                         No. 3--07--0730
_________________________________________________________________
Filed December 2, 2008
                              IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2008

MARJORIE DAY, a/k/a MARJORIE    ) Appeal from the Circuit Court
CURTIS,                         ) of the 14th Judicial Circuit,
                                ) Rock Island County, Illinois,
     Plaintiff-Appellant,       )
                                )
     v.                         ) No. 05--AR--493
                                )
MENARD, INC.,                   ) Honorable
                                ) Mark A. Vandeweile,
     Defendant-Appellee.        ) Judge, Presiding.
________________________________________________________________

     JUSTICE CARTER delivered the opinion of the court:
________________________________________________________________

     The plaintiff, Marjorie Day, filed a negligence action

against the defendant, Menard, Inc.     The trial court granted

summary judgment for the defendant, and the plaintiff appeals.

We affirm.

                                FACTS

     The parties do not dispute the facts.     On August 11, 2004,

the plaintiff purchased landscaping materials from the

defendant's store.    After making the purchase, the cashier at the

defendant's store told the plaintiff to drive her pickup truck to

a secured area where another employee would place the merchandise

in her car.   The plaintiff expected the employee to lower the

tailgate of her truck and load the merchandise because she asked

the cashier if the employee would do so.

     The plaintiff exited the store and drove her pickup truck to
the secured area.   The defendant's employees failed to assist

her, and after about 15 minutes, the plaintiff decided to load

the merchandise herself.   The plaintiff attempted to open the

tailgate, but it would not open.       She tugged on it, and she fell

backward when it opened.   The plaintiff hit her head on the

ground and suffered a concussion and bruises on her hip and the

side of her leg.    The plaintiff opened the tailgate often and did

not recall having trouble with it before this incident.

     On August 22, 2004, the plaintiff filed a negligence action

against the defendant, alleging that the defendant was negligent

because: (1) it failed to open the tailgate of her truck and load

landscaping materials into the truck after the plaintiff

requested such assistance and the defendant promised to assist;

(2) it failed to warn the plaintiff of the difficulty and danger

of loading landscaping materials; and (3) it carelessly owned,

operated, and controlled its premises.      The defendant filed a

motion for summary judgment, which the trial court granted.      The

trial court found that the proximate cause of the plaintiff's

injuries was the defective tailgate of her truck, not the breach

of a duty by the defendant.

     The plaintiff appeals.

                              ANALYSIS

     On appeal, the plaintiff argues that the trial court erred

in granting the defendant's motion for summary judgment because

the defendant's negligence was the proximate cause of her

injuries.


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     Summary judgment is proper "if 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 a judgment as a matter of

law."   735 ILCS 5/2--1005(c) (West 2006).   In determining whether

a genuine issue as to any material fact exists, pleadings,

depositions, and admissions are construed against the party

moving for summary judgment.    Williams v. Manchester, 228 Ill. 2d

404, 888 N.E.2d 1 (2008).   Summary judgment is inappropriate

"where the material facts are disputed or where, the material

facts being undisputed, reasonable persons might draw different

inferences from the undisputed facts."     Williams, 228 Ill. 2d at

417, 888 N.E.2d at 9.    Summary judgment is appropriate where the

plaintiff cannot establish any element of the cause of action.

Williams, 228 Ill. 2d 404, 888 N.E.2d 1.     We review de novo the

granting of summary judgment.    Williams, 228 Ill. 2d 404, 888

N.E.2d 1.

     To recover damages for a defendant's alleged negligence, a

plaintiff must allege and prove that: (1) the defendant owed the

plaintiff a duty of care; (2) the defendant breached that duty;

and (3) the breach was the proximate cause of the plaintiff's

injuries.   Pageloff v. Gaumer, 365 Ill. App. 3d 481, 849 N.E.2d

1086 (2006).   Here, the plaintiff seeks recovery under three

theories: (1) premises liability; (2) failure to warn; and (3)

voluntary undertaking.   The plaintiff's premises liability and

failure to warn arguments must fail because the plaintiff did not


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stand in such a relationship that the law would impose

obligations on the defendant under the facts and circumstances of

this case.   See Marshall v. Burger King Corp. 222 Ill. 2d 422,

856 N. E. 2d 1048 (2006), Lance v. Senior 36 Ill. 2d 516, 224 N.

E. 2d 231, (1967).     The plaintiff’s injury was caused by the

tailgate on the plaintiff's truck, not a condition on the land or

the landscaping materials.   Moreover, the evidence shows that the

defendant did not know and would not have discovered that the

tailgate posed an unreasonable risk of harm, as it was in the

plaintiff's possession and control.   See Restatement (Second) of

Torts §343, at 215-16 (1965) ("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.").   Thus, it appears that the plaintiff's only viable

theory of negligence is the voluntary undertaking theory.

     Under the voluntary undertaking theory, a duty, limited to

the extent of the undertaking, may be imposed on a person who

voluntarily agrees to perform a service necessary for the

protection of another person or their property.   Buerkett v.

Illinois Power Co., 384 Ill. App. 3d 418, 893 N.E.2d 702 (2008).

The person undertaking the service must perform the service so as


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to not increase the risk of harm to the other person.     Buerkett,

384 Ill. App. 3d 418, 893 N.E.2d 702.     If the person is negligent

in the undertaking, he or she will be liable for the foreseeable

consequences of the act if another person suffers harm because

they relied on the other's undertaking.     Buerkett, 384 Ill. App.

