Ray v. Cock Robin, Inc.

Decision Date29 March 1974
Docket NumberNos. 45816 and 45834,s. 45816 and 45834
Citation57 Ill.2d 19,310 N.E.2d 9
PartiesVernon RAY, Admr., et al., Plaintiffs-Appellants and Appellees, v. COCK ROBIN, INC., et al., Defendants. COCK ROBIN, INC., Appellant, v. Edward ZAWACKI, Appellee.
CourtIllinois Supreme Court

Howard C. Sorensen, and Pretzel, Stouffer, Nolan & Rooney, Chicago (Joseph B. Lederleitner, Chicago, of counsel), for appellant Cock Robin, Inc.

Fred Lambruschi, Chicago (Herbert P. Veldenz, Chicago, of counsel), for appellants.

Hubbard, Hubbard, O'Brien & Hall, Chicago (Alvin G. Hubbard and Frederick W. Temple, Chicago, of counsel), for appellee Edward Zawacki.

KLUCZYNSKI, Justice:

Plaintiffs, Vernon Ray, as administrator of the estate of his deceased daughter, Kimberly Ray, and several parents, as next friends of their minor children, filed a negligence action in the circuit court of Du Page County seeking damages against defendants, Edwin Cholewa, Edward Zawacki, d/b/a North Grace Super Sinclair Service, and Cock Robin, Inc. At the close of the evidence the trial court directed a verdict against Cholewa as to liability and submitted the issue of damages to the jury, which returned verdicts against Cholewa totalling $99,400. Verdicts in favor of Zawacki and Cock Robin as to their liability were also returned and judgment was entered. On appeal to the Appellate Court, Second District, the justices of that court agreed that the judgment entered on behalf of Cock Robin must be reversed and the cause remanded for a new trial because relevant evidence was excluded from the jury's consideration. The appellate court majority further held that the judgment entered on behalf of Zawacki and against Cholewa was proper. (Ray v. Cock Robin, Inc., 10 Ill.App.3d 276, 293 N.E.2d 483.) Petitions for leave to appeal by plaintiffs and Cock Robin were both granted and the causes consolidated for opinion and decision.

The facts giving rise to this case are extensively reported by the appellate court and none of the parties have challenged their sufficiency. For purposes of this appeal we need only briefly reiterate certain facts.

Cock Robin owned a drive-in ice-cream establishment located on the southwest corner of River Road and Cherry Street in River Grove. The structure on the premises occupied by Cock Robin did not encompass the entire area. The building was located near the rear of the property. In front of the stand, in an open area, were several picnic tables and a bicycle rack for use by patrons. No curbing or other obstruction separated Cherry Street from the picnic area.

On the day of the accident Cholewa was southbound on River Road in an automobile that had been recently serviced by Zawacki. As he approached Cherry Street, he applied his brakes because of congested traffic ahead. The brakes failed and he attempted a turn his car onto Cherry Street but was unable to negotiate the turn because, as Cholewa testified, his powersteering mechanism also failed. As a result, his vehicle entered the picnic area of the ice-cream stand, hit the bicycle rack, a picnic table and came to a stop in the adjacent lot. Several children represented in this action were sitting at the table and were injured, one fatally.

During the course of the trial plaintiffs were denied introduction of certain testimony and they made an offer of proof. John Reinert, an investigating police officer, testified in the offer of proof that in the months preceding the accident he was at the ice-cream stand and saw the driver of a southbound vehicle on River Road attempt a right-hand turn onto Cherry Street. The driver was unable to successfully make the turn and his vehicle entered the parking area and hit the bicycle rack pushing it against a picnic table. Reinert further stated that he informed a Cock Robin employee about the possibility that the picnic benches were located in a dangerous area. The latter said that the employer had been informed of the danger. The appellate court construed this testimony as relevant and held that the trial court's refusal to admit this evidence was prejudicial.

Cock Robin argues that even though a driver may lose control of his vehicle and it may leave the roadway, this is not a foreseeable circumstance necessitating that a defendant effect preventive measures to protect its patrons against such a possibility. Said defendant appears to claim that the lack of any protective measures, such as barricades on its property, was merely a condition which made the injury possible by the subsequent independent act of Cholewa and its conduct therefore cannot be construed as the proximate cause of the accident. There is no contention advanced by Cock Robin that the prior incident described by Reinert is not sufficiently comparable to the occurrence giving rise to this action. Nor does Cock Robin dispute its duty to protect patrons from unreasonable risks of harm.

We have held that a tort action may not be maintained if the injury was not foreseeable or reasonably anticipated. (Donehue v. Duvall, 41 Ill.2d 377, 379, 243 N.E.2d 222.) It has been further...

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