Davis v. Advocate Health & Hosps. Corp.

Appeal from the Circuit Court of Cook County, No. 2020-L- 063072; the Hon. Martin S. Agran, Judge, presiding.

Kenneth C. Apicella, of Drost, Gilbert, Andrew & Apicella, LLC, of Palatine, for appellant.

Julie A. Teuscher, of Cassiday Schade LLP, of Chicago, for appellee.

JUSTICE TAILOR delivered the judgment of the court, with opinion. Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment and opinion.

OPINION

TAILOR, JUSTICE.

¶ 1 The plaintiff was injured as she entered a hospital parking lot on her motorcycle when a descending parking lot gate struck her uncovered head. We agree with the circuit court that the hospital did not owe the plaintiff a duty of care because the condition of the parking lot gate was open and obvious. Therefore, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Marla Davis was injured when she was struck on the head by an electronic parking lot gate arm in Park Ridge, Illinois, in the Yacktman Pavilion parking lot owned and operated by Advocate

Health and Hospitals Corporation (Advocate). There are eight visitor parking lots on Advocate's Lutheran General Hospital Park Ridge (Lutheran General) campus. While motorcycles are not permitted to park in any of the gated parking lots, they are permitted to park in the north open lot, which is located across the street from Advocate's campus.

¶ 4 To enter Advocate's Yacktman Pavilion parking lot, vehicles are required to pass through an electronic gate. A warning sign posted on the mechanism box of the gate states, "WARNING. Moving Gate Can Cause Serious Injury or Death" and "This Gate is for Vehicles Only. Pedestrians must use Separate Entrance." There are also several pictures on the mechanism box. One shows an electronic gate arm appearing to hit a pedestrian on the head. Another shows a circle with a red line going through it and what appears to be an individual on a motorcycle. The gate itself also contains several warning signs. One says, "moving arm can cause bodily harm or vehicle damage" and a second says, "cars only: no bicycles, motorcycles or pedestrians." The gate also contains a picture of an electronic gate arm appearing to hit a pedestrian on the head.

¶ 5 On July 13, 2018, Davis drove her 14-year-old daughter to a doctor's appointment on her motorcycle. It was a bright, sunny day. The doctor's office was located in the Yacktman Pediatrics building on Lutheran General's campus. Davis had taken her daughter to Yacktman Pediatrics for many years, and she had parked in the Yacktman Pavilion parking lot at least 10 times before. She had always driven her car into the parking lot prior to July 2018.

¶ 6 This time, however, Davis dropped her daughter off at her appointment, and then went to the Yacktman Pavilion parking lot on her motorcycle shortly after 4 p.m. Davis was not wearing a helmet. In the past, when Davis had taken her daughter to doctor's appointments, she had stopped at the entrance of the Yacktman Pavilion lot to speak with an attendant several times. On those occasions, the parking lot gate arm was down and needed to be raised by the attendant before Davis

could enter. This time, however, no attendant was present. Davis admitted that she was able to see clearly as she drove into the parking lot and that nothing was impairing her line of sight. She slowed down to approximately three or four miles per hour before entering the lot, but because the parking lot gate arm was up, she did not stop or read the warning signs posted on either the parking lot gate or the mechanism box of the gate before entering. As Davis proceeded into the parking lot, the gate descended and hit her on the top of her head.

¶ 7 Davis did not immediately seek medical attention. Instead, she picked up her daughter from her doctor's appointment, went to Portillo's restaurant, then called Lutheran General's maintenance department to report that the parking lot gate had hit her on the head. Davis could not remember the name of the man she spoke to from the maintenance department but claimed he told her, "That's happened before. I cannot believe they haven't fixed that." She then drove her daughter home, which took about 25 minutes. Several hours later, Davis returned to Lutheran General's emergency room because she "didn't feel right." She had a computerized tomography (CT) scan, the results of which were normal and was told she had a concussion.

