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    "parties": [
      "JOHN PERRI, Father and Next Friend of Leah Perri, a Minor, et al., Plaintiffs-Appellants, v. FURAMA RESTAURANT, INC., Defendant-Appellee."
    ],
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      {
        "text": "JUSTICE COHEN\ndelivered the opinion of the court:\nPlaintiffs John and Amy Perri, individually and on behalf of their infant daughter Leah Perri, sued defendant Furama Restaurant, Inc., after Leah was burned by hot tea at defendant\u2019s restaurant. Leah\u2019s injury occurred when Leah\u2019s four-year-old cousin Jordan Marsala spun a lazy Susan upon which a pot of hot tea had been placed without the plaintiffs\u2019 knowledge. The trial court granted summary judgment in favor of defendant, finding that Jordan\u2019s parents had a duty to supervise Jordan and, because of the parents\u2019 failure to supervise Jordan, defendant owed no duty to protect Leah from the injuries she sustained. Plaintiffs appeal.\nFACTS\nOn May 21, 1995, plaintiffs and their three-month-old daughter Leah met Amy\u2019s sister Karen Green, Karen\u2019s husband Andrew Marsala, and Karen and Andrew\u2019s children Jillian and Jordan for dim sum brunch at defendant\u2019s restaurant. The group was led to a large round table with a lazy Susan in the center. Leah, asleep in her carriage, was positioned parallel to the table between her parents. So Ching Wong, a waitress at defendant\u2019s restaurant, greeted the party as they arrived at the table and then returned to the kitchen to get a pot of hot tea. Wong returned and placed the teapot on the lazy Susan approximately halfway between the center and the edge. Wong did not say anything to anyone in the party when she placed the tea on the table and none of the adults at the table noticed the tea. After serving the tea, Wong returned to the kitchen to get ice water for the party.\nA short time later, Jordan spun the lazy Susan, causing the pot of tea to tip over and spill. Amy testified that Jillian was already seated at the time of the accident, but the remainder of the group was \u201cin the process of sitting down.\u201d Amy testified that she was \u201con [her] way down\u201d when hot liquid struck her hand and thigh. Leah began screaming a second or two later and John was struck last. Leah suffered severe burns over 10% of her body.\nPlaintiffs filed suit against defendant, alleging Wong was negligent for placing a pot of hot tea on a lazy Susan without alerting the adults at the table to the presence of the tea. Plaintiffs further alleged that defendant knew or should have known both that: (1) the teapot could tip if the lazy Susan were spun; and (2) minor children were present at plaintiffs\u2019 table. John, as Leah\u2019s father and next friend, filed suit on Leah\u2019s behalf seeking damages for his daughter\u2019s injuries. John and Amy sued individually pursuant to the Rights of Married Persons Act (Family Expense Act) (750 ILCS 65/15 (West 2000)) to recover the expenses they incurred for treatment of Leah\u2019s injuries.\nDefendant moved for summary judgment, arguing that defendant owed no duty to Leah because Jordan\u2019s parents had a duty to supervise their son and therefore defendant could not have foreseen the accident that occurred. Additionally, defendant argued that it was not liable for Leah\u2019s injuries because any negligence on its part in placing the teapot on the lazy Susan did not proximately cause Leah\u2019s injuries but merely furnished a condition that made those injuries possible. Plaintiffs responded that, because the adults at the table were unaware of the pot of tea, the duty of Jordan\u2019s parents to supervise him did not absolve defendant of its duty to exercise reasonable care. Plaintiffs further argued that Jordan\u2019s actions in spinning the lazy Susan were not the sole proximate cause of the accident and that defendant\u2019s negligence was a proximate cause and not a mere condition.\nFollowing a hearing, the trial court granted summary judgment in favor of defendant. In reaching her conclusion, the trial judge commented:\n\u201cI agree with the Defendant that there was no duty here to safeguard this Leah Perri from the independent intervening act of *** Jordan Marsala.\nIt is the plaintiffs\u2019 position that the restaurant breached its duty of care by placing a teapot on the lazy [S]usan, but I would say that that\u2019s what Asian restaurants do. They serve tea whether it\u2019s ordered or not.\nWhether or not the parents were aware of the pot of tea does not make it any less visible. The whole purpose of the shifting of the duty by the Court to the parents to supervise children is precisely what happened in this case. Children, especially age 4, are unpredictable and somewhat powerful, perhaps more so than their size indicates.\nThe specific rationale for [excepting] from the restaurant\u2019s duty is because children must be supervised because they are unpredictable.\nUnfortunately[,] being the mother of three children, I can\u2019t imagine what the Perri\u2019s went through on this, but that doesn\u2019t change the fact that [defendant] did nothing which was dangerous or in violation of any duty that it might have owed its customers in this case.