{ "id": 5447625, "name": "ANNE M. NEWMARK et al., Plaintiffs-Appellants, v. WILLIAM HARTMAN et al., Defendants-Appellees", "name_abbreviation": "Newmark v. Hartman", "decision_date": "1982-09-30", "docket_number": "No. 17611", "first_page": "379", "last_page": "383", "citations": [ { "type": "official", "cite": "109 Ill. App. 3d 379" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "224 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865341 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0148-01" ] }, { "cite": "305 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "56 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405013 ], "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0022-01" ] }, { "cite": "308 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "56 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5403562 ], "year": 1973, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0372-01" ] }, { "cite": "224 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "233" } ], "opinion_index": 0 }, { "cite": "36 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377051 ], "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0516-01" ] } ], "analysis": { "cardinality": 567, "char_count": 9383, "ocr_confidence": 0.765, "pagerank": { "raw": 5.679766026911543e-08, "percentile": 0.3574876373101289 }, "sha256": "165e02a0cf8194898899c1da98b99df0bff817d9360c3cbffd142e400c9dfc87", "simhash": "1:1e62884e6adfbd4e", "word_count": 1586 }, "last_updated": "2023-07-14T21:00:34.731811+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANNE M. NEWMARK et al., Plaintiffs-Appellants, v. WILLIAM HARTMAN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE LONDRIGAN\ndelivered the opinion of the court:\nOn August 29, 1977, Anne M. Newmark fell while she was retrieving three suits left at her front door by defendant William Hartman, an employee of Garber\u2019s Modern Cleaners of Champaign, which defendant Joseph Hamburg partly or wholly owns. The trial court granted the defendants\u2019 motion for summary judgment, ruling that their acts had not proximately caused the plaintiffs\u2019 injuries.\nThe plaintiffs\u2019 amended complaint, filed October 28, 1981, comprises two counts: the first is brought by Anne Newmark in her own behalf and seeks damages for her personal injuries; the second count is brought by Anne Newmark and the First National Bank in Champaign as executors of the estate of Mrs. Newmark\u2019s husband, Nathan, who died January 25, 1981, and seeks damages for his loss of consortium occasioned by his wife\u2019s injuries. According to the amended complaint, at 6:30 p.m. on the day of the accident Hartman left clothing \u201con the closing mechanism at or near the top of the front screen door\u201d of the Newmarks\u2019 home; directly after Hartman left, Mrs. New-mark tried to retrieve the clothing by standing on a kitchen stool but fell.\nThe amended complaint alleges that Hartman committed four negligent acts: (1) he left the clothing outside the home \u201cwithout authorization and in an unreasonably dangerous condition and in an unreasonably dangerous location for a person of\u201d Mrs. Newmark\u2019s size; (2) he left the clothing \u201cin the screen door closing mechanism,\u201d which was too high for Mrs. Newmark to reach, \u201cthereby creating an unreasonably dangerous condition for a person of\u201d Mrs. Newmark\u2019s size, which Hartman knew or should have known; (3) he left the clothing on the mechanism, where it \u201cwould be difficult to remove because the hangers could become lodged in the mechanism, or caught between the door frame and the mechanism, or require unusual force for their removal, thereby creating an unreasonably dangerous condition for a person of\u201d Mrs. Newmark\u2019s size, which Hartman knew or should have known; and (4) he left the clothing \u201cin a place where the defendants could reasonably foresee that the plaintiff, Anne M. Newmark, might injure herself in retrieving\u201d it.\nThe amended complaint also alleges that the Newmarks had never authorized Hartman or anyone else to leave clothing at the front door or anywhere else outside the home, that on each of the previous times Hartman delivered cleaning to the Newmarks he had given it to Mr. or Mrs. Newmark at the door or inside their home, and that Hartman and Hamburg knew that Mrs. Newmark was short and had trouble moving.\nThe defendants\u2019 motion for summary judgment argues that Mrs. Newmark\u2019s fall was \u201cproximately caused by her intervening actions\u201d rather than by the defendants\u2019 acts, that the defendants owed Mrs. Newmark no duty of care, and that the accident was unforeseeable. The motion quotes several passages from Mrs. Newmark\u2019s discovery deposition, taken November 7, 1980, when she explained that a stroke in May 1974 had left her with \u201ca slight limp\u201d in her left leg and \u201ca slight weakness\u201d in her left arm; she used a cane to walk. According to the quoted excerpt she agreed with defense counsel that \u201cthere was no real urgency about this cleaning.\u201d After Hartman left the cleaning and drove off, Mrs. Newmark decided to bring the clothing, three expensive suits, inside. She got a stepstool \u2014 she had not used one for a year \u2014 hooked the screen door so that she would not fall through it, and stepped up on the stool, supporting herself on the window molding. The three items were tied together and were heavy and knocked her off; she had not anticipated this. Mrs. Newmark did not seek anyone\u2019s help in retrieving the clothing.