                              2018 IL App (2d) 170249
	
                     Nos. 2-17-0249, 2-17-0537, 2-17-0550 cons.
	
                             Opinion filed June 28, 2018 

______________________________________________________________________________

                                           IN THE
	

                                APPELLATE COURT OF ILLINOIS
	

                              SECOND DISTRICT
	
______________________________________________________________________________

RICHARD COOKE and REBECCA                   ) Appeal from the Circuit Court
OBERJAT,                                    ) of Du Page County.
                                            )
       Plaintiffs-Appellees,                )
                                            )
v.                                          ) No. 12-L-87
                                            )
MAXUM SPORTS BAR & GRILL, LTD.;             )
GREGORY M. SERAFIN, Individually and        )
as Agent of Maxum Sports Bar & Grill, Ltd.; )
and JOSEPH B. TOPOR, Individually and as )
Agent of Maxum Sports Bar & Grill, Ltd.,    )
                                            )
       Defendants                           )
                                            ) Honorable
(Maxum Sports Bar & Grill, Ltd., Defendant- ) Dorothy French Mallen,
Appellant).                                 ) Judge, Presiding.
______________________________________________________________________________

RICHARD COOKE and REBECCA                     )   Appeal from the Circuit Court
OBERJAT,                                      )   of Du Page County.
                                              )
       Plaintiffs-Appellants,                 )
                                              )
v.                                            )   No. 12-L-87
                                              )
MAXUM SPORTS BAR & GRILL, LTD.;               )
GREGORY M. SERAFIN, Individually and          )
as Agent of Maxum Sports Bar & Grill, Ltd.;   )
and JOSEPH B. TOPOR, Individually and as      )
Agent of Maxum Sports Bar & Grill, Ltd.,      )
                                              )
       Defendants                             )
                                              )   Honorable
(Maxum Sports Bar & Grill, Ltd., Defendant-   )   Dorothy French Mallen,
2018 IL App (2d) 170249


Appellee).                             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Hutchinson and Spence concurred in the judgment and opinion.

                                             OPINION

¶1     On October 24, 2010, plaintiffs, Richard Cooke and Rebecca Oberjat, were attacked and

battered in a parking lot after leaving a nightclub operated by defendant Maxum Sports Bar &

Grill, Ltd. (Maxum). Plaintiffs and their attacker, Antoine Matthews, were all patrons of Maxum

prior to the attack. Matthews was subsequently convicted of aggravated battery and served three

years in prison.

¶2     Subsequently, plaintiffs sued Maxum and Maxum’s owners, defendants Gregory M.

Serafin and Joseph B. Topor, individually and as Maxum’s agents, seeking damages for their

injuries. Plaintiffs alleged that defendants negligently failed to protect them from the attack. A

bench trial was held. At the close of plaintiffs’ case, the trial court directed a finding in favor of

Serafin and Topor as to their individual liability. At the end of the trial, the court found against

Maxum and in favor of plaintiffs but found in favor of Maxum and against Oberjat on Maxum’s

affirmative defense of contributory negligence. The court awarded damages to Cooke in the

amount of $50,622.29 and to Oberjat in the net amount of $2,894,519.09, after finding Oberjat to

be 50% contributorily negligent.

¶3     Maxum appeals, arguing that the trial court erred in entering judgment in favor of

plaintiffs where it had no duty because (1) the attack occurred after plaintiffs voluntarily left

Maxum’s premises and, therefore, they were no longer its business invitees, (2) the attack was

not reasonably foreseeable, and (3) the relevant public-policy considerations such as the

magnitude of the burden of guarding against the injury and the consequences of placing that

burden upon Maxum did not warrant imposing a duty.

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¶4      Plaintiffs appeal the trial court’s directed finding in favor of Serafin and Topor. Further,

Oberjat appeals the trial court’s finding of 50% contributory negligence. For the reasons that

follow, we affirm.

¶5                                     I. BACKGROUND

¶6                                        A. Complaint

¶7      On January 26, 2012, plaintiffs filed a two-count complaint sounding in negligence

against defendants, seeking damages incurred as a result of injuries plaintiffs sustained from

Matthews’ criminal attack.       Plaintiffs alleged that on October 23 and 24, 2010, Matthews

committed assault and battery against them while they were “business invitees” of Maxum. The

attack began in Maxum’s pool room and continued in its front entrance. Plaintiffs further alleged

that, immediately following the initial attack, Matthews attacked them in the strip mall parking

lot outside, resulting in significant injuries to both plaintiffs.

¶8      Plaintiffs alleged that defendants owed them a duty to protect them from the criminal acts

of Matthews. Plaintiffs alleged that Maxum was liable for its negligent failure to properly hire,

train, and supervise its security guards, for its negligent management of its security guards on the

dates at issue, and for its negligent failure to take proper steps to protect plaintiffs from the

foreseeable harm committed by Mathews. Plaintiffs also alleged that Topor and Serafin were

liable due to their negligent failure to properly hire, train, and supervise Maxum’s security

guards. Plaintiffs further alleged that defendants breached their duty by negligently (1) allowing

Matthews to remain on the premises when defendants knew that he had been involved in prior

altercations, (2) failing to eject Matthews from the premises after security guards saw him attack

Cooke in the pool room, (3) failing to eject Matthews from the premises after a security guard

saw Matthews attack plaintiffs at Maxum’s front door, (4) allowing Matthews to follow plaintiffs



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2018 IL App (2d) 170249 



into the parking lot, (5) failing to properly train their security guards, and (6) instructing their

security guards that their obligations to protect patrons ended at Maxum’s front door.

¶9      Defendants filed affirmative defenses asserting that plaintiffs failed to exercise

reasonable care for their own safety, that any recovery should be reduced by the percentage of

negligence or fault attributable to each plaintiff, and that any recovery should be barred in the

event that any negligence or fault attributable to each plaintiff was greater than 50%.

¶ 10    On May 13, 2013, defendants filed a third-party complaint for contribution against

Matthews. Matthews was not served and the trial court dismissed the complaint pursuant to

Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) on October 28, 2015.

¶ 11                                    B. Motions

¶ 12    On February 7, 2013, defendants filed a motion for summary judgment, arguing that they

owed no duty of care to plaintiffs when Matthews attacked them, because the attack occurred off

of defendants’ premises. On November 12, 2013, the trial court denied defendants’ motion.

¶ 13    Defendants filed a motion to reconsider or, in the alternative, to certify a question for

interlocutory appeal. The trial court denied the motion for reconsideration but certified for

interlocutory appeal the following question concerning the scope of defendants’ duty to

plaintiffs:

        “When a tavern owner has a patron shadowed by security because of his violent behavior,

        does the tavern have a duty to plaintiff patrons threatened by the shadowed patron to

        provide a means for safe egress, including escorting them to their car, when an attack on

        the plaintiffs by the shadowed person takes place three storefronts away and around the

        corner from the tavern, in the common parking lot, which is under the exclusive control

        of the tavern’s landlord?”



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2018 IL App (2d) 170249 



¶ 14   On April 25, 2014, this court denied defendants’ petition for leave to appeal, pursuant to

Illinois Supreme Court Rule 308 (eff. July 1, 2017), stating that the “petition presents a mixed

question of law and fact with unresolved issues of material fact.” We remanded the case to the

trial court for further proceedings.

¶ 15   On December 31, 2014, defendants filed a motion to dismiss Serafin and Topor, which

the trial court denied. On October 13, 2015, defendants filed a second motion for summary

judgment on the issue of lack of duty, which the trial court also denied.

¶ 16                                    C. Bench Trial

¶ 17   A bench trial began on November 21, 2016, and continued on nonconsecutive days until

January 5, 2017.

¶ 18   Oberjat testified as follows. The first time Oberjat went to Maxum was in the summer of

2010. The attack at issue occurred on October 23, 2010. Oberjat had been to Maxum five or six

times before the date of the attack. When Oberjat was at Maxum she usually saw security guards

inside and outside of the establishment. Every time Oberjat went to Maxum’s pool room before

the date of the incident, Matthews was present. On a prior occasion, Matthews tried to persuade

Oberjat’s friend to bet on a pool game. When her friend did not have money to bet, Matthews

became aggressive and loud.

¶ 19   Oberjat testified that on October 23, 2010, she and Cooke arrived at Maxum to play pool.

Oberjat drove and parked in the lot “around the corner” from Maxum’s entryway. It took

Oberjat 1 minute or 1½ minutes to walk from her car to Maxum’s entryway. Oberjat and Cooke

entered Maxum, bought drinks, and played pool together and separately. Oberjat then left the

pool room to smoke a cigarette on the patio. A few minutes later, Cooke came out to the patio.

He was “in panic mode.” Cooke told Oberjat, “[W]e have got to get the F out of here. We have

to go.” Minutes later Matthews came after Cooke in an aggressive, loud, and violent manner,

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2018 IL App (2d) 170249 



approached Cooke’s face, and yelled, “B***, give me my money.”              Oberjat testified that

Matthews “was loud and he was basically in [Cooke’s] face like instigating a fight, *** and

[Cooke] was trying to back away.” This was the first time Oberjat saw Matthews that night.

Matthews and Cooke left the patio and Oberjat finished her cigarette.

¶ 20   Oberjat testified that, after she finished her cigarette, she saw Cooke and Matthews

standing by the front door; she was aggravated and confused. Oberjat recalled “storming” out of

the bar and said either “mother f***” or “what the f***.” Oberjat “got in between [Cooke and

Matthews],” held her hands up, and tried to ask Matthews, “what’s going on [and] why are you

still bothering him?” Oberjat also asked Matthews to “calm down” and “what do you want from

us?” A security guard was outside standing about two to four feet from them. Oberjat “looked

up at the security guard who was just standing there doing nothing and even [Cooke] tugged on

his arm, we are both like, hey, man, this guy is like, basically harassing or want[s] to get, you

know, his money.” Matthews tried to get around Oberjat to get to Cooke. Oberjat asked the

security guard to get “involved,” but he “just basically stood there.” Matthews was loud and

aggressive saying, “I’m going to kick your ass” and “B***, give me my money.” Matthews was

loud enough for the security guard to hear, but he did nothing.

¶ 21   Oberjat testified that, after realizing that Matthews was getting aggressive, she and Cooke

just wanted to get out of there. So Oberjat grabbed Cooke’s arm and they went straight to her

car. It took one to two minutes to get to Oberjat’s car. They went directly and swiftly to her car

because they wanted to get away from Matthews. When Oberjat and Cooke arrived at her car,

she was blindsided. Oberjat saw Matthews “start running around the building to the back of the

car, and he proceeded to punch [Cooke] and he punched me.” Oberjat fell and Matthews then

kicked and punched Cooke “even as he was down.” Then Matthews kicked and punched Oberjat

while she was down, toward the back of the car. Matthews continued to kick Oberjat until she

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2018 IL App (2d) 170249 



played dead. After playing dead for about 5 to 10 minutes, she crawled around to the front of the

car, calling for Cooke. Cooke was unresponsive, lying in a pool of blood. Oberjat went to

Maxum to get help. When the ambulances and police arrived, Oberjat could not move her arm at

all. It was swollen and stiff, and her hips and knees hurt. Oberjat suffered three fractures―to

her right shoulder, right elbow, and right wrist―requiring surgery and the insertion of hardware.

She developed complex-regional-pain syndrome in her right arm, which spread to the left arm.

¶ 22   Cooke testified as follows. Cooke and Oberjat arrived at Maxum between 11 and 11:30

p.m. on October 23, 2010. Oberjat parked in the closest spot available, around the corner from

Maxum’s front door, about three storefronts away. Cooke and Oberjat walked into Maxum,

ordered drinks, and walked into the pool room. A bouncer stood in the back corner of the room.

Cooke had been to Maxum a couple of times before that evening. To play pool at Maxum, a new

player had to put quarters on the pool table and play the winner of the previous game. Cooke

had seen betting in the pool room on prior occasions.

¶ 23   Cooke testified that Oberjat left the pool room to smoke a cigarette outside in the “beer

garden.” Matthews asked Cooke if he wanted to bet on a game of pool. Cooke agreed and

placed $20 on the pool table. After the game, Matthews picked up the money and started

screaming, “hey, mother f***, you’re going to pay me my f*** money.” Cooke told Matthews

that he did not know what Matthews was talking about. Matthews replied, “You mother f***

heard what I said. God damn it. You pay me my F*** money.” Cooke told Matthews that he

did not come “here for this *** I’m out of here, I’m leaving, [and] just leave me alone.” Cooke

believed that “there was absolutely no way [the bouncer in the pool room] couldn’t have heard

[the ruckus].”

¶ 24   Cooke started to walk away to find Oberjat. Matthews said, “I’m going your kick your

f*** ass.” Matthews continued to scream at Cooke and followed him into the beer garden,

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2018 IL App (2d) 170249 



saying, “mother f***, I’m talking to you, [and] don’t f*** walk away from me.” Matthews also

shoved Cooke from behind.

¶ 25    Cooke testified that he found Oberjat and told her that he had “to get the hell out of here,

*** this guy’s starting trouble, [and] it’s getting ugly.” Oberjat wanted to finish smoking her

cigarette. Then, Matthews entered the beer garden and shouted at Cooke, “b***, I told you to

pay me my f*** money.” Cooke told Oberjat that they had to leave and he told Matthews that he

would wait for Matthews outside. Cooke thought that the entrance would be a safe place to wait

until Oberjat was ready to leave, “because that’s where the bouncers were” and he did not “want

to get jumped on.”

¶ 26    At this point, a video surveillance recording was played in court showing Maxum’s front-

door area on the night of the incident. The video had been admitted into evidence earlier by

stipulation of the parties.

¶ 27    Cooke testified that the video showed him at Maxum’s front door as he waited for

Oberjat. Matthews appeared and tried to “drag” Cooke “out into the parking lot.” A bouncer,

standing nearby saw Matthews’ behavior but did nothing. Oberjat exited Maxum’s front door

and stood between Cooke and Matthews. She asked Matthews, “What do you want?” Oberjat

also told Matthews, “knock it off [and] we’re not here for any trouble.” Cooke grabbed the

bouncer by the arm and asked for help but the bouncer did nothing. Cooke told Matthews

loudly, “I’m not looking for any trouble; I don’t know what you’re talking about; [and] just leave

me alone.” The bouncer “had a front row seat” and could hear what was going on, but he did

nothing. Oberjat, still standing between the two men, held up her hands, trying to diffuse the

situation. The bouncer stood behind Matthews but did not warn him, offer to help Cooke and

Oberjat, offer to separate them from Matthews, or offer to call the police. After Matthews

appeared to leave, Oberjat grabbed Cooke’s hand.

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2018 IL App (2d) 170249 



¶ 28    Cooke testified that he and Oberjat went directly to Oberjat’s car in the parking lot

around the corner, which took about one minute. About 50 seconds after Matthews appeared to

leave the scene, he appeared again in the video, near Maxum’s front door. Matthews pointed his

finger at the security guard and exited from view, toward the parking lot, in the direction that

Cooke and Oberjat had gone. The bouncer stood and watched. In the parking lot, near the car,

Matthews appeared and punched Cooke in the face.          Cooke did not recall the events that

occurred in the parking lot after he was punched.

¶ 29    Frank Jarosz testified in a sworn videotaped evidence deposition as follows. At the time

of the attack, Jarosz worked for Serafin and Topor at Maxum as the operations manager. Jarosz

was responsible for hiring security guards. He had no formal training in security and had never

managed a nightclub before. Prior to working at Maxum, he had managed a large resort that

included two bars and a restaurant. Jarosz hired security personnel through a man named Bill

Brice. Brice brought Jarosz applicants whom Brice knew or had worked with in the past. When

Brice brought someone to Jarosz, Jarosz would interview him and, if he liked him, would “put

[him] on the floor, give [him] a trial basis, two to four weeks or so, [and] depending on how [he]

did,” would decide whether to hire him.

¶ 30    Jarosz testified that he did not require security job applicants to fill out applications,

because they came highly recommended from Brice. Jarosz did not do criminal background

checks or ask for employment references, because of Brice’s recommendations. Jarosz hired

Dmitri Grimm, the bouncer who stood at the front door on the evening of the attack. Grimm was

recommended by Brice, who told Jarosz that Grimm was an experienced bouncer. Jarosz did not

ask Grimm to fill out a job application or ask Grimm for references. Serafin paid the bouncers in

cash.



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2018 IL App (2d) 170249 



¶ 31   Jarosz further testified that, when Serafin hired Jarosz, Serafin did not provide written

materials that Jarosz could use to train the bouncers, but Jarosz and Serafin discussed training

“every once in a while.” Maxum did not keep security logs and had no written rules for security.

Gambling and violence were not tolerated at Maxum, and anyone gambling would be removed

immediately. Gambling can cause potential hostile events. Matthews was a regular at Maxum,

and Jarosz had thrown him out in the past for gambling. Jarosz allowed Matthews back into

Maxum after Matthews apologized. Verbal threats of physical violence were not allowed at

Maxum. If a patron told a bouncer that someone was threatening him or her, the bouncer would

be responsible for protecting that patron. Regarding fighting, Jarosz testified that the bouncers

were trained and that everyone knew that Maxum had “a zero tolerance policy on fighting in the

bar. There was absolutely none of that allowed. Basically, once that happened, the bouncers

would take the first party and escort them out the door, and then usually the second party ***

waited a few minutes and they―then were escorted out, but never, never, were they escorted out

together.”

¶ 32   Jarosz testified that, on the evening in question, one of the bouncers told Jarosz that there

was trouble with Matthews. The bouncer in the pool room, Galason, told Jarosz that “they were

arguing *** over gambling” in the pool room. Earlier in the evening, there were two incidents

involving Matthews: one where Matthews “was trying to hustle a couple of guys and they didn’t

want to play for money [and Matthews] got irritated with them” and another “incident with a

Lithuanian guy [where] the bouncer broke it up.” Jarosz “put a bouncer on [Matthews]. [Jarosz]

felt like [Matthews] was looking for trouble.”

¶ 33   Jarosz testified that he stationed a bouncer in front of Maxum’s door, on the sidewalk.

Serafin knew that Jarosz stationed a bouncer there, but Serafin was not at Maxum on the evening

of the attack. Jarosz agreed that a bouncer would not be doing his job properly if he did nothing

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2018 IL App (2d) 170249 



while he saw an aggressive person attempting to grab another person and pull that person into the

parking lot. Jarosz stated that a security guard would not be acting the right way if two people

asked him for help regarding an aggressive person and the bouncer did nothing. Jarosz testified

that, on the night of the attack, plaintiffs did not tell Jarosz that Matthews had threatened them

with physical violence.    Jarosz agreed that, if plaintiffs told a bouncer that Matthews had

threatened them with physical violence, it was the bouncer’s responsibility to protect them.

¶ 34    Ronald Hauri, an expert in the field of security, testified on plaintiffs’ behalf. Hauri

reviewed Maxum’s advertisements, the police reports for the past five years of incidents at or

near Maxum, Galason’s statement, and the video surveillance tapes. Hauri opined that Maxum

marketed to a clientele that created increased risk for arguments and fights. The police reports

established that Maxum needed security and that fights could continue or erupt in the parking lot.

Maxum’s management was aware of the risks in the parking lot. According to Galason’s

statement, Maxum had problems every weekend, but it did not keep a security log. Hauri opined

that, without a security log, a bar cannot adjust to security needs or develop protocols to prevent

incidents from happening. Hauri was critical of the fact that Maxum’s owners, managers, and

bouncers had no security training and no written protocols and that the bouncers were not vetted

with background checks.

¶ 35   Hauri also opined that, due to Matthews’ history of being loud and aggressive, he should

have been permanently banned from Maxum prior to the evening of the attack. Based on Hauri’s

review of the surveillance tape of Maxum’s front entrance on the night in question, Hauri opined

that, when Matthews grabbed Cooke’s hand and attempted to pull Cooke, Grimm should have

intervened and told Matthews to leave the premises. Also, Grimm should have told Cooke to go

back inside for his own safety. Instead, Grimm did nothing to intercede, and the altercation

continued and escalated. Grimm should have deescalated the situation instead of allowing

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2018 IL App (2d) 170249 



Matthews a clear path to plaintiffs’ personal space. If he had been properly trained, Grimm

would have separated Matthews and Cooke by placing his body between them. Grimm also

should have separated the parties before plaintiffs had gone to their car. Grimm did nothing to

dissuade Matthews from exiting the bar in the same direction that plaintiffs had gone, within 60

seconds after they left. If a bouncer is not sure whether an aggressor is still present, the bouncer

should escort any threatened patrons to their car.

¶ 36   Hauri thus opined that Maxum failed to provide adequate protection or security to

plaintiffs. Jarosz had trouble with Matthews on prior occasions and earlier that evening. That

evening, Jarosz ordered a bouncer to shadow Matthews because he believed that Matthews was

looking for trouble. Management knew that Matthews was aggressive, loud, and obnoxious.

Management should have told Matthews to leave Maxum and, if he refused, management should

have called the police. Hauri opined that the actions of Maxum’s management and bouncers fell

below the standard of care and were a proximate cause of Matthews’ attack in the parking lot.

¶ 37   John Harris, an expert in the field of security, testified on defendants’ behalf. Harris

testified that a bouncer is to remain visible, observe, report anything unusual, be present to

enforce rules, and be a deterrent to criminal activity. A bouncer should call 911 if it looks like a

fight is going to break out. A bouncer can interject himself into a fight to deescalate it, and it is a

bouncer’s job to deescalate situations before they escalate into fights. Harris opined that the

bouncer’s responsibilities end at the establishment’s front door.

¶ 38   Harris testified that his reviewing of five years of police reports revealed three fights at

Maxum. In all three fights, the bouncers intervened. Harris opined that Matthews never caused

a problem prior to the evening of the attack. Maxum implemented proper security procedures to

protect its patrons and could not have reasonably anticipated Matthews’ criminal attack. Harris

explained that, although management knew that Matthews had been loud and obnoxious, he had

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2018 IL App (2d) 170249 



not been in a physical altercation prior to the evening at issue and he did not threaten plaintiffs

with physical violence that evening. Harris acknowledged that Jarosz had Matthews shadowed

by a bouncer that evening.

¶ 39      Harris testified that he reviewed the surveillance video showing Maxum’s front door and

the parking lot on the evening of the attack. Harris opined that there were no violent acts at the

front door.     Grimm made his presence known and acted as a deterrent by stepping between

Matthews and plaintiffs, which deescalated the situation. A bouncer should displace parties who

are arguing by putting them off the property, and this is what happened in this case. Harris

opined that plaintiffs and Matthews left in opposite directions. Although Grimm did not testify,

Harris opined that it was reasonable for Grimm to assume that the situation had deescalated.

Harris opined that Maxum had no responsibility to protect plaintiffs once they left the front

entrance of the bar. Maxum had no responsibility to follow patrons off the premises after a

verbal argument, and it was not standard practice to escort patrons to their cars. Harris was

aware of Matthews’ testimony that Oberjat called him a “n***” and Galason’s statement that he

heard Oberjat use the “n” word while plaintiffs and Matthews were in the bar. Harris opined that

Maxum acted appropriately and in accordance with industry best practices on the night of the

attack.

¶ 40      During cross-examination, Harris testified as follows. Harris agreed that it is bad if a

patron comes in a bar looking for trouble. In such a case, it is prudent for a manager to eject that

patron before trouble starts. However, that decision can be tempered by that patron’s past

behavior. Harris agreed that competitive games like pool can trigger violence. Harris also

agreed that it is important to train security personnel, that security personnel are present to

protect patrons from violent acts, and that a bar should have written security policies. Harris



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2018 IL App (2d) 170249 



testified that a bar manager should check the backgrounds of the people he hires for security.

Harris agreed that it is foreseeable that there could be arguments and fights in any bar.

¶ 41   Matthews testified as follows. Matthews went to Maxum on October 23, 2010, to play

pool. He had been going to Maxum to play pool for three years, two or three times a month. On

the evening of the attack, he gave Cooke, whom he did not know, $20 to buy two beers at the

bar. Matthews wanted to play pool with Cooke. Cooke did not return to the pool room and after

about 20 minutes Matthews went to look for Cooke. He found Cooke in another area of Maxum

and asked, “What’s up? Where’s the beers?” Matthews testified that at that point Oberjat came

up to him, pushed him, and said, “get out of my face you n***.” Bouncers came over, Matthews

explained the situation, and a bouncer “pulled [Matthews] to the front then the other bouncers

brought [plaintiffs] to the front and they kicked us out.”

¶ 42   Matthews testified that he waited outside of Maxum and tried to get Cooke to come over

and talk to him about the money. While in front of Maxum, Matthews approached Cooke and

tried to get him to leave the property, but Cooke would not leave the front door area. Matthews

testified that he did not touch Cooke or physically try to get Cooke to leave. Oberjat stepped

between Matthews and Cooke and told the bouncers, “Get this f*** n*** out of here.” After 10

minutes of conversation at the front door, Matthews left and went around to a McDonald’s

restaurant, watched Maxum’s front door, and waited for plaintiffs to leave. When plaintiffs left

to go to their car, Matthews wound his way through parked cars so the bouncers would not see

him and met up with plaintiffs at the side of the building, where Oberjat had parked her car.

Matthews wanted to confront Cooke about his money, but, before he could confront Cooke,

Oberjat ran toward Matthews and punched him in the face. Matthews punched Oberjat back.

Oberjat told Matthews, “Get the f*** out of here, n***.” Matthews testified that Oberjat



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2018 IL App (2d) 170249 



blindsided him, he reacted, and he was very angry. Matthews then ran around to the other side

of the car and punched Cooke and then went back around the car and attacked Oberjat.

¶ 43    At the close of plaintiffs’ case-in-chief, the trial court directed a finding in favor of

Serafin and Topor.

¶ 44                           D. The Trial Court’s Ruling

¶ 45   Following the trial, on March 2, 2017, the trial court entered a 33-page memorandum

opinion and order finding in favor of plaintiffs and awarding Cooke $50,622.29 and Oberjat

$2,894,519, after reducing her award by 50% due to its finding of contributory negligence.

¶ 46   The trial court determined that Maxum owed plaintiffs a duty, stating:

       “Under the circumstances as shown by the evidence, it is clear that Plaintiffs have proven

       that Maxum, as a reasonably careful bar, had sufficient knowledge to reasonably foresee

       that if the staff did not intervene to de-escalate the argument or separate the parties by

       time and space, a fight could break out. Thus, Maxum had a duty to protect the Plaintiffs

       from injuries that they could sustain if a physical fight broke out.”

¶ 47   The trial court found that Maxum breached its duty by negligently (1) failing to eject

Matthews from the premises when the security guards saw him attack plaintiffs at the entrance to

the bar, (2) allowing Matthews to follow plaintiffs into the parking lot after he had attacked them

and Maxum knew or should have known that Matthews would continue his assault and battery,

and (3) failing to provide plaintiffs with a safe egress.

¶ 48   The trial court found that plaintiffs failed to prove that Maxum breached its duty by

negligently (1) allowing Matthews on the premises, (2) allowing Matthews to remain on the

premises after he was involved in altercations with two other patrons that evening, (3) failing to

eject Matthews from the premises when the security guards saw him attack Cooke in the pool

room, and (4) failing to properly train and supervise the security guards.

