Cooke v. Maxum Sports Bar & Grill, Ltd.

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Appellate Court Date: 2018.10.10
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Cooke v. Maxum Sports Bar & Grill, Ltd., 2018 IL App (2d) 170249

Appellate Court RICHARD COOKE and REBECCA OBERJAT, Plaintiffs-Appellees
Caption and Cross-Appellants, v. MAXUM SPORTS BAR & GRILL, LTD.;
GREGORY M. SERAFIN, Individually and as Agent of Maxum
Sports Bar & Grill, Ltd.; and JOSEPH B. TOPOR, Individually and as
Agent of Maxum Sports Bar & Grill, Ltd., Defendants and Cross-
Appellees (Maxum Sports Bar & Grill, Ltd., Defendant-Appellant and
Cross-Appellee).

District & No. Second District
Docket Nos. 2-17-0249, 2-17-0537, 2-17-0550 cons.

Filed June 28, 2018

Decision Under Appeal from the Circuit Court of Du Page County, No. 12-L-87; the
Review Hon. Dorothy French Mallen, Judge, presiding.

Judgment Affirmed.

Counsel on Michael Resis, of SmithAmundsen LLC, and Ryan L. Greely, of
Appeal KoponAirdo, LLC, both of Chicago, for appellant.

Stewart D. Stoller and Steven E. Garstki, of Chicago, for appellees.
 Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Justices Hutchinson and Spence concurred in the judgment and
opinion.

OPINION

¶1 On October 24, 2010, plaintiffs, Richard Cooke and Rebecca Oberjat, were attacked and
battered in a parking lot after leaving a nightclub operated by defendant Maxum Sports Bar &
Grill, Ltd. (Maxum). Plaintiffs and their attacker, Antoine Matthews, were all patrons of
Maxum prior to the attack. Matthews was subsequently convicted of aggravated battery and
served three years in prison.
¶2 Subsequently, plaintiffs sued Maxum and Maxum’s owners, defendants Gregory M.
Serafin and Joseph B. Topor, individually and as Maxum’s agents, seeking damages for their
injuries. Plaintiffs alleged that defendants negligently failed to protect them from the attack. A
bench trial was held. At the close of plaintiffs’ case, the trial court directed a finding in favor of
Serafin and Topor as to their individual liability. At the end of the trial, the court found against
Maxum and in favor of plaintiffs but found in favor of Maxum and against Oberjat on
Maxum’s affirmative defense of contributory negligence. The court awarded damages to
Cooke in the amount of $50,622.29 and to Oberjat in the net amount of $2,894,519.09, after
finding Oberjat to be 50% contributorily negligent.
¶3 Maxum appeals, arguing that the trial court erred in entering judgment in favor of plaintiffs
where it had no duty because (1) the attack occurred after plaintiffs voluntarily left Maxum’s
premises and, therefore, they were no longer its business invitees, (2) the attack was not
reasonably foreseeable, and (3) the relevant public-policy considerations such as the
magnitude of the burden of guarding against the injury and the consequences of placing that
burden upon Maxum did not warrant imposing a duty.
¶4 Plaintiffs appeal the trial court’s directed finding in favor of Serafin and Topor. Further,
Oberjat appeals the trial court’s finding of 50% contributory negligence. For the reasons that
follow, we affirm.

¶5 I. BACKGROUND
¶6 A. Complaint
¶7 On January 26, 2012, plaintiffs filed a two-count complaint sounding in negligence against
defendants, seeking damages incurred as a result of injuries plaintiffs sustained from
Matthews’s criminal attack. Plaintiffs alleged that on October 23 and 24, 2010, Matthews
committed assault and battery against them while they were “business invitees” of Maxum.
The attack began in Maxum’s pool room and continued in its front entrance. Plaintiffs further
alleged that, immediately following the initial attack, Matthews attacked them in the strip mall
parking lot outside, resulting in significant injuries to both plaintiffs.
¶8 Plaintiffs alleged that defendants owed them a duty to protect them from the criminal acts
of Matthews. Plaintiffs alleged that Maxum was liable for its negligent failure to properly hire,
train, and supervise its security guards; for its negligent management of its security guards on

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 the dates at issue; and for its negligent failure to take proper steps to protect plaintiffs from the
foreseeable harm committed by Matthews. Plaintiffs also alleged that Topor and Serafin were
liable due to their negligent failure to properly hire, train, and supervise Maxum’s security
guards. Plaintiffs further alleged that defendants breached their duty by negligently (1)
allowing Matthews to remain on the premises when defendants knew that he had been
involved in prior altercations, (2) failing to eject Matthews from the premises after security
guards saw him attack Cooke in the pool room, (3) failing to eject Matthews from the premises
after a security guard saw Matthews attack plaintiffs at Maxum’s front door, (4) allowing
Matthews to follow plaintiffs into the parking lot, (5) failing to properly train their security
guards, and (6) instructing their security guards that their obligations to protect patrons ended
at Maxum’s front door.
¶9 Defendants filed affirmative defenses asserting that plaintiffs failed to exercise reasonable
care for their own safety, that any recovery should be reduced by the percentage of negligence
or fault attributable to each plaintiff, and that any recovery should be barred in the event that
any negligence or fault attributable to each plaintiff was greater than 50%.
¶ 10 On May 13, 2013, defendants filed a third-party complaint for contribution against
Matthews. Matthews was not served, and the trial court dismissed the complaint pursuant to
Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) on October 28, 2015.

¶ 11 B. Motions
¶ 12 On February 7, 2013, defendants filed a motion for summary judgment, arguing that they
owed no duty of care to plaintiffs when Matthews attacked them because the attack occurred
off of defendants’ premises. On November 12, 2013, the trial court denied defendants’ motion.
¶ 13 Defendants filed a motion to reconsider or, in the alternative, to certify a question for
interlocutory appeal. The trial court denied the motion for reconsideration but certified for
interlocutory appeal the following question concerning the scope of defendants’ duty to
plaintiffs:
“When a tavern owner has a patron shadowed by security because of his violent
behavior, does the tavern have a duty to plaintiff patrons threatened by the shadowed
patron to provide a means for safe egress, including escorting them to their car, when
an attack on the plaintiffs by the shadowed person takes place three storefronts away
and around the corner from the tavern, in the common parking lot, which is under the
exclusive control of the tavern’s landlord?”
¶ 14 On April 25, 2014, this court denied defendants’ petition for leave to appeal, pursuant to
Illinois Supreme Court Rule 308 (eff. July 1, 2017), stating that the “petition presents a mixed
question of law and fact with unresolved issues of material fact.” We remanded the case to the
trial court for further proceedings.
¶ 15 On December 31, 2014, defendants filed a motion to dismiss Serafin and Topor, which the
trial court denied. On October 13, 2015, defendants filed a second motion for summary
judgment on the issue of lack of duty, which the trial court also denied.

