Buchaklian v. Lake Co. Family YMCA, No. 2-99-0353

2nd District, 18 April 2000

JUSTICE RAPP delivered the opinion of the court:

Plaintiff, Soolton Buchaklian, appeals from summary judgments entered in favor of defendants, Lake County FamilyYoung Men's Christian Association (YMCA) and Crawford & Company (Crawford). Plaintiff contends that the trial courterred (1) in finding that the YMCA owed no duty to her based on the "open and obvious condition" doctrine; and (2) infinding that the issue of spoilation of evidence was moot. We reverse and remand.

On January 28, 1998, plaintiff filed a two-count complaint against defendants. The complaint was amended on February 9,1998, apparently to correct the name of Crawford. Count I of the amended complaint alleged that plaintiff tripped and fellwhile walking across a mat on the YMCA's premises and alleged negligence on the part of the YMCA. Count II of theamended complaint alleged that defendants negligently lost, disposed of, or destroyed the mat.

Plaintiff had been a member of the YMCA since 1995. She typically swam at the YMCA three days a week for about anhour each day. It was her practice to change her clothing in the locker room, then shower, and proceed to the pool.

On February 10, 1997, at approximately 7 a.m., plaintiff changed into her swimming suit in the women's locker room andproceeded to the shower area with her friend, Ana Paparigian. As they approached the shower area, plaintiff tripped and fellin the area of a black mat. After falling, plaintiff observed that one particular piece of the mat was standing upapproximately an inch or two higher than the other portions of the mat. Plaintiff was taken by ambulance to a hospital.

During her deposition, plaintiff stated that, "If I had been looking at the mat, I would have seen this thing sticking up."Plaintiff further admitted that she would not have tripped if she had been looking at the mat. Plaintiff had never seen themat in this condition before, she did not know how long it had been in that condition, she did not know what caused thepiece to be sticking up, she had never tripped on the mat prior to that date, she had heard no complaints about the mat priorto that date, and she had never complained about it.

Ana Paparigian testified during her deposition that she observed plaintiff stumble and fall but did not see the mat beforeplaintiff fell. Ana stated that after plaintiff fell she saw that a piece of the mat was sticking up approximately an inch higherthan the rest of the mat. She did not know how long this piece of mat had been sticking up or why the piece was sticking up.She had crossed the mat on numerous occasions but had never tripped on it or made any complaints about it, and no onehad ever complained to her about the mat.

Jennifer Patterson, a former YMCA patron, testified during her deposition that she was not present at the time plaintiff felland that she became aware of the incident after speaking with plaintiff's attorney in the YMCA locker room in 1998.Patterson noted that the mat had been changed from a black one to a maroon and blue one, but she could not specify thedate of that change. She described the mat in the locker room before it was changed as one big square piece, cut to fit thehallway, which had little triangular shapes, made out of woven rubber, that were connected together. She stated that theedges of the mat were frayed across the entire width of the front and back of the mat. Patterson testified that both she andher daughter had tripped on the mat but that she had never complained about the mat to anyone at the YMCA except toother women in the locker room.

On January 6, 1999, the trial court granted summary judgment in favor of the YMCA as to count I, finding no question offact regarding the "open and obvious" issue. On March 16, 1999, the trial court denied plaintiff's motion forreconsideration, finding that the YMCA had no notice of the alleged defect in the mat and that the YMCA owed plaintiff noduty as a matter of law. At that time, the trial court granted summary judgment in favor of defendants as to count II.Plaintiff timely appealed pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

I. STANDARD OF REVIEW

On appeal, plaintiff maintains that the trial court erred in granting the summary judgments because it erroneously appliedthe "open and obvious condition" doctrine and the "mootness" doctrine. In all appeals from summary judgment, we conducta de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in thelight most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving partyis entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1996); Bier v. Leanna Lakeside Property Ass'n,305 Ill. App. 3d 45, 50 (1999). "Summary judgment is a drastic means of resolving litigation and should be allowed onlywhen the right of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore, where reasonablepersons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact,summary judgment should be denied and the issue decided by the trier of fact." Espinoza, 165 Ill. 2d at 114.

II. COUNT I - NEGLIGENCE

Plaintiff argues that the trial court erred in finding that the YMCA owed no duty of care to her. In a negligence action, theplaintiff must establish that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and thatthe defendant's breach proximately caused the plaintiff's injuries. Espinoza, 165 Ill. 2d at 114. "Unless a duty is owed, thereis no negligence." American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 26 (1992). Theexistence of a duty is a question of law for the trial court to decide. Espinoza, 165 Ill. 2d at 114. "The issues of breach andproximate cause are factual matters for a jury to decide, provided there is a genuine issue of material fact regarding thoseissues." Espinoza, 165 Ill. 2d at 114. If the plaintiff fails to establish an element of the cause of action, including a duty,summary judgment for the defendant is proper. Espinoza, 165 Ill. 2d at 114.

A. DUTY

Our supreme court has observed that " 'the concept of duty in negligence cases is very involved, complex and indeednebulous.' " Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990), quoting Mieher v. Brown, 54 Ill. 2d 539, 545 (1973).Indeed, our extensive research and review of cases in this area of the law have led us to conclude that the concept of "duty"in negligence cases is as clear as mud. However, the supreme court has identified certain factors that are relevant todetermining the existence of a duty which include "the reasonable (1) foreseeability and (2) likelihood of injury, *** (3) themagnitude of the burden on defendant in guarding against injury and (4) the consequences of placing that burden ondefendant." LaFever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998). Applying these factors to any particular case is a dauntingtask.

When, as here, the plaintiff alleges that she was an invitee on the YMCA's property at the time she was injured by acondition existing on the YMCA's property, the foreseeability of injury is ascertained by analyzing it under section 343 ofthe Restatement (Second) of Torts (LaFever, 185 Ill. 2d at 389), which states in relevant part: