IN THE CIRCUIT COURT OF THE 16th JUDICIAL CIRCUIT

IN THE CIRCUIT COURT OF THE 16^th JUDICIAL CIRCUIT

KANE COUNTY, ILLINOIS

GREGG QUAGLIANO, )

)

Plaintiff, )

vs. ) No.: 05 LK 308

)

TOWNHOUSE CAFÉ and HUNT 2002 TRUST, )

)

Defendants. )

PLAINTIFF’S RESPONSE TO DEFENDANT, TOWNHOUSE CAFE’S,

MOTION FOR SUMMARY JUDGMENT

Plaintiff, GREGG QUAGLIANO, in response to defendant, TOWNHOUSE CAFE’S and TOWNHOUSE BOOKS, LTD., (hereinafter referred to collectively as “TOWNHOUSE”) Motion for Summary Judgment, states as follows:

PREFATORY STATEMENT

1. This lawsuit arises out of an incident that occurred on August 19, 2004 at the premises operated, managed and maintained by defendant, “TOWNHOUSE.” Plaintiff, GREGG QUAGLIANO, was delivering food product to “TOWNHOUSE” and was directed to use a concrete and brick alleyway and/or pathway on the premises which collapsed/broke under his footing causing him to sustain severe injuries to his left shoulder requiring surgical repair. Defendant, “TOWNHOUSE” admits that it operated, managed and maintained the property and was responsible to keep the property in a reasonably safe condition to avoid injury to the plaintiff.

PLEADINGS

2. Plaintiff, GREGG QUAGLIANO, has filed a First Amended Complaint at Law against the defendants herein. (See Plaintiff’s First Amended Complaint at Law attached as Exhibit “A”) Count I of the First Amended Complaint at Law, paragraphs one and three allege:

1. That on or about August 19, 2004, the defendant, Townhouse Books, Ltd., d/b/a Townhouse Cafe, did operate, manage and maintain certain property located at or near 105 North Second Avenue, St. Charles, Illinois.

3. That on or about said date, the defendants, TOWNHOUSE BOOKS, LTD., d/b/a TOWNHOUSE CAFE, owed a duty to maintain their property in a reasonably safe condition so as to avoid injury to those lawfully upon said premises, and in particular, the plaintiff, GREGG QUAGLIANO. (See Exhibit “A”)

3. Plaintiff further alleged that these defendants were guilty of the following negligent acts and/or omissions:

a. Failed to maintain and control the sidewalk/walkway designated by the defendants for ingress and egress into the aforesaid premises in a reasonably safe condition;

b. Allowed the dangerous condition of the sidewalk/walkway to remain for more than a reasonable length of time prior to the date of the incident so that the defendants knew, or in exercise of ordinary care, should have known of the dangerous and unsafe condition of the area therein;

c. Failed to give the plaintiff herein any warning of the dangerous and unsafe condition of the aforesaid sidewalk/walkway as described above prior to the date of the occurrence. (See Exhibit “A”)

4. On January 27, 2006, defendant, “TOWNHOUSE,” answered Plaintiffs First Amended Complaint at Law and in answer to Count I paragraphs one and three admitted as follows:

1. This defendant admits the allegations of paragraph one of Count I of Plaintiff’s First Amended Complaint at Law.

3. This defendant admits the allegations of paragraph three of Count I of Plaintiff’s First Amended Complaint at Law. (See Exhibit “B,” Defendant, “Townhouse” Answer to Plaintiff’s First Amended Complaint at Law)

5. At all time pertinent to this litigation, the property located at 105 North Second Avenue, St. Charles, Illinois was leased to “TOWNHOUSE” under a “triple” lease in which the tenant, “TOWNHOUSE,” had exclusive possession of the property, and was solely responsible for all maintenance and repairs of the property. (See Exhibit “C,” Affidavit of David L. Hunt)