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¶ 16 C. Bench Trial
¶ 17 A bench trial began on November 21, 2016, and continued on nonconsecutive days until
January 5, 2017.
¶ 18 Oberjat testified as follows. The first time Oberjat went to Maxum was in the summer of
2010. The attack at issue occurred on October 23, 2010. Oberjat had been to Maxum five or six
times before the date of the attack. When Oberjat was at Maxum she usually saw security
guards inside and outside of the establishment. Every time Oberjat went to Maxum’s pool
room before the date of the incident, Matthews was present. On a prior occasion, Matthews
tried to persuade Oberjat’s friend to bet on a pool game. When her friend did not have money
to bet, Matthews became aggressive and loud.
¶ 19 Oberjat testified that on October 23, 2010, she and Cooke arrived at Maxum to play pool.
Oberjat drove and parked in the lot “around the corner” from Maxum’s entryway. It took
Oberjat 1 minute or 1½ minutes to walk from her car to Maxum’s entryway. Oberjat and
Cooke entered Maxum, bought drinks, and played pool together and separately. Oberjat then
left the pool room to smoke a cigarette on the patio. A few minutes later, Cooke came out to the
patio. He was “in panic mode.” Cooke told Oberjat, “[W]e have got to get the F out of here. We
have to go.” Minutes later Matthews came after Cooke in an aggressive, loud, and violent
manner, approached Cooke’s face, and yelled, “B***, give me my money.” Oberjat testified
that Matthews “was loud and he was basically in [Cooke’s] face like instigating a fight, ***
and [Cooke] was trying to back away.” This was the first time Oberjat saw Matthews that
night. Matthews and Cooke left the patio and Oberjat finished her cigarette.
¶ 20 Oberjat testified that, after she finished her cigarette, she saw Cooke and Matthews
standing by the front door; she was aggravated and confused. Oberjat recalled “storming” out
of the bar and said either “mother f***” or “what the f***.” Oberjat “got in between [Cooke
and Matthews],” held her hands up, and tried to ask Matthews, “what’s going on [and] why are
you still bothering him?” Oberjat also asked Matthews to “calm down” and “what do you want
from us?” A security guard was outside standing about two to four feet from them. Oberjat
“looked up at the security guard who was just standing there doing nothing and even [Cooke]
tugged on his arm, we are both like, hey, man, this guy is like, basically harassing or want[s] to
get, you know, his money.” Matthews tried to get around Oberjat to get to Cooke. Oberjat
asked the security guard to get “involved,” but he “just basically stood there.” Matthews was
loud and aggressive saying, “I’m going to kick your a***” and “B***, give me my money.”
Matthews was loud enough for the security guard to hear, but he did nothing.
¶ 21 Oberjat testified that, after realizing that Matthews was getting aggressive, she and Cooke
just wanted to get out of there. So Oberjat grabbed Cooke’s arm and they went straight to her
car. It took one to two minutes to get to Oberjat’s car. They went directly and swiftly to her car
because they wanted to get away from Matthews. When Oberjat and Cooke arrived at her car,
she was blindsided. Oberjat saw Matthews “start running around the building to the back of the
car, and he proceeded to punch [Cooke] and he punched me.” Oberjat fell and Matthews then
kicked and punched Cooke “even as he was down.” Then Matthews kicked and punched
Oberjat while she was down, toward the back of the car. Matthews continued to kick Oberjat
until she played dead. After playing dead for about 5 to 10 minutes, she crawled around to the
front of the car, calling for Cooke. Cooke was unresponsive, lying in a pool of blood. Oberjat
went to Maxum to get help. When the ambulances and police arrived, Oberjat could not move
her arm at all. It was swollen and stiff, and her hips and knees hurt. Oberjat suffered three

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 fractures―to her right shoulder, right elbow, and right wrist―requiring surgery and the
insertion of hardware. She developed complex regional pain syndrome in her right arm, which
spread to the left arm.
¶ 22 Cooke testified as follows. Cooke and Oberjat arrived at Maxum between 11 and 11:30
p.m. on October 23, 2010. Oberjat parked in the closest spot available, around the corner from
Maxum’s front door, about three storefronts away. Cooke and Oberjat walked into Maxum,
ordered drinks, and walked into the pool room. A bouncer stood in the back corner of the room.
Cooke had been to Maxum a couple of times before that evening. To play pool at Maxum, a
new player had to put quarters on the pool table and play the winner of the previous game.
Cooke had seen betting in the pool room on prior occasions.
¶ 23 Cooke testified that Oberjat left the pool room to smoke a cigarette outside in the “beer
garden.” Matthews asked Cooke if he wanted to bet on a game of pool. Cooke agreed and
placed $20 on the pool table. After the game, Matthews picked up the money and started
screaming, “hey, mother f***, you’re going to pay me my f*** money.” Cooke told Matthews
that he did not know what Matthews was talking about. Matthews replied, “You mother f***
heard what I said. God damn it. You pay me my F*** money.” Cooke told Matthews that he
did not come “here for this *** I’m out of here, I’m leaving, [and] just leave me alone.” Cooke
believed that “there was absolutely no way [the bouncer in the pool room] couldn’t have heard
[the ruckus].”
¶ 24 Cooke started to walk away to find Oberjat. Matthews said, “I’m going your kick your f***
a***.” Matthews continued to scream at Cooke and followed him into the beer garden, saying,
“mother f***, I’m talking to you, [and] don’t f*** walk away from me.” Matthews also shoved
Cooke from behind.
¶ 25 Cooke testified that he found Oberjat and told her that he had “to get the hell out of here,
*** this guy’s starting trouble, [and] it’s getting ugly.” Oberjat wanted to finish smoking her
cigarette. Then, Matthews entered the beer garden and shouted at Cooke, “b***, I told you to
pay me my f*** money.” Cooke told Oberjat that they had to leave and he told Matthews that
he would wait for Matthews outside. Cooke thought that the entrance would be a safe place to
wait until Oberjat was ready to leave, “because that’s where the bouncers were” and he did not
“want to get jumped on.”
¶ 26 At this point, a video surveillance recording was played in court showing Maxum’s
front-door area on the night of the incident. The video had been admitted into evidence earlier
by stipulation of the parties.
¶ 27 Cooke testified that the video showed him at Maxum’s front door as he waited for Oberjat.
Matthews appeared and tried to “drag” Cooke “out into the parking lot.” A bouncer standing
nearby saw Matthews’ behavior but did nothing. Oberjat exited Maxum’s front door and stood
between Cooke and Matthews. She asked Matthews, “What do you want?” Oberjat also told
Matthews, “knock it off [and] we’re not here for any trouble.” Cooke grabbed the bouncer by
the arm and asked for help but the bouncer did nothing. Cooke told Matthews loudly, “I’m not
looking for any trouble; I don’t know what you’re talking about; [and] just leave me alone.”
The bouncer “had a front row seat” and could hear what was going on, but he did nothing.
Oberjat, still standing between the two men, held up her hands, trying to diffuse the situation.
The bouncer stood behind Matthews but did not warn him, offer to help Cooke and Oberjat,
offer to separate them from Matthews, or offer to call the police. After Matthews appeared to
leave, Oberjat grabbed Cooke’s hand.

