty to protect her from the injury alleged to have been sustained. (Lasko v. Meier, 394 Ill. 71, 75--76, 67 N.E.2d 162; Lance v. Senior, Ill., 224 N.E.2d 231.) Since plaintiff was a business invitee of the defendant, the appellate court correctly ruled that it owed her the duty of exercising reasonable care for her safety. (Olinger v. Great Atlantic and Pacific Tea Co., 21 Ill.2d 469, 473, 173 N.E.2d 443; Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 157, 125 N.E.2d 47.) A storekeeper, however, is not the insurer of his customer's safety. (Olinger, 21 Ill.2d p. 476, 173 N.E.2d 443.) Therefore, the question befoe us is whether, considering the allegations and proof herein, the jury should have been allowed to find that carrying groceries from the store building to a car in the adjacent parking lot involved a risk to the customer sufficient to require the merchant, in the exercise of this duty, to provide carry-out service. We think not.

The only allegation in support of plaintiff's claim that defendant's duty to exercise reasonable care for her safety required it to furnish an employee to assist in carrying out her groceries is the assertion that it was customary for store personnel in defendant's Benton store to carry out large packages both for her and for other customers. Plaintiff simply asserts that since defendant voluntarily engaged in the practice of having its employees aid customers in carrying...