Swett v. Village of Algonquin

• Court: Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: Swett v. Village of Algonquin, 523 N.E.2d 594, 169 Ill.App.3d 78, 119 Ill.Dec. 838 (Ill. App. 1988)
• Decision Date: 03 May 1988
• Docket Number: No. 2-87-0876,2-87-0876
• Parties: , 119 Ill.Dec. 838 Eleanor SWETT, Indiv. and as Independent Ex'r of the Estate of Bobby Swett, Deceased, and as Independent Adm'r of the Estate of Helen Dulin, Deceased, et al., Plaintiffs-Appellants, v. The VILLAGE OF ALGONQUIN; et al., Defendants-Appellees, (The County of McHenry; et al., Defendants).

Page 594

523 N.E.2d 594

169 Ill.App.3d 78, 119 Ill.Dec. 838

Eleanor SWETT, Indiv. and as Independent Ex'r of the Estate of Bobby Swett, Deceased, and as Independent Adm'r of the Estate of Helen Dulin, Deceased et al., Plaintiffs-Appellants, v. The VILLAGE OF ALGONQUIN; et al., Defendants-Appellees (The County of McHenry; et al., Defendants).

No. 2-87-0876.

Appellate Court of Illinois Second District.

May 3, 1988.

Rehearing Denied June 7, 1988.

James E. Pancratz, James E. Pancratz, Ltd., Chicago, for Eleanor Swett, Indv. & Ind. Exec.

Elliot R. Schiff, Loretta M. Griffin (argued), O'Conner & Schiff, Chicago, for Iron Skillet, Inc., and Raymond Schwartz.

James L. Wright (argued), Militello, Zanck & Coen, Crystal Lake, for Village of Algonquin.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiffs, Eleanor Swett, individually and as independent executor and independent administrator, respectively, of the estates of Bobby Swett, her husband, and Helen Dulin, her mother, and Linda Becker, daughter of Eleanor and Bobby Swett and granddaughter of Helen Dulin, appeal from the judgment of the circuit court of McHenry County dismissing with prejudice all counts of their second amended complaint against the defendants, the Iron Skillet, Inc., Raymond Schwartz, individually and as agent/employee of the Iron Skillet, Inc., and the Village of Algonquin. On October 26, 1984, plaintiff Eleanor Swett, her husband and her mother were walking across Illinois Route 31 in Algonquin in an easterly direction from the Iron Skillet restaurant towards its parking lot across the street when they were struck by an automobile being driven in a southbound direction on Route 31. Swett was injured, her husband and her mother killed. The plaintiffs' complaint against these defendants alleged a cause of action in negligence for personal injury and emotional distress as to Swett and alleged survival and wrongful death actions as to the decedents. Upon dismissal of plaintiffs' claims, the court found there was no just reason to delay enforcement or appeal (107 Ill.2d R. 304(a)), and we have jurisdiction to consider the merits of this appeal.

In their respective motions to dismiss pursuant to section 2-615 of the Civil Practice Law (Ill.Rev.Stat.1985, ch. 110, par. 2-615), these defendants alleged they owed no duty to plaintiffs, and the court agreed. Plaintiffs contend here their complaint sufficiently stated a cause of action in negligence against the Iron Skillet and Raymond Schwartz (hereafter referred to only as the Iron Skillet) in that it owed them as business invitees a duty of care to properly maintain a safe ingress and egress to and from the restaurant and, further, that the complaint sufficiently set forth a cause of action against the restaurant under section 9-117 of the Illinois Highway Code (Ill.Rev.Stat.1985, ch. 121, par. 9-117), which prohibits the injuring or obstructing of highways. As to the Village of Algonquin, plaintiffs contend their complaint sufficiently stated a cause of action in negligence under sections 3-102(a), 3-103(a) and 3-104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill.Rev.Stat.1985, ch. 85, pars. 3-102(a), 3-103(a), 3-104(b)), and section 11-304 of the Illinois Rules of the Road (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-304), and section 9-117 of the Illinois Highway Code (Ill.Rev.Stat.1985, ch. 121, par. 9-117).

