After 3 ½ LONG years of litigation I am very happy to have this matter resolved – especially with a win! This case involved an alleged trip and fall outside the restaurant, in a landscaped area. The plaintiff was an older gentleman who could not have been nicer but did not have the greatest memory. He had been going to this restaurant, which was near his home, about once a month for over 30 years.
The outside of the restaurant had recently been remodeled and there was a smaller landscaped area along the front. The project was completed in the winter, so the landscaped area was not yet filled with bushes or mulch when the incident occurred – it was just dirt.
The plaintiff provided different versions of the incident depending on when he was asked, but at his deposition he claimed he walked across the landscaped area and tripped as he was stepping up onto the sidewalk to enter the restaurant. He had an elaborate story that incorporated the dirt being more than 2 inches under the sidewalk edge (to prevent a de minimus ruling) and as he was stepping up, a customer was very loud which made him look up instead of at the ground (the distraction exception to open and obvious). It’s always interesting how plaintiffs can have a terrible memory but also provide elaborate details about the fall – especially details that perfectly coincide with case law exceptions.
The problem for the plaintiff in this case was that the restaurant had a clear and available designated pathway for the plaintiff to walk into the restaurant but he chose to ignore that path and walk through the landscaped area. The case law on this issue is very clear:
There is a duty to provide an invitee with a reasonably safe means of ingress and egress at a commercial property. Seipp v. Chicago Transit Authority, 12 Ill.App.3d 852, 858 (1st Dist. 1973); Rogers v. Matanda, Inc., 393 Ill.App.3d 521, 525 (3rd Dist. 2009). However, according to well established Illinois law, the plaintiff’s decision to use an unprescribed means of ingress does not expand the defendants’ duty. Rogers, 393 Ill.App.3d at 526. In Rogers, the plaintiff was walking around the outside of a bar, from the back toward the front, when he fell several feet from a retaining wall that was to the side of the rear entrance of the property. Id. at 523. The plaintiff alleged the defendant breached its duty to provide a safe means of ingress and egress because the lighting was not sufficient, the change in elevation was not barricaded and there was no warning of the change in elevation. Id. at 524. The trial court granted summary judgment for the defendant, holding the area of the fall was not within the area prescribed as a means of ingress and egress to the bar, and the plaintiff appealed. Id. The appellate court in Rogers held that:
“The fact that plaintiff took a frolic beyond the prescribed means of ingress and egress does not expand defendant’s duty. Plaintiff chose to bypass a perfectly safe entrance to the tavern.” Rogers, 393 Ill.App.3d at 526.
The appellate court ruled the plaintiff did not show the area where he fell was a designated means of ingress and egress or that it had become an assumed means through repeated used, and therefore, there was no breach of a duty and summary judgment was affirmed. Id.
Another case directly on point is Pacchetti v. Steak N Shake Operations, Inc., 2020 U.S. Dist. LEXIS 237429. In Pacchetti, the plaintiff exited a restaurant and tripped over a curbed landscaped area as she walked to her car. Pacchetti, 2020 U.S. Dist. LEXIS 237429, at 3-4. The plaintiff claimed the restaurant did not provide a safe means of ingress and egress and the defendant moved for summary judgment. Id. at 1-2. The plaintiff argued “[i]t is unreasonable to believe that people aren’t going to save a step or two by cutting across the corner to head for their cars”, but the Pacchetti Court noted such a position is not consistent with Illinois law. Id. at 5. The Court ruled that pursuant to Illinois law, when a property owner provided a safe path of ingress and egress, and the plaintiff decided to leave that path, the property owner is not liable for other dangers on the property. Id. Furthermore, the Court noted the plaintiff was adequately warned of the alleged dangerous condition because the landscaped area was visibly obvious. Pacchetti, 2020 U.S. Dist. LEXIS 237429, at 6. The Pacchetti Court also noted:
“Defendants are entitled to rely on a pedestrian’s ability to recognize the presence of a curb and a landscape bed and to understand that a landscape bed is not as stable a walking surface as a sidewalk.
At bottom, none of the conditions Pacchetti encountered outside the restaurant was unusual, let alone dangerous. Defendants provided a clear sidewalk, bordered by curbs and landscaping, which are very common conditions pedestrians regularly confront. Pacchetti chose to walk across a curb and through the landscaping. That was her fault, not Defendants’.” Id.
For these reasons, summary judgment was granted for the defendant. Id.
My case was pending in Cook County, so not surprisingly, this well established case law in Illinois was completely ignored and our motion for summary judgment was denied. We then proceeded to binding arbitration where the judge followed the law and found in favor of the defendant.