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2018 IL App (2d) 170249 



¶ 49   On March 31, 2017, Maxum filed a notice of appeal (No. 2-17-0249). Also, on March

31, 2017, plaintiffs filed two posttrial motions: (1) seeking a modification of the judgment to

vacate the directed finding in favor of Serafin and Torpor and to find that they are jointly and

severally liable with Maxum; and (2) seeking a modification of the judgment to vacate the

finding that Rebecca Oberjat was 50% contributorily negligent. On June 14, 2017, the trial court

denied plaintiffs’ posttrial motions. On July 13, 2017, Maxum filed its second notice of appeal

(No. 2-17-0537). On July 13, 2017, plaintiffs filed a notice of appeal from the denial of their

posttrial motions for modification of the judgment (No. 2-17-0550). This court consolidated all

three appeals.

¶ 50                                      II. ANALYSIS

¶ 51                                   A. Maxum’s Appeal

¶ 52   Maxum argues that the trial court erred in entering judgment in plaintiffs’ favor, because

it did not have a duty to protect plaintiffs from Matthews’ attack.

¶ 53   A negligence claim requires “the existence of a duty of care owed by the defendant to the

plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Marshall v.

Burger King Corp., 222 Ill. 2d 422, 430 (2006). Questions regarding breach of a duty and

proximate cause of the injury are issues of fact, reserved for the trier of fact to decide. Krywin v.

Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010). After a bench trial, a trial court’s

findings of fact will not be disturbed on appeal unless such findings are against the manifest

weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002). A decision is against

the manifest weight of the evidence only when the opposite conclusion is apparent or when the

findings appear to be unreasonable, arbitrary, or not based on the evidence. Id. at 252.

¶ 54   However, whether a duty exists is a question of law. Bruns v. City of Centralia, 2014 IL

116998, ¶ 13. Thus, we review de novo a trial court’s determination regarding whether a

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2018 IL App (2d) 170249 



defendant owed a duty. See Krywin, 238 Ill. 2d at 226. Where no duty exists, the plaintiff

cannot recover as a matter of law. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶

22.

¶ 55   Generally, a possessor of land owes no duty to protect lawful entrants from criminal

attacks by third parties. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 243 (2000).

However, there is an exception to this rule where the possessor of land and the entrant stand in a

special relationship. Id; see also Restatement (Second) of Torts § 314A (1965) (cited with

approval by Hills, 195 Ill. 2d at 243). One special relationship, that of business invitor and

invitee, can give rise to a duty to protect an individual from criminal attack. Hills, 195 Ill. 2d at

243-44. One reason for recognizing the relationship of business invitor and invitee as a special

relationship is that, generally, “commercial establishments are well positioned ‘to know the

extent of crime on the premises *** to take measures to thwart it and to distribute the costs’

associated with providing security.”       Id. at 245 (quoting McClung v. Delta Square Ltd.

Partnership, 937 S.W.2d 891, 903 (Tenn. 1996)).

¶ 56   However, the existence of a special relationship, alone, is not sufficient to impose a duty

upon the possessor of land to protect lawful entrants from the criminal acts of third parties. Id. at

243. 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. Marshall, 222 Ill. 2d 436-37.

¶ 57                            1. Plaintiffs’ Status as Invitees

¶ 58   Maxum contends that it owed no duty to plaintiffs when the attack occurred, because

plaintiffs’ status as business invitees ceased when they voluntarily left Maxum’s premises,

thereby terminating the special relationship and any duty that Maxum owed. Plaintiffs argue that

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2018 IL App (2d) 170249 



this is not a premises-liability case; it is a duty-to-protect case. Plaintiffs contend that the trial

court correctly ruled that duty does not depend on where an injury occurs but that, rather,

location is just one factor in determining whether the criminal act was foreseeable.

¶ 59   If plaintiffs had been attacked and injured while on Maxum’s premises, the resolution of

this issue would be clearer; business invitor liability for foreseeable criminal attacks on the

premises is well established. See, e.g., Lewis v. Razzberries, Inc., 222 Ill. App. 3d 843, 849

(1991) (citing Restatement (Second) of Torts § 344 (1965)). However, here, plaintiffs were

attacked and injured in a parking lot owned by Maxum’s landlord, around the corner from

Maxum’s front door and out-of-view from Maxum’s bouncers.

¶ 60   The general rule is that a business invitee ceases to be an invitee, and the business

invitor’s duty ends, as soon as the invitee leaves the premises owned by the invitor. See Lewis,

222 Ill. App. 3d at 850 (holding that tavern owner did not owe patron a duty of care for the

wrongful death that occurred 23 feet beyond the boundary of the tavern owner’s property,

because the patron was no longer an invitee).

¶ 61   For example, in Badillo v. DeVivo, 161 Ill. App. 3d 596 (1987), the plaintiff was attacked

by another patron inside the bar. Id. at 597. The bouncers stopped the fight and kicked both

patrons out. As the plaintiff was getting into her car a half block away from the bar, the other

patron attacked her with a police baton. Id. The appellate court held that the bar had no duty to

ensure the safety of its patrons off premises, even if an attack was foreseeable, because it would

impose too heavy a burden on the bar. Id. at 599.

¶ 62   However, there are exceptions to the general rule that a bar owner’s duty to protect its

patrons from criminal acts of third parties ends at the bar’s property line.           In Shortall v.

Hawkeye’s Bar & Grill, 283 Ill. App. 3d 439 (1996), the appellate court reversed summary

judgment in favor of the bar and held that the bar might have had a duty to protect the plaintiff

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2018 IL App (2d) 170249 



from the stabbing by a third party that occurred 15 minutes after the plaintiff had exited the bar

to go to his car, which was about 60 feet away from the bar’s property. Id. at 441, 444. The

court reasoned that the bar “was under the same duty as if the fight had occurred inside the bar.”