STATEMENT OF FACTS

6. On August 19, 2004, plaintiff, GREGG QUAGLIANO, was a delivery driver for third-party defendant, Sysco. Defendant, “TOWNHOUSE,” operated a bookstore and a restaurant/cafe at 105 North Second Avenue in St. Charles, Illinois. The customer entrance for the book store and cafe is at 105 North Second Avenue. Deliveries for the Cafe are off Cedar Street. Plaintiffs fall occurred on the delivery pathway for “TOWNHOUSE” on Cedar Street as he was attempting to make a delivery to defendant. (See Exhibit “D,” deposition transcript of Gregg Quagliano, pg. 34; see Deposition Group Exhibit #3, photographs of the area of the fall)

7. Douglas Fosty Bella is the manager of Townhouse Cafe. (See Exhibit “E,” deposition transcript of Douglas Fosty Bella, pg. 9.) Townhouse Books, Ltd. runs two businesses as part of the corporation — a book store and a restaurant. (See Exhibit “B,” deposition transcript of Bella, pg. 10) As part of Bella’s managerial responsibilities for the Cafe, he conducted daily inspections of all aspects of the property. (See Exhibit “E,” deposition transcript of Bella, pg. 11) Bella was shown the photographs of the area where plaintiff’s fall occurred. Bella described this area as an alleyway that leads directly to a staircase that goes to the basement of the building. (See Exhibit “B,” deposition transcript of Bella, p. 13) The purpose of this alleyway is for deliveries and for the use of staff and/or employees of the restaurant. (See Exhibit “E,” deposition transcript of Bella, pgs. 13,15) The restaurant staff7employees would use this alleyway to remove garbage from the business and/or to get to the dumpster area where the garbage is deposited. (See Exhibit “E,” deposition transcript of Bella , pg. 16) When Sysco made deliveries to the Townhouse Cafe, the Cafe employees directed Sysco delivery personnel to use the alleyway portrayed in the photographs and where plaintiffs fall and injuries occurred. (See Exhibit “B,” deposition transcript of Bella, pg. 22).

8. On the date of the plaintiff’s fall and injuries, GREGG QUAGLIANO specifically spoke with Bella and asked him where the delivery should be made. (See Exhibit “E,” deposition transcript of Bella, transcript pg. 23) Bella specifically testified:

“He asked where the goods should be delivered, and I showed him the alleyway leading to the staircase.” (See Exhibit “E,” Bella deposition transcript, p. 24)

Bella then walked with the plaintiff to show him where to go. (See Exhibit “E,” Bella deposition transcript, p. 24.) Bella specifically directed GREGG QUAGLIANO to use the alleyway to make the delivery. (See Exhibit “B,” Bella deposition transcript, p. 25) Bella was informed by a customer who had a “sight line” to the alleyway that Quagliano had fallen. (See Exhibit “B,” Bella deposition transcript, p. 29)

9. Plaintiff, GREGG QUAGLIANO, had never delivered to the defendants’ location prior to the date of the occurrence. (See Exhibit “D,” Quagliano deposition transcript, p. 25) When he arrived at “TOWNHOUSE,” he spoke to the manager (Douglas Bella) to find out what delivery route to take. The manager then walked with him and directed which route he was to take to make the delivery. (See Exhibit “D,” Quagliano deposition transcript, p. 25.) As Quagliano walked with Bella, he stated that the alleyway/walkway was “in bad shape.” Quagliano also asked if there was another way to make the delivery. He was advised by Bella that this was the way all of the Sysco drivers delivered produce to Townhouse. (See Exhibit “D,” Quagliano deposition transcript, pgs. 25-28) During their walk and conversation, Quagliano also informed Bella that the step/threshold was cracked. Bella responded “yeah, we’re going to have to get that fixed eventually later.” (See Exhibit “D,” Quagliano deposition transcript, pg. 28) As Quagliano was attempting to complete the Sysco delivery, the threshold of the alleyway broke under his left foot and he was injured. (See Exhibit “D,” Quagliano deposition transcript, pg. 36)

