SECOND DIVISION
JUNE 19, 2001

No. 1-00-2210

This action was brought for damages resulting from minor-plaintiff Billy Luu's injuries suffered after becoming entangledin a moving conveyor belt at P-K Mall in the Pilsen Park ShoppingCenter. Plaintiff's father brought suit against P-K Mall, PeterKim, Edmund Kim, Pilsen Shopping Center (collectively, defendant-landlords), and Buschman Conveyors (defendant-manufacturer orBuschman). All defendants brought motions for summary judgment. All motions were granted in favor of the defendants. Plaintiff'smotion to reconsider was denied. The issue upon appeal iswhether the trial court erred in granting summary judgment infavor of all defendants. Plaintiff asserts: (1) under the Kahndoctrine (Kahn v. James Burton Co., 5 Ill. 2d 615, 126 N.E.2d 836(1955)), the owner-landlords should have foreseen harm to thechild; (2) defendant-landlords owed plaintiff a duty ofreasonable care under the circumstances and did not meet thatduty; (3) defendant-landlords' negligence was the proximate causeof the injuries; (4) the affidavit of mechanical engineer SeijiJoji should have been admitted; (5) Buschman was the apparentmanufacturer of the conveyor belt and as such should be heldliable for the injuries; and (6) Buschman negligently designedthe component parts of the conveyor belt and should be heldliable for the injuries.

We affirm.

BACKGROUND

On November 25, 1995, nine-year-old Billy Luu was inside P-KMall in Chicago, Illinois, with his father Donald Luu. DonaldLuu leased space in the mall for his business, "Don's Fashions." On that day, Donald gave Billy money to play with the video gameslocated in the southeast corner of the mall, adjacent to theconcession stand. Donald instructed Billy not to go too far andnot to go out of the mall. Billy's cousin, Jimmy Le, accompaniedBilly.

Adjacent to the game room was the doorway and stairwellleading to the second-floor storage area. During his deposition,Jimmy stated that the door to the stairwell was open when theboys approached, it was open on its own, and he did not notice astring or wire on the doorknob. The boys walked up the stairsbecause Billy thought "there were games up there." There was aconveyor belt in the room but the machine could not be seen fromthe top of the stairs. Jimmy stated that he heard a machine goon and immediately thereafter, he heard Billy scream. Jimmystated that he did not see whether Billy turned the belt on. When he did see Billy, Jimmy noticed that Billy was "twitching." Billy was injured when his arm got caught in the conveyor beltsystem. According to a letter written by Dr. John Oldershaw,Billy suffered three fractures to his left arm, shoulder and backstrain, and severe head trauma.

During Billy Luu's deposition, Billy stated that he hadnever been on the second floor of the mall and did not know thatthere was a conveyor belt on the premises until the day of theaccident.

During deposition, Donald Luu stated that he was notifiedabout Billy's accident approximately 15 minutes after givingBilly the money to play with the video games. Billy was alreadyaway from the conveyor belt when his father saw him. Donaldstated that he was aware of the belt but had never operated thebelt in the presence of Billy.

Edmund Kim was the real estate manager and partial owner ofP-K Mall in November 1995. Kim licensed portions of the premisesto persons so they could conduct retail activities. He testifiedthat his father, Peter Kim, does not sign any of the licenseagreements with mall vendors and does not have a day-to-daymanagement role of P-K Mall. He stated that the managementoffice of P-K Mall was responsible for the maintenance and upkeepof the second floor storage area. Kim testified that the vendorshad to enter into a separate rental agreement if they wanted touse the storage area on the second-floor. Kim recalled "tellingpeople the conveyor belt is for moving merchandise only." Hetestified that there had never been any other reports of anyonegetting anything caught in the conveyor belt. He also was notaware of any automatic stop mechanism on the conveyor belt. Kimstated that in all the time that he worked there, since thesummer of 1993, the conveyor belt had performed as expectedexcept when the belt had to be tightened. Kim stated that he wasaware that vendors would use a wire or other device to hold thestorage room door open. He also observed graffiti on the wallsof the storage room, but did not know who put it there. He wasaware that vendors would sometimes bring their family memberswith them to the mall. Kim was asked, "Have you ever seen any ofthose children accompanying their parents up to the second-floor?" Kim responded, "I haven't, no." Counsel furtherinquired, "Are you aware that they do?" Kim responded, "Yes ***I have been informed *** [b]y my assistant."