\nIn answer to the motion the plaintiffs submitted an affidavit by Mrs. Newmark and excerpts from Mrs. Newmark\u2019s and Hartman\u2019s depositions. In her affidavit Mrs. Newmark asserts that on August 29, 1977, she was in good health, excepting the effects of the stroke, which Hartman knew about, and that Hartman had delivered cleaning to her home \u201cpossibly as many as 12\u201d times in the year preceding that day. Mrs. Newmark also asserts that she never gave Hartman permission to leave clothing outside the door and that Hartman had never previously done that. That day Hartman hung the clothing on the device that closes the door, about seven feet above the floor. According to Mrs. Newmark\u2019s deposition \u2014 the same one used by the defendants \u2014 she was born August 28, 1910, and is five feet tall. Besides the stroke she also suffered from angina but never needed to take medicine for that. Hartman, who always delivered the clothing by three in the afternoon, knocked at the Newmarks\u2019 door about 7 p.m. the night of the fall. Mrs. Newmark was the only person home, and she got her cane and went to answer the door, which took her about a minute or two; when she got there she saw Hartman in his truck \u201cbacking out the driveway just ferociously.\u201d Mrs. Newmark shouted and flashed the porch light several times but Hartman did not stop. She had never given Garber\u2019s or Hartman permission to leave clothing at her home when no one was there.\nThe plaintiffs also excerpted Hartman\u2019s deposition. Hartman was 49 years old and had worked at Garber\u2019s for 21 years, where he was paid by commission. He will not leave clothes at a home unless the customers tell him in advance that it is all right to do that; without this permission he will return the clothing to Garber\u2019s. Hartman explained that when the Newmarks were home he would enter the house and hang the cleaning inside a closet or drape it over a chair. He also said that for the delivery in question here Mrs. Newmark had told him that she needed the clothing quickly and that on this one occasion he was to leave it at the door, unattended, if no one answered. Hartman remembered only that Mrs. Newmark was thin and walked with a cane. On the day of the fall Hartman hung the clothing \u2014 the hangers were tied together \u2014 on the device that closes the storm door; the device was at the top of the door in the corner. He did not see or hear Mrs. Newmark, who always answered the door promptly.\nThe trial court granted the defendants\u2019 motion, finding as a matter of law that the defendants had not proximately caused the harm. We affirm the trial court\u2019s decision, though on the basis that there was no breach of duty.\nThe concept of proximate or legal cause may be expressed in terms of duty. (Prosser, Torts sec. 42 (4th ed. 1971).) The advantage gained by translation is that duty, unlike proximate cause,- focuses attention on the nature and limits of the defendant\u2019s obligation rather than on chains of events, which beg to be confused with actual cause. Rephrased in terms of duty, then, the question becomes whether the defendants were obligated to protect Mrs. Newmark from falling.\nThe defendants\u2019 duty here was not broad enough to include the accident that occurred; stated another way, the defendants did not breach their duty to use ordinary care for the safety of the plaintiff. In Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233, the court said:\n\u201cAfter the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.\u201d\nMeasured against this formula, the circumstances here did not give rise to a duty to protect Mrs. Newmark from what occurred. The defendants were obligated to prevent only foreseeable accidents; the more likely risk was to the clothing, for it could have been damaged by rain or stolen. What actually occurred was unlikely.\nFurthermore, a party\u2019s duty is limited to guarding against risks that are unreasonable (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619; Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538); any risk to Mrs. Newmark\u2019s safety posed by Hartman\u2019s leaving the clothing at the door was reasonable. The defendants therefore did not breach their duty. Although the parties disagree whether Mrs. Newmark instructed Hartman to leave this particular batch of clothing at the door in the event no one seemed to be home, the intended manner of delivery has no bearing on the scope of the defendants\u2019 duty. Hartman\u2019s employer established the rule against leaving clothing unattended without the customer\u2019s permission, and the plaintiffs do not allege that the rule is intended to protect customers from falls (see Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 859). Summary judgment on this question would have been appropriate under the record h\u00e9re. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) We therefore conclude that the defendants did not breach their duty to use ordinary care for the safety of Mrs. Newmark and affirm the decision of the trial court.\nAffirmed.\nGREEN, P. J., and WEBBER, J\u201e concur.", "type": "majority", "author": "JUSTICE LONDRIGAN" } ], "attorneys": [ "Balbach & Fehr, of Urbana, for appellants.", "Moore, Nelson & Stipp, of Hoopeston (William E. Nelson, of counsel), for appellees." ], "corrections": "", "head_matter": "ANNE M. NEWMARK et al., Plaintiffs-Appellants, v. WILLIAM HARTMAN et al., Defendants-Appellees.\nFourth District\nNo. 17611\nOpinion filed September 30, 1982.\nRehearing denied October 28, 1982.\nBalbach & Fehr, of Urbana, for appellants.\nMoore, Nelson & Stipp, of Hoopeston (William E. Nelson, of counsel), for appellees." }, "file_name": "0379-01", "first_page_order": 401, "last_page_order": 405 }