10. Contrary to defendant’s assertion in their Motion for Summary Judgment, Sysco Safety Manager, Michael R. Altendorf, testified that he prepared his report several hours after he had spoken to Mr. Quagliano. Mr. Quagliano never saw or signed the report. Mr. Altendorf also agreed that Mr. Quagliano may have meant or told him that he did not see the crack immediately before he fell. (See Exhibit “F,” deposition transcript of Michael R. Altendorf, pgs. 24-25) Additionally, following the occurrence, Altendorf specifically spoke to defendant’s manger (Bella) about fixing the condition of the step. (See Exhibit “F,” deposition transcript of Bella, pgs. 25-26)

STANDARD FOR SUMMARY JUDGMENT

11. The purpose of Summary Judgment is not to decide the facts, but to ascertain whether a factual dispute exists and inso doing, courts must construe the evidentiary material strictly against the movant and liberally in favor of the opponent. Holbrook v. Peric, 129 Ill.App.3d 996, 4i3 N.E.2d 531 (1984)/ The party moving for Summary Judgment must affirmatively show that he or she has a clear right of judgment. If any facts are presented upon which reasonable persons may disagree, or if inferences which could be drawn from those facts lead to different conclusions, the court must deny the motion and submit the matter to a jury. Dietz v. Spalla, 186 Ill.App.3d 742,542 N.E. 2d 855 (1989). Summary Judgment is a drastic method of disposing of cases and should be granted only when the movant’s right is clear and free from doubt. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 531 N.E. 2d 1358 (1988).

12. For the purposes of a Motion for Summary Judgment, an issue may use resolved as a matter of law only if all reasonable minds would be compelled to reach the same conclusion. Laflin v. Estate of Dorothy C. Mills, 53 Ill.App. 3d 29, 368 N.E. 2d 522 (1977). Negligence may be established by using either direct or circumstantial evidence. Murphy v. Messerschmidt, 68 Ill.2d 79, 368 N.E.2d 1299 (1977). The use of circumstantial evidence is not limited to only those instances in which circumstances support only one logical conclusion; instead circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom, and facts established by such inferences are properly considered when an issue is decided as a matter of law or a verdict is directed. Mort v. Walter, 98 fll.2d 391, 457 N.E.2d 18 (1983).

13. Under Illinois law, the tenant (“Townhouse”) who is in possession of the premises (and not the landlord) is liable for injuries sustained by third persons because of a failure to keep the property in repair. Wright v. Mr. Quick, Inc., 109 Ill.2d 236, 486 N.E.2d 908(1985); Gueriano v. Depot Place Partnership Depat., 273 I1l.App. 3d 27652 N.E. 2d 410(1995) The inquiry here then is whether plaintiff can present sufficient direct or circumstantial evidence to raise a genuine issue of material fact as to whether defendant, “TOWNHOUSE” knew or should have known, of the state of disrepair and/or hazardous condition of its own alleyway and/or pathway in which defendant specifically directed plaintiff to utilize for the Sysco Food Delivery.

ARGUMENT

I. Plaintiff did not Assume the Risk of Harm and “Assumption of Risk” does not Entitle Defendant to Summary Judgment.

14. Illinois has adopted sections 343 and 343A of the Restatement (Second) of Torts. These sections define the duty owed by a defendant to a plaintiff, as a business invitee, upon the defendant’s premises. Originally, Illinois court had adopted only section 343. Under section 343 alone, a plaintiff was completely barred from recovery if a condition was found to be “open and obvious.” However, the adoption of section 343A transformed the “open and obvious” ax into a vehicle used to assess the plaintiffs comparative negligence. Whether any harm or danger was “open and obvious” affects the extent a plaintiff was comparatively negligent, and, as such does not bear on the existence of a duty. See e.g. Ward v. K-Mart Corp., 136 Ill.2d 132, 554 N.E.2d 223 (1990); Deibert v. Bauer Bros. Construction Co. Inc., 141 Ill.2d 430, 566 N.E.2d 239 (1990); American National Bank v. National Advertising, 149 Ill.2d 14, 594 N.E.2d 313 (1992). These decisions demonstrate that the “open and obvious” concept, which traditionally would have barred a plaintiffs recovery, now has become a proper consideration under comparative negligence principles.