\nIf I were to accept the plaintiffs position!,] there must be a grace period between the time children accompanied by parents arrive and when the parents\u2019 duty to supervise them kicks in. Is it upon being seated, everybody in their own chair, or is it after the coats are hung up[?] I am not sure. I am not prepared to start mincing as to what happens as people arrive in a business establishment and get seated for an activity. I don\u2019t think I need to.\nI think it is clear in this case that the apparent cause of this incident was Jordan because nobody saw it. The presence of a teapot on the table is not unforeseeable, and I think the duty to supervise removes from the restaurant the requirement that it safeguard certain situations because minors are there and are not being watched.\u201d\nThe court further clarified that \u201c[a]s a matter of law, under the circumstances *** stated, the ruling is that [defendant] did exercise ordinary care .\u201d\nPlaintiffs\u2019 posttrial motion was denied. Plaintiffs now appeal.\nANALYSIS\nSummary judgment is proper if the pleadings, depositions and admissions on file, along with any 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. 735 ILCS 5/2 \u2014 1005(c) (West 2000). The purpose of summary judgment is not to try a question of fact, but simply to determine whether a genuine issue of triable fact exists. Watkins v. Schmitt, 172 Ill. 2d 193, 203 (1996). It is well established that in determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Schmitt, 172 Ill. 2d at 203. In addition, any evidencethat would be inadmissible at trial cannot be considered by the court in support of or opposition to a motion for summary judgment. Schmitt, 172 Ill. 2d at 203-04. Because the propriety of an order granting summary judgment is a question of law, our review of such an order is de novo. Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 909 (1994).\nTo sustain a cause of action for negligence, a plaintiff must establish the existence of a duty owed by defendant to plaintiff, a breach of that duty and an injury to plaintiff proximately caused by the breach. Hills v. Bridgeview Little League Ass\u2019n, 195 Ill. 2d 210, 228 (2000). Defendant argues that summary judgment was properly granted both because defendant owed no duty to plaintiffs and because any negligence on defendant\u2019s part did not proximately cause Leah\u2019s injuries. We address each of these contentions in turn.\nI. Duty\nThe existence of a duty is a question of law to be determined by the court. Ward v. K mart, 136 Ill. 2d 132, 140 (1990). In determining whether a duty exists, the court considers: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden upon the defendant. Ward, 136 Ill. 2d at 140-41. Because simply alerting adult customers to the presence of the hot tea presents a particularly minimal burden which we would not hesitate to impose on restaurants, the real issue in this case is whether the injury was sufficiently foreseeable and likely that we would be justified in placing a duty on defendant to guard against such an injury.\nAs a general rule, a property owner owes no greater duty of care to small children than the duty owed to adults. Kahn v. James Burton Co., 5 Ill. 2d 614, 625 (1955). An exception to this general rule exists, however, when a property owner:\n\u201cknows, or should know, that young children [are present in] the vicinity of *** a dangerous [condition], which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children.\u201d Kahn, 5 Ill. 2d at 625.\nDefendant in this case does not deny that it knew or should have known that young children were at plaintiffs\u2019 table. Defendant further concedes that, because of his immaturity, Jordan was incapable of appreciating the risk presented by the hot tea on the lazy Susan. Finally, defendant acknowledges that a child Jordan\u2019s age might foreseeably \u201cengage in playful and unpredictable behavior\u201d \u2014 such as spinning or otherwise playing with the lazy Susan. Under these circumstances, a pot of hot tea resting on a lazy Susan is a dangerous condition likely to cause injury when young children are present. Applying the analysis in Kahn, defendant owed a duty to guard against the injury in this case. 5 Ill. 2d at 625.\nDefendant correctly notes that Kahn dealt with a situation involving an unaccompanied minor, whereas the children in the instant case were accompanied by their parents. Defendant argues that the injury in this case was therefore not reasonably foreseeable because it was not reasonably foreseeable that Jordan\u2019s parents would fail to adequately supervise him. Citing to a line of cases addressing a parent\u2019s duty to supervise young children (see, e.g., Driscoll v. Rasmussen, 35 Ill. 2d 74 (1966); Keller v. Mols, 129 Ill. App. 3d 208 (1984); Kay v. Ludwick, 87 Ill. App. 2d 114 (1967)), defendant argues that it owed no duty to prevent the injury that resulted from Jordan\u2019s actions because Jordan was accompanied by his parents at the time of the accident.