The court explained that the dispute that eventually led to the fight occurred in the bar, the bar

escalated the fight by ushering some patrons outside into the fight, and the bar’s bouncers

watched the fight through a window but did nothing. Id. at 444. The court stated that “tavern

owners may not avoid application of the duty to act to protect invitees from criminal attack by

third parties simply because the disturbance giving rise to the duty occurs just out the front door,

especially where the owner contributes to the altercation by sending patrons out into it.”

(Emphasis added.) Id. at 444.

¶ 63    Similarly, in Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d 141 (2000), the patron

of a nightclub was criminally attacked by another patron on the public sidewalk in front of the

nightclub. Id. at 145. The trial court directed a verdict in favor of the nightclub, ruling that it

owed no duty to the plaintiff, because the incident occurred on the sidewalk and the attacker’s

actions were not reasonably foreseeable. Id. at 146. The appellate court reversed the trial court

and remanded the case, holding that, “[w]hether the assault takes place in or outside the actual

premises of the business owner, the dispositive factor remains the reasonable foreseeability of

the actions taken by the third party.” Id. at 148. Earlier that evening, the nightclub’s bouncers

ejected two drunken men and locked the doors behind them. Id. at 143-44. The men pounded on

the doors and yelled profanities at the bouncers. Id. The plaintiff and a friend walked out of the

nightclub onto the sidewalk in front of the club. Id. at 144. One of the men outside slapped the

plaintiff’s friend, and, as the plaintiff approached her friend, one of the men spun and kicked her

in the face. Id. at 145.



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¶ 64   The Osborne court said that there was evidence that the attack was reasonably

foreseeable. Id. at 149. There was ample evidence that the bouncers knew that the men outside

were drunk and angry, that they had already been involved in a fight inside the club, and that

they had not cooled off after being evicted. Id. Further, the bouncers saw the men’s behavior

from inside the club, but they did nothing after locking them out. Id. The court also reasoned

that the bouncers did not remove the men from the sidewalk or otherwise police the area, even

though the club had controlled the sidewalk area earlier that evening. The court stated that “the

bouncers exported the club’s problems to the sidewalk and then ignored the troublemakers while

allowing two female patrons to leave through locked doors into the path of potentially dangerous

men.” Id. The court concluded that, based on the bouncers’ knowledge and their inaction, “it

was reasonably foreseeable that a patron would be attacked upon exiting the club and, therefore,

it was incumbent on the club to guard against such an occurrence.” Id. The court relied on

Shortall, among other cases, in concluding that the fact that the attack took place on a public

sidewalk just outside the club did not dispose of the duty issue. Id. at 148.

¶ 65   More recently, in Haupt v. Sharkey, 358 Ill. App. 3d 212 (2005), this court held that a

tavern could be liable for a criminal attack against one of its patrons that occurred just off the

tavern’s premises, in the parking area owned by the county. Id. at 219. We concluded that

“there is no bright line rule that a tavern owner’s duty to protect its patrons from criminal acts of

third parties absolutely ends at the precise property line of the tavern.” Id. at 218. This court

held that a tavern’s duty “to provide a reasonably safe means of ingress and egress to patrons,”

coupled with the foreseeability of the criminal attack that occurred as the patron was evicted

from the tavern, precluded summary judgment in the tavern’s favor. Id. at 219-20.

¶ 66   Maxum cites the following cases in support of its argument that it owed no duty to

plaintiffs once they left its premises: Lewis, 222 Ill. App. 3d 843 (holding that duty of care did

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not extend outside the tavern owner’s legal boundaries to an adjacent parking lot), Badillo, 161

Ill. App. 3d 596 (holding that tavern owner owed no duty to plaintiff attacked a half block from

tavern-owner’s property), and St. Phillips v. O’Donnell, 137 Ill. App. 3d 639 (1985) (holding that

a tavern owner owed no duty to protect a patron who was attacked in the common parking area

by another patron who had been ejected from the tavern). However, as we stated in Haupt,

“these three cases do not create an insurmountable barrier to the existence of a duty beyond the

doors of [a tavern-owner’s] premises.” Haupt, 358 Ill. App. 3d at 218; see also Osborne, 312 Ill.

App. 3d at 148 (stating, “[w]e do not read these cases as creating an insurmountable barrier to

the existence of a duty”). Further, the courts in both Badillo and St. Phillips recognized that,

within limitations dictated by the facts of the case, an owner or operator of premises has a duty to

provide a reasonably safe means of ingress and egress both on his or her premises and beyond

the precise boundaries of such premises. Badillo, 161 Ill. App. 3d at 598 (citing McDonald v.

Frontier Lanes, Inc., 1 Ill. App. 3d 345, 351 (1971)); St. Phillips, 137 Ill. App. 3d at 643 (citing

McDonald, 1 Ill. App. 3d at 351).

¶ 67   Thus, as Haupt, Shortall, and Osborne indicate, a bar owner’s duty to protect patrons

from criminal acts of third parties does not necessarily end at the legal property line of the bar

and can extend to areas beyond. Therefore, the location of the attack, alone, does not dispose of

the duty issue.

¶ 68                                  2. Foreseeability

¶ 69   No duty can exist unless the criminal attack was reasonably foreseeable. Haupt, 358 Ill.

App. 3d at 216. This court has explained, “[a] criminal attack by a third person is reasonably

foreseeable when the circumstances are such as to put a reasonably prudent person on notice of

the probability of an attack or when a serious physical altercation has already begun.” Id. at 219.



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Foreseeability depends on what the defendant knew at the time of the incident, not on “what may

appear through hindsight.” Lewis, 222 Ill. App. 3d at 851.