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¶ 28 Cooke testified that he and Oberjat went directly to Oberjat’s car in the parking lot around
the corner, which took about one minute. About 50 seconds after Matthews appeared to leave
the scene, he appeared again in the video, near Maxum’s front door. Matthews pointed his
finger at the security guard and exited from view, toward the parking lot, in the direction that
Cooke and Oberjat had gone. The bouncer stood and watched. In the parking lot, near the car,
Matthews appeared and punched Cooke in the face. Cooke did not recall the events that
occurred in the parking lot after he was punched.
¶ 29 Frank Jarosz testified in a sworn videotaped evidence deposition as follows. At the time of
the attack, Jarosz worked for Serafin and Topor at Maxum as the operations manager. Jarosz
was responsible for hiring security guards. He had no formal training in security and had never
managed a nightclub before. Prior to working at Maxum, he had managed a large resort that
included two bars and a restaurant. Jarosz hired security personnel through a man named Bill
Brice. Brice brought Jarosz applicants whom Brice knew or had worked with in the past. When
Brice brought someone to Jarosz, Jarosz would interview him and, if he liked him, would “put
[him] on the floor, give [him] a trial basis, two to four weeks or so, [and] depending on how
[he] did,” would decide whether to hire him.
¶ 30 Jarosz testified that he did not require security job applicants to fill out applications
because they came highly recommended from Brice. Jarosz did not do criminal background
checks or ask for employment references because of Brice’s recommendations. Jarosz hired
Dmitri Grimm, the bouncer who stood at the front door on the evening of the attack. Grimm
was recommended by Brice, who told Jarosz that Grimm was an experienced bouncer. Jarosz
did not ask Grimm to fill out a job application or ask Grimm for references. Serafin paid the
bouncers in cash.
¶ 31 Jarosz further testified that, when Serafin hired Jarosz, Serafin did not provide written
materials that Jarosz could use to train the bouncers, but Jarosz and Serafin discussed training
“every once in a while.” Maxum did not keep security logs and had no written rules for
security. Gambling and violence were not tolerated at Maxum, and anyone gambling would be
removed immediately. Gambling can cause potential hostile events. Matthews was a regular at
Maxum, and Jarosz had thrown him out in the past for gambling. Jarosz allowed Matthews
back into Maxum after Matthews apologized. Verbal threats of physical violence were not
allowed at Maxum. If a patron told a bouncer that someone was threatening him or her, the
bouncer would be responsible for protecting that patron. Regarding fighting, Jarosz testified
that the bouncers were trained and that everyone knew that Maxum had “a zero tolerance
policy on fighting in the bar. There was absolutely none of that allowed. Basically, once that
happened, the bouncers would take the first party and escort them out the door, and then
usually the second party *** waited a few minutes and they―then were escorted out, but
never, never, were they escorted out together.”
¶ 32 Jarosz testified that, on the evening in question, one of the bouncers told Jarosz that there
was trouble with Matthews. The bouncer in the pool room, Galason, told Jarosz that “they were
arguing *** over gambling” in the pool room. Earlier in the evening, there were two incidents
involving Matthews: one where Matthews “was trying to hustle a couple of guys and they
didn’t want to play for money [and Matthews] got irritated with them” and another “incident
with a Lithuanian guy [where] the bouncer broke it up.” Jarosz “put a bouncer on [Matthews].
[Jarosz] felt like [Matthews] was looking for trouble.”

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¶ 33 Jarosz testified that he stationed a bouncer in front of Maxum’s door, on the sidewalk.
Serafin knew that Jarosz stationed a bouncer there, but Serafin was not at Maxum on the
evening of the attack. Jarosz agreed that a bouncer would not be doing his job properly if he did
nothing while he saw an aggressive person attempting to grab another person and pull that
person into the parking lot. Jarosz stated that a security guard would not be acting the right way
if two people asked him for help regarding an aggressive person and the bouncer did nothing.
Jarosz testified that, on the night of the attack, plaintiffs did not tell Jarosz that Matthews had
threatened them with physical violence. Jarosz agreed that, if plaintiffs told a bouncer that
Matthews had threatened them with physical violence, it was the bouncer’s responsibility to
protect them.
¶ 34 Ronald Hauri, an expert in the field of security, testified on plaintiffs’ behalf. Hauri
reviewed Maxum’s advertisements, the police reports for the past five years of incidents at or
near Maxum, Galason’s statement, and the video surveillance tapes. Hauri opined that Maxum
marketed to a clientele that created increased risk for arguments and fights. The police reports
established that Maxum needed security and that fights could continue or erupt in the parking
lot. Maxum’s management was aware of the risks in the parking lot. According to Galason’s
statement, Maxum had problems every weekend, but it did not keep a security log. Hauri
opined that, without a security log, a bar cannot adjust to security needs or develop protocols to
prevent incidents from happening. Hauri was critical of the fact that Maxum’s owners,
managers, and bouncers had no security training and no written protocols and that the bouncers
were not vetted with background checks.
¶ 35 Hauri also opined that, due to Matthews’ history of being loud and aggressive, he should
have been permanently banned from Maxum prior to the evening of the attack. Based on
Hauri’s review of the surveillance tape of Maxum’s front entrance on the night in question,
Hauri opined that, when Matthews grabbed Cooke’s hand and attempted to pull Cooke, Grimm
should have intervened and told Matthews to leave the premises. Also, Grimm should have
told Cooke to go back inside for his own safety. Instead, Grimm did nothing to intercede, and
the altercation continued and escalated. Grimm should have deescalated the situation instead
of allowing Matthews a clear path to plaintiffs’ personal space. If he had been properly trained,
Grimm would have separated Matthews and Cooke by placing his body between them. Grimm
also should have separated the parties before plaintiffs had gone to their car. Grimm did
nothing to dissuade Matthews from exiting the bar in the same direction that plaintiffs had
gone, within 60 seconds after they left. If a bouncer is not sure whether an aggressor is still
present, the bouncer should escort any threatened patrons to their car.
¶ 36 Hauri thus opined that Maxum failed to provide adequate protection or security to
plaintiffs. Jarosz had trouble with Matthews on prior occasions and earlier that evening. That
evening, Jarosz ordered a bouncer to shadow Matthews because he believed that Matthews
was looking for trouble. Management knew that Matthews was aggressive, loud, and
obnoxious. Management should have told Matthews to leave Maxum, and if he refused,
management should have called the police. Hauri opined that the actions of Maxum’s
management and bouncers fell below the standard of care and were a proximate cause of
Matthews’s attack in the parking lot.
¶ 37 John Harris, an expert in the field of security, testified on defendants’ behalf. Harris
testified that a bouncer is to remain visible, observe, report anything unusual, be present to
enforce rules, and be a deterrent to criminal activity. A bouncer should call 911 if it looks like

