Bangert v. Wal-Mart Stores, Inc.

                               NO. 5-97-0127

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

CORINA E. BANGERT,                     )  Appeal from the 
                                       )  Circuit Court of 
     Plaintiff-Appellant,              )  Christian County.
                                       )  
v.                                     )  No. 94-L-65
                                       )
WAL-MART STORES, INC., a foreign       )
corporation,                           )  Honorable
                                       )  Mark M. Joy, 
     Defendant-Appellee.               )  Judge, presiding.  
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:  
     On July 30, 1993, after shopping at the Wal-Mart store in
Taylorville, Illinois, Corina Bangert left the Wal-Mart store and
proceeded across two lanes of traffic that lie between Wal-Mart and
the parking aisles.  As she walked past the second lane of traffic,
Bangert was struck by Sandra Hankin's vehicle.  Bangert sued Sandra
Hankin and settled that claim.  Bangert also sued Wal-Mart and
alleged that it was negligent in failing to keep the premises
reasonably safe.  The trial court held that Wal-Mart owed no duty
to the plaintiff, and the court granted Wal-Mart's motion for
summary judgment.  Plaintiff appeals.  We reverse.
     On an appeal from the trial court's grant of summary judgment,
the only issue before the court on review is whether all the
pleadings, depositions, admissions, and affidavits show that there
is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.  Jewish Hospital v.
Boatmen's National Bank, 261 Ill. App. 3d 750, 755, 633 N.E.2d 1267, 1272 (1994).  Although the use of a summary judgment motion
is encouraged, it is a drastic means of disposing of litigation and
should only be allowed when the right of the moving party is clear
and free from doubt.  Loyola Academy v. S & S Roof Maintenance,
Inc., 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 1215 (1992).  In
appeals from summary judgment rulings, the reviewing court conducts
a de novo review.  Delaney v. McDonald's Corp., 158 Ill. 2d 465,
467, 634 N.E.2d 749, 750 (1994).  The court of review considers not
only the facts alleged but also the reasonable inferences to be
derived from those facts, whether the facts are disputed or not. 
Jewish Hospital, 261 Ill. App. 3d 750, 755, 633 N.E.2d 1267, 1272. 
     Plaintiff's complaint alleges that Wal-Mart was negligent in
one or more of the following ways:
        "A. Failed to maintain its parking lot in a reasonably safe
     condition.
        B. Failed to have in place any signs, cross walks [sic], or
     other controlling devices to channel pedestrian traffic in a
     safe manner to and from the parking lot to its store.
        C. Failed to have any stop signs to govern automobile
     traffic present in and about those areas in the parking lot
     where pedestrians travel.
        D. Failed to have cross walks [sic] and[/]or cross walk
     [sic] signs present at the parking lot to govern both
     automobile and pedestrian traffic.
        E. Failed to have present any warning or caution signs at
     the parking lot to warn and caution both pedestrians and
     automobile drivers.
        F. Failed to have present any yield signs at the parking
     lot instructing automobiles to yield to pedestrian traffic.
        G. Failed to have any signs and[/]or devises present at the
     parking lot to govern the speed of automobiles in those areas
     traveled by pedestrians."
     To succeed on a claim of negligence, a plaintiff must prove
the existence of a duty owed by the defendant to the plaintiff, a
breach of that duty, and an injury proximately resulting from that
breach.  Cunis v. Brennan, 56 Ill. 2d 372, 374, 308 N.E.2d 617, 618
(1974).  Whether a defendant owes a plaintiff a duty of care is a
question of law for determination by the court.  Kirk v. Michael
Reese Hospital & Medical Center, 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396 (1987).  
     On the day of the accident, Corina Bangert was in her 70s and
wore glasses to correct her impaired vision.  She testified at her
discovery deposition that she had just shopped at Wal-Mart and was
walking to her car.  As one leaves the store, there are two traffic
lanes.  The lane directly in front of Wal-Mart travels north; the
second lane has traffic traveling south.  Plaintiff testified that
she had walked across the northbound traffic lane and was nearly
across the southbound lane when she was struck by a car.  Plaintiff
testified that as she approached the area where handicapped patrons
park their cars, the front bumper of a car travelling south struck
her.  It is undisputed that although the Wal-Mart parking lot has
markings which outline where vehicles are to park, the parking lot
is not equipped with any stop signs, crosswalks, or other traffic-
or pedestrian-control devices.
