Wadycki v. Vanee Foods Co.

• Court: Appellate Court of Illinois
• Writing for the Court: LaPORTA
• Citation: Wadycki v. Vanee Foods Co., 567 N.E.2d 423, 208 Ill.App.3d 492, 153 Ill.Dec. 465 (Ill. App. 1990)
• Decision Date: 28 December 1990
• Docket Number: No. 1-90-0135,1-90-0135
• Parties: , 153 Ill.Dec. 465 Philip WADYCKI, Plaintiff-Appellant, v. VANEE FOODS COMPANY, a corporation, Vanee Builders Corporation, a corporation, and R & L Recycling Corporation, Defendants-Appellees (Vanee Foods Company, a corporation, Vanee Builders Corporation, a corporation, Counterplaintiffs; R & L Recycling Corporation, Counter-Defendants).

Page 423

567 N.E.2d 423

208 Ill.App.3d 492, 153 Ill.Dec. 465

Philip WADYCKI, Plaintiff-Appellant, v. VANEE FOODS COMPANY, a corporation, Vanee Builders Corporation, a corporation, and R & L Recycling Corporation Defendants-Appellees (Vanee Foods Company, a corporation Vanee Builders Corporation, a corporation Counterplaintiffs; R & L Recycling Corporation, Counter-Defendants).

No. 1-90-0135.

Appellate Court of Illinois First District, Sixth Division.

Dec. 28, 1990.

Bleiman & Zenner, Chicago (Leo M. Bleiman, Laura Monahan-Jarvis, of counsel), for plaintiff-appellant.

Orner & Wasserman, Chicago (Norton Wasserman, Mary A. Mazurek, of counsel), for defendants-appellees Vanee Foods Co. and Vanee Builders Corp.

Kiesler & Berman, Chicago, (R. Howard Jump, Patti M. Deuel, of counsel.), for defendant-appellee, R & L Recycling Corp.

Presiding Justice LaPORTA delivered the opinion of the court:

Berkeley Police Officer Philip Wadycki was injured while on duty May 4, 1986 when he went on to private property to restack cardboard debris that had fallen from an open truck trailer. As he stepped into the trailer to close one door, he slipped on loose cardboard and fell out of the trailer, injuring his wrist and shoulder. He sued the landowners and the owner of the trailer alleging that their negligence was the direct and proximate cause of his injuries. The landowners, Vanee Foods Company and Vanee Builders Corporation, and the trailer owner, R & L Recycling Corporation, moved for summary judgment. The trial court granted defendants' motions for summary judgment and plaintiff appeals.

The facts in the case are not in dispute. In his deposition, Wadycki testified that he was on duty May 4, 1986, and was assigned to patrol an industrial park including the property owned by defendants' Vanee Foods Company and Vanee Builders Corporation. ("Vanee"). While there, he noticed a trailer on the property used by Vanee for storage of recycled cardboard. The trailer, owned by R & L Recycling Corporation ("R & L") had cardboard spilling out of its opened rear doors. Wadycki picked up cardboard on the ground nearby and placed it inside the trailer. When he attempted to close the trailer doors, one would not close because of some flat cardboard pieces protruding out the bottom. Wadycki climbed a freestanding ladder nearby and put one foot into the trailer in an effort to close the doors. As he put his foot down on some loose cardboard, he slipped and fell to the ground, severely injuring his right wrist and shoulder.

The trailer, owned by R & L, was located on Vanee's property as part of an oral contract between the companies. R & L would deliver a trailer to Vanee and when Vanee filled the trailer, R & L would return and haul it away, replacing it with an empty trailer.

On January 28, 1988, Wadycki sued Vanee and R & L, charging that their negligent acts and omissions were the proximate cause of his injuries. On May 18, 1988, Vanee filed a counterclaim, seeking contribution from R & L. On June 16, 1988, the trial court entered an agreed order striking the complaint and giving the plaintiff 28 days to file an amended complaint. On January 12, 1989, plaintiff filed an amended complaint naming the same defendants.

Wadycki alleged that each defendant "failed to adequately inspect the trailer, failed to place steps, ramps or other devices to gain access to the trailer, improperly loaded and unloaded the trailer in such a manner that the contents thereof were allowed to be discharged and failed to provide a safe means of ingress and egress from the trailer when they knew or in the exercise of ordinary care, should have known that such means of entry and exit were necessary for persons to gain access to the trailer." Wadycki charged that Vanee "failed to secure the doors of the trailer to prevent the discharge of materials" and that R & L "failed to place adequate locks or devices on the doors of the trailer to prevent the discharge of materials."