3d 418, 893 N.E.2d 702.    The voluntary undertaking theory applies

to a failure to perform the undertaking--nonfeasance--as well as

negligent performance of the undertaking--misfeasance.     Bourgonje

v. Machev, 362 Ill. App. 3d 984, 841 N.E.2d 96 (2005); see

Restatement (Second) of Torts §323, at 135 (1965) (regarding

negligent performance of an undertaking to render services).

     While a voluntary undertaking may establish a duty between

parties, a plaintiff, as stated above, must also establish a

breach of duty and proximate cause to recover.     Buerkett, 384

Ill. App. 3d 418, 893 N.E.2d 702.     Proximate cause, which

includes both cause in fact and legal cause, is generally a

question of fact, but a court may find a lack of proximate cause

as a matter of law where the facts fail to establish both cause

in fact and legal cause.    Buerkett, 384 Ill. App. 3d 418, 893

N.E.2d 702.

     "Cause in fact exists where there is a reasonable certainty

that a defendant's acts caused the injury or damage."     Rice v.

White, 374 Ill. App. 3d 870, 888, 874 N.E.2d 132, 148 (2007).

"Under a voluntary undertaking theory, to establish proximate

cause of the injury, the cause-in-fact component requires a

showing that a plaintiff relied on the defendant's conduct."


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Rice, 374 Ill. App. 3d at 889, 874 N.E.2d at 148; see

Restatement (Second) of Torts §323(b), at 135 (1965) (stating

that the harm suffered must have been caused by the individual's

reliance on the voluntary undertaking of the other individual).

          " 'Reliance may reasonably be placed where there is a

     deceptive appearance that performance had been made, or

     where a representation of performance has been communicated

     to plaintiff by defendant, or where plaintiff is otherwise

     prevented from obtaining knowledge or substitute performance

     of the undertaking.'   [Citations.]   Moreover, 'to justify

     reliance, [a] plaintiff must be unaware of the actual

     circumstances and not equally capable of determining such

     facts.' "   Bourgonje, 362 Ill. App. 3d at 1005, 841 N.E.2d

     at 114-15, quoting Chisolm v. Stephens, 47 Ill. App. 3d 999,

     1007, 365 N.E.2d 80, 86 (1977).

     In this case, the defendant, through its agent, voluntarily

accepted the task to lower the tailgate of the plaintiff's truck

and load merchandise but failed to perform the undertaking within

15 minutes of plaintiff’s arrival to the secured area.    The

plaintiff knew that the defendant failed to perform the

undertaking, decided to do it herself, and suffered injuries.

Under these circumstances, the plaintiff cannot show that she

relied on the defendant's promise and suffered harm because of

that reliance.   Knowing that the defendant had not performed the

undertaking, the plaintiff could have obtained substitute

performance of the undertaking by, for example, asking one of the


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defendant's employees for help before doing it herself.   See

Bourgonje, 362 Ill. App. 3d 984, 841 N.E.2d 96 (finding that the

plaintiff relied on landlord's promise to provide security lights

because she entered into the lease in part because of the promise

and remained at the premises out of reasonable expectation of

their imminent repair, forgoing opportunities to undertake her

own safety precautions; McCoy ex rel. Jones v. Chicago Housing

Authority, 333 Ill. App. 3d 305, 775 N.E.2d 168 (2002) (finding

that the plaintiff did not rely on the defendant's promise to

repair the window lock where the defendant failed to fulfill its

promise over a number of years and told the plaintiff a month

before the accident that it could not fix the lock, and where the

plaintiff attempted to call the defendant to repair the window

lock on the date of the accident and provided no evidence to show

that the promise prevented her from seeking other precautions

against the risk).   Therefore, the plaintiff cannot show that

there was a reasonable certainty that the defendant's failure to

perform caused her injury, and we find the trial court properly

granted the defendant's motion for summary judgment.

     We also note that the defendant did not breach its duty to

the plaintiff.   Only 15 minutes passed before the plaintiff

decided to perform the undertaking herself.   A 15-minute wait,

although arguably poor customer service, is not unreasonable in a

busy store with limited staff.

                            CONCLUSION

     For the foregoing reasons, the judgment of the circuit court


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of Rock Island County is affirmed.

     Affirmed.

     HOLDRIDGE, J. concurring.

     JUSTICE SCHMIDT, specially concurs:

     I write separately only because of the statement of the

majority opinion that plaintiff's premises liability argument

must fail because "the plaintiff did not stand in such a

relationship that the law would impose obligations on the

defendant under the facts and circumstances of this case."   Slip

op. at 3-4.   Plaintiff alleged that she was a customer at

defendant's store and, therefore, it is clear that the law did

impose a duty on defendant to make sure that there was no

condition on the premises that would expose the plaintiff or any

other business invitee to the unreasonable risk of injury.   That

being said, it is clear that plaintiff fails to plead a cause of

action under premises liability as she does not plead and cannot

plead any breach of defendant's duty to keep the premises

reasonably safe.

     It is clear what happened.   Plaintiff was trying to open the

tailgate of her own truck, which just happened to be on

defendant's premises.   The tailgate was stuck, plaintiff kept

tugging on it until the tailgate finally gave way and opened.

Plaintiff went flying and struck her head.   The complaint alleges

that plaintiff was injured while lifting landscaping materials.

Discovery established that this allegation was false.   Both the

lawsuit and this appeal are frivolous.   I would sanction


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plaintiff and her attorneys for this appeal.   155 Ill. 2d R. 137.




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