*1 306 Rights]”). Legal
Human The Chief strict adherence Counsel’s alleged date of charge, despite discrimination found Deen’s Police, internal process required review the State because the charge jurisdiction Legal confers on the Chief Counsel to hear the beyond charge authority claim and to look would exceed the legally legislature. Illinois, conferred See v. State Briggs 323 Ill. (2001) (“Administrative App. 752 N.E.2d agencies possess only authority legally by express such as is conferred provisions such, by intendment, fair implication law as is incident in authority expressly and included conferred for the purpose carrying accomplishing objective out and for which created”). agencies were decision,
“If the support agency’s record contains evidence to Irick, it should be affirmed.” 3d at 726 N.E.2d at Here, ample supports Legal 172. evidence the Chief Counsel’s order to charge sustain dismissal of Deen’s for lack of substantial evidence unlawful discrimination.
III. CONCLUSION stated, For the Legal reasons we affirm the Chief Counsel’s order. Affirmed. APPLETON, JJ.,
STEIGMANN and concur. COBB, Plaintiff-Appellant, AND FROZEN FOOD DELORES v. MARTIN IGA
CENTER, INC., Defendant-Appellee.
Fifth 5 — 01—0671 District No. February 10,
Opinion filed 2003.
GOLDENHERSH, J., dissenting. Ewart, Mattoon, Craig Craig, John P. appellant. & for Bennett, Ryan, Ryan, Brien J. O’Brien and Michael D. both of Radloff & O’Brien, Mattoon, appellee.
JUSTICE MAAG delivered the opinion court: *3 (plaintiff) personal-injury against Delores Cobb filed a action Center, (defendant), Martin & Frozen Food Inc. in IGA the circuit court Effingham County. sought compensation damages of Plaintiff for young boy grocery she sustained when a ran into her with a cart while in shopping she was defendant’s store. Defendant filed a motion for a summary judgment asserting protect plaintiff had to type granted from the of harm she had suffered. The trial court the judgment a in summary motion and entered favor of defendant. On in appeal, plaintiff granting contends that the trial court erred the summary judgment jury question because there was a of whether negligent. defendant was or was not negligence against injuries
Plaintiff filed a action grocery a in she had sustained while she was customer defendant’s alleged August 6, plaintiff that on complaint store. The amended unsupervised a in defendant’s that an shopping was customer plaintiff shopping, child ran into with a cart while she was injuries her foot and ankle as a result plaintiff suffered serious incident, negligent of the and that defendant was and breached its its under the protect to exercise reasonable care to customers 1996)). (740 (West Liability seq. ILCS et The Premises Act 130/1 negligent been defendant had alleged further complaint amended following ways: of the in one or more carts delivery shopping the supervise failed to Negligently
“a. prevent premises so as on the and other individuals to customers operators; inexperienced who were by carts the use of said shopping carts operation of supervise the failed to Negligently b. prevent premises so as on the and other individuals by customers operators; inexperienced were by carts children who the use of said [and] shopping carts operation of supervise the negligently failed
c. prevent premises so as individuals on and other customers inexperienced operator were children who of said use [sic].” attacking the suf- of motions resolved a series
After the trial court During discovery phase discovery ensued. complaint, ficiency of following leave to add the sought granted and was plaintiff allegation negligence: young permitting adopted policy Negligently
“d. followed shopping carts.” operate children to general manager, were Lansing, defendant’s
Plaintiff and Kenneth por- summary pertinent A discovery period. deposed during the Lansing follows. testimony plaintiff and Mr. tions of the to defendant’s that she went plaintiff In her testified deposition, she was groceries. While purchase some August store on left foot and cart into her young boy pushed shopping, in boy pickle had first noticed ankle. Plaintiff testified that she He toward her. a cart and fast pushing aisle. He was any adult with She did not see screaming making any noises. him. attempt to avoid changed direction boy. near the Plaintiff gone to the deli routine, would have regular her she Had she followed Instead, display at a stopped she to the meat counter. and then boy. to maintain some distance greeting cards order would be not afraid that she why initially was explained Plaintiff she I him and he saw away and saw boy] enough was far “[The harmed: he was stop, apparently but plenty I he had of time thought me and cart into boy pushed the fast[;] he couldn’t.” The going too boy testified that to the floor. Plaintiff and knocked her down then ran off. sorry, and seconds, that he was for a few said stopped years and 10 to be between 8 boy appeared that the