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 a fight is going to break out. A bouncer can interject himself into a fight to deescalate it, and it
is a bouncer’s job to deescalate situations before they escalate into fights. Harris opined that
the bouncer’s responsibilities end at the establishment’s front door.
¶ 38 Harris testified that his reviewing of five years of police reports revealed three fights at
Maxum. In all three fights, the bouncers intervened. Harris opined that Matthews never caused
a problem prior to the evening of the attack. Maxum implemented proper security procedures
to protect its patrons and could not have reasonably anticipated Matthews’s criminal attack.
Harris explained that, although management knew that Matthews had been loud and
obnoxious, he had not been in a physical altercation prior to the evening at issue and he did not
threaten plaintiffs with physical violence that evening. Harris acknowledged that Jarosz had
Matthews shadowed by a bouncer that evening.
¶ 39 Harris testified that he reviewed the surveillance video showing Maxum’s front door and
the parking lot on the evening of the attack. Harris opined that there were no violent acts at the
front door. Grimm made his presence known and acted as a deterrent by stepping between
Matthews and plaintiffs, which deescalated the situation. A bouncer should displace parties
who are arguing by putting them off the property, and this is what happened in this case. Harris
opined that plaintiffs and Matthews left in opposite directions. Although Grimm did not testify,
Harris opined that it was reasonable for Grimm to assume that the situation had deescalated.
Harris opined that Maxum had no responsibility to protect plaintiffs once they left the front
entrance of the bar. Maxum had no responsibility to follow patrons off the premises after a
verbal argument, and it was not standard practice to escort patrons to their cars. Harris was
aware of Matthews’s testimony that Oberjat called him a “n***” and Galason’s statement that
he heard Oberjat use the “n” word while plaintiffs and Matthews were in the bar. Harris opined
that Maxum acted appropriately and in accordance with industry best practices on the night of
the attack.
¶ 40 During cross-examination, Harris testified as follows. Harris agreed that it is bad if a patron
comes in a bar looking for trouble. In such a case, it is prudent for a manager to eject that patron
before trouble starts. However, that decision can be tempered by that patron’s past behavior.
Harris agreed that competitive games like pool can trigger violence. Harris also agreed that it is
important to train security personnel, that security personnel are present to protect patrons
from violent acts, and that a bar should have written security policies. Harris testified that a bar
manager should check the backgrounds of the people he hires for security. Harris agreed that it
is foreseeable that there could be arguments and fights in any bar.
¶ 41 Matthews testified as follows. Matthews went to Maxum on October 23, 2010, to play
pool. He had been going to Maxum to play pool for three years, two or three times a month. On
the evening of the attack, he gave Cooke, whom he did not know, $20 to buy two beers at the
bar. Matthews wanted to play pool with Cooke. Cooke did not return to the pool room and after
about 20 minutes Matthews went to look for Cooke. He found Cooke in another area of
Maxum and asked, “What’s up? Where’s the beers?” Matthews testified that at that point
Oberjat came up to him, pushed him, and said, “get out of my face you n***.” Bouncers came
over, Matthews explained the situation, and a bouncer “pulled [Matthews] to the front then the
other bouncers brought [plaintiffs] to the front and they kicked us out.”
¶ 42 Matthews testified that he waited outside of Maxum and tried to get Cooke to come over
and talk to him about the money. While in front of Maxum, Matthews approached Cooke and
tried to get him to leave the property, but Cooke would not leave the front door area. Matthews

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 testified that he did not touch Cooke or physically try to get Cooke to leave. Oberjat stepped
between Matthews and Cooke and told the bouncers, “Get this f*** n*** out of here.” After 10
minutes of conversation at the front door, Matthews left and went around to a McDonald’s
restaurant, watched Maxum’s front door, and waited for plaintiffs to leave. When plaintiffs left
to go to their car, Matthews wound his way through parked cars so the bouncers would not see
him and met up with plaintiffs at the side of the building, where Oberjat had parked her car.
Matthews wanted to confront Cooke about his money, but before he could confront Cooke,
Oberjat ran toward Matthews and punched him in the face. Matthews punched Oberjat back.
Oberjat told Matthews, “Get the f*** out of here, n***.” Matthews testified that Oberjat
blindsided him, he reacted, and he was very angry. Matthews then ran around to the other side
of the car and punched Cooke and then went back around the car and attacked Oberjat.
¶ 43 At the close of plaintiffs’ case-in-chief, the trial court directed a finding in favor of Serafin
and Topor.

¶ 44 D. The Trial Court’s Ruling
¶ 45 Following the trial, on March 2, 2017, the trial court entered a 33-page memorandum
opinion and order finding in favor of plaintiffs and awarding Cooke $50,622.29 and Oberjat
$2,894,519, after reducing her award by 50% due to its finding of contributory negligence.
¶ 46 The trial court determined that Maxum owed plaintiffs a duty, stating:
“Under the circumstances as shown by the evidence, it is clear that Plaintiffs have
proven that Maxum, as a reasonably careful bar, had sufficient knowledge to
reasonably foresee that if the staff did not intervene to de-escalate the argument or
separate the parties by time and space, a fight could break out. Thus, Maxum had a duty
to protect the Plaintiffs from injuries that they could sustain if a physical fight broke
out.”
¶ 47 The trial court found that Maxum breached its duty by negligently (1) failing to eject
Matthews from the premises when the security guards saw him attack plaintiffs at the entrance
to the bar, (2) allowing Matthews to follow plaintiffs into the parking lot after he had attacked
them and Maxum knew or should have known that Matthews would continue his assault and
battery, and (3) failing to provide plaintiffs with a safe egress.
¶ 48 The trial court found that plaintiffs failed to prove that Maxum breached its duty by
negligently (1) allowing Matthews on the premises, (2) allowing Matthews to remain on the
premises after he was involved in altercations with two other patrons that evening, (3) failing
to eject Matthews from the premises when the security guards saw him attack Cooke in the
pool room, and (4) failing to properly train and supervise the security guards.
¶ 49 On March 31, 2017, Maxum filed a notice of appeal (No. 2-17-0249). Also, on March 31,
2017, plaintiffs filed two posttrial motions: (1) seeking a modification of the judgment to
vacate the directed finding in favor of Serafin and Torpor and to find that they are jointly and
severally liable with Maxum and (2) seeking a modification of the judgment to vacate the
finding that Rebecca Oberjat was 50% contributorily negligent. On June 14, 2017, the trial
court denied plaintiffs’ posttrial motions. On July 13, 2017, Maxum filed its second notice of
appeal (No. 2-17-0537). On July 13, 2017, plaintiffs filed a notice of appeal from the denial of
their posttrial motions for modification of the judgment (No. 2-17-0550). This court

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 consolidated all three appeals.

