Rozowicz v. C3 Presents, LLC

• Citation: 95 N.E.3d 1277,2017 IL App (1st) 161177
• Decision Date: 18 December 2017
• Docket Number: No. 1–16–1177,1–16–1177
• Parties: Magdalena ROZOWICZ, Plaintiff–Appellant, v. C3 PRESENTS, LLC; Capital Sports & Entertainment, LLC ; Capital Sports & Entertainment Holdings, Inc. ; Caring & Daring, LLC ; Parkways Foundation; Security Safety Services, Inc., d/b/a S3, Inc.; Troy E. Officer, d/b/a TE Officer Consulting; NPB Companies, Inc.; Monterrey Security Consultants, Inc., d/b/a Monterrey Security ; Christie Lites Florida LLC, d/b/a Christie Lites; Space Lighting of Texas, Inc., d/b/a Airstar Lighting of Texas, Defendants (C3 Presents, LLC, Defendant–Appellee).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161177

95 N.E.3d 1277

Magdalena ROZOWICZ, Plaintiff–Appellant,

v. C3 PRESENTS, LLC; Capital Sports & Entertainment, LLC ; Capital Sports & Entertainment Holdings, Inc. ; Caring & Daring, LLC ; Parkways Foundation; Security Safety Services, Inc., d/b/a S3, Inc.; Troy E. Officer, d/b/a TE Officer Consulting; NPB Companies, Inc.; Monterrey Security Consultants, Inc., d/b/a Monterrey Security ; Christie Lites Florida LLC, d/b/a Christie Lites; Space Lighting of Texas, Inc., d/b/a Airstar Lighting of Texas, Defendants(C3 Presents, LLC, Defendant–Appellee).

No. 1–16–1177

Appellate Court of Illinois, First District, First Division.

December 18, 2017

Joel T. Finch, of Finch Law Group, L.P., of Chicago, for appellant.

James L. Wideikis and Cynthia Salazar, of Lewis Brisbois Bisgard & Smith LLP, of Chicago, for appellee.

JUSTICE SIMON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Magdalena Rozowicz, filed a negligence action against defendant C3 Presents, LLC (C3), stemming from a slip and fall injury she suffered at the 2011 Lollapalooza music festival at Grant Park in Chicago. The circuit court granted summary judgment in favor of C3. On appeal, plaintiff argues genuine issues of material fact preclude summary judgment in favor of C3.¹ For the following reasons, we affirm.

¶ 2 In 2008, C3 contracted with the Chicago Park District to lease Grant Park for the purpose of holding the annual Lollapalooza music festival, to be held on August 5, 2011, through August 7, 2011. The lease provided, inter alia , that C3 was responsible to "take all actions necessary to ensure the safety of Festival attendees."

¶ 3 In 2011, plaintiff filed a first-amended complaint asserting two counts of negligence against C3. She sought damages for injuries she suffered as a result of slipping and falling while trying to exit the Lollapalooza concert grounds. Plaintiff alleged various failures by C3 including, inter alia , failure to properly illuminate concert grounds and exits, place mats over slippery areas of the concert grounds and exits, manage the concert crowd, provide safe egress from the concert grounds, and cancel the music festival.

¶ 4 C3 moved for summary judgment, arguing it did not owe plaintiff a duty of care where she slipped on mud, the mud did not present an unreasonable risk of harm, C3 did not have notice of an allegedly dangerous condition, and the mud was an open and obvious condition. Plaintiff responded that C3 owed her a duty of care to protect her from hazardous conditions on the concert grounds and to provide a safe means of egress from the venue. She asserted her injury was foreseeable as C3 created an unreasonable risk of harm when it forced her to exit the grounds uphill, through overcrowded, poorly lit, and tree-filled terrain; the dangerous condition of which was exacerbated by the mud. The parties supported their positions with depositions and exhibits.

¶ 5 Plaintiff testified in her deposition that, on August 7, 2011, around 12:00 p.m., she arrived at the Lollapalooza festival with friends Angelica and Sylvia Dziadowiec. Plaintiff was at the festival for seven to eight hours. Sometime between 8 and 9 p.m., after the sun had gone down, Rozowicz and her two friends began to walk in a southwesterly direction from the Butler Field area toward an exit. She walked shoulder to shoulder with the crowd to the exit, following the crowd because, although she could not see an exit, she "knew" one was in that direction. Plaintiff observed, with respect to the concert grounds, that "[i]t was raining for many hours. It was mud everywhere. It was slippery." It had been difficult to walk around between the stages because of the mud and lighting. The mud was very deep as she walked west, and she saw people fall "everywhere" around her due to the mud. Plaintiff took a few steps up a hill and her right foot slipped on the mud. She fell and could not stand. Her ankle was broken, and she later had surgery to repair it.

