Cobb v. Martin IGA & Frozen Food Center, Inc.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent. Defendant does not dispute that, at the time of the incident, it was the possessor of the premises on which plaintiff was injured. Plaintiff had the implied, if not express, invitation to enter defendant’s business to buy groceries. Plaintiff was a business invitee and defendant owed her the duty of exercising reasonable care for her safety. Anderson v. Woodlawn Shell, Inc., 132 Ill. App. 3d 580, 582, 478 N.E.2d 10, 12 (1985). Illinois has adopted section 344 of the Restatement (Second) of Torts, which lends support to plaintiff’s claim of negligence. It provides in pertinent part as follows:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm[ ] or otherwise to protect them against it.” Restatement (Second) of Torts § 344, at 223-24 (1965).

The comments to section 344 contain the following explanation:

“f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring! ] or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it[ ] and to provide a reasonably sufficient number of servants to afford a reasonable protection.” Restatement (Second) of Torts § 344, Comment / at 225-26 (1965).

Accordingly, it has been recognized that the owner of business property has a duty to exercise reasonable care to keep the property reasonably safe for the use of the customer and to discover defects and dangerous conditions existing on the premises and to either correct those dangers or give sufficient warning of them.

Section 318 of the Restatement (Second) of Torts also lends support to plaintiffs claim of negligence against defendant. It provides in pertinent part as follows:

Ҥ 318. Duty of Possessor of Land or Chattels to Control Conduct of Licensee
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts § 318, at 126-27 (1965).

In the instant case, defendant owns a supermarket that sells food and additional merchandise. To increase sales, defendant provides customers with shopping carts. Plaintiff, age 68, was shopping in or near the pickle aisle when she noticed an unaccompanied, unsupervised boy, between the ages of 8 and 10, running down the aisle with a cart. Plaintiff altered her normal route through the store in order to avoid the boy; however, the boy was going too fast and collided with plaintiff, causing injury to her ankle. While I agree that defendant was not the insurer of its customers’ safety (see Anderson, 132 Ill. App. 3d at 582, 478 N.E.2d at 12) and that this situation does not call for the imposition of an absolute liability duty, defendant, as the possessor of the carts in its store, had the duty to exercise reasonable care to control the conduct of third persons, not only when it knew of the necessity of doing so but also when it should have known that it had the ability to control third persons.

To establish a reasonable foreseeability of an injury, a plaintiff must show more than that the defendant could have foreseen that the event was conceivable or merely possible; rather, a plaintiff must show that the event was objectively reasonable to expect. Gonzalez v. Kennedy Mobil Service, Inc., 274 Ill. App. 3d 1077, 1084, 654 N.E.2d 624, 629 (1995). It is objectively reasonable to expect that an unsupervised child operating a shopping cart could run into a customer and cause an injury. Here, it is clear from the following deposition testimony of Mr. Lansing that it was the policy of the store to allow children to operate shopping carts and that no policies were in place to monitor this potentially dangerous situation:

“Q. [Plaintiffs attorney:] Now if you were to implement a policy as to the current employees who worked in the store or just the regular employees who worked in the store to monitor [the use of shopping carts by children] while they are in the store[,] you would not have to add any additional employees, would you?
A. We have in the past made every effort to provide a safe[,] convenient shopping area. We do that with all employees in all departments!,] whether they work in the floor or the back area.
Q. What I’m saying is[,] if you were to add to a policy statement to be announced to the employees who are employed for other purposes simply to monitor [the use of shopping carts by children,] you wouldn’t have to add anybody additionally, would you?
A. That is expected at this point in time. Even though it is not a written policy[,] that is expected.
Q. Expected what?
A. That is expected behavior of all employees.
Q. What is expected behavior?
A. That they monitor behaviors within the store to make sure it is appropriate, whether it be children or adults.
Q. But there was never any announcement to any of the employees that children were not to operate carts, was there?
A. No, it is not. We have children who shop for their families. That would inconvenience those families.
Q. Fine, thank you. So it would be correct to say that the current policy of the store is to permit children to operate carts, would that be correct?
A. Yes, it is.”

While defendant claimed that this event was not reasonably foreseeable because no one had ever come forward with a similar complaint, I do not agree that the general duty of reasonable care did not extend to the risk involved in the instant case.

In the instant case, defendant should have foreseen that such an event might occur, but it did nothing to prevent it. No signs were posted anywhere in the store warning customers about unsupervised children operating shopping carts. Also, our focus is a minor’s behavior, not an adult’s behavior. It was defendant’s policy to allow unsupervised children to operate shopping carts. Defendant insists that in order to make sure that this type of accident did not occur, it would be forced to post a myriad of additional workers throughout its store, which would create an intolerable burden. However, contrary to defendant’s assertions, it is probable that this accident could have been avoided by much less burdensome means, such as notice to patrons that children are not allowed to operate a shopping cart without adult supervision and some awareness of this problem by defendant’s employees.

Accordingly, I respectfully dissent from the majority’s opinion.