¶ 50 II. ANALYSIS
¶ 51 A. Maxum’s Appeal
¶ 52 Maxum argues that the trial court erred in entering judgment in plaintiffs’ favor because it
did not have a duty to protect plaintiffs from Matthews’s attack.
¶ 53 A negligence claim requires “the existence of a duty of care owed by the defendant to the
plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Marshall v.
Burger King Corp., 222 Ill. 2d 422, 430 (2006). Questions regarding breach of a duty and
proximate cause of the injury are issues of fact, reserved for the trier of fact to decide. Krywin
v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010). After a bench trial, a trial court’s
findings of fact will not be disturbed on appeal unless such findings are against the manifest
weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002). A decision is against
the manifest weight of the evidence only when the opposite conclusion is apparent or when the
findings appear to be unreasonable, arbitrary, or not based on the evidence. Id. at 252.
¶ 54 However, whether a duty exists is a question of law. Bruns v. City of Centralia, 2014 IL
116998, ¶ 13. Thus, we review de novo a trial court’s determination regarding whether a
defendant owed a duty. See Krywin, 238 Ill. 2d at 226. Where no duty exists, the plaintiff
cannot recover as a matter of law. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948,
¶ 22.
¶ 55 Generally, a possessor of land owes no duty to protect lawful entrants from criminal attacks
by third parties. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 243 (2000). However,
there is an exception to this rule where the possessor of land and the entrant stand in a special
relationship. Id.; see also Restatement (Second) of Torts § 314A (1965) (cited with approval
by Hills, 195 Ill. 2d at 243). One special relationship, that of business invitor and invitee, can
give rise to a duty to protect an individual from criminal attack. Hills, 195 Ill. 2d at 243-44.
One reason for recognizing the relationship of business invitor and invitee as a special
relationship is that, generally, “commercial establishments are well positioned ‘to know the
extent of crime on the premises *** to take measures to thwart it and to distribute the costs’
associated with providing security.” Id. at 245 (quoting McClung v. Delta Square Ltd.
Partnership, 937 S.W.2d 891, 903 (Tenn. 1996)).
¶ 56 However, the existence of a special relationship, alone, is not sufficient to impose a duty
upon the possessor of land to protect lawful entrants from the criminal acts of third parties. Id.
at 243. Before a duty to protect will be imposed on a possessor of land, the court must also
consider (1) whether the criminal attack was reasonably foreseeable, (2) the likelihood of the
injury, (3) the magnitude of the burden to guard against the injury, and (4) the consequences of
placing that burden upon the possessor. Marshall, 222 Ill. 2d at 436-37.

¶ 57 1. Plaintiffs’ Status as Invitees
¶ 58 Maxum contends that it owed no duty to plaintiffs when the attack occurred because
plaintiffs’ status as business invitees ceased when they voluntarily left Maxum’s premises,
thereby terminating the special relationship and any duty that Maxum owed. Plaintiffs argue
that this is not a premises-liability case; it is a duty-to-protect case. Plaintiffs contend that the

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 trial court correctly ruled that duty does not depend on where an injury occurs but that, rather,
location is just one factor in determining whether the criminal act was foreseeable.
¶ 59 If plaintiffs had been attacked and injured while on Maxum’s premises, the resolution of
this issue would be clearer; business invitor liability for foreseeable criminal attacks on the
premises is well established. See, e.g., Lewis v. Razzberries, Inc., 222 Ill. App. 3d 843, 849
(1991) (citing Restatement (Second) of Torts § 344 (1965)). However, here, plaintiffs were
attacked and injured in a parking lot owned by Maxum’s landlord, around the corner from
Maxum’s front door and out-of-view from Maxum’s bouncers.
¶ 60 The general rule is that a business invitee ceases to be an invitee, and the business invitor’s
duty ends, as soon as the invitee leaves the premises owned by the invitor. See Lewis, 222 Ill.
App. 3d at 850 (holding that tavern owner did not owe patron a duty of care for the wrongful
death that occurred 23 feet beyond the boundary of the tavern owner’s property because the
patron was no longer an invitee).
¶ 61 For example, in Badillo v. DeVivo, 161 Ill. App. 3d 596 (1987), the plaintiff was attacked
by another patron inside the bar. Id. at 597. The bouncers stopped the fight and kicked both
patrons out. As the plaintiff was getting into her car a half block away from the bar, the other
patron attacked her with a police baton. Id. The appellate court held that the bar had no duty to
ensure the safety of its patrons off premises, even if an attack was foreseeable, because it
would impose too heavy a burden on the bar. Id. at 599.
¶ 62 However, there are exceptions to the general rule that a bar owner’s duty to protect its
patrons from criminal acts of third parties ends at the bar’s property line. In Shortall v.
Hawkeye’s Bar & Grill, 283 Ill. App. 3d 439 (1996), the appellate court reversed summary
judgment in favor of the bar and held that the bar might have had a duty to protect the plaintiff
from the stabbing by a third party that occurred 15 minutes after the plaintiff had exited the bar
to go to his car, which was about 60 feet away from the bar’s property. Id. at 441, 444. The
court reasoned that the bar “was under the same duty as if the fight had occurred inside the
bar.” The court explained that the dispute that eventually led to the fight occurred in the bar,
the bar escalated the fight by ushering some patrons outside into the fight, and the bar’s
bouncers watched the fight through a window but did nothing. Id. at 444. The court stated that
“tavern owners may not avoid application of the duty to act to protect invitees from criminal
attack by third parties simply because the disturbance giving rise to the duty occurs just out the
front door, especially where the owner contributes to the altercation by sending patrons out
into it.” (Emphasis added.) Id. at 444.
¶ 63 Similarly, in Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d 141 (2000), the patron of
a nightclub was criminally attacked by another patron on the public sidewalk in front of the
nightclub. Id. at 145. The trial court directed a verdict in favor of the nightclub, ruling that it
owed no duty to the plaintiff because the incident occurred on the sidewalk and the attacker’s
actions were not reasonably foreseeable. Id. at 146. The appellate court reversed the trial court
and remanded the case, holding that, “[w]hether the assault takes place in or outside the actual
premises of the business owner, the dispositive factor remains the reasonable foreseeability of
the actions taken by the third party.” Id. at 148. Earlier that evening, the nightclub’s bouncers
ejected two drunken men and locked the doors behind them. Id. at 143-44. The men pounded
on the doors and yelled profanities at the bouncers. Id. The plaintiff and a friend walked out of
the nightclub onto the sidewalk in front of the club. Id. at 144. One of the men outside slapped