15. There is no dispute that Townhouse was responsible for operating, managing and maintaining the property in a reasonably safe condition so as to avoid injury to the plaintiff. Townhouse has admitted this in its answer to plaintiff’s First Amended Complaint at Law. (See Exhibit B). Despite the adoption of Section 343 a, Townhouse argues that it owed no duty of care to the plaintiff as the condition of the alleyway was “open and obvious”. Defendant’s contention ignores completely our Illinois Supreme Court’s decision in LeFever v. Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441 (1998) as well as the Court’s reasoning in Ward v. Kmart Corp., supra, Deibert v. Bauer Brothers Construction Co., supra, and American National Bank and Trust Co. v. National Advertising Company, supra. Additionally, our Illinois Supreme Court has cautioned against such characterizations in determining the defendant’s duty under a particular set of circumstances. In Ward v. Kmart Corporation, the court stated:

“. . . attempting to dispose of litigation by merely invoking such relative and imprecise characterizations as ‘known’ or ‘obvious’ is certainly no adequate substitute for assessing the scope of the defendant’s duty under the circumstances. . .“

18. In addition to the applicability of the distraction exception, the Illinois Supreme Court’s decision and reasoning in LeFever v. Kemlite Co., 185 Ill.2d 380, 235 Ill.Dec. 886, 706 N.E.2d 441 (1998) is controlling herein. In LeFever, the Court adopted the deliberate encounter exception to the open and obvious doctrine. LeFever, 706 N.E.2d at 450. The Court examined Section 343A of the Restatement (Second) of Torts § 343A, Comment f and found defendant Kemlite owed a duty to the plaintiff despite the obviousness of the hazard. Section 343A, Comment f states:

Similarly harm may be reasonably anticipated when the possessor “has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position, the advantages of doing so would outweigh the apparent risks.” Restatement (Second) of Torts, Section 343(a), comment f at 220 (1965). Some courts refer to this second exception as the “Deliberate encounter exception.” Jackson v. Hilton Hotels Corporation, 277 Ill.App.3d 457, 214 Ill.Dec.31, 660 N.B.2d 222 (1995).

LeFever, 706 N.E.2d at 448 (emphasis added).

The Court also stated:

“The Restatement directs that with regard to open and obvious hazards, liability stems from the knowledge of the possessor of the premises, and what the possessor “ha[d] reason to expect” the invitee would do in the face of the hazard.” Restatement (Second) of Torts § 343A, Comment f, at 220 (1965).

LeFever, 706 N.E.2d at 448.

19. In LeFever, the plaintiffs job was retrieving containers of edge trim from the defendant’s facility. In order to fulfill his employment obligation, the plaintiff had to walk through edge trim that was on the ground to unhook and load the edge trim container onto his truck. The Court concluded defendant Kemlite could have reasonably foreseen that plaintiff would risk walking through edge trim because it was necessary for plaintiff to perform his job obligations. LeFever, 706 N.E.2d at 448.

20. In the case herein, not only could Townhouse have reasonably foreseen that plaintiff would risk using the alleyway to accomplish the Sysco delivery, but knew and specifically directed

him to this area. Defendant’s manager, Doug Bella, testified that part of his responsibilities at defendants’ premises was to perform daily inspections of the premises. Further, the alleyway where plaintiff’s fall and injury occurred was used by Townhouse employees and staff. Finally, Bella admitted that he specifically directed the plaintiff to use the alleyway in order to make the Sysco Food delivery. Plaintiff Quagliano testified that he pointed out the condition of the alleyway to the defendant’s manager prior to the occurrence. If this condition was obvious to the plaintiff as defendant claims, it was certainly “open and obvious” to the defendant who admittedly was responsible for the maintenance of the property and owed a duty to keep said property in a reasonably safe condition so as to avoid injury to those lawfully upon the premises including the plaintiff, Gregg Quagliano. (See Exhibit B). Undeniably, Townhouse knew the condition of the premises, knew that plaintiff was on the premises, directed the plaintiff to use the alleyway where the fall occurred.