At the outset we note some general principles of law which will guide our determination. Common law negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Simmons v. Aldi-Brenner Co. (1987), 162 Ill.App.3d 238, 241, 113 Ill.Dec. 594, 515 N.E.2d 403.) Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. (Puttman v. May Excavating Co. (1987), 118 Ill.2d 107, 116, 112 Ill.Dec. 722, 514 N.E.2d 188; Bowen v. City of Harvey (1987), 164 Ill.App.3d 637, 639, 115 Ill.Dec. 678, 518 N.E.2d 203.) It is not sufficient that the plaintiff's complaint merely alleges that a duty exists; the plaintiff must state facts from which the law will raise a duty. (Erne v. Peace (1987), 164 Ill.App.3d 420, 423, 115 Ill.Dec. 517, 517 N.E.2d 1203.) Whether a legal duty exists is a question of law to be determined by the court. (Beal v. Kuptchian (1987), 164 Ill.App.3d 191, 193, 115 Ill.Dec. 301, 517 N.E.2d 712.) The issue of whether there is a duty is broad in its implication, whereas the issue of whether there was negligence is confined to the particular case. (Zimmerman v. Netemeyer (1984), 122 Ill.App.3d 1042, 1048, 78 Ill.Dec. 383, 462 N.E.2d 502, citing Mieher v. Brown (1973), 54 Ill.2d 539, 544-547, 301 N.E.2d 307.) Whether a legal duty exists involves consideration of more than just foreseeability of possible harm; it involves consideration of legal and social policies which include the foreseeability and likelihood of the injury, the magnitude of the burden of guarding against the injury and the consequence of placing that burden on the defendant. (Erne v. Peace (1987), 164 Ill.App.3d 420, 423, 115 Ill.Dec. 517, 517 N.E.2d 1203.) If no duty is found to exist, no recovery is possible as a matter of law. Beal, 164 Ill.App.3d at 193, 115 Ill.Dec. 301, 517 N.E.2d 712.

In determining whether a motion to dismiss was properly allowed, all well-pleaded facts will be regarded as true and all reasonable inferences should be construed in plaintiff's favor. (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill.App.3d 213, 217, 115 Ill.Dec. 245, 517 N.E.2d 656.) Facts which are not well pleaded will not be considered by the court ( Kavanaugh, 164 Ill.App.3d at 219, 115 Ill.Dec. 245, 517 N.E.2d 656), and conclusions of law or fact unsupported by specific facts in the record are not deemed to be admitted as true. (Curtis v. Birch (1983), 114 Ill.App.3d 127, 69 Ill.Dec. 873, 448 N.E.2d 591.) A complaint should not be dismissed unless it clearly appears from the pleadings that no set of facts can be proved which will entitle plaintiff to recover. Anderson v. Marquette National Bank (1987), 164 Ill.App.3d 626, 627-28, 115 Ill.Dec. 671, 518 N.E.2d 196; Kavanaugh, 164 Ill.App.3d at 217, 115 Ill.Dec. 245, 517 N.E.2d 656.

As to the Iron Skillet, counts II, IV, VI and IX of plaintiffs' second amended complaint alleged that on and prior to October 26, 1984, it owned, operated, possessed, maintained, controlled and managed the premises commonly known as The Iron Skillet Restaurant on Illinois Route 31 near its intersection with Beach Drive in Algonquin; that it owned, operated, supervised, maintained and controlled a parcel of property across Illinois Route 31 from the restaurant which it provided as well as promoted to its business invitees as a parking lot; that it used, enjoyed, employed, maintained and inspected an easement across that highway as a necessary means of egress and/or ingress for its business invitees to and/or from its restaurant building and its parking lot; that it undertook to provide a lighting system for the parking lot and easement which lighting, however it found to be inadequate and hazardous prior to the date of the accident; that it owed the plaintiffs a duty to exercise ordinary care in the ownership, control, inspection and maintenance of its premises including its use, enjoyment, employment, maintenance and inspection of the aforementioned easement; that on October 26, 1984, the plaintiffs were business invitees of the Iron Skillet and were struck by an automobile while they were walking eastbound along the said egress toward the parking lot across from the Iron Skillet; that it breached its duty of care owed to the plaintiffs in that it:

"(a) Owned, maintained, possessed, controlled, inspected and managed its said premises in such a manner that as a proximate result thereof, the Plaintiff[s] [were] severely injured;

(b) Carelessly and negligently failed to provide a safe means of ingress and egress for its business invitees, including the Plaintiff[s], although Defendants knew that such failure was likely to cause serious injuries to the Plaintiffs[s];

(c) Carelessly and negligently failed to improve the lighting previously erected at the aforesaid location when Defendants knew that such failure was likely to cause serious dangers to persons foreseeably using the said easement during evening hours;

(d) Carelessly and negligently failed to improve the lighting previously erected at the aforesaid location despite the Defendants' knowledge of the substantial increase of pedestrian traffic along the said easement and the prior incidents of danger or injury to pedestrians thereon;

(e) Carelessly and negligently failed to construct, maintain and employ an adequate lighting system at the aforesaid location when Defendants knew that such a condition was likely to cause serious injuries to its business invitees who were knowingly using said easement as a necessary means of egress and/or ingress to or from its restaurant and its said parking lot:

(f) Carelessly and negligently failed to install or request a marked and posted crosswalk for its business invitees using said easement notwithstanding Defendants' knowledge of the substantial increase of pedestrian traffic and the inadequate lighting system at the aforesaid location;

(g) Carelessly and negligently failed to warn either motorists or its business invitees of the said unsafe condition at the aforesaid location when Defendants knew from prior incidents of danger and/or injury to pedestrians, that such an omission was likely to cause serious injury to persons, such as the Plaintiff[s];

(h) Carelessly and negligently promoted and encouraged parking along Illinois Route 31 at said location when Defendants knew or should have known that such parking conditions would increase the known...