Harlin v. Sears Roebuck & Co.

FIRST DIVISION
DECEMBER 11, 2006

No. 1-05-2749

JAYLYN HARLIN, a Minor by and )
through her Mother and Next Friend ) Appeal from the
Wanda Harlin, and WANDA HARLIN ) Circuit Court of
Individually, ) Cook County.
)
Plaintiffs-Appellants, )
)
v. ) No. 03 L 7923
)
SEARS ROEBUCK AND COMPANY, ) The Honorable
) Michael J. Hogan,
Defendant-Appellee. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

Plaintiff Jaylyn Harlin, a minor, by and through plaintiff

Wanda Harlin, her mother and next friend, and Wanda Harlin,

individually, filed suit against the defendant Sears Roebuck and

Company after Jaylyn sustained injuries after falling and hitting

her head on a display stand at a Sears department store. The

trial court granted Sears's motion for summary judgment. The

plaintiffs appeal, contending: (1) the trial court made

procedural errors in granting summary judgment; (2) issues of

material fact exist to preclude summary judgment; and (3) the

trial court erred by in effect precluding the plaintiffs from

filing an amended complaint. For the reasons that follow, we

affirm.
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BACKGROUND

On April 19, 2002, Wanda Harlin, her mother, Mattie Jackson,

and Wanda's two-year-old daughter, Jaylyn Harlin, went to the

Sears department store at North and Harlem Avenues in Chicago.

Jaylyn, who could walk on her own, was not put in a stroller but

instead held Wanda's hand as they walked through the store. As

Jaylyn and Wanda passed through the hosiery department, Jaylyn

fell for unknown reasons and struck her head on a corner of a

stand used for displaying merchandise, causing a laceration above

her eye. An ambulance took Jaylyn to West Suburban Hospital,

where she received stitches.

The plaintiffs filed a two-count complaint seeking over

$50,000 in damages. Count I alleged that Wanda and Jaylyn were

present in a retail establishment owned or operated by Sears

pursuant to a specific invitation to the public, that Jaylyn

tripped and fell, "striking her face upon an unreasonably sharp

edge or section of an object used by Defendant to display its

merchandise," that Sears had a duty to maintain its premises in a

reasonably safe manner, and that Jaylyn's fall resulted in

serious injury. The plaintiffs alleged Sears carelessly,

negligently and improperly: (1) maintained its premises; (2)

failed to correct a condition that it knew or should have known

posed serious risks to its customers, especially those of tender

years; (3) failed to prevent customers and the general public

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from coming in contact with said dangerous condition; and/or (4)

displayed its merchandise upon equipment that it knew, or should

have known, posed serious risk to its customers, especially those

of tender years. Count II sought recovery under the family

expense statute of the Rights of Married Persons Act (750 ILCS

65/15 (West 2002)) for expenses Wanda incurred.

Sears moved for summary judgment, arguing it owed no duty to

Jaylyn, that the display stand was open and obvious, and that it

exercised reasonable care in maintaining its premises.

Attached to Sears's motion was Wanda's deposition. Wanda

stated that before the fall occurred, she and Jaylyn were walking

in the middle of the hosiery department. Wanda was walking

straight ahead on a clear path toward the elevators, where Mattie

was talking to a friend. Wanda was holding Jaylyn's left hand in

her right hand. As they passed a display stand on Jaylyn's

right, Jaylyn fell. Wanda did not see what caused Jaylyn to fall

and did not actually see Jaylyn fall. However, before Jaylyn

fell, Wanda saw the display stand, which she described as a tall,

brown, wooden stand "with metal on the bottom" that was not

circular. The stand had socks and merchandise hanging from it

and nothing blocked her view of it. Similar stands were located

throughout the hosiery department. Before Jaylyn fell, Wanda did

not perceive anything dangerous about the stand.

Jaylyn fell face down and struck her head on the edge of the

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corner part of the stand toward the bottom, receiving a "big

gash" above her right eyebrow that was bleeding. Wanda showed a

female Sears employee where the fall occurred, but was not sure

whether the photograph of a stand taken on April 19, 2002, was

the same stand upon which Jaylyn struck her head.

The plaintiffs responded to Sears's motion and argued that

under Kahn v. James Burton Co., 5 Ill. 2d 614, 126 N.E.2d 836
(1955), Sears had a duty to make sure its public areas were free

from dangers to children of tender years who were prone to falls.

