IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT

KANE COUNTY, ILLINOIS

GREGG QUAGLIANO, )

)

Plaintiff, )

v. )

)

TOWNHOUSE BOOKS, LTD. d/b/a )

TOWNHOUSE CAFÉ, )

) No.: 05 LK 308

Defendants, )

)

v. )

)

SYSCO FOODS SERVICES, INC., )

)

Intervenor. )

MOTION OF TOWNHOUSE CAFÉ (TOWNHOUSE BOOKS, LTD.)

FOR SUMMARY JUDGMENT

NOW COMES the Defendant, TOWNHOUSE CAFÉ (TOWNHOUSE BOOKS, LTD.) (hereinafter “TOWNHOUSE CAFÉ”), by and through its attorney, LAW OFFICE LOWELL D. SNORF, III, and move this Honorable Court pursuant to 735 ILCS 5/2-1005(b) for summary judgment as to the following issues of Count I of Plaintiff’s Amended Complaint at Law:

PLAINTIFF DELIBERATELY ASSUMED THE RISK OF HARM BY REPEATEDLY STEPPING ON THE THRESHOLD, KNOWING SAME TO BE HAZARDOUS

ALTERNATIVELY, PLAINTIFF HAS NOT ESTABLISHED TOWNHOUSE HAD REASONABLE NOTICE OF ANY ALLEGED DEFECT IN THE THRESHOLD

STEP OR THAT ANY ALLEGED DEFECT CREATED AN UNREASONABLE

RISK OF HARM TO PLAINTIFF

BACKGROUND AND PROCEEDINGS TO DATE

On August 19, 2004, Plaintiff, GREGG QUAGLIANO (hereinafter “QUAGLIANO”), was a delivery employee of SYSCO FOODS SERVICES, INC. (hereinafter “SYSCO”). As QUAGLIANO was delivering food product to TOWNHOUSE CAFÉ, he stepped on a concrete entranceway threshold to TOWNHOUSE CAFÉ, which he alleges broke under his footing. QUAGLIANO claimed a right shoulder injury. As a result of QUAGLIANO’S August 19, 2004 fall, on December 1, 2005, Plaintiff filed a two count Amended Complaint (see Exhibit “1”). Count I is against TOWNHOUSE CAFÉ; Count II was against David L. Hunt. On January 30, 2006, TOWNHOUSE CAFÉ answered the Amended Complaint and asserted affirmative defenses (see Exhibit “2”). On February 7, 2006, Plaintiff answered the affirmative defenses (see Exhibit “3”). On March 21, 2006, by agreed order, Count II against HUNT was dismissed (see Exhibit “4”). On September 29, 2005, SYSCO was given leave to intervene to protect its worker’s compensation lien.

II.

STATEMENT OF FACTS

On August 19, 2004, QUAGLIANO, age 41, was a delivery driver for SYSCO. The Defendant is TOWNHOUSE BOOKS, LTD. d/b/a TOWNHOUSE CAFÉ, which operates a book store and a restaurant/café at 105 North Second Avenue in St. Charles, Illinois. The customer entrance for the book store and café is at 105 North Second Avenue. Deliveries for the café are off Cedar Street. QUAGLIANO’S fall occurred at the threshold entryway to TOWNHOUSE CAFÉ, on Cedar Street (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 34; including deposition group exhibit “3,” photographs). QUAGLIANO was to make 12 food delivery stops, with TOWNHOUSE CAFÉ being number 6 (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 16). QUAGLIANO was not the regular delivery driver for TOWNHOUSE CAFÉ and had never been to TOWNHOUSE CAFÉ before August 19, 2004 (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 12). He did not know the condition of the threshold on which he stepped, no one previously told him the threshold was unsafe or weak, and QUAGLIANO made no complaints to TOWNHOUSE CAFÉ the step was weak or in a damaged condition (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 12,14, 43). According to QUAGLIANO’S September 22, 2005 interrogatory answers, QUAGLIANO did not know how long the defect existed, when Defendant became aware of the defect, when the defect came into existence or who created the defect (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 43, 45; including deposition exhibit “5,” Gregg Quagliano interrogatory answers 5-11).

Before delivering the product, GREGG QUAGLIANO parked the SYSCO 24 foot delivery truck facing west on Cedar (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 18). Using a two-wheeled aluminum cart, he was to deliver food product with a combined weight of 587 lbs. (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 21). It was a sunny and clear day (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 17). Because GREGG QUAGLIANO had never before delivered to TOWNHOUSE CAFÉ, he found café manager, Doug Bella, to learn where to deliver the product (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 25). QUAGLIANO says he pointed out to café manager, Doug Bella, the threshold had a crack in it and that the walkway bricks were uneven (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 25-29).

Despite QUAGLIANO’S knowledge of the threshold crack, QUAGLIANO made his first delivery, and product fell off the cart because of uneven bricks (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 30, 31). QUAGLIANO then decided not to walk over the bricks going to the step. Instead, he walked the product down the street to the corner, which was a cement sidewalk with a smooth uniform surface (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 31, 32).

QUAGLIANO made a second delivery of food product without incident (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 33). QUAGLIANO made a third delivery probably without incident, but he does not know if the threshold broke beneath him on the third or fourth delivery (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 34). QUAGLIANO said he had the cart in front of him, stepped backward with his left foot on the threshold, pulled the cart toward him, and the threshold broke under his left foot (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 36-37; including deposition exhibit “4,” August 19, 2004 accident statement of Gregg Quagliano).