\nDefendant\u2019s reliance on these cases is misplaced. A defendant is \u201cnot necessarily absolved of all [responsibility] to very young children merely because supervision of young children is generally the responsibility of their parents.\u201d T.T. v. Kim, 278 Ill. App. 3d 11, 18-19 (1996), citing Strode v. Becker, 206 Ill. App. 3d 398, 405 (1990). A defendant can be held responsible for a child\u2019s injuries \u2014 notwithstanding a parent\u2019s duty to supervise \u2014 where recognized theories of liability support such a finding. Driscoll, 35 Ill. 2d at 79. In other words, a parent\u2019s duty to supervise absolves a defendant of liability only where consideration of the duty to supervise precludes a finding of liability under recognized theories \u2014 for example, where an injury is not foreseeable unless a parent or caretaker fails to properly supervise a minor child (see, e.g., O\u2019Clair v. Dumelle, 735 F. Supp. 1344 (N.D. Ill. 1990) (finding an injury unforeseeable because parent\u2019s failure to adequately supervise was not reasonably foreseeable)).\nHere, the evidence presented by both parties demonstrates that the group, which included a two-year-old and a four-year-old child, was not yet seated when, unbeknownst to the adults, Wong placed the pot of tea on the lazy Susan. None of the adults in the group actually saw the pot of tea until after the injury occurred. A parent\u2019s duty to supervise requires the parent to exercise due care in the face of obvious risks. See, e.g., Salinas v. Chicago Park District, 189 Ill. App. 3d 55, 62 (1989) (\u201cduty to supervise *** child as to obvious risks lies primarily with the accompanying parent\u201d); Strode, 206 Ill. App. 3d at 405 (when children are supervised by their parents, \u201clandowners may be relieved of duty to warn [the children] of or remove dangerous instrumentality the danger from which is apparent\u201d).\nEven the most vigilant parent cannot be omniscient \u2014 the duty to supervise does not require a parent to prevent a child from causing or suffering harm from a danger of which the parent has no reason to be aware. If parents or caregivers are unaware of a particular danger, it is reasonably foreseeable that they will fail to prevent a minor child from encountering that danger. Thus, while defendant was certainly entitled to rely on the adults in plaintiffs\u2019 group to protect their children from dangers of which the adults were or should have been aware, defendant is not absolved of its duty under Kahn simply because Jordan was accompanied by his parents (T.T., 278 Ill. App. 3d at 18-19).\nDefendant suggests that \u201cthe true factual issue with respect to the duty to supervise is whether plaintiffs were in a position to observe the risk and to prevent Jordan from causing the accident.\u201d Defendant argues that, because the group was at the table long enough for Jordan to discover and spin the lazy Susan, the adults \u201cwere clearly in a position in which they could have observed the risk\u201d \u2014 in other words, defendant argues that the pot of hot tea was an open and obvious hazard. The trial court apparently accepted this argument, noting that \u201c[w]hether or not the parents were aware of the teapot does not make it any less visible.\u201d Whether a condition presents an open and obvious danger, however, is a question of fact. Pullia v. Builders Square, Inc., 265 Ill. App. 3d 933, 939 (1994). Indeed, defendant concedes that the obviousness of the danger presents a \u201cfactual issue.\u201d Summary judgment is inappropriate in the face of genuine issues of material fact. 735 ILCS 5/2 \u2014 1005(c) (West 2000).\nFurthermore, a property owner owes a duty of care even in the face of a known and obvious danger if the property owner should anticipate the harm despite the \u201cobvious\u201d nature of the danger. Ward, 136 Ill. 2d at 149. Wong\u2019s deposition testimony indicates that the hot tea was not on the table when the group first arrived but rather was served shortly thereafter. Plaintiffs presented evidence that the group was at the table for less than 30 seconds and the adults were not yet seated when the accident occurred. Under these circumstances, defendant should have anticipated that Jordan\u2019s parents would fail to notice or prevent Jordan from disturbing the pot of hot tea, even if the teapot was in fact \u201cobvious.\u201d Ward, 136 Ill. 2d at 156.\nBased on the foregoing analysis, we find that defendant owed a duty to guard against the injury in this case. Summary judgment, therefore, cannot properly be predicated on a lack of duty.\nII. Proximate Cause\nDefendant next argues that any negligence on its part cannot have been the proximate cause of Leah\u2019s injuries. Proximate cause consists of two distinct requirements: cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). Cause in fact exists where the negligence at issue is a material and substantial element in bringing about the injury. Galman, 188 Ill. 2d at 258. Legal cause exists when the injury is of a type a reasonable person would see as likely to result from his conduct. Galman, 188 Ill. 2d at 258. Proximate cause is ordinarily a question of fact to be determined from all the attending circumstances, and it can only be determined as a matter of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 19 (1999).