The plaintiffs also argued the stand was dangerous because it was

empty and therefore acted as an obstacle to foot traffic. They

also argued Sears failed to meet its burden in demonstrating the

applicability of the open and obvious doctrine.

Attached to the plaintiffs' response was the affidavit of

Julius Holmes, who at the time of Jaylyn's fall, was a loss

prevention agent at the Sears store at North and Harlem and, at

the time of his deposition, was a loss prevention manager of a

different Sears store. Julius testified that on April 19, 2002,

he was notified by a Sears employee that a little girl had

fallen. He obtained a first aid kit from the security office and

went to the cosmetics area, where he saw Wanda talking to the

employee. Julius applied an ice pack to Jaylyn's brow and went

with Wanda to the scene of the fall. Wanda showed Julius the

place where Jaylyn hit her head, which Julius described as a base

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of a fixture. Julius inspected the area for blood or debris that

Jaylyn may have slipped on, but found none. He retrieved a

Polaroid camera from the security office and photographed the

area where Jaylyn fell. He was unsure whether Wanda was there

when he took the photos. Julius identified a photograph of an

empty display stand as the one Wanda pointed out as where Jaylyn

hit her head. He did not notice anything unusual about the

corner, which he described as "a 90-degree piece of metal that's

along the corner of that base." He also did not know whether

that particular corner was rougher or smoother than the other

three corners, but testified it looked the same as the other

three.

Julius did not know why the display stand was empty and

testified it was not unusual to see stands empty. His duties as

an asset prevention agent required him to monitor the store for

safety, including looking at the condition of display equipment

to make sure it was presentable to customers and free of chips or

loose pieces. He testified that an empty display stand would

strike him as being a "safety concern." Although he would assume

a display stand was empty only temporarily, he would talk to the

head of the particular department where it was placed if it

remained empty for more than 24 hours. Julius did not know how

long the stand Wanda pointed out had been empty.

The trial court granted Sears's motion for summary judgment

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and disposed of the case. The record does not contain a report

of proceedings, certified bystander's report, or an agreed

statement of facts of the summary judgment proceedings. The

trial court thereafter denied the plaintiffs' motion to

reconsider after hearing arguments from the parties.

ANALYSIS

I

The purpose of a summary judgment motion is to determine

whether a genuine issue of material fact exists. Purtill v.

Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Summary

judgment is proper where "the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

735 ILCS 5/2-1005(c) (West 2002). In determining whether a

genuine issue of material fact exits, a court must construe the

materials of record strictly against the movant and liberally in

favor of the non-moving party. Perri v. Furama Restaurant, Inc.,
335 Ill. App. 3d 825, 829, 781 N.E.2d 631 (2002). The grant of

summary judgment is reviewed de novo. Perri, 335 Ill. App. 3d at

829.

II

We first address several issues presented in the parties'

briefs. We initially note the plaintiffs' attorney's improper

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reliance on material that is not part of the appellate record.

In fact, we previously granted Sears's motion to strike a

transcript of a tape-recorded statement made by Sears employee

Yvette Figueroa, which was attached to the plaintiffs' brief but

not included in the record on appeal, and therefore not

considered by the trial court during the summary judgment

proceedings. The plaintiffs' attorney also takes issue with the

trial court's findings in granting summary judgment. However,

this court can review the trial court's factual findings only if

we have been provided with a sufficiently complete record of the

trial proceedings. Dargis v. Paradise Park, Inc., 354 Ill. App.

3d 171, 176, 819 N.E.2d 1220 (2004). While this court has been

provided with transcripts from the reconsideration proceedings,

no report of proceedings, certified bystander's report, or agreed

statement of facts pursuant to Supreme Court Rule 323 (Official

Reports Advance Sheet No. 2 (January 18, 2006), R.323, eff.

December 13, 2005) has been provided of the summary judgment

hearing.

We also disagree with the plaintiffs' contention that

Sears's motion for summary judgment did not address every

allegation in the complaint. Sears moved for summary judgment on

the basis that it owed no duty to protect Jaylyn against any

injury from falling on the display stand and, in any event, the

condition of the display stand was open and obvious. The open

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and obvious doctrine speaks to the duty element which, as

discussed below, is a central element of any negligence claim.

See Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447,

665 N.E.2d 826 (1996) (reaffirming "the continued viability of

the open and obvious doctrine in the analysis of a landowner's

duty to persons injured while on the landowner's property"). We

additionally note, in reference to the plaintiffs' attack on the

trial court's findings in granting summary judgment and in

denying reconsideration, that this court may affirm a trial

court's grant of summary judgment on any basis apparent in the

record, regardless of whether the trial court relied on that

basis or whether the court's reasoning was correct. Castro v.

Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 552, 732

N.E.2d 37 (2000); Stevens v. Riley, 219 Ill. App. 3d 823, 834,

580 N.E.2d 160 (1991). Further, although the plaintiffs intimate

in their reply brief that Sears raises issues and relies on cases

not presented during the summary judgment proceedings, "[i]t is

quite established that 'the appellee may urge any point in

support of the judgment on appeal, even though not directly ruled

on by the trial court, so long as the factual basis for such

point was before the trial court.'" Beahringer v. Page, 204 Ill.
2d 363, 370, 789 N.E.2d 1216 (2003), quoting Shaw v. Lorenz, 42

Ill. 2d 246, 248, 246 N.E.2d 285 (1969).

Having clarified that we are considering only materials

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included in the appellate record, that we are reviewing the

ruling and not the reasoning of the trial court, and that we may

affirm the grant of summary judgment on any factual basis

supported by the record, we turn to the merits of this appeal.

III

The plaintiffs contend summary judgment was improper in this

negligence action. To state a cause of action for negligence, a

plaintiff must establish the existence of a duty, the defendant's

breach of that duty, and that the breach was the proximate cause

of the plaintiff's resulting injuries. Mt. Zion State Bank &

Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116,

660 N.E.2d 863 (1995); Ward v. K Mart Corp., 136 Ill. 2d 132,

140, 554 N.E.2d 223 (1990).

The issue in this case is whether Sears owed a duty to

exercise due care to remedy the condition of the display stand or

otherwise protect Jaylyn, a two-year-old child, from any

resulting injury. The imposition of a duty depends on: (1) the

foreseeability of injury; (2) the likelihood of injury; (3) the

magnitude of the burden of guarding against the injury; and (4)

the consequences of placing that burden on the defendant. Ward,
136 Ill. 2d at 140-41; Kay v. Ludwick, 87 Ill. App. 2d 114, 117-

18, 230 N.E.2d 494 (1967). The determination of the existence of

a duty presents a question of law appropriately determined by

summary judgment. Green v. Jewel Food Stores, Inc., 343 Ill.

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App. 3d 830, 832, 799 N.E.2d 740 (2003).

The touchstone of a court's duty analysis is to determine

whether the defendant and the plaintiffs stood in such a

relationship to each other that the law imposed upon the

defendant an obligation of reasonable conduct for the benefit of

the plaintiffs. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d

179, 186, 766 N.E.2d 1118 (2002). Generally speaking, an owner

or occupier of land owes no greater duty to small children than

the duty owed to adults. Perri, 335 Ill. App. 3d at 830. The

primary responsibility for the safety of a child rests with his

or her parent, "whose [responsibility] it is to see that the

child is not placed in danger." Mt. Zion, 169 Ill. 2d at 116,

citing Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 79, 219

N.E.2d 483 (1966).

The plaintiffs have not provided this court with any case

involving a factual situation similar to that presented in this

appeal. They contend, however, that Sears's duty arises under

our supreme court's decision in Kahn, which, along with its
progeny, "established the foreseeability of harm to children as

the cornerstone of liability." Corcoran v. Libertyville, 73 Ill.

2d 316, 326, 383 N.E.2d 177 (1978). Under Kahn, a duty will be

imposed on an owner or occupier of land to exercise due care to

remedy a dangerous condition on the land or otherwise protect

children from injury due to the dangerous condition where: (1)

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the owner or occupier knows or should know that children

habitually frequent the property; (2) a defective structure or

dangerous condition is present on the property; (3) the defective

structure or dangerous condition is likely to injure children

because they are incapable, due to their age and immaturity, of

appreciating the risk involved; and (4) the expense and

inconvenience of remedying the defective structure or dangerous

condition is slight when compared to the risk to children. Mt.
Zion, 169 Ill. 2d at 117, citing Kahn, 5 Ill. 2d at 625.

Kahn is usually addressed in cases where the injured minor

is trespassing or unaccompanied. See Corcoran, 73 Ill. 2d at 326

(the essence of Kahn is to impose a duty "to remedy conditions

which, although considered harmless to adults, are dangerous to

children who foreseeably wander onto the premises"). However,

Kahn has been discussed and applied in cases like this where the

injured child is accompanied by a parent. See Perri, 335 Ill.