¶ 6 Plaintiff testified that it was muddy, dark, and crowded as she walked to the exit but nothing "other than the mud" caused her to fall. She knew it was muddy and slippery and was looking down at her feet when she slipped. Before plaintiff fell, she was being bumped by people in the exiting crowd, it was dark, she could not see the sidewalks, and did not know whether she was walking on grass or concrete. She tried to walk cautiously and was distracted by the loud music, but no one pushed her and nothing other than the mud caused her to fall. She was wearing flip-flops when she fell.

¶ 7 Sylvia Dziadowiec testified in her deposition that, while exiting the festival, she heard plaintiff call out her name and noticed that she had fallen. When plaintiff could not get up, Sylvia went to get help. Before plaintiff fell, Sylvia observed 20 people slip and fall throughout the day because of the mud and rain. She testified that she, plaintiff, and Angelica did not take an alternate route to the exit because turning back against the crowd would seem "unnatural" and dangerous. They were walking slowly and carefully because of the three– to four-inch deep mud. They had been "slipping" on the mud throughout the day. She testified that she never saw a staircase near where plaintiff fell.

¶ 8 Dirk Stalnecker, C3's production director for the 2011 Lollapalooza festival, testified in his deposition that he was responsible for layout and coordination of festivals. C3 was responsible for determining entrances and exits for the festival. Stalnecker testified that there was a set of illuminated concrete steps located in the western area of Butler Field, near where plaintiff alleged she fell, that would lead to a concrete pathway and to the north exit of the venue. He marked this lit area on a map of Butler Field at his deposition. He also marked the tree-lined area where plaintiff fell as an intended exit from the concert grounds. He explained the area was "[n]ot specifically an exit" but, rather, was a landscaped area free of obstruction or fencing "to allow people to walk through."

¶ 9 The trial court granted summary judgment in C3's favor relying on the Restatement (Second) of Torts, section 343. Restatement (Second) of Torts § 343 (1965). It found plaintiff's deposition showed "only the mud" caused her to fall and the mud did not give rise to a duty from C3 to plaintiff. It found that there was nothing unreasonably dangerous about the existence of mud at an outdoor concert and C3 could reasonably expect a concert patron to discover any normal risk. The court further found C3 provided a safe means of egress by way of a concrete path, which lead directly to an exit.

¶ 10 On appeal, plaintiff argues C3 owed her a duty of care to provide a safe egress from the concert grounds but, instead, created an unreasonable risk of harm by forcing her to exit over a crowded incline that was poorly lit and covered in trees, the dangerous condition of which was exacerbated by the mud. She also argues both the deliberate encounter and distraction exceptions to the open and obvious doctrine apply, thus weighing in favor of finding a duty of care. Finally she argues C3 breached the duty owed to her and the condition of concert grounds was the proximate cause of her injury.

¶ 11 Summary judgment is proper when the pleadings, depositions, affidavits, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mashal v. City of Chicago , 2012 IL 112341, ¶ 49, 367 Ill.Dec. 223, 981 N.E.2d 951. Summary judgment is inappropriate when material facts are disputed, reasonable persons could draw different inferences from the undisputed facts, or reasonable persons could weigh the factors relevant to the legal standard at issue differently. Seymour v. Collins , 2015 IL 118432, ¶ 42, 396 Ill.Dec. 135, 39 N.E.3d 961. As summary judgment is a drastic means of disposing of litigation, it should only be granted when the moving party's right to it is free from doubt. Mashal , 2012 IL 112341, ¶ 49, 367 Ill.Dec. 223, 981 N.E.2d 951. We review de novo the trial court's grant of summary judgment. Gurba v. Community High School District No. 155 , 2015 IL 118332, ¶ 10, 396 Ill.Dec. 348, 40 N.E.3d 1.

¶ 12 In order to sustain her negligence action, plaintiff must present sufficient factual evidence to establish the existence of a duty owed by C3 to her, a breach of that duty, and an injury proximately caused by that breach of duty. See Keating v. 68th & Paxton, L.L.C. , 401 Ill. App. 3d 456, 470, 344 Ill.Dec. 293, 936 N.E.2d 1050 (2010). Unless a duty is owed, there can be no negligence. American National Bank & Trust Co. of Chicago v. National Advertising Co. , 149 Ill. 2d 14, 26, 171 Ill.Dec. 461, 594 N.E.2d 313 (1992). "Whether a duty exists in a particular case is a question of law for the court to decide." Marshall v. Burger King Corp. , 222 Ill. 2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006).

¶ 13 In determining whether a duty exists, the court considers whether a relationship existed between the parties such that a legal obligation is placed upon one party for the other party's benefit. Sameer v. Butt , 343 Ill. App. 3d 78, 85, 277 Ill.Dec. 697, 796 N.E.2d 1063 (2003). The factors a court considers when determining whether a duty of care exists include "(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 the burden on the defendant." Krywin v. Chicago Transit Authority , 238 Ill. 2d 215, 226, 345 Ill.Dec. 1, 938 N.E.2d 440 (2010). The weight given to each factor depends upon the circumstances of the particular case. Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, ¶ 18, 358 Ill.Dec. 613, 965 N.E.2d 1092.

¶ 14 Plaintiff alleges she was injured by a condition...