\nDefendant first argues that any negligence on its part was not a cause of Leah\u2019s injuries but merely a condition, which made the injury possible. If the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition facilitates an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury. Galman, 188 Ill. 2d at 257. Whether a defendant\u2019s conduct was a cause of injury or merely a condition that made the injury possible turns on whether the defendant\u2019s conduct was a material and substantial element in bringing about the injury. Galman, 188 Ill. 2d at 259. A defendant\u2019s conduct is a material and substantial element in bringing about an injury if, absent that conduct, the injury would not have occurred. Galman, 188 Ill. 2d at 258.\nDefendant also argues that Jordan\u2019s actions in spinning the lazy Susan \u2014 not defendant\u2019s actions in placing the tea on the lazy Susan\u2014 proximately caused Leah\u2019s injuries. The test that should be applied where injury results from the intervening act of a third party is whether the defendant reasonably might have anticipated the intervening efficient cause as a natural and probable result of the defendant\u2019s own negligence. Galman, 188 Ill. 2d at 259.\nA reasonable fact finder could conclude that, absent Wong\u2019s actions in placing the hot tea on the lazy Susan without notice, Leah\u2019s injuries would not have occurred. Likewise, a reasonable fact finder could conclude that defendant might reasonably have anticipated that Jordan would spin the lazy Susan under the circumstances in this case. Accordingly, proximate cause is not an issue that can be decided as a matter of law in this case. Seef, 311 Ill. App. 3d 19. Because proximate cause presents a genuine issue of material fact, summary judgment was not appropriate on this basis. 735 ILCS 5/2 \u2014 1005(c) (West 2000).\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County granting summary judgment in favor of defendant is reversed. This cause is remanded for further proceedings.\nReversed; cause remanded.\nGORDON, P.J., and McNULTY, J., concur.\nAt her deposition, Amy testified that her correct name is Amy Green and that, although she is married to John Perri, she has never been known by the name Amy Perri. Nevertheless, Amy acknowledged that she is the Amy Perri referred to in the caption of this case.\nThe underlying facts in this case are largely undisputed. Disputes as to particular details are noted, as necessary, herein.\nBoth Amy and John testified at their depositions that the accident occurred less than 30 seconds after the party arrived at the table. Defendant contends that the timing of the accident is contested because Wong testified at her deposition that the accident occurred while she was on her way to get ice water for the group after having served the tea. Defendant\u2019s apparent inference is that the activities described by Wong would have required more than 30 seconds; however, defendant points to no evidence in the record that would support such an inference.\nIt is unclear whether defendant has confused plaintiffs with Jordan\u2019s parents or whether defendant is suggesting that plaintiffs had a duty to supervise their nephew even though Jordan was accompanied by his parents.\nThe trial court also apparently concluded that plaintiffs and Jordan\u2019s parents should have anticipated the presence of the hot tea because \u201cAsian restaurants *** serve hot tea whether it\u2019s ordered or not.\u201d Such a factual determination \u2014 not compelled by any undisputed evidence \u2014 is inappropriate on summary judgment. The purpose of summary judgment is not to try a question of fact, but simply to determine whether a genuine issue of triable fact exists. Schmitt, 172 Ill. 2d at 203. Furthermore, we are not prepared to adopt a rule that a restaurant\u2019s duty to its customers depends on the ethnic origin of the cuisine being served.",
        "type": "majority",
        "author": "JUSTICE COHEN"
      }
    ],
    "attorneys": [
      "Robert A. Clifford, of Clifford Law Offices, and Richard L. Pullano, D. Seth Holliday, and Robert P. Sheridan, all of Law Office of Richard L. Pullano, both of Chicago, for appellants.",
      "Lloyd E. Dyer, Jr., of Mountcastle, Kelly & Dyer, P.C., of Wheaton, for appellee."
    ],
    "corrections": "",
    "head_matter": "JOHN PERRI, Father and Next Friend of Leah Perri, a Minor, et al., Plaintiffs-Appellants, v. FURAMA RESTAURANT, INC., Defendant-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 01 \u2014 1909\nOpinion filed November 27, 2002.\nRobert A. Clifford, of Clifford Law Offices, and Richard L. Pullano, D. Seth Holliday, and Robert P. Sheridan, all of Law Office of Richard L. Pullano, both of Chicago, for appellants.\nLloyd E. Dyer, Jr., of Mountcastle, Kelly & Dyer, P.C., of Wheaton, for appellee."
  },
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  "last_page_order": 851
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