Day v. Menard, Inc.

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Day v. Menard, Inc.

State: Illinois

Court: 3rd District Appellate

Docket No: 3-07-0730 Rel

Case Date: 12/02/2008

Preview:No. 3--07--0730 _________________________________________________________________ Filed December 2, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 MARJORIE DAY, a/k/a MARJORIE CURTIS, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellant, ) ) v. ) No. 05--AR--493 ) MENARD, INC., ) Honorable ) Mark A. Vandeweile, Defendant-Appellee. ) Judge, Presiding. ________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ________________________________________________________________ The plaintiff, Marjorie Day, filed a negligence action against the defendant, Menard, Inc. The trial court granted

summary judgment for the defendant, and the plaintiff appeals. We affirm. FACTS The parties do not dispute the facts. On August 11, 2004,

the plaintiff purchased landscaping materials from the defendant's store. After making the purchase, the cashier at the

defendant's store told the plaintiff to drive her pickup truck to a secured area where another employee would place the merchandise in her car. The plaintiff expected the employee to lower the

tailgate of her truck and load the merchandise because she asked the cashier if the employee would do so. The plaintiff exited the store and drove her pickup truck to

the secured area.

The defendant's employees failed to assist

her, and after about 15 minutes, the plaintiff decided to load the merchandise herself. The plaintiff attempted to open the She tugged on it, and she fell

tailgate, but it would not open. backward when it opened.

The plaintiff hit her head on the

ground and suffered a concussion and bruises on her hip and the side of her leg. The plaintiff opened the tailgate often and did

not recall having trouble with it before this incident. On August 22, 2004, the plaintiff filed a negligence action against the defendant, alleging that the defendant was negligent because: (1) it failed to open the tailgate of her truck and load landscaping materials into the truck after the plaintiff requested such assistance and the defendant promised to assist; (2) it failed to warn the plaintiff of the difficulty and danger of loading landscaping materials; and (3) it carelessly owned, operated, and controlled its premises. The defendant filed a The

motion for summary judgment, which the trial court granted. trial court found that the proximate cause of the plaintiff's

injuries was the defective tailgate of her truck, not the breach of a duty by the defendant. The plaintiff appeals. ANALYSIS On appeal, the plaintiff argues that the trial court erred in granting the defendant's motion for summary judgment because the defendant's negligence was the proximate cause of her injuries. 2

Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2006). In determining whether

a genuine issue as to any material fact exists, pleadings, depositions, and admissions are construed against the party moving for summary judgment. 404, 888 N.E.2d 1 (2008). Williams v. Manchester, 228 Ill. 2d

Summary judgment is inappropriate

"where the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts." 417, 888 N.E.2d at 9. Williams, 228 Ill. 2d at

Summary judgment is appropriate where the

plaintiff cannot establish any element of the cause of action. Williams, 228 Ill. 2d 404, 888 N.E.2d 1. granting of summary judgment. N.E.2d 1. To recover damages for a defendant's alleged negligence, a plaintiff must allege and prove that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; and (3) the breach was the proximate cause of the plaintiff's injuries. Pageloff v. Gaumer, 365 Ill. App. 3d 481, 849 N.E.2d Here, the plaintiff seeks recovery under three We review de novo the

Williams, 228 Ill. 2d 404, 888

1086 (2006).

theories: (1) premises liability; (2) failure to warn; and (3) voluntary undertaking. The plaintiff's premises liability and

failure to warn arguments must fail because the plaintiff did not 3

stand in such a relationship that the law would impose obligations on the defendant under the facts and circumstances of this case. See Marshall v. Burger King Corp. 222 Ill. 2d 422,

856 N. E. 2d 1048 (2006), Lance v. Senior 36 Ill. 2d 516, 224 N. E. 2d 231, (1967). The plaintiff's injury was caused by the

tailgate on the plaintiff's truck, not a condition on the land or the landscaping materials. Moreover, the evidence shows that the

defendant did not know and would not have discovered that the tailgate posed an unreasonable risk of harm, as it was in the plaintiff's possession and control. See Restatement (Second) of

Torts

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