Newmark v. Hartman

• Decision Date: 30 September 1982
• Docket Number: No. 17611,17611
• Citation: 109 Ill.App.3d 379,65 Ill.Dec. 204,440 N.E.2d 1059
• Parties: , 65 Ill.Dec. 204 Anne M. NEWMARK and Anne M. Newmark and First National Bank in Champaign, as Executors of the Will of Nathan M. Newmark, Plaintiffs-Appellants, v. William HARTMAN and Joseph Hamburg, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1059

440 N.E.2d 1059

109 Ill.App.3d 379, 65 Ill.Dec. 204

Anne M. NEWMARK and Anne M. Newmark and First National Bank

in Champaign, as Executors of the Will of Nathan

M. Newmark, Plaintiffs-Appellants, v. William HARTMAN and Joseph Hamburg, Defendants-Appellees.

No. 17611.

Appellate Court of Illinois,

Fourth District.

Sept. 30, 1982.

Rehearing Denied Oct. 28, 1982.

Balbach & Fehr, Urbana, for plaintiffs-appellants.

Moore, Nelson & Stipp, Hoopeston (William E. Nelson, Hoopeston, of counsel), for defendants-appellees.

LONDRIGAN, Justice:

On August 29, 1977, Anne M. Newmark fell while she was retrieving three suits left at her front door by defendant William Hartman, an employee of Garber's Modern Cleaners of Champaign, which defendant Joseph Hamburg partly or wholly owns. The trial court granted the defendants' motion for summary judgment, ruling that their acts had not proximately caused the plaintiffs' injuries.

The plaintiffs' amended complaint, filed October 28, 1981, comprises two counts: the first is brought by Anne Newmark in her own behalf and seeks damages for her personal injuries; the second count is brought by Anne Newmark and the First National Bank in Champaign as executors of the estate of Mrs. Newmark's husband, Nathan, who died January 25, 1981, and seeks damages for his loss of consortium occasioned by his wife's injuries. According to the amended complaint, at 6:30 p. m. on the day of the accident Hartman left clothing "on the closing mechanism at or near the top of the front screen door" of the Newmarks' home; directly after Hartman left, Mrs. Newmark tried to retrieve the clothing by standing on a kitchen stool but fell.

The amended complaint alleges that Hartman committed four negligent acts: (1) he left the clothing outside the home "without authorization and in an unreasonably dangerous condition and in an unreasonably dangerous location for a person of" Mrs. Newmark's size; (2) he left the clothing "in the screen door closing mechanism," which was too high for Mrs. Newmark to reach, "thereby creating an unreasonably dangerous condition for a person of" Mrs. Newmark's size, which Hartman knew or should have known; (3) he left the clothing on the mechanism, where it "would be difficult to remove because the hangers could become lodged in the mechanism, or caught between the door frame and the mechanism, or require unusual force for their removal, thereby creating an unreasonably dangerous condition for a person of" Mrs. Newmark's size, which Hartman knew or should have known; and (4) he left the clothing "in a place where the defendants could reasonably foresee that the plaintiff, Anne M. Newmark, might injure herself in retrieving" it.

The amended complaint also alleges that the Newmarks had never authorized Hartman or anyone else to leave clothing at the front door or anywhere else outside the home, that on each of the previous times Hartman delivered cleaning to the Newmarks he had given it to Mr. or Mrs. Newmark at the door or inside their home, and that Hartman and Hamburg knew that Mrs. Newmark was short and had trouble moving.

The defendants' motion for summary judgment argues that Mrs. Newmark's fall was "proximately caused by her intervening actions" rather than by the defendants' acts, that the defendants owed Mrs. Newmark no duty of care, and that the accident was unforeseeable. The motion quotes several passages from Mrs. Newmark's discovery deposition, taken November 7, 1980, when she explained that a stroke in May 1974 had left her with "a slight limp" in her left leg and "a slight weakness" in her left arm; she used a cane to walk. According to the quoted excerpt she agreed with defense counsel that "there was no real urgency about this cleaning." After Hartman left the cleaning and drove off, Mrs. Newmark decided to bring the clothing, three expensive suits, inside. She got a stepstool--she had not used one for a year--hooked the screen door so that she would not fall through it, and stepped up on the stool, supporting herself on the window molding. The three items were tied together and were heavy and knocked her off; she had not anticipated this. Mrs. Newmark did not seek anyone's help in retrieving the clothing.

In answer to the motion the plaintiffs submitted an affidavit by Mrs. Newmark and excerpts from Mrs. Newmark's and Hartman's depositions. In her affidavit Mrs. Newmark asserts that on August 29, 1977, she was in good health, excepting the effects of the stroke, which Hartman knew about, and that Hartman had delivered cleaning to her home "possibly as many as 12" times in the year preceding that day. Mrs. Newmark also asserts that she never gave Hartman permission to leave clothing outside the door and that Hartman had never previously done that. That day Hartman hung the clothing on the device that closes the door, about seven feet above the floor. According to Mrs. Newmark's deposition--the same one used by the defendants--she was born August 28, 1910, and is five feet tall. Besides the stroke she also suffered from angina but never...