The defendants moved for summary judgment. On January 2, 1990, the trial court granted the defendants' summary judgment motions. The court found that the case against Vanee was governed by Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538, which held that the possessor of land has a duty to protect police officers and fire fighters against known dangerous conditions on their land only if the danger is an unreasonable risk of harm not inherent to their occupation and the possessor of the land expects the invitee will not discover or realize the danger or will fail to protect himself against the danger.

The court in Fancil refused to permit a cause of action by the widow of a police officer after the officer was murdered by burglars while he was on patrol in a poorly lit grocery store lot. The action, brought under a theory of common law negligence, alleged that the grocer disconnected a mercury light that had been used for exterior illumination and would have revealed the burglars' presence. The officer's widow alleged that this act breached the grocer's duty to protect invitees from foreseeable criminal acts committed by a third party.

In its decision, the supreme court adopted the position in the Restatement (Second) of Torts, section 345(2), which states that liability to an officer or fire fighter falls under the same rule stated in section 343, which provides: "A possessor of land is subject to liability for physical harm caused to his invitee by a condition of the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger."

The trial court here, before granting the defendant's motion for summary judgment, commented that picking up garbage and closing truck trailer doors "is just not considered unreasonably dangerous." The court questioned plaintiffs' view that the landowner would know the officer was unaware of the condition. The trial court found that since Vanee owed no duty to plaintiff, the bailor, R & L, also owed no duty to plaintiff.

The Fancil court held that no duty, other than one of ordinary care, existed because the fact that the property was not illuminated was obvious to all. In addition, the court held that defendant was protected by a defense afforded those who own land on which a police officer suffers an injury. The court found that the danger of being ambushed by criminals was an "inherent risk" of an officer's occupation and therefore plaintiff was not liable for an injury incurred in such a manner. This "inherent risk" principle has been relied on as a defense by plaintiffs in other cases and relied on by the courts.

Though the trial court relied on Fancil 's inherent risk defense, we can affirm its decision based on wholly different grounds, (Village of Schaumburg v. Franberg (1981), 99 Ill.App.3d 1, 54 Ill.Dec. 336, 424 N.E.2d 1239,) and do so here because we hold that defendant owed no duty to plaintiff other than a duty of ordinary care.

A motion for summary judgment should be granted where there is no genuine issue as to any material fact based on the affidavits, depositions, admissions, exhibits and pleading in the case. (Carruthers v. B.C. Christopher & Company (1974) 57 Ill.2d 376, 380, 313 N.E.2d 457, 459.) Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. Carruthers, 57 Ill.2d at 380, 313 N.E.2d 457.

To recover damages for common law negligence, plaintiff must prove a breach of a duty owed to him, (Barnes v. Washington (1973), 56 Ill.2d 22, 26, 305 N.E.2d 535, 538) and plaintiff must show that the breach was the direct and proximate cause of his injuries. (Pitts v. Basile (1966), 35 Ill.2d 49, 54, 219 N.E.2d 472, 475.) Whether a duty exists between two parties is a question of law to be determined by the courts. Barnes, 56 Ill.2d 22, 305 N.E.2d 535.

On appeal, Vanee relies on Fancil and Murphy v. Ambassador East (1977), 54 Ill.App.3d 980, 984, 12 Ill.Dec. 501, 370 N.E.2d 124. The court in Murphy upheld the dismissal of a negligence suit brought by a police officer who injured his hand in an elevator door after he responded to the hotel's request for an officer to remove a dead person from a hotel room. The officer was injured while trying to open a stuck elevator door. The court, relying on Fancil, held that a freight elevator door was not an unreasonable risk of harm inherent to his occupation. The court also said that the police officer should have realized the risk that existed and protected himself. Murphy, 54 Ill.App.3d at 985, 12 Ill.Dec. 501, 370 N.E.2d 124.

Defendants argue here that Wadycki was at the accident scene as part of his regular patrol duties and that he knowingly stepped on a piece of flattened cardboard before he fell. Defendants argue that the cardboard was not an unreasonable risk of harm and, even if it was, it was clearly one plaintiff could have been expected to discover. Wadycki testified that the cardboard he stepped on was on an angle, already beginning to slide out of the trailer and that as soon as he firmly planted his foot on it, it slid further and he "went with it." In his deposition, he testified that nothing...