     Sandra Hankin testified at her discovery deposition that she
has no restrictions on her Illinois driver's license, but when she
lived in Missouri, she was required to have outside mirrors on her
vehicle because she suffers from the loss of left peripheral and
right nasal vision.  Hankin testified that she also wears glasses
to correct her nearsightedness.  She testified that on the day of
the accident she drove into the Wal-Mart parking lot, and "[There
were people] just going everywhere across here to get to their
cars, and behind me, so I stopped and looked to my left to make
sure no one else was coming before I drove further."  After
stopping, Hankin began to move forward and in a southerly
direction, and then the impact occurred.  She believes she
travelled about a foot and was moving about one mile per hour.  She
did not see Bangert before the accident.  
     Wal-Mart filed a motion for summary judgment, which had three
bases:  (1) Wal-Mart owed no duty to Bangert, (2) there was an
independent intervening cause, and (3) Bangert was contributorily
negligent.  The trial court ruled that as a matter of law Wal-Mart
owes no duty to maintain and regulate its parking lot for the
safety of its customers.  The court reasoned:  
     "The existence of traffic in a store's parking lot is
     unquestionably an open and obvious condition.  It is
     reasonable to expect that those on the premises would
     recognize the danger and take steps to protect themselves from
     danger.  This is not a case similar to Ward [v. K mart Corp.,
     136 Ill. 2d 132, 554 N.E.2d 223 (1990)] where the plaintiff
     was carrying a large object and collided with a post that was
     open and obvious.  There may be policy reasons to impose a
     duty to provide additional traffic regulation, although it
     should be recognized that it is impossible to separate
     pedestrians and vehicular traffic. ***"
Plaintiff argues that the trial court erred in determining that no
duty exists on behalf of Wal-Mart.  
      At issue in this case is whether Wal-Mart and the plaintiff
stood in such a relationship to one another that the law imposes
upon Wal-Mart an obligation of reasonable conduct for the benefit
of the plaintiff.  Our supreme court has identified factors
relevant to the issue of the existence of a legal duty.  Such
factors include the reasonable foreseeability of injury, the
likelihood of injury, the magnitude of guarding against it, and the
consequences of placing the burden upon the defendant.  Ward v. K
Mart Corp., 136 Ill. 2d 132, 140-41, 554 N.E.2d 223, 227 (1990). 
In addition to the factors that underlie the recognition of a duty
in any case, we should examine the statutory and case law that
might bear upon this situation.  
     At the time of the accident, the Premises Liability Act
provided:
        "The distinction under the common law between invitees and
     licensees as to the duty owed by an owner or occupier of any
     premises to such entrants is abolished.
        The duty owed to such entrants is that of reasonable care
     under the circumstances regarding the state of the premises or
     acts done or omitted on them."  740 ILCS 130/2 (West 1994).
In addition to the statute, our supreme court has adopted the rule
set forth in sections 343 and 343A of the Restatement (Second) of
Torts (1965) regarding the duty of possessors of land to their
invitees.  Ward, 136 Ill. 2d 132, 554 N.E.2d 223; Deibert v. Bauer
Brothers Construction Co., 141 Ill. 2d 430, 566 N.E.2d 239 (1990). 
Section 343 provides:
     "A possessor of land is subject to liability for physical harm
     caused to his invitees by a condition on the land if, but only
     if, he
        (a) knows or by the exercise of reasonable care would
     discover the condition, and should realize that it involves an
     unreasonable risk of harm to such invitees, and
        (b) should expect that they will not discover or realize
     the danger, or will fail to protect themselves against it, and
        (c) fails to exercise reasonable care to protect them
     against the danger."  Restatement (Second) of Torts 343, at
     215-16 (1965).
Section 343A(1) of the Restatement (Second) of Torts serves as an
exception to section 343:
     "(1) A possessor of land is not liable to his invitees for
     physical harm caused to them by any activity or condition on
     the land whose danger is known or obvious to them, unless the
     possessor should anticipate the harm despite such knowledge or
     obviousness."  Restatement (Second) of Torts 343A(1), at 218
     (1965).
     In recognizing section 343A as law, our supreme court stated: 
     "[T]he `obviousness' of a condition or the fact that the
     injured party may have been in some sense `aware' of it may
     not always serve as adequate warning of the condition and of
     the consequences of encountering it.  It is stated in Prosser
     & Keeton on Torts: 
          `[I]n any case where the occupier as a reasonable person
          should anticipate an unreasonable risk of harm to the
          invitee notwithstanding his knowledge, warning, or the
          obvious nature of the condition, something more in the
          way of precautions may be required.  This is true, for
          example, where there is reason to expect that the
          invitee's attention will be distracted, as by goods on
          display, or that after a lapse of time he may forget the
          existence of the condition, even though he has discovered
          it or been warned; or where the condition is one which
          would not reasonably be expected, and for some reason,
          such as an arm full of bundles, it may be anticipated
          that the visitor will not be looking for it.'  W. Keeton,
          Prosser & Keeton on Torts, 61, at 427 (5th ed. 1984)." 
          Ward, 136 Ill. 2d  at 148-49, 554 N.E.2d 223, 230-31.
     Returning to the factors that underlie the recognition of a
duty and applying these principles to this case, we consider the
reasonable foreseeability of injury to be great.  As both Bangert
and Hankin testified, pedestrians and traffic move freely within
the parking area.  There are no traffic- or pedestrian-control
devices to speak of.  As pedestrians walk to and from the store, it
is likely that they will be distracted by their packages, their
children, or traffic, and they may suffer injury as a result.  The
magnitude of the burden on defendant of guarding against injury is
slight.  Wal-Mart could have taken several measures to guard
against injury.  Examples include installing stop signs or yield
signs within the parking lot itself.  Establishing crosswalks for
pedestrians at the stop signs is another measure that Wal-Mart
could have taken.  In addition, the consequences of placing such a
burden on Wal-Mart are not great.  Such precautions would not
require a large expenditure of money or effort on defendant's part.
     We agree with Wal-Mart and the trial court that the existence
of traffic in a store's parking lot is an obvious danger.  The
proper query, however, is not whether there is an obvious danger,
but whether Wal-Mart's duty to use reasonable care with regard to
its premises extends to the duty to maintain traffic- and/or
pedestrian-control devices for the protection of its patrons.
     We are not implying that a plaintiff's contributory negligence
or a third party's intervening negligence must be ignored.  This is
a question for the trier of fact to determine and adjust the
verdict accordingly.  See Fearheiley v. Summers, 246 Ill. App. 3d
86, 94, 614 N.E.2d 1377, 1382 (1993).  
     In the case at bar it was reasonably foreseeable that a
motorist would strike a customer/pedestrian.  Wal-Mart invited
customers into its store without providing any traffic/pedestrian
control within its parking area.  Wal-Mart had reason to expect
that the free movement of vehicles and pedestrians would result in
injury.  Minor precautionary measures may have prevented this
accident.  
     Wal-Mart can still expect that its customers will exercise
reasonable care for their own safety.  However, there may be
obvious dangers to customers that defendant has a duty to try and
remedy.  Whether the condition of the parking area served as
adequate notice of its danger or whether additional safety measures
were necessary to satisfy Wal-Mart's duty are questions properly
left to the trier of fact.  The trier of fact may also consider
whether Bangert was in fact guilty of negligence and whether
Hankin's conduct operated as a superseding intervening cause,
contributing in whole or in part to Bangert's injury, and adjust
the verdict accordingly.  
     The judgment of the trial court is reversed, and this cause is
remanded.

     Reversed and remanded.

     HOPKINS, J., concurs.

     PRESIDING JUSTICE WELCH, dissenting:
     Perhaps the majority would impose on Wal-Mart the duty to have
stop lights and a crossing guard to protect its patrons from the
dangers of traffic in the parking lot.  I would not.  
     I agree with the trial court that the danger of traffic in a
parking lot is so open and obvious, and the likelihood that a
pedestrian will become distracted or forget the danger so small,
that it is unreasonable to expect a store owner to anticipate it
and that Wal-Mart has no duty to protect its patrons from that
traffic.  In my opinion, both pedestrians and drivers are so well
aware of the dangers involved in crossing a parking lot, or lanes
of traffic in a parking lot, that warnings, yield signs, speed
bumps, or other protective traffic-control devices would be
superfluous and would add nothing to the protection of either
pedestrians or drivers.  The danger of being struck by traffic
while crossing a busy parking lot is such an obvious and known
danger, and one faced so regularly by people in our society, that
no duty should be imposed on Wal-Mart to protect its patrons from
traffic in its parking lot.  
     In Ward v. K Mart Corp., 136 Ill. 2d 132, 149 (1990), our
supreme court recognized that in certain situations a landowner
owes a duty to protect those lawfully on its premises even from
known or open and obvious dangers:
     "`[I]n any case where the occupier as a reasonable person
     should anticipate an unreasonable risk of harm to the invitee
     notwithstanding his knowledge, warning, or the obvious nature
     of the condition, something more in the way of precautions may
     be required.  This is true, for example, where there is reason
     to expect that the invitee's attention will be distracted, as
     by goods on display, or that after a lapse of time he may
     forget the existence of the condition, even though he has
     discovered it or been warned; or where the condition is one
     which would not reasonably be expected, and for some reason
     such as an arm full of bundles, it may be anticipated that the
     visitor will not be looking for it.'"  Ward, 136 Ill. 2d  at
     149, quoting from W. Keeton, Prosser & Keeton on Torts 61, at
     427 (5th ed. 1984). 
It is clear that none of these situations exist in the case at bar. 
The majority cites to no evidence in the record which indicates
that plaintiff, although in the exercise of ordinary care for her
own safety, became distracted or momentarily forgetful of the
danger of traffic in the parking lot.  
     Given the facts presented in the case at bar, no reasonable
defendant would anticipate an unreasonable risk of harm to a
customer crossing a busy parking lot who has knowledge of the
obvious danger.  This is not a situation where one might reasonably
expect the pedestrian to become distracted or to forget the
existence of the danger.  Nor is the danger one that, though
obvious, would not reasonably be expected to be encountered so that
it might be anticipated that a pedestrian would not be looking for
it.  Indeed, a reasonable defendant would anticipate that a
customer crossing a busy parking lot and in the exercise of
ordinary care for her own safety would be thinking of nothing other
than the danger of traffic.  
     The danger in the case at bar is precisely the type of danger
for which the "open and obvious rule" was invented:
     "The only sound explanation for the `open and obvious' rule
     must be either that the defendant in the exercise of
     reasonable care would not anticipate that the plaintiff would
     fail to notice the condition, appreciate the risk, and avoid
     it [citation], or perhaps that reasonable care under the
     circumstances would not remove the risk of injury in spite of
     foreseeable consequences to the plaintiff."  Ward, 136 Ill. 2d 
     at 147.
Neither of these explanations applies in the case at bar, for even
a defendant in the exercise of reasonable care would not anticipate
that a pedestrian would fail to notice, appreciate, or avoid the
danger of traffic in the parking lot, nor would any further
precautions on the part of defendant remove the risk of injury to
such a pedestrian.
     Finally, in Ward, our supreme court stated:  
          "Our holding does not impose on defendant the impossible
     burden of rendering its premises injury-proof.  Defendant can
     still expect that its customers will exercise reasonable care
     for their own safety.  We merely recognize that there may be
     certain conditions which, although they maybe loosely
     characterized as `known' or `obvious' to customers, may not in
     themselves satisfy defendant's duty of reasonable care.  If
     the defendant may reasonably be expected to anticipate that
     even those customers in the general exercise of ordinary care
     will fail to avoid the risk because they are distracted or
     momentarily forgetful, then his duty may extend to the risk
     posed by the condition."  136 Ill. 2d  at 156.
The same cannot be said under the majority's holding in the case at
bar.  The holding of the majority now imposes on all store owners
or occupiers the impossible burden of rendering their premises, or
at least their parking lots, injury-proof.  Such store owners or
occupiers can no longer rely on the expectation that their
customers will exercise reasonable care for their own safety, for
the plaintiff's alleged injuries in the case at bar could result
only from her own lack of care and not the lack of care of
defendant.  The majority has extended the duty recognized in Ward
far beyond that intended by the supreme court.  I cannot concur. 
Accordingly, I dissent.