Plaintiff stated *4 name. get his know him and she did old. She did not defendant’s a customer of that had been Plaintiff testified she about there shopped incident. She years before this store for several incident, she had to this prior Plaintiff testified once week. never seen a young pushing child a shopping cart without adult supervision in defendant’s store. She stated that she had not heard anyone complain that poor job defendant did a policing of use its shopping carts. Plaintiff stated that she had no information that defendant had any problems this boy any with or other children run- ning around its store with carts. Plaintiff also testified that had any she not seen store employees prior in the area to the incident. She had no information indicating any employee boy had seen the prior with the cart to the incident. Lansing
Kenneth manager was the Effingham defendant’s store. In his deposition, Lansing Mr. testified that there was no written policy or document regarding the use of store, carts within the delivery customers, of carts to storage or the of carts. During their training, employees were instructed to return carts that had been abandoned in the store or were in otherwise not use to a storage area at the front of the Lansing store. Mr. stated that the store did not have an attendant assigned to deliver carts to entering customers store and that it did not system have surveillance to monitor the entire incident, store. At the time of the there was a surveillance system for purpose monitoring shoplifting high-risk in sections of the such as near cigarette displays and beauty health and counters. There was no surveillance in the area where this incident occurred. In a supplemental discovery deposition, Lansing Mr. stated that employees expected were to monitor inappropriate behavior of adults and children. He testified that the policy store did not have a against children using shopping carts. He explained that there are many shop children who for their families defendant’s stores.
Mr. Lansing signed an affidavit that was filed in support summary judgment defendant’s motion. The affidavit states pertinent part as follows: August
“Prior to there had never been an incident or ac- any cident at involving I.G.A. Martin’s stores circumstances patron injured where a as a result of a patron, fellow child or adult, running person into the other with or a shopping without Also, cart. complaint prior Martin’s I.G.A. had never received a August 6, 1997, employees the Martin’s I.G.A. failed to supervise delivery regard of carts to adults or children. With one, Cobb, including this no Delores has come forward with any concerning boy information identity push- who was ing Furthermore, one, the cart at the time of the incident. Cobb, including any Delores come has forward with information cart, concerning boy where the unidentified obtained the whether parent guardian, period the cart was obtained his boy pushing prior time the had been the cart to the accident.”
311 alleged that summary judgment, In motion for a its establishing evidence produce failed to allege and failed plaintiff the the circumstances duty a of care under defendant owed that any evidence to produce failed to plaintiff that argued Defendant case. child would young that a known it knew or should have suggest that Defendant another customer. push a cart into recklessly negligently operating children from duty prohibit a imposing that argued also unduly burdensome. be carts in its store would granting an order entered hearing, the trial court Following a order, trial In the judgment. its summary for a defendant’s motion complaint the to dismiss had filed a motion noted that defendant court the circum- under duty plaintiff ground the owed on a motion used to assess that the standard explained The court stances. for a sum- to assess a motion from that used to dismiss is different the motion to it had denied The court stated mary judgment. “it was conceiv- because stage proceedings at an earlier dismiss duty a under developed been which able that a set of facts could have by the regard plaintiff to the found to exist with could have been allotted for during the time The trial court found defendant.” sug- that would develop any facts discovery, “totally failed other children on notice of either gest placed that the defendant was shop- into customers with eight running and ten ages between the into customers involved particular carts or the minor ping of a imposition The found that the with carts.” court also using shopping duty unsupervised all prohibit carts, as or, pushing monitor all children alternatively, on an intolerable burden would create suggested by plaintiff, defendant. genuine are no when there judgment appropriate
A
summary
a
judgment
as
is entitled to
material fact and the movant
issues of
1005(c) (West 2000);
Marine
Outboard
matter of law. 735 ILCS 5/2 —
90, 102, 607 N.E.2d
Co., 154 Ill. 2d
Mutual Insurance
Corp. Liberty
v.