App. 3d 825 (infant injured while accompanied by her parents at

the defendant restaurant); Stevens, 219 Ill. App. 3d 823
(accompanied minor injured while a social guest at the

defendants' home); Kay, 87 Ill. App. 2d 114 (same); Stankowitz v.

Goldblatt Brothers, Inc., 43 Ill. App. 2d 173, 193 N.E.2d 97

(1963) (accompanied minor injured at the defendant department

store). In light of the plaintiffs' contentions, we will assume

without further discussion that the Kahn doctrine applies in this

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case.

We first address the threshold determination under Kahn:
whether a dangerous condition existed on Sears's property. The

dangerous condition alleged in this case was an "unreasonably

sharp edge or section" of the display stand. A dangerous

condition under Kahn is one which is likely to cause injury to

children, who, by reason of their age and immaturity, would not

be capable of appreciating the risk involved. Mt Zion, 169 Ill.
2d at 120. However, even where landowners are aware that

children frequent the premises, "the law does not require [the

landowner] to protect against the omnipresent possibility that

children will injure themselves on obvious or common conditions."

Barrett v. Forest Preserve District, 228 Ill. App. 3d 975, 979,

593 N.E.2d 990 (1992). Put another way, if the condition

involves an obvious risk children would generally be expected to

appreciate and avoid, the owner or occupier of the land has no

duty to remedy the condition. Cope v. Doe, 102 Ill. 2d 278, 286,
464 N.E.2d 1023 (1984); Stevens, 219 Ill. App. 3d at 829.

Dangers that children are expected to appreciate include those

presented by fire, water, or falling from height. Cope, 102 Ill.

2d at 286-87, citing Restatement (Second) of Torts §339, Comment

J, at 203 (1965).

The plaintiffs contend that the corner of the display stand

constituted a latent dangerous condition that a two-year-old

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child could not be expected to appreciate. The plaintiffs'

contention demonstrates the difficulty of applying the Kahn

doctrine in this case, as cases relying on Kahn generally involve

a dangerous condition that a child actively encounters. In this

case, however, there was no evidence that the corner of the

display constituted a dangerous condition in the absence of

Jaylyn falling upon it. Of course, Jaylyn had no control over

what she would encounter when she fell. That she would strike

any particular object and would sustain injuries other than those

associated with a fall itself was unforeseeable, in the absence

of any evidence that the stand itself caused the fall. Given

that the injury to Jaylyn occurred during an involuntary act of

falling, her age and immaturity had no bearing on appreciating

the risk of injury in falling on the corner of the display.

Additionally, as Sears points out, that an injured child was

under the care or control of a parent will sometimes absolve

defendants of their duty toward the child. Compare Stevens, 219
Ill. App. 3d 823, and Kay, 87 Ill. App. 2d 114, with Perri, 335

Ill. App. 3d 825. While a mere allegation that an injured child

was accompanied by his or her parent is not enough to relieve the

landowner of his or her duty, the landowner will be absolved of a

duty where the child was injured due to an obvious danger while

under the supervision of his or her parent, "or when the parents

knew of the existence of the dangerous condition that caused the

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child's injury." Stevens, 219 Ill. App. 3d at 832.

In Stevens, a child, not yet 18 months old, was a social
guest with her parents at the defendants' home, fell into a pond

located in the defendants' backyard and suffered brain injury.

The trial court granted summary judgment in favor of the

defendants, finding they owed no duty to the child. In affirming

the trial court's decision, the reviewing court first addressed

whether a dangerous condition existed on the premises. Although

bodies of water have been found to constitute obvious dangers to

children, the plaintiffs argued that the danger of the pond was

not obvious because it was obscured by weeds and had a sudden

drop-off. The reviewing court agreed with the plaintiffs'

contention that a very young child may not be expected to avoid

the dangers of drowning, but found that because the child's

parents were aware of the water, a visible dangerous condition,

and the weeds, the defendants were relieved of their duty to

protect the child. Stevens, 219 Ill. App. 3d at 833. See also

Kay, 87 Ill. App. 2d 114 (holding the defendant landowner owed no

duty to a four-year-old child who severed her heel attempting to

climb the back of a riding lawn mower where the use of the mower

was either fully known or patently obvious to the mother, who

observed no harm in allowing her child to play near the operating

mower).