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 the plaintiff’s friend, and as the plaintiff approached her friend, one of the men spun and kicked
her in the face. Id. at 145.
¶ 64 The Osborne court said that there was evidence that the attack was reasonably foreseeable.
Id. at 149. There was ample evidence that the bouncers knew that the men outside were drunk
and angry, that they had already been involved in a fight inside the club, and that they had not
cooled off after being evicted. Id. Further, the bouncers saw the men’s behavior from inside the
club, but they did nothing after locking them out. Id. The court also reasoned that the bouncers
did not remove the men from the sidewalk or otherwise police the area, even though the club
had controlled the sidewalk area earlier that evening. The court stated that “the bouncers
exported the club’s problems to the sidewalk and then ignored the troublemakers while
allowing two female patrons to leave through locked doors into the path of potentially
dangerous men.” Id. The court concluded that, based on the bouncers’ knowledge and their
inaction, “it was reasonably foreseeable that a patron would be attacked upon exiting the club
and, therefore, it was incumbent on the club to guard against such an occurrence.” Id. The court
relied on Shortall, among other cases, in concluding that the fact that the attack took place on a
public sidewalk just outside the club did not dispose of the duty issue. Id. at 148.
¶ 65 More recently, in Haupt v. Sharkey, 358 Ill. App. 3d 212 (2005), this court held that a
tavern could be liable for a criminal attack against one of its patrons that occurred just off the
tavern’s premises, in the parking area owned by the county. Id. at 219. We concluded that
“there is no bright-line rule that a tavern owner’s duty to protect its patrons from criminal acts
of third parties absolutely ends at the precise property line of the tavern.” Id. at 218. This court
held that a tavern’s duty “to provide a reasonably safe means of ingress and egress to patrons,”
coupled with the foreseeability of the criminal attack that occurred as the patron was evicted
from the tavern, precluded summary judgment in the tavern’s favor. Id. at 219-20.
¶ 66 Maxum cites the following cases in support of its argument that it owed no duty to
plaintiffs once they left its premises: Lewis, 222 Ill. App. 3d 843 (holding that duty of care did
not extend outside the tavern owner’s legal boundaries to an adjacent parking lot), Badillo, 161
Ill. App. 3d 596 (holding that tavern owner owed no duty to plaintiff attacked a half block from
tavern-owner’s property), and St. Phillips v. O’Donnell, 137 Ill. App. 3d 639 (1985) (holding
that a tavern owner owed no duty to protect a patron who was attacked in the common parking
area by another patron who had been ejected from the tavern). However, as we stated in Haupt,
“these three cases do not create an insurmountable barrier to the existence of a duty beyond the
doors of [a tavern-owner’s] premises.” Haupt, 358 Ill. App. 3d at 217; see also Osborne, 312
Ill. App. 3d at 148 (stating, “[w]e do not read these cases as creating an insurmountable barrier
to the existence of a duty”). Further, the courts in both Badillo and St. Phillips recognized that,
within limitations dictated by the facts of the case, an owner or operator of premises has a duty
to provide a reasonably safe means of ingress and egress both on his or her premises and
beyond the precise boundaries of such premises. Badillo, 161 Ill. App. 3d at 598 (citing
McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345 (1971)); St. Phillips, 137 Ill. App. 3d at
643 (citing McDonald, 1 Ill. App. 3d at 351).
¶ 67 Thus, as Haupt, Shortall, and Osborne indicate, a bar owner’s duty to protect patrons from
criminal acts of third parties does not necessarily end at the legal property line of the bar and
can extend to areas beyond. Therefore, the location of the attack, alone, does not dispose of the
duty issue.

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¶ 68 2. Foreseeability
¶ 69 No duty can exist unless the criminal attack was reasonably foreseeable. Haupt, 358 Ill.
App. 3d at 216. This court has explained, “[a] criminal attack by a third person is reasonably
foreseeable when the circumstances are such as to put a reasonably prudent person on notice of
the probability of an attack or when a serious physical altercation has already begun.” Id. at
219. Foreseeability depends on what the defendant knew at the time of the incident, not on
“what may appear through hindsight.” Lewis, 222 Ill. App. 3d at 851.
¶ 70 Thus, the criminal attack in Shortall was reasonably foreseeable to the bar because the
bartender saw three men verbally and physically harassing the plaintiff and another patron
inside the bar, before a fight erupted outside, and a bouncer watched the fight through a
window as it escalated outside. Shortall, 283 Ill. App. 3d at 443-44. In Osborne, the attack was
reasonably foreseeable because the bouncers knew that the attackers were “combative[ ] and
angry” and had been involved in a physical altercation inside the club. Osborne, 312 Ill. App.
3d at 149. Further, after ejecting the attackers from the club, “the bouncers exported the club’s
problems to the sidewalk and then ignored the troublemakers while allowing two female
patrons to leave through locked doors into the path of” the attackers. Id. The attack in Haupt
was foreseeable because the bar owner knew through prior experience that the attacker had a
propensity for fighting, on the night of the attack the bar owner saw the attacker start a fight
with the plaintiff in the bar, and the bar owner kicked both men out of the bar at the same time.
Haupt, 358 Ill. App. 3d at 219-20.
¶ 71 Maxum argues that the criminal attack here was not reasonably foreseeable because prior
to the attack Matthews had not been involved in a fight or threatened anyone and Maxum had
no history of fights on its premises that put it on notice of any danger to plaintiffs while they
were on the premises.
¶ 72 However, Maxum, through Jarosz and the bouncers, knew, prior to the attack, that
Matthews was angry that night. They also knew that Matthews was angry with Cooke. In
addition, Jarosz directed Maxum staff to “shadow” Matthews that night because Matthews had
been arguing with other patrons. Further, the staff knew that just prior to the attack Matthews
shouted obscenities at Cooke, threatened Cooke, and grabbed Cooke outside Maxum’s front
entrance, and Cooke and Oberjat had asked one of the bouncers for help dealing with
Matthews. Grimm removed Matthews from the premises for bad behavior but allowed him to
leave in the same direction as Oberjat and Cooke had, about one minute after they left. Given
these facts and the bouncers’ inaction, Matthews’s criminal attack was reasonably foreseeable
to Maxum. See id. (this court held that a criminal attack was reasonably foreseeable where,
prior to the attack that occurred outside of the bar on public property, a bartender saw the
attacker start a fight with the plaintiff in the bar and forced both men to leave the bar together);
see also Osborne, 312 Ill. App. 3d at 149 (holding that the nightclub owner had a duty to the
plaintiff for a criminal attack that occurred off of its premises because “the bouncers exported
the club’s problems to the sidewalk and then ignored the troublemakers while allowing two
female patrons to leave through locked doors into the path of potentially dangerous men”).
¶ 73 Maxum cites Davis v. Allhands, 268 Ill. App. 3d 143 (1995), to support its argument that
Matthews’ attack was not reasonably foreseeable. However, in Davis, there was no evidence
that the bar owner and the one worker at the bar on the night of the attack knew of the attacker’s
bad behavior or bad reputation. Id. at 153. In this case, Jarosz and Grimm both knew that
Matthews had a reputation for aggressive behavior and had been ejected from the bar

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 previously, and Grimm saw Matthews argue with Cooke and Oberjat and try to pull Cooke
away from the front of the bar. Therefore, Davis is distinguishable from this case.