¶ 8 Bartosz Gronkiewicz, who had worked as a public safety officer for Lutheran General for more than 10 years, spoke with Davis after she visited Lutheran General's emergency room. He examined the parking lot gate arm after talking to Davis but found nothing wrong with it. He then prepared an incident report, which summarized Davis's version of events. Gronkiewicz stated in his deposition that if he had detected any malfunctioning of the gate, he would have noted it in his incident report. Gronkiewicz had never heard of anyone having an incident with the Yacktman Pavilion parking lot gate before or received any complaints about the gate not functioning correctly, but he admitted he did not necessarily receive notice of every single incident that occurred at the hospital.

¶ 9 Another Lutheran General public safety officer, Derek Synowiec, said he was similarly unaware of any previous incidents where someone had been hit on the head by a parking lot gate arm. Phillip Schatzel, who had been the manager of public safety at Lutheran General for more than 20 years, could not recall a single instance of another person being hit by a parking lot gate while driving a motorcycle into the Yacktman Pavilion parking lot either. He said that no changes had been made to the electronic gate arm after this particular incident, and that if there had been any issues with the functioning of the gate, the facilities department would have cordoned off the gate and fixed it immediately.

¶ 10 On September 3, 2020, Davis filed a complaint against Advocate, alleging that she was injured by Advocate's parking lot gate due to its negligence. Advocate moved for summary judgment, and on July 7, 2023, the circuit court granted Advocate's motion "for the reasons stated on the record." Davis timely appealed.

¶ 11 II. ANALYSIS

¶ 12 As an initial matter, Advocate argues that Davis's brief does not comply with Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) because its statement of facts contains improper argument, misrepresents facts, and fails to include facts "necessary to an understanding of the case." Rule 341(h)(6) requires a statement of facts to be presented "accurately and fairly without argument or comment." Id. We will disregard any arguments and unsupported statements. McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3.

¶ 13 A. Standard of Review

¶ 14 We review a trial court's grant of summary judgment de novo. Givens v. City of Chicago, 2023 IL 127837, ¶ 46. Summary judgment is proper where "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 judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2022). We must "construe the record strictly against the movant and liberally in favor of the nonmovant." Givens, 2023 IL 127837, ¶ 46. "[T]o survive a motion for summary judgment, a plaintiff need not prove her case, but she must present a factual basis that would arguably entitle her to a judgment." Bruns v. City of Centralia, 2014 IL 116998, ¶ 12.

¶ 15 Advocate contends that we should affirm the circuit court's grant of summary judgment without reaching the merits of Davis's appeal because she failed to provide a transcript of the hearing where the circuit court articulated its reasons for granting Advocate's motion for summary judgment. But because we review the circuit court's decision to grant summary judgment de novo and give no deference to its findings, the missing hearing transcript does not affect our ability to reach the merits of Davis's appeal.

¶ 16 B. The Circuit Court Properly Granted Summary Judgment to Advocate

¶ 17 Davis contends that the circuit court erred when it granted summary judgment to Advocate, because Advocate was negligent in failing to exercise reasonable care to maintain its premises in a reasonably safe condition for use by invitees, including inspecting and repairing dangerous conditions and giving adequate warnings to prevent injury. To prove negligence, a plaintiff must plead and prove "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach." Id. The existence of a duty is a question of law to be determined by the court. Ward v. KMart Corp., 136 Ill.2d 132, 140 (1990). Because there can be no negligence without the existence of a duty, we must first determine whether Advocate owed a duty to Davis. See Libolt v. Wiener Circle, Inc., 2016 IL App (1st) 150118, ¶ 26 ("duty is an essential element of a negligence claim; unless the plaintiff can demonstrate that a duty is owed ***, there can be no negligence imposed upon the defendant").

¶ 18 i. Advocate Owed No Duty to Davis Because the Parking Lot Gate Was an Open and Obvious Condition

¶ 19 Generally, an operator of a business owes his invitees a duty to exercise reasonable care to maintain his premises in a reasonably safe condition. Ward, 136 Ill.2d at 141. An exception to this general duty of care is the "open and obvious" doctrine, which states that" 'persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protect...