(1992).
the
when
properly granted
1204,
summary judgment
A
1209
inferences
admissions,
permissible
and
pleadings, depositions,
nonmoving
the
favorable to
therefrom,
light
most
construed
could
individual
that no fair-minded
party,
clearly
so
favor
movant
Wysocki
favor.
in his or her
right
judgment
to a
dispute the movant’s
(1984).
1339,
164,
1344
Bedrosian,
158,
463 N.E.2d
v.
novo. Outboard
rulings is de
summary judgment
Appellate review
.
102,
at 1209
proximately
plaintiffs injuries.
caused the
Ward v. K mart Corp., 136
(1990).
132, 140,
223,
Ill. 2d
554 N.E.2d
226
duty
The existence of a
range
and the
of protection
of that
in a particular case are ques
tions of law to be
Ward,
resolved
the court.
In the trial court and on appeal, plaintiff argued has that sections (Second) (Restatement 318, 344, and 390 of the Restatement of Torts (Second) (1965)) §§ of Torts support her contention that jury negligent. could find defendant Each section identifies certain circumstances under which a defendant possessor who is a of land or may subject liability chattels be to physical for harm caused by the conduct of a third A party. comments, series of providing further explanation law, or clarification of the statement of is at provided end of each section. to
According 390, the statement of in supplier law section subject of a chattel if liability supplier is or knows has reason to user, youth, know that the inexperience, incompe because his or tence, likely is to use the in involving chattel a manner an unreason (Second) physical able risk of harm to others. Restatement of Torts (1965). b, 390, § 390 Comment which follows section that the explains supplier or has reason to if belongs [user] “knows know” “the to a notoriously incompetent safelyt ] class which is to use the chattel or training lacks the and if experience necessary for such use” or “the supplier knows that the has on other [user] occasions so acted that the supplier should realize that likely dangerously the chattel is to be [user], though used[ ] or that the capable using otherwise the chat safely, propensity purpose tel has a or fixed to misuse it.” Restatement (Second) (1965). 390, b, § of Torts Comment at 315
According possessor to the statement of law in section “A open public entry of land who holds it to the for for his business purposes subject liability public they to members of the while are upon purpose, physical by the land for such a for harm caused the ac cidental, intentionally persons harmful of third or negligent, or acts care reasonable exercise possessor the failure animals, and done[ ] likely to be or are (a) done being acts are that such discover to avoid (b) the visitors enable adequate to warning give or (Second) it.” Restatement against them protect harm[ or otherwise ] (1965). possessor that the *7 or situation will a condition that such probability a reasonable (1965). (Second) c, 318, § at 128 of Torts Comment Restatement arise.” following each section discussed It from the comments apparent incident or prior notice of a must have some above that a defendant plaintiff a duty protect a imposes the law prior conduct before sufficiently must be The incident party. prior a third the conduct of prob- is a reasonable notice that there put a defendant on similar likely physical to cause party third are ability the acts of the us, consider we now Turning to the record before harm to others. previ- notice knowledge had actual or sufficient defendant whether to a give rise here that would to that involved ous incidents similar by the conduct posed risk of harm plaintiff from the duty protect the minor child.
314
Defendant was the possessor premises
plaintiff
where
injured.
was
Plaintiff had an “invitation” to enter defendant’s busi
buy groceries,
ness to
since the store
open
was
to the public. Accord
ingly, plaintiff’s
status was that of a business invitee to whom
defendant
duty
owed a
of reasonable care. Anderson v. Woodlawn
Shell, Inc., 132 Ill. App.
580, 582,
(1985).
3d
10,
478 N.E.2d
12
However, that does not make defendant an insurer of its customers’
safety. Anderson, 132 Ill. App.
582,
3d at
478
general
N.E.2d at 12. The
duty of reasonable care does not extend to all risks of harm encoun
tered
invitees while on
premises.
defendant’s
See Gonzalez v.
Service,
Kennedy
Inc.,
Mobil
App.
1077, 1084,
274 Ill.
3d
654 N.E.2d
(1995).