¶ 74 3. Remaining Duty Factors
¶ 75 Maxum argues that it owed no duty in light of the relevant “policy factors,” i.e., the
magnitude of the burden of guarding against the injury and the consequences of placing that
burden on Maxum. Maxum also contends that the trial court did not consider these factors and
that, therefore, the trial court’s analysis was incomplete and requires reversal. The trial court’s
memorandum opinion indicates that it considered all four factors regarding whether Maxum
owed plaintiffs a duty, including “the magnitude of placing the burden on the defendant [and]
the consequences of placing the burden on the defendant.” Further, we agree that the trial court
properly weighed these factors, as it reasoned:
“Under the circumstances as shown by the evidence, it is clear that Plaintiffs have
proven that Maxum, as a reasonably careful bar, had sufficient knowledge to
reasonably foresee that if the staff did not intervene to de-escalate the argument or
separate the parties by time and space, a fight could break out. Thus, Maxum had a
duty to protect the Plaintiffs from injuries that they could sustain if a physical fight
broke out.” (Emphasis added.)
Thus, we reject Maxum’s contention that the trial court did not consider the factors at issue.
¶ 76 Maxum cites Walton v. Spidle, 137 Ill. App. 3d 249 (1985), to support its argument that it
owed no duty because of the magnitude of the burden and the consequences of placing the
burden on Maxum. However, Walton provides no analysis regarding these factors but, rather,
provides a truism. See id. at 254 (“The difficulty placed upon the operator of a business in
protecting customers after they leave the premises is obviously much greater than when they
remain on the premises.”). Thus, Walton does not control here.
¶ 77 Maxum also cites Lewis, 222 Ill. App. 3d 843, and Badillo, 161 Ill. App. 3d 596, to support
its argument. In both cases, the appellate court held that a tavern owner had no duty to protect
its patrons from injuries that occurred after the patrons left its premises. Lewis, 222 Ill. App. 3d
at 852; Badillo, 161 Ill. App. 3d at 598. The courts reasoned that imposing such a duty would
obligate all business owners to “police the streets so as to ensure their patrons’ safe passage to
their cars or even to their homes.” Lewis, 222 Ill. App. 3d at 852; see Badillo, 161 Ill. App. 3d
at 599. Nothing in this case indicates that the trial court imposed a duty upon Maxum to “police
the streets” to ensure plaintiffs’ safe passage. Rather, the evidence in this case revealed that the
best practice for the security staff would have been to intervene and deescalate the argument
between Matthews and plaintiffs while they were at the front entrance and to separate
Matthews and plaintiffs by time and space. “Measures easily could have been taken to protect
[plaintiffs] against the apparent danger.” Osborne, 312 Ill. App. 3d at 149. In this case, the
magnitude of the burden of guarding against plaintiffs’ injuries and the consequences of
placing that burden on Maxum were slight. Accordingly, the trial court properly determined
that Maxum owed plaintiffs a duty to protect plaintiffs from Matthews’s criminal attack.

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¶ 78 B. Plaintiffs’ Appeal
¶ 79 1. Directed Finding in Favor of Serafin and Topor
¶ 80 Plaintiffs argue that the trial court erred by directing a finding in favor of Serafin and
Topor.
¶ 81 First we note that plaintiffs failed to include a proper statement of the standard of review, in
violation of Illinois Supreme Court Rule 341(h)(3) (eff. Nov. 1, 2017) (“The appellant must
include a concise statement of the applicable standard of review for each issue, with citation to
authority, either in the discussion of the issue in the argument or under a separate heading
placed before the discussion in the argument.”).
¶ 82 In a bench trial, a motion for a directed finding is governed by section 2-1110 of the Code
of Civil Procedure (735 ILCS 5/2-1110 (West 2016)). Under that statute, the trial court must
“weigh the evidence, considering the credibility of the witnesses and the weight and quality of
the evidence.” Id. Thus, “the trial court does not view the evidence most favorably to the
plaintiff but, rather, (1) determines whether the plaintiff has made out a prima facie case, then
(2) weighs the evidence, including that which favors the defendant.” Zankle v. Queen Anne
Landscaping, 311 Ill. App. 3d 308, 311 (2000). “If, after weighing the evidence, the court
decides that evidence necessary to [the] plaintiff’s prima facie case has been negated, the court
should grant the motion for a directed finding and enter judgment for the defendant.” Orbeta v.
Gomez, 315 Ill. App. 3d 687, 690 (2000). We will not reverse a trial court’s ruling on a motion
for a directed finding unless it is contrary to the manifest weight of the evidence. Id.
¶ 83 Plaintiffs note that their complaint alleged that Serafin and Topor breached their duty to
protect plaintiffs by negligently failing to provide them with a safe means of egress and by
negligently failing to properly train and supervise Maxum’s security guards.
¶ 84 Generally, a corporate director or officer is not liable for the negligence of the corporation
unless he actively participated in the wrongful conduct or had sufficient knowledge thereof.
Zahl v. Krupa, 399 Ill. App. 3d 993, 1013-14 (2010) (citing McDonald, 1 Ill. App. 3d at
357-58).
¶ 85 Here the trial court found that plaintiffs failed to establish a prima facie case because there
was no evidence that Topor and Serafin actively participated in the alleged negligent acts. The
trial court also found that, at the time of the incident, Topor was no longer involved in
Maxum’s management and Serafin, while a bit more involved, had delegated the job to Jarosz.
In addition, the trial court found that there was no evidence that either Topor or Serafin knew
that Jarosz was incompetent or that he was not properly hiring or training security personnel.
The record supports these findings. Topor testified that he was not involved in the business and
that he “put everything up to [Serafin] and after we hired [Jarosz], all up to [him].” Topor also
testified that he would not be surprised if Jarosz “handed down the reins” of security to
someone else. Serafin testified that he allowed Jarosz to make security decisions and that he
trusted his judgment. Accordingly, the trial court’s decision granting Topor and Serafin’s
motion for a directed finding is not against the manifest weight of the evidence.
¶ 86 Plaintiffs do not contend that they established a prima facie case that Topor and Serafin
actively participated in or had sufficient knowledge of the negligent failure to properly train
and supervise Maxum’s security guards or provide a safe means of egress. Instead, plaintiffs
contend that Topor and Serafin should be individually liable because they “delegated all duties
of security to their employee, Frank Jarosz, *** knowing that he had no background in security