In Perri, the parents of a three-month-old girl sued a

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restaurant after a four-year-old boy at their table, who was

accompanied by his parents, spun a lazy susan upon which a pot of

hot tea had been placed and burned the infant. A waitress had

placed the tea on the table unbeknownst to the adults in the

party. The trial court granted summary judgment in favor of the

defendant restaurant. This court reversed, holding that the hot

tea on the lazy susan was a dangerous condition because a four-

year-old could not be expected to appreciate the risk presented

by it and because it was foreseeable that a four-year-old would

play with the lazy susan. The presence of the parents did not

absolve the restaurant of its duty because the parents were only

required to exercise due care in the face of obvious risks. The

tea was not an obvious risk because the parents were not aware

that it had been placed on the table. Further, even if it was an

open and obvious risk, it was reasonable for the restaurant to

anticipate the danger, as the hot tea was placed on the table as

the party was being seated and the adults may have been

distracted. Perri, 335 Ill. App. 3d at 832, citing Ward, 136
Ill. 2d at 156.

Applying the reasoning of Stevens, Kay, and Perri to this

case, we find that even if the corner of the display stand

constituted a dangerous condition, Sears did not owe Jaylyn a

duty. Wanda testified she saw the display stand, which she

described as tall, wooden, not circular, and as having metal on

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the bottom, before Jaylyn fell. She also testified it was

similar to the numerous stands throughout the hosiery department.

This case is therefore unlike Perri, where the parents were

unaware that the hot tea had been placed on their table. Rather,

as in Stevens, in this case the parent was made aware of any

dangerous condition, even if the injured child could not be

expected to appreciate it. As in Kay, Wanda apparently saw no
harm in letting her daughter walk on her own near the display

stand. Although Wanda testified she did not perceive anything

dangerous about the stand, we find that it is a matter of common

sense that two year olds often fall and may get hurt when they

land on noncircular objects with metal at the bottom. See Young

v. Chicago Housing Authority, 162 Ill. App. 3d 53, 57, 515 N.E.2d

779 (1987) (children who fall from monkey bars at playgrounds can

be expected to appreciate the "commonsense principle *** : if you

fall, you might get hurt"). Unlike in Perri, in this case the

plaintiffs do not argue they were distracted.

This is not a case where a store negligently maintained its

display stands in a manner such that it would be foreseeable that

children would attempt to climb upon and swing from them. See

Wal-Mart Stores, Inc. v. Lerma, 749 S.W.2d 572 (Tx. App. 1988).
Rather, in this case, a child tripped for unknown reasons and

injured herself. While it is always unfortunate when a child is

injured, we find that summary judgment was properly granted in

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this case.

The plaintiffs argue that the deposition testimony and

photographic evidence in the record present a factual dispute

about whether the display stand was empty. They also argue

Julius Holmes's testimony indicating a stand left empty for more

than 24 hours constituted a "safety concern" established the

placement of the stand was improper. While we agree with the

plaintiffs that a factual dispute exists about whether the stand

was empty or full, we do not find this factual dispute to be

material in light of Wanda's testimony that she saw the stand

before Jaylyn fell.

IV

The plaintiffs' final contention is that the trial court

erred by in effect precluding them from filing an amended

complaint. Section 2-1005(g) of the Code of Civil Procedure

provides "[b]efore or after the entry of a summary judgment, the

court shall permit pleadings to be amended upon just and

reasonable terms." 735 ILCS 5/2-1005(g) (West 2002). A trial

court's decision whether to permit amendment is reviewed for an

abuse of discretion. In re Estate of Hoover, 155 Ill. 2d 402,
416, 615 N.E.2d 736 (1993).

We initially disagree with the plaintiffs contention that

the trial court precluded them from filing an amended complaint.

Our reading of the record shows that the trial court did, in

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fact, leave open the possibility of the filing of an amended

complaint. Further, our supreme court has set forth a four-

pronged test to determine whether amendment should be permitted.

Hoover, 155 Ill. 2d at 416. The test, however, is premised on

the filing of a proposed amended complaint. The plaintiffs in

this case never sought leave to file an amended complaint, and no

proposed amended complaint was submitted to the trial court.

Under these circumstances, the trial court cannot be said to have

abused its discretion. See Frantzve v. Joseph, 150 Ill. App. 3d
850, 853, 502 N.E.2d 396 (1986) (plaintiffs who fail to seek

leave to file an amended complaint waive any right to question

the trial court's dismissal of a complaint without permitting

amendment).

CONCLUSION

For these reasons, the decision of the circuit court of Cook

County is affirmed.

Affirmed.

McBRIDE, P.J., and CAHILL, J., concur.

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