Kim testified that had seen Billy Luu in the video game areain 1991 and 1992 and had, on occasion, played video games withBilly. Since the accident, Kim has posted caution signs aroundthe storage area and had a locking mechanism installed on thecontrol button of the conveyor belt. Kim believed that he spokewith Harry Lake, the operating partner for the landlords of P-KMall, regarding Billy's accident.

The landlord of P-K Mall is Pilsen Park Shopping Center. The landlord's responsibilities are limited to maintaining theexterior of the center (parking lot, sidewalks, lighting in thelot, and the fence). Harry Lake is the operating partner of thepremises. Lake testified that he was aware that a previoustenant, Zayre, acquired the conveyor belt for the storage area. He further testified that the landlord had no responsibility formaintaining the second-floor storage area, unless the roof leakedor there was some other structural problem.

Ronald Knoerzer's deposition indicates that the BuschmanCompany (Buschman) manufactures conveyor belts, which are alsoassembled by Buschman. Buschman does not manufacture all of itscomponent parts. Knoerzer testified that, normally, theoperating instructions that are delivered with the conveyor arecreated under the direction of the engineering department ofBuschman.

Defendant-manufacturer filed a counterclaim in 1999alleging: Donald and Sophia Luu had a duty to supervise theirchild so as to avoid injury to him; Peter Kim, Eddie Kim, and P-KMall were guilty of negligent or careless acts in maintaining thepremises; and Harry Lake, Violet Lake, Apex InvestmentAssociates, Inc., and Esther Shinderman Revocable Trust datedOctober 24, 1991, d/b/a Pilsen Park Shopping Center, had a dutyto exercise a degree of care in the ownership and control oftheir property to avoid injury to Billy. In June 1999, PeterKim, Eddie Kim, P-K Mall, Harry Lake, Violet Lake, ApexInvestment Associates, Inc., and Esther Shinderman RevocableTrust dated October 24, 1991, d/b/a Pilsen Park Shopping Center,filed a motion in response to Buschman's counterclaim.

All defendants filed motions for summary judgment. OnNovember 19, 1999, there was a hearing on the defendants' motionsfor summary judgment. At the November 19, 1999, hearing,plaintiff's counsel informed the judge that while he possessed anaffidavit stating that the conveyor belt was defective, he didnot bring it with him to the hearing because he did not expectfor the hearing to actually go on that day. The judge stated: "But, as you know, it is not sufficient to file a response andsay, 'I am getting an expert's opinion.' It should be a part ofthe materials I can review here today for today's hearing." During that November 19, 1999, hearing the judge stated toplaintiff's counsel:

"I will give you 60 days before I give him [Rule] 304(a)language to either take Mr. Kanower's [sic] dep, producesome documents indicating to me that they are somethingother than, quote, a components parts manufacturer andproduce any affidavits that you wish to produce to me toconsider on this. Okay?" (Emphasis added.)

In an order dated November 19, 1999, the judge held that as amatter of law, Billy Luu was a trespasser at the time andlocation of the accident and that defendant-landlords owed noduty to plaintiff other than to refrain from wilful and wantonconduct and that there existed no legal proximate cause betweenthe conduct of defendants and the injuries sustained by Billy. Summary judgment was entered in favor of defendant-landlords.

Plaintiff filed a motion for reconsideration on December 20,1999, asserting that plaintiffs had a right to have the trier offact consider the issues of the duty owed to the minor plaintiffand determine the proximate cause of Billy's injuries. Plaintifffiled a memorandum in support of his motion for reconsiderationon January 28, 2000, with a copy of Seiji Joji's affidavitattached.