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 [and] without offering him any training in security.” However, this contention is forfeited
because plaintiffs offer no relevant authority to support it.
¶ 87 Although plaintiffs cite Zahl, 399 Ill. App. 3d 993, and Lowell Hoit & Co. v. Detig, 320 Ill.
App. 179 (1943), to support their argument, these cases actually support the trial court’s
directed finding. In Zahl, this court rejected the plaintiff’s argument that the defendants should
have exercised greater oversight over the president of the defendant corporation, who gambled
away the plaintiff’s investment, because “directors of necessity devolve upon subordinate
officers the ‘immediate management of the particular business.’ ” Zahl, 399 Ill. App. 3d at
1024 (quoting Lowell Hoit, 320 Ill. App. at 182). In Lowell Hoit, this court affirmed a finding
of no liability against corporate officers in their individual capacities, stating that, “of
necessity, it becomes proper that [corporate directors] entrust to subordinate and executive
officers the discretionary powers which usually and ordinarily appertain to the immediate
management of the particular business.” Lowell Hoit, 320 Ill. App. at 181-82. Similarly, here,
Topor and Serafin entrusted security to Jarosz. Thus, Zahl and Lowell Hoit support the trial
court’s decision in this case.
¶ 88 Plaintiffs also cite Peck v. Cooper, 112 Ill. 192 (1884), Chicago Title & Trust Co. v.
Munday, 297 Ill. 555 (1921), McDonald, 1 Ill. App. 3d 345, and Miller v. Simon, 100 Ill. App.
2d 6 (1968). In Peck and Miller, the corporate defendants were found individually liable after
they personally directed the actions giving rise to the tortious conduct. Peck, 112 Ill. at 194 (the
president of a bus company was held personally liable for the passengers’ injuries after the
president gave a direct order to the company’s drivers to eject passengers based on their race);
Miller, 100 Ill. App. 2d at 9-10 (the corporate officers were held personally liable for trespass
after they personally directed the removal of trees and topsoil and the placement of gravel and
parking signs onto the plaintiff’s land). In this case, Topor and Serafin did not direct the actions
giving rise to plaintiffs’ injuries. Therefore, Peck and Miller are distinguishable from this case.
¶ 89 In Munday, a receiver sued the directors of a bank for negligent supervision of two bank
officers who defrauded the bank. Munday, 297 Ill. at 558. The receiver alleged that the
directors did not manage, supervise, or investigate the officers even though they knew that the
officers were “dishonest and incompetent and that they were managing and conducting the
business dishonestly and incompetently.” Id. at 560. In this case, there was no evidence that
Topor or Serafin knew or believed that Jarosz or the bouncers were incompetent. Therefore,
Munday is distinguishable from this case.
¶ 90 Finally, in McDonald, the appellate court identified a dangerous condition where a plaintiff
had stepped onto a parkway and fallen into a hole 12 inches deep and 2 feet wide. McDonald, 1
Ill. App. 3d at 350. The court affirmed a finding of individual liability against the defendant,
who was the president, sole shareholder, and manager of a tavern and bowling alley. Id. at 348,
358. The evidence showed that the defendant ordered the work done on his property that
caused the hole and he knew that the hole was there. Id. at 349-50. Thus, the court held, “the
negligence charged *** [was] part of the general mode of operation of the corporate business
under [the defendant’s] sole power of direction and control.” Id. at 358. In this case, neither
Topor’s nor Serafin’s power or control caused the negligent conduct. Thus, McDonald is
distinguishable from this case.

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¶ 91 2. Finding of Contributory Negligence
¶ 92 Finally, Oberjat argues that the trial court erred by finding her 50% comparatively at fault.
¶ 93 A person is contributorily negligent when he or she acts without the degree of care that a
reasonably prudent person would have used for his or her own safety under like circumstances
and such action is a proximate cause of his or her injury. Logan v. U.S. Bank, 2016 IL App (1st)
152549, ¶ 20. We will not disturb a trial court’s finding of contributory negligence unless it is
against the manifest weight of the evidence. Walker v. Chicago Housing Authority, 2015 IL
App (1st) 133788, ¶ 47. We give great deference to the trial court’s findings of fact because the
trial court is in a superior position to observe the witnesses’ testimony, to judge their
credibility, and to determine the weight their testimony and other evidence should receive. Id.
A finding is against the manifest weight of the evidence only if the opposite conclusion is
apparent or if the finding appears to be arbitrary, unreasonable, or not based on the evidence.
Id.
¶ 94 Here, the trial court found Oberjat 50% contributorily negligent in two ways: (1) “she
interjected herself into the argument between Mr. Matthews and Mr. Cooke. Her actions did
not de-escalate the verbal dispute, but escalated it by her aggressive actions toward an angry
man who she did not know. Further, she admitted she did not know what was going on. Yet she
testified that she ‘stormed’ out of the bar, placed herself between the two men, pointed her
finger in the face of Mr. Matthews, and demanded to know what the m*** f*** was going on.
She used foul language which escalated the argument. These actions are not the actions of a
woman exercising reasonable care for her own safety. She directed Mr. Matthews’s attention
to her when there was not need to do so”; and (2) when she “saw Mr. Matthews running toward
her car, but in Mr. Cooke’s direction, she ran directly at Mr. Matthews with her arms
outstretched in attack mode. When Mr. Matthews reached Ms. Oberjat’s car, she was at the
driver’s door about to get in. Mr. Cooke was at the passenger door. *** A reasonably careful
person does not charge an angry man in a dark parking lot within a minute of a loud argument
with that man. There was an alternate route to safety. Ms. Oberjat was contributorily negligent
when she did not take the safer action.”
¶ 95 These findings are supported by the record. The evidence indicates that Oberjat went
“storming” outside to see “what the f***” was going on” and placed herself between Cooke
and Matthews. Oberjat also pointed her finger at Matthews. When Oberjat went to her car with
Cooke, she stood at the driver’s side door of her car with her keys in her hand, and when she
saw Matthews run toward Cooke, who was on the opposite side of the car, she ran, arms
stretched out, at Matthews. Oberjat admitted that, when Matthews ran toward her car, he was
headed for Cooke, not her. In light of this evidence, we cannot say that the trial court’s finding
that Oberjat was 50% contributorily negligent is against the manifest weight of the evidence.

¶ 96 III. CONCLUSION
¶ 97 For the reasons stated, we affirm the trial court’s order.

¶ 98 Affirmed.

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