624, 628-29
The
owed
a possessor of land to a business
invitee is not absolute. See Applebaum
Cos.,
v. Jewel
76 Ill. App. 3d
57,
395 N.E.2d
59
The creation of a legal duty
requires more than
possibility
Anderson,
occurrence.
582,
13;
at
478
Gonzalez,
N.E.2d at
274 Ill. App. 3d at
“
We make regarding will brief comment The dissent. dis-
315 to the tantamount would be adopted, in this if position senter’s or any on landowner without fault liability of absolute imposition oper- owned or premises on solely injury occurred because business the dis- Thankfully, position the of or by the landowner business. ated position denies that his this state. The dissenter is not the law of sent liability. We turn to Shake- of absolute imposition amounts to the a rose That which we call for our “What’s in a name? speare response: Ro- Shakespeare, as sweet.” William by any other name would smell II, 2. meo and Juliet act sc. Effingham County
Accordingly, judgment the circuit court of the of is affirmed.
Affirmed.
WELCH, J., concurs. GOLDENHERSH, dissenting:
JUSTICE that, I does at the time respectfully dispute dissent. Defendant not incident, possessor of the on which premises of the it was if to injured. express, had the invitation implied, Plaintiff buy groceries. enter defendant’s business to Plaintiff was a business duty exercising care invitee and defendant owed her the of reasonable Shell, safety. Inc., v. for her Anderson Woodlawn (1985). Illinois 478 12 has section of the adopted N.E.2d (Second) Torts, plaintiff’s lends to claim support Restatement which negligence. provides pertinent part It follows: as entry “A possessor open public of land who to the for for holds subject liability public is to members of the purposes his business harm they upon purpose, physical while are the land for such a accidental, intentionally negligent, caused or harmful acts animals, persons possessor third or the failure of exercise care reasonable
(a) likely or to be being that such acts are done are discover done, or
(b) warning visitors to avoid give adequate to enable the it.” protect against harm[ ] them Restatement or otherwise to (Second) § Torts at 223-24 following explanation:
The comments to section 344 contain insurer premises. possessor is not an Duty police Since the “f. any safety, ordinarily no of the is under to exercise visitor’s he care he knows reason know that the acts until or has however, may, are occur. He person occurring! ] third are about to know, past that there is experience, know or have reason persons general conduct of third which part likelihood of on the likely endanger visitor, safety though even he has to expect part reason it on the any particular If individual. place business, past character of his experience, or his reasonably such he should anticipate careless or criminal part conduct persons, generally on of third either or at some time, particular may precautions he under a against be to take *9 provide reasonably it[ ] and to a sufficient number of to servants (Second) afford a reasonable protection.” Restatement of Torts (1965). 344, § Comment at 225-26 / Accordingly, recognized it has been that the of owner business property has a duty to exercise reasonable care to keep property reasonably the for the the safe use of customer and to dangerous discover defects and existing on premises dangers conditions and to correct either those give or warning sufficient of them. (Second) of the
Section 318 Restatement sup- of Torts also lends to port plaintiffs against claim of negligence provides defendant. It in pertinent part as follows: Duty
Ҥ 318. of of Land or to Possessor Chattels Control Conduct of Licensee permits person a
If the actor a third to use land or in his chattels possession servant, is, if present, otherwise than as he a under duty to exercise care reasonable so to control the conduct of the as person prevent intentionally third to him from harming others conducting or from as so himself to create an unreasonable of risk bodily them, harm to if the actor (a) ability or has knows reason to know he has to control the third and person, (b) necessity knows should and opportunity know (Second) 318, exercising § such control.” Restatement at Torts (1965). 126-27 In the instant a supermarket defendant owns that sells food sales, and additional provides merchandise. To increase shopping Plaintiff, 68, customers with was in or age carts. near the pickle unaccompanied, unsupervised aisle when she noticed an boy, ages between the of 8 and the aisle with a cart. down Plaintiff in through altered her normal route the store order to avoid boy; however, boy going plaintiff, too fast and collided with her I causing injury agree to ankle. that defendant was not While (see Anderson, safety App. insurer of its 3d at customers’ 12) 478 N.E.2d call for the imposi at that this situation does not defendant, possessor of an liability duty, tion absolute as in its had the to exercise reasonable care to control persons, only necessity the conduct of third when knew doing ability so but when it have it had the also should known that persons. control third foreseeability injury, plaintiff of an a a reasonable
To establish that the could have foreseen than that the defendant must show more rather, show a must merely possible; was conceivable event v. expect. Gonzalez objectively reasonable the event was Service, Ill. 654 N.E.2d Inc., Kennedy Mobil an expect objectively reasonable 624, 629 It into a customer cart could run operating child unsupervised following deposition Here, from the injury. it is clear and cause allow of the store to testimony Lansing policy that it was the Mr. place policies carts and that were operate shopping dangerous situation: potentially monitor this “Q. implement policy attorney:] you if were to [Plaintiffs Now just the in the store or employees as to the current who worked regular store monitor use employees [the worked in the who store[,] they you children] are in the would shopping carts while any you? employees, would not have to add additional safe[,] every provide a past A. made effort to We have employees in all shopping area. We do that with all convenient departments!,] they work in the floor or the back area. whether
Q. is[,] you policy if saying What I’m were add to statement employed for other employees to be announced to the who are *10 children,] by simply purposes [the monitor use you? you anybody additionally, wouldn’t have to add would though not a expected point A. That is at this in time. Even it is expected. written that policy[,]
Q. Expected what? employees. expected A. That is behavior of all Q. expected What is behavior? it they
A. monitor to make sure That behaviors within store appropriate, whether it be children adults. Q. any any But there was never announcement carts, operate was there? employees that children were not to No, shop A. not. children who for their families. it is We have That inconvenience those families. would
Q. Fine, you. say that the current thank So it would be correct to carts, policy permit operate of the store is to children would be correct? Yes,
A. it is.” reasonably foresee- While defendant claimed that this event I complaint, had come with a similar able because no one ever forward did not extend general duty of reasonable care agree do not in the case. the risk involved instant such an
In should have foreseen that the instant signs it. No were might occur, nothing prevent event but it did posted anywhere in warning the store unsupervised customers about operating Also, shopping carts. our is a focus minor’s behavior, not an policy adult’s behavior. It was defendant’s to allow unsupervised operate children shopping carts. Defendant insists that in order to make sure that this type occur, accident did not would post myriad be forced to throughout additional workers its However, which would create intolerable burden. contrary to assertions, probable defendant’s it is this accident could have been means, avoided much less burdensome such as notice to patrons that children are not to operate allowed cart supervision without adult problem and some awareness of this employees. defendant’s
Accordingly, I respectfully dissent the majority’s opinion. al., Plaintiffs-Appellees, FINNIE, RAE CAIN et v. BARBARA as Ex’r of the Deceased, Spurlock, Defendant-Appellant. Estate Blanche Fifth District No. 5 — 02—0150 February Opinion filed 2003. notes Comment § at 223-24 of Torts f ordinarily under safety and is of the visitor’s an insurer of land is not to know or has reason he knows any care until duty to exercise to occur. are about occurring or are person of the third that the acts if possessor may be established f, According to comment is a there know, experience, past has reason to knows or general in which persons of third part on the likelihood of conduct reasonably visitor, if he should safety of the endanger the likely to on the based persons, third criminal conduct careless or anticipate Restatement past experience. or his of his business or character place (1965). (Second) 225-26 f, § Comment at of Torts 318, “If the actor of law section According to the statement possession in his land or chattels person third to use permits a duty to exercise servant, is, if under a present, he otherwise than as a person as to conduct of the third to control reasonable care so conducting or from so intentionally harming others him from prevent them, if harm to bodily risk of to create an unreasonable himself as (a) ability knows that he has or has reason to know the actor (b) of the neces and knows or should know person[ ] the third control control.” Restatement exercising such sity opportunity (Second) c cautions that § Comment at 126-27 of Torts on the character depends duty to control conduct the actor’s it, and the makes of chattel, the licensee the use which land or comment notes that used. The under which it is circumstances is of manner of its use of the chattel or the the character cases where conditions particular under only dangerous that it is such a character if “only there vigilance exercise situations, actor has a