21. Defendants reliance on Bonavia v. Rockford Flotilla, 348 Ill.App.3d 286, 808 N.E.2d 1131(2004) and Hastings v. Exline, 326 Ill.App.3d 172, 760 N.E.2d 993 (2001), is misplaced. Bonavia involved a boater who rented a dock space from defendant dock operator and brought a negligence action against the operator alleging that he slipped and fell while walking across a boat launch to his pontoon boat. Defendant moved for summary judgment, arguing that it owed plaintiff no duty to prevent his injuries because he slipped on a natural accumulation of algae. In support, defendant cited plaintiffs own deposition testimony in which he admitted that the waves washed the algae onto the launch ramp where he fell. Bonavia, 808 N.E.2d at 1134. Of special note, plaintiff in Bonavia conceded that the slippery condition of the launch ramp was open and obvious. In affirming the Trial Court’s granting of summary judgment, the appellate Court found it noteworthy that plaintiff conceded that the slippery condition of the launch ramp was open and obvious. Further, the Court found that the defendant had posted a sign near the launch ramp, stating, “Caution, Slippery When Wet”. The Appellate Court maintained that this sign is precisely the type of warning that Ward suggested would remove the unreasonableness of the danger. In the case herein, no such warning was provided by the defendant herein and plaintiff did not slip on a natural accumulation.

22. Plaintiff additionally notes the Court in Bonavia specifically noted that the Illinois Supreme Court has supplied the deliberate encounter exception in cases involving some type of economic compulsion. Bonavia, 808 N.E.2d at 1136. The Bonavia Court cited the Illinois Supreme Court’s decision in LeFever and the reasoning of Rails v. Village of Glendale Heights, 233 Ill.App.3d 147, 598 N.E.2d 337 (1992) (it was reasonably foreseeable that construction workers would use the shortest path to door of building on work site, even though the path was snow covered and slippery). In the case herein, plaintiff Quagliano, a deliveryman for Sysco, was not only directed but it was certainly foreseeable to the defendant based upon its prior experience with Sysco delivery personnel that the alleyway would be utilized as the delivery route for the Sysco product. Unquestionably, Quagliano was economically compelled to utilize this route to discharge his job responsibilities.

23. Similarly, defendant’s reliance on Hastings is misplaced. In Hastings, the plaintiff visited her mother-in-law, the defendant, at the mobile home where she lived. The home had front and rear doors. Covered wooden stairs led to the front door. Stairs of metal mesh lead to the rear door. The plaintiff exited the mobile home through the rear door, slipping and injuring herself on the metal steps. The plaintiff used the rear door because it was more convenient to reach her car. Hastings, 326 Ill.App.3d at 173. In upholding the Trial Court’s entry of summary judgment, the reviewing court found that plaintiff provided no proof that a reasonable person in her position would have found greater utility in choosing to use the back door than in using the front door giving the respective conditions of the two exits. Hastings, 326 Ill.App.3d at 177.

24. The facts in Hastings are inapplicable to the case herein. Most notably, the defendant herein directed the plaintiff to utilize the alleyway route where he was injured. Plaintiff was not presented with any choice or given an alternative route to effectuate the delivery. The fact that defendant left the plaintiff no reasonable alternative route negates ‘voluntariness’ on the plaintiff’s part. (See Restatement (Second) of Torts, Sec. 490cc (1965)).