QUAGLIANO says he told SYSCO safety manager, Michael R. Altendorf, the threshold was cracked before he got there (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 42). QUAGLIANO says he made a report to SYSCO that the threshold was cracked before the delivery (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 34, 42).

On March 22, 2006, SYSCO safety manager, Michael R. Altendorf, gave his deposition. Altendorf did the accident investigation on QUAGLIANO’S fall (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 6). QUAGLIANO told Altendorf he had fallen (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 7). QUAGLIANO fell at stop 6, TOWNHOUSE CAFÉ (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 9). Altendorf was shown the SYSCO investigation report which Altendorf prepared (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 10). Altendorf identified the report and identified QUAGLIANO was proceeding up the walkway when QUAGLIANO stepped on concrete facing that broke, causing QUAGLIANO to lose his footing and fall (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 12). QUAGLIANO told Altendorf it was unknown if the concrete facing was already cracked or whether the damage was new (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 12). QUAGLIANO told Altendorf he did not know if it was broken; QUAGLIANO did not see it when he stepped on it (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 12). QUAGLIANO did not tell Altendorf it was cracked before he stepped on it (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 12). QUAGLIANO also told Altendorf QUAGLIANO was not aware if the concrete facing was already cracked or if it broke when he stepped on it (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 14). Altendorf’s report does not show TOWNHOUSE CAFÉ knew of the defect before the fall, nor does it show QUAGLIANO knew of the defect (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 15). Further, the report shows no inquiry by QUAGLIANO to Doug Bella about the brick conditions, or that QUAGLIANO told Doug Bella the threshold had a pre-existing crack (see Exhibit “6,” discovery deposition of Michael R. Altendorf, p. 16).

On November 18, 2005, David L. Hunt, the sole shareholder of TOWNHOUSE CAFÉ, was deposed. He ran the day-to-day operations of the book store; Doug Bella ran the café (see Exhibit “7,” discovery deposition of David L. Hunt, p. 30). David L. Hunt and Doug Bella maintained the property (see Exhibit “7,” discovery deposition of David L. Hunt, p. 41). David L. Hunt never noticed any problems with the concrete adjacent to the sidewalk, cracks, or crumbling parts of concrete (see Exhibit “7,” discovery deposition of David L. Hunt, p. 43, 63). He knew of no previous falls, had no complaints from delivery drivers regarding the sidewalk or concrete, nor complaints from any pedestrians (see Exhibit “7,” discovery deposition of David L. Hunt, p. 43). Prior to August 19, 2004, he noticed no problems with the sidewalk and felt the brick walkway and cement curb were in good repair (see Exhibit “7,” discovery deposition of David L. Hunt, p. 55).

ARGUMENT

PLAINTIFF DELIBERATELY ASSUMED THE RISK OF HARM BY REPEATEDLY STEPPING ON THE THRESHOLD, KNOWING SAME TO BE HAZARDOUS

When QUAGLIANO arrived at TOWNHOUSE CAFÉ, he said the step was cracked, but intact (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 35). QUAGLIANO testified although he recognized the step was cracked, he pulled his loaded cart over the step anyway (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 24). QUAGLIANO immediately realized the step was cracked and the bricks uneven, which he pointed out to Doug Bella (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 26-29, 30). After the first instance of product falling off the cart due to uneven bricks, QUAGLIANO, knew to avoid the step and bricks by taking an alternative route, walking the product down the street to the corner coming down the smooth sidewalk (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 31). Despite his prior understanding of the cracked step and uneven bricks, QUAGLIANO made a second delivery pulling the cart over the threshold which was without incident (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 34). QUAGLIANO made one or two additional deliveries, pulling his loaded cart while stepping on a threshold he says was cracked. It was during the third or fourth delivery QUAGLIANO pulled the loaded cart toward him, stepping on the threshold which broke beneath him (see Exhibit “5,” discovery deposition of Gregg Quagliano, p. 35-36).

Illinois courts have adopted Section 343 of the Restatement (Second) of Torts regarding premises liability. The restatement finds that [a] possessor of land is liable to invitee if and only if he or she: (1) knows or by the exercise of reasonable care should know of a condition on the land and should realize that it poses an unreasonable risk of harm; (2) should expect that the invitee will not discover or realize the danger or will fail to protect themselves from it; and (3) fails to exercise reasonable care to protect invitees from the danger. Helms v. Chicago Park Dist., 258 Ill.App.3d 675, 630 N.E.2d 1016, 1020 (1^st Dist., 1994) (citing Genaust v. Illinois Power Co., 62 Ill2d 456, 343 N.E.2d 465 (1976)).

However, under the deliberate encounter exception, a plaintiff who voluntarily assumes a risk of harm arising from defendant’s negligent conduct cannot recover for such harm. In both Hastings v. Exline, 326 Ill.App.3d 172, 760 N.E.2d 993(4th Dist., 2001) and Bonavia v. Rockford Flotilla, 348 Ill.App.3d 286, 808 N.E.2d 1131 (2^nd Dist., 2004), the appellate courts affirmed the trial court’s summary judgment for defendants, finding plaintiff knew of the peril and voluntarily accepted the risk anyway. As stated in Bonavia v. Rockford Flotilla: