Witcher v. 1104 Madison St. Rest.

2019 IL App (1st) 181641

139 N.E.3d 694

435 Ill.Dec. 622

Natalie WITCHER, as Special Administrator for the Estate of Toney Adewoye, Plaintiff-Appellant,

v.1104 MADISON ST. RESTAURANT d/b/a Plush Chicago, Defendant-Appellee.

No. 1-18-1641

Appellate Court of Illinois, First District, FIRST DIVISION.

October 7, 2019

Ehsan Eftekhari, of Eftekhari Law Offices LLC, of Evanston, for appellant.

Robert M. Burke Jr. and Michael Spanel, of Heineke & Burke, LLC, of Chicago, for appellee.

OPINION

PRESIDING JUSTICE GRIFFIN delivered the judgment of the court with opinion.

¶ 1 Toney Adewoye was patronizing Plush, a restaurant and lounge in Chicago, when he was stabbed in the neck and killed. The special administrator of Adewoye's estate, plaintiff Natalie Witcher, brought this case for wrongful death against defendant 1104 Madison St. Restaurant, the company that operated Plush. Witcher contends that 1104 Madison failed to provide proper security at the restaurant in order to prevent Adewoye's death.

¶ 2 The trial court entered summary judgment in favor of 1104 Madison. The trial court found that the murder was not reasonably foreseeable so that 1104 Madison could not be held to have had a legal duty to prevent the murder. Witcher appeals, and we affirm.

¶ 3 BACKGROUND

¶ 4 On October 12, 2011, a Wednesday, Toney Adewoye visited Plush restaurant and lounge located at 1104 W. Madison Street in Chicago. Adewoye was at the establishment with someone he referred to as his wife. When Adewoye was getting ready to leave the establishment, he began to speak with a man who was unknown to Plush's owner and the restaurant's other patrons. The encounter seemed cordial until, suddenly, the unknown man appeared to slap Adewoye's face. The witnesses did not see any weapon. The unknown man quickly left the restaurant and Adewoye exited too. Witnesses found Adewoye outside of Plush soon afterwards and he was bleeding heavily from his neck. The whole incident happened in a matter of seconds.

¶ 5 The unknown man entered a vehicle that was standing across the street from Plush and quickly left. Plush's owner called 911, and a doctor that was patronizing the restaurant attended to Adewoye. Adewoye bled heavily from the neck and died from his injuries. The man who stabbed Adewoye was never identified and never apprehended.

¶ 6 Plush had experienced some disturbances in the years preceding the stabbing. There had been public complaints made about Plush by members of the community between 2009 and 2011. William Kleronomos, Plush's owner, began to employ security on Friday and Saturday nights. Kleronomos testified in a deposition that he employed security on weekends but not on weeknights because of the increased volume of customers on weekends. He testified that approximately 30 people were present on the night of Adewoye's murder whereas about 80 to 100 people would be present on weekend nights.

¶ 7 In support of her theory of liability in this case, plaintiff produced a Chicago Police Department Incident Check Report which documented the incidents at 1104 W. Madison St. from January 2006 to October 2011. In the five and a half years preceding Adewoye's murder, there had been calls to the police to report 11 battery incidents, one assault, five thefts, and three motor vehicle thefts that corresponded to the address where Plush was located. Of those 20 incidents that occurred at 1104 W. Madison in the five years before the murder, one was on a Wednesday (the day of the week that the murder occurred), 13 were on other weeknights, and six were on a Friday or Saturday.

¶ 8 Plaintiff filed this case on the basis that Plush is liable for Adewoye's death because it failed to provide adequate security to prevent his death. The parties conducted discovery, including taking the depositions of Plush's owner Kleronomos and another eyewitness, Jeffrey Timms, both of whom were present at Plush on October 12, 2011 and witnessed the murder. Plaintiff disclosed two expert witnesses, but the trial court found the expert witness disclosures to be deficient. The trial court gave plaintiff leave to amend the expert witness disclosures, but she never did so.

¶ 9 Defendant filed a motion for summary judgment arguing that it did not have a legal duty to prevent Adewoye from being murdered in its establishment under the circumstances. The motion for summary judgment was fully briefed and the trial court conducted a hearing on the motion. The trial court's ruling, memorialized in a bystander's report agreed upon by the parties, was that defendant is not liable because "there was no testimony or other evidence that the altercation was even remotely foreseeable." The trial court found that the reports of other disturbances were insufficient to give rise to a duty on defendant's part to protect Adewoye from the assailant. The trial court also reiterated its finding that plaintiff's expert disclosures were deficient, but stated that even if the court did consider the experts' affidavits, defendant would still not have owed a duty of care to Adewoye in this case.

¶ 10 ANALYSIS

¶ 11 On appeal, plaintiff argues that the trial court erred when it entered summary judgment in defendant's favor. Summary judgment is appropriate when the pleadings, depositions, admissions and affidavits, viewed in a light most favorable to the nonmovant, fail to establish that a genuine issue of material fact exists, thereby entitling the moving party to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2012) ; Fox v. Seiden , 2016 IL App (1st) 141984, ¶ 12, 403 Ill.Dec. 368, 53 N.E.3d 1005. If disputes as to material facts exist or if reasonable minds may differ with respect to the inferences drawn from the evidence, summary judgment may not be granted. Fox , 2016 IL App (1st) 141984, ¶ 12, 403 Ill.Dec. 368, 53 N.E.3d 1005. We review a trial court's decision to grant summary judgment de novo . Illinois Tool Works Inc. v. Travelers Casualty & Surety Co. , 2015 IL App (1st) 132350, ¶ 8, 389 Ill.Dec. 331, 26 N.E.3d 421.

¶ 12 The issue in this case concerns a restaurant owner's duty to protect its patrons from criminal acts committed by third parties. As a general rule, there is no duty imposed on landowners to protect others from criminal attacks by third persons on their property. Popp v. Cash Station, Inc. , 244 Ill. App. 3d 87, 92, 184 Ill.Dec. 558, 613 N.E.2d 1150 (1992). However, the owner of a restaurant or bar might have a duty to protect its patrons against criminal attacks on the property if circumstances such as prior incidents give the owner knowledge of the danger facing the patrons. Cooke v. Maxum Sports Bar & Grill, Ltd. , 2018 IL App (2d) 170249, ¶ 55, 424 Ill.Dec. 697, 109 N.E.3d 811 ; Ignarski v. Norbut , 271 Ill. App. 3d 522, 526, 207 Ill.Dec. 829, 648 N.E.2d 285 (1995). In determining whether such a duty exists in a given case, the question is whether the criminal activity was reasonably foreseeable such that the business should be held to have a duty to protect its patrons from such activity. Hills v. Bridgeview Little League Ass'n , 195 Ill. 2d 210, 243, 253 Ill.Dec. 632, 745 N.E.2d 1166 (2000).

¶ 13 Illinois courts have looked to the Restatement of Torts for guidance in determining the circumstances in which a business has a duty to protect its patrons from a third party's criminal acts. Id. at 243-44, 253 Ill.Dec. 632, 745 N.E.2d 1166. The Restatement explains that business owners might have a duty to protect customers when the owners have knowledge of the dangers posed to their patrons.

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." Restatement (Second) of Torts § 344 (1965) (West 2016).

Before a duty to protect will be imposed on a possessor of land, the court must also consider (1) whether the criminal attack was reasonably foreseeable, (2) the likelihood of the injury, (3) the magnitude of the burden to guard against the injury, and (4) the consequences of placing that burden upon the possessor. See Marshall v. Burger King Corp. , 222 Ill. 2d 422, 436-37, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006).

¶ 14 In this case, the record fails to establish that the crime at issue was in any way foreseeable. Instead, the crime against Adewoye was a sudden, unforeseeable, and targeted murder. The assailant in this case, a still-unknown man, came into the lounge, did not order a drink, and spoke directly with Adewoye. The man then stabbed Adewoye in the neck and left the premises. There is no evidence in the record to suggest that the murder related to anything that happened at the restaurant nor is there any evidence that the murder occurred because of Adewoye's presence at the restaurant. There is similarly no evidence in the record that any event even remotely similar to this crime had ever occurred at Plush before. As a result, the crime was not reasonably foreseeable and defendant had no duty to protect plaintiff's decedent from the criminal act of the unknown third party.

¶ 15 A restaurant owner is not an insurer of its patrons' safety. See Marshall , 222 Ill. 2d 422, 444, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006) (quoting Restatement (Second) of Torts § 344 cmt. f (West 2016)). To establish that a restaurant has a duty to protect its customers from criminal acts of third parties, the criminal act at issue "must have resulted from the same risk as was present in the prior incidents of criminal activity." Ignarski v. Norbut , 271 Ill. App. 3d 522, 527, 207 Ill.Dec. 829, 648 N.E.2d 285 (1995). The...