II. DEFENDANT HAD ACTUAL AND/OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION

25. It is clear from the testimony of defendant’s manager, Doug Bella, and plaintiff, Gregg Quagliano, that the defendants had actual notice of the condition of the alleyway before the incident. Doug Bella testified that he would make daily inspections of the premises prior to August 19, 2004. Additionally, the specific alleyway where plaintiff fell was used by defendant’s own employees and staff. Further, it was defendant’s practice to direct all delivery personnel who were delivering goods/product to Townhouse to use the ‘alleyway’ where the plaintiff fell. Mr. Bella acknowledges speaking with plaintiff and directing him to use the alleyway to effectuate his delivery of the Sysco product. Plaintiff testified that he informed Mr. Bella of the cracked concrete and the uneven nature of the bricks/payers in the alleyway. In answer to plaintiff’s First Amended Complaint at Law, Townhouse admitted that it operated, managed and maintained the property including the alleyway and that it owed a duty to maintain said property (and alleyway) in a reasonably safe condition so as to avoid injury to those lawfully upon said premises including plaintiff Gregg Quagliano. (See Exhibit B; Rowe v. State Bank, 125 I1l.2d 203, 531 N.E.2d 1358 (1988)).

26. Defendant also had constructive notice of the condition of the alleyway. Constructive notice of an unsafe condition exists where said condition had existed for such a length of time or was so conspicuous or plainly visible that, through the exercise of reasonable care and due diligence, the defendant might have known about it. CDL, Inc. n/k/a Café Du Louvre, Inc. v. East Dundee Fire Protection District, 252 Ill.App.3d 835, 624 N.E.2d 5 (1993). Also, a defendant who has notice of facts which would cause a reasonable person to inquire further may be charged with having notice of other facts that might have been discovered after a reasonable inquiry. Pinto v. DeMunnick, 168 Ill.App.3d 771, 523 N.E.2d 47 (1988). Whether a defendant is deemed to have constructive notice of the existence of a dangerous condition on its property is a question of fact. Buford v. Chicago Housing Authority, 131 Ill.App.3d 235, 476 N.E.2d 426 (1985).

27. In the case herein, defendant’s manager, Doug Bella, admits that part of his daily responsibilities included inspecting the premises. Undeniably, Bella and other employees of Townhouse were aware of the condition of the alleyway well prior to the date of the plaintiffs injuries as they would themselves use the alleyway as a path to the restaurant dumpster. Further, they would direct delivery personnel including the plaintiffs employer to use the alleyway as a route for the Cafe’s delivery of food and product. The photographs of the alleyway demonstrate the condition of ill repair of the cement and uneven nature of the brick pathway. Plaintiff respectfully contends that the evidence is sufficient to allow a Jury to reasonably conclude that the defective condition of the cement and pathway existed for a sufficiently long time to impute notice to the defendants.

28. Defendant in its motion relies solely on Smolek v. KW Landscaping, 266 Ill.App.3d 226, 639 N.E.2d 974 (1994). Defendant’s reliance on Smolek is misplaced. Smolek involved a resident of a townhome complex that brought an action against the homeowner’s association and landscaping company seeking damages for injuries the resident sustained after stepping into a hole on the association’s property. Unlike in the case herein, the hole that caused the plaintiffs fall was so inconspicuous that a reasonable inspection of the association’s common areas would not have revealed the existence of the hole. Here, the alleyway was in an open and such a conspicuous area that the defendant should have discovered the condition through the exercise of reasonable care. Defendant’s own employees used the alleyway as a path to and from the café dumpster. Defendant’s manager made daily inspections of the premises including the alleyway.

29. Plaintiff respectfully contends that the reasonable inference to be drawn from the evidence is that the defendants had actual or constructive notice of the defective and hazardous condition of the alleyway well before the occurrence herein.

Wherefore, plaintiff, Greg Quagliano, respectfully requests this Court to deny defendant’s Motion for Summary Judgment.

Respectfully submitted,

Plaintiff’s Attorney