On April 21, 2000, a status hearing was held regardingplaintiff's motion for reconsideration.

On May 31, 2000, summary judgment was granted in favor ofdefendant-landlords and against plaintiff on count I ofplaintiff's second amended complaint and count II of Buschman'scounterclaim.

On June 7, 2000, during a hearing on plaintiff's motion toreconsider, argument was heard regarding the admission of SeijiJoji's affidavit. Seiji Joji's affidavit describes hisqualifications as a supervising mechanical engineer licensed bythe State of Illinois. The affidavit indicates that he reviewedphotographs of the conveyor system at issue here and notes thatthe system lacks guards and a safety shut-off switch. Then theaffiant concludes:

"The component parts were defective when they left thecontrol of the manufacturer. *** The components could onlybe assembled in one way in accordance with the designspecifications and installation instructions provided byBUSCHMAN and consequently the components themselves weredefective. *** It is my opinion that the equipment is notreasonably safe for operation."

At the June 7, 2000, hearing, the trial judge held that theaffidavit should be stricken but that, even if it wereconsidered, his ruling to strike would not change based on thecontents of the affidavit. On June 7, 2000, plaintiff's motionto reconsider was denied.

On June 15, 2000, a hearing was held upon the court's ownmotion. The transcript of that hearing is not in the record uponappeal. In an order dated June 15, 2000, the trial court heldthat the defendant-manufacturer's motion to strike thesupplemental affidavit of Seiji Joji was denied, plaintiff'smotion for reconsideration was denied, and the summary judgmentsentered on November 19, 1999, would stand.

Plaintiff now appeals the orders entered on November 19,1999, January 28, 2000, April 21, 2000, May 31, 2000, June 7,2000, and June 15, 2000.

We affirm.

ANALYSIS

Standard of Review

Appellate courts apply a de novo standard when reviewingsummary judgment rulings. Anglin v. Oros, 257 Ill. App. 3d 213,216, 628 N.E.2d 873 (1994). Absent an abuse of discretion by thetrial court, summary judgment will not be reversed. Solomon v.American National Bank & Trust Co., 243 Ill. App. 3d 132, 134,612 N.E.2d 3 (1993).

Summary judgment is appropriate only when the pleadings,depositions, admissions, and affidavits on file, if any, showthat there is no genuine issue of material fact and that themoving party is entitled to a judgment as a matter of law. Anglin, 257 Ill. App. 3d at 216; In re Estate of Ciesiolkiewicz,243 Ill. App. 3d 506, 510, 611 N.E.2d 1278 (1993). The purposeof summary judgment is not to try an issue of fact but, rather,to determine whether a triable issue of fact exists. Anglin, 257Ill. App. 3d at 216. Where a reasonable person could drawdivergent inferences from undisputed facts, summary judgmentshould be denied. Pyne v. Witmer, 129 Ill. 2d 351, 358-59, 544N.E.2d 1304 (1989).

At the summary judgment stage, the court must construe theevidence strictly against the movant and liberally in favor ofthe nonmovant. Taliaferro v. One Grand Place Venture, 256 Ill.App. 3d 429, 432-33, 628 N.E.2d 815 (1993). To withstand asummary judgment motion, the nonmoving party need not prove hiscase at this preliminary stage but must present some factualbasis that would support his claim. Taliaferro, 256 Ill. App. 3dat 432.

I 

Plaintiff initially contends that pursuant to Kahn v. JamesBurton Co., 5 Ill. 2d 615, 126 N.E.2d 836 (1955), he has shownthat Billy's presence was foreseeable. The defendant-landlordsrespond that even if this court finds that a factor of the Kahndoctrine has been met, this court should still affirm thedecision of the trial court because any action by the defendant-tenants was not the legal cause of Billy's injury.

In Kahn, the plaintiff, an 11-year-old child, was injuredwhen a pile of lumber upon which he had been playing toppled overand some of the boards fell on him. Kahn, 5 Ill. 2d at 616. Theissue before the Illinois Supreme Court was "whether the lumbercompany in the exercise of ordinary care could reasonably haveanticipated the likelihood that children would climb onto thelumber and would be injured if it were not securely piled." Kahn, 5 Ill. 2d at 623. While the Kahn court did notspecifically address a landlord-owner's duty to children, we findthat case controlling in the instant case.

As a general rule, children have no greater rights to goupon the land of others than adults, and their minority in and ofitself does not impose a duty upon the occupier or controller ofthe premises to prepare for their safety, except where: (1) theowner or occupier of the land knew or should have known thatchildren habitually frequent the property; (2) a defectivestructure or dangerous condition was present on the property; (3)the defective structure or dangerous condition was likely toinjure children because they are incapable, because of age andimmaturity, of appreciating the risk involved; and (4) theexpense and inconvenience of remedying the defective structure ordangerous condition were slight when compared to the risk tochildren. Mount Zion State Bank & Trust v. ConsolidatedCommunications, Inc., 169 Ill. 2d 110, 117, 660 N.E.2d 863(1995), citing Kahn, 5 Ill. 2d at 625.

We hold that, in the instant case, plaintiff has failed tomeet the first criterion of the Kahn doctrine. Plaintiff hasfailed to articulate any facts that indicate that P-K Mall, PeterKim, Edmund Kim, or Pilsen Park Shopping Center knew or shouldhave known that children frequented the second-floor storage roomof the mall or operated the conveyor belt. The testimony fromEdmund Kim that he was aware that vendors would bring theirfamilies to the mall, that vendors' children would sometimesaccompany them to the storage room, or that children frequentedthe video game area is not enough for plaintiff to meet theforeseeability aspect of the Kahn doctrine. Further, there is notestimony or evidence that defendants had any knowledge that achild has ever turned on the conveyor belt or that any child knewthat the belt was located in the storage room.

Plaintiff avers that there was graffiti present on the wallsof the room, which should have notified the defendant-landlordsthat children frequented the area. However, there is notestimony to indicate when or how often those markings wereplaced there or who placed them there. There is no evidence thatchildren were the ones who placed the graffiti there. Kim'stestimony that he was aware of the presence of the graffiti isnot enough to create knowledge on the part of defendants. SeeBenamon v. Soo Line R.R. Co., 294 Ill. App. 3d 85, 93, 689 N.E.2d366 (1997).

II 

Plaintiff next contends that defendant-landlords' negligencewas the proximate cause of Billy's injury. In a cause of actionalleging negligence, the plaintiff must establish the existenceof a duty, a breach of that duty, and an injury proximatelyresulting from that duty. Quintana v. City of Chicago, 230 Ill.App. 3d 1032, 1036, 596 N.E.2d 128 (1992). There are two mainbranches that make up a proximate cause analysis: (1) cause infact; and (2) legal cause. First Springfield Bank & Trust v.Galman, 188 Ill. 2d 252, 258, 720 N.E.2d 1068 (1999).

In First Springfield, a woman was killed when she was struckby a car as she crossed a street at mid-block instead of at amarked pedestrian crosswalk. The co-defendant motorist, Galman,argued at trial that she could have swerved to miss thepedestrian had the defendant truck driver for ADM Trucking, Inc.,not parked his truck in a no-parking zone. A jury entered ageneral verdict, finding that the plaintiff's damages totaled $1million. The jury also found the truck driver and his employer50% at fault, the co-defendant motorist 5% at fault, and thepedestrian 45% at fault. The trial court entered judgment on theverdict. The truck driver and his employer appealed. Theappellate court affirmed the trial court's decision. However,the Illinois Supreme Court reversed. First Springfield, 188 Ill.2d at 262.

The primary issue on appeal was whether the defendants'negligence was the proximate cause of the plaintiff's injuries. The Illinois Supreme Court answered in the negative, stating thatalthough the defendants' actions were a cause in fact of theinjury, they were not the legal cause. First Springfield, 188Ill. 2d at 260. The Court concluded that it was not reasonablyforeseeable that violating a no-parking sign at mid-block wouldlikely result in a pedestrian ignoring a marked crosswalk at thecorner, walking to mid-block and attempting to cross a designatedtruck route blindly, in clear violation of the law. FirstSpringfield, 188 Ill. 2d at 261.

On the proximate cause issue in the instant case, it is ourview that, the rationale of First Springfield is controlling. Accordingly, we hold that the trial court did not err in grantingsummary judgment in favor of the defendant-landlords.

III  

Plaintiff asserts that the affidavit of Seiji Joji shouldnot have been stricken because it was presented in a timelymanner. Defendant-manufacturer responds that plaintiff's claimthat the affidavit of Seiji Joji should have been admitted ismoot.

On June 7, 2000, the trial court in the instant case struckthe affidavit of Seiji Joji and stated: "I think the affidavithas to be stricken because I think it should have been presentedin a more orderly manner *** even if I were going to consider theaffidavit, I don't think my ruling is ever going to change." Also, the court stated that the affidavit was conclusionary, didnot comply with Supreme Court Rule 191(a) (145 Ill. 2d R.191(a)), and did not contradict Ronald Knoerzer's testimony. OnJune 15, 2000, however, the trial court announced that it hadreconsidered the ruling regarding the affidavit of plaintiff'sexpert and denied the defendant-manufacturer's motion to strikethe affidavit. We agree with the defendant-landlords' assertionthat plaintiff's contention is moot.

IV

Plaintiff's next assertion is that the defendant-manufacturer negligently designed the component parts of theconveyor belt and should be held liable for plaintiff's injuriessuffered as a result of the defective design under the theory ofapparent manufacturer. Further, plaintiff contends that "[t]hedefect in the design of the conveyor belt, and therefore in thecomponent parts when put together as a whole, existed at the timethat the parts left the Buschman premises." Defendant-manufacturer responds that it did not negligently design any partof the conveyor belt and the "apparent manufacturer" doctrine isnot at issue here.

Under the doctrine of apparent manufacturer, a company thatholds itself out to the public as the manufacturer of a productis liable for the injuries caused by that product if it is foundto be unreasonably dangerous. Root v. JH Industries, Inc., 277Ill. App. 3d 502, 506, 660 N.E.2d 195 (1995). "The primaryrationale for imposing liability on the apparent manufacturer ofa defective product is that it has induced the purchasing publicto believe that it is the actual manufacturer, and to act on thisbelief--that is, to purchase the product in reliance on theapparent manufacturer's reputation and skill in making it." (Emphasis in original.) Hebel v. Sherman Equipment, 92 Ill. 2d368, 375, 442 N.E.2d 1999 (1982).

Buschman concedes that the parts of the conveyor are madeand sold by it, but denies designing "the system as installed orthe controls." There is, however, no testimony or facts averredthat demonstrate that the conveyor belt or its component partsexposed those who came into contact with it to an unreasonablerisk of harm. Plaintiff here has only demonstrated that the doorleading to a storage room was left open and when the conveyorbelt was activated, a child was injured by the conveyor belt'smechanisms. The apparent manufacturer doctrine is not applicablehere.

The fact that an injury occurred does not in and of itselfprove that a product is defective. Depre v. Power Climber Inc.,263 Ill. App. 3d 116, 118, 635 N.E.2d 542 (1994). Rather,plaintiff must show that his injuries derived from a distinctdefect in the product which subjects those exposed to the productto an unreasonable risk of harm. Depre, 263 Ill. App. 3d at 118. We hold that the plaintiff has failed to demonstrate, eitherthrough argument or supporting affidavits, which parts of thebelt were unreasonably dangerous to hold defendant-manufacturerresponsible for Billy's injuries.

For the foregoing reasons, the grant of the summaryjudgments is affirmed.

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