¶ 70   Thus, the criminal attack in Shortall was reasonably foreseeable to the bar because the

bartender saw three men verbally and physically harassing the plaintiff and another patron inside

the bar, before a fight erupted outside, and a bouncer watched the fight through a window as it

escalated outside. Shortall, 283 Ill. App. 3d at 443. In Osborne, the attack was reasonably

foreseeable because the bouncers knew that the attackers were “combative and angry” and had

been involved in a physical altercation inside the club. Osborne, 312 Ill. App. 3d at 149.

Further, after ejecting the attackers from the club, “the bouncers exported the club’s problems to

the sidewalk and then ignored the troublemakers while allowing two female patrons to leave

through locked doors into the path of” the attackers. Id. The attack in Haupt was foreseeable

because the bar owner knew through prior experience that the attacker had a propensity for

fighting, on the night of the attack the bar owner saw the attacker start a fight with the plaintiff in

the bar, and the bar owner kicked both men out of the bar at the same time. Haupt, 358 Ill. App.

3d at 219-20.

¶ 71   Maxum argues that the criminal attack here was not reasonably foreseeable, because prior

to the attack Matthews had not been involved in a fight or threatened anyone and Maxum had no

history of fights on its premises that put it on notice of any danger to plaintiffs while they were

on the premises.

¶ 72   However, Maxum, through Jarosz and the bouncers, knew, prior to the attack, that

Matthews was angry that night. They also knew that Matthews was angry with Cooke. In

addition, Jarosz directed Maxum staff to “shadow” Matthews that night, because Matthews had

been arguing with other patrons. Further, the staff knew that just prior to the attack Matthews

shouted obscenities at Cooke, threatened Cooke, and grabbed Cooke outside Maxum’s front

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2018 IL App (2d) 170249 



entrance, and Cooke and Oberjat had asked one of the bouncers for help dealing with Matthews.

Grimm removed Matthews from the premises for bad behavior but allowed him to leave in the

same direction as Oberjat and Cooke had, about one minute after they left. Given these facts and

the bouncers’ inaction, Matthews’ criminal attack was reasonably foreseeable to Maxum. See id.

(this court held that a criminal attack was reasonably foreseeable where, prior to the attack that

occurred outside of the bar on public property, a bartender saw the attacker start a fight with the

plaintiff in the bar and forced both men to leave the bar together); see also Osborne, 312 Ill. App.

3d at 149 (holding that the nightclub owner had a duty to the plaintiff for a criminal attack that

occurred off of its premises, because “the bouncers exported the club’s problems to the sidewalk

and then ignored the troublemakers while allowing two female patrons to leave through locked

doors into the path of potentially dangerous men”).

¶ 73   Maxum cites Davis v. Allhands, 268 Ill. App. 3d 143 (1995), to support its argument that

Matthews’ attack was not reasonably foreseeable. However, in Davis, there was no evidence

that the bar owner and the one worker at the bar on the night of the attack knew of the attacker’s

bad behavior or bad reputation. Id. at 153. In this case, Jarosz and Grimm both knew that

Matthews had a reputation for aggressive behavior and had been ejected from the bar previously,

and Grimm saw Matthews argue with Cooke and Oberjat and try to pull Cooke away from the

front of the bar. Therefore, Davis is distinguishable from this case.

¶ 74                          3. Remaining Duty Factors

¶ 75   Maxum argues that it owed no duty in light of the relevant “policy factors,” i.e., the

magnitude of the burden of guarding against the injury and the consequences of placing that

burden on Maxum. Maxum also contends that the trial court did not consider these factors and

that, therefore, the trial court’s analysis was incomplete and requires reversal. The trial court’s

memorandum opinion indicates that it considered all four factors regarding whether Maxum

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2018 IL App (2d) 170249 



owed plaintiffs a duty, including “the magnitude of placing the burden on the defendant [and] the

consequences of placing the burden on the defendant.” Further, we agree that the trial court

properly weighed these factors, as it reasoned:

       “Under the circumstances as shown by the evidence, it is clear that Plaintiffs have proven

       that Maxum, as a reasonably careful bar, had sufficient knowledge to reasonably foresee

       that if the staff did not intervene to de-escalate the argument or separate the parties by

       time and space, a fight could break out. Thus, Maxum had a duty to protect the Plaintiffs

       from injuries that they could sustain if a physical fight broke out.” (Emphasis added.)

Thus, we reject Maxum’s contention that the trial court did not consider the factors at issue.

¶ 76   Maxum cites Walton v. Spidle, 137 Ill. App. 3d 249 (1985), to support its argument that it

owed no duty because of the magnitude of the burden and the consequences of placing the

burden on Maxum. However, Walton provides no analysis regarding these factors but, rather,

provides a truism. See id. at 254 (“The difficulty placed upon the operator of a business in

protecting customers after they leave the premises is obviously much greater than when they

remain on the premises”). Thus, Walton does not control here.

¶ 77   Maxum also cites Lewis, 222 Ill. App. 3d 843, and Badillo, 161 Ill. App. 3d 596, to

support its argument. In both cases, the appellate court held that a tavern owner had no duty to

protect its patrons from injuries that occurred after the patrons left its premises. Lewis, 222 Ill.

App. 3d at 852; Badillo, 161 Ill. App. 3d at 598. The courts reasoned that imposing such a duty

would obligate all business owners to “police the streets so as to ensure their patrons’ safe

passage to their cars or even to their homes.” Lewis, 222 Ill. App. 3d at 852; see Badillo, 161 Ill.

App. 3d at 599. Nothing in this case indicates that the trial court imposed a duty upon Maxum to

“police the streets” to ensure plaintiffs’ safe passage. Rather, the evidence in this case revealed

that the best practice for the security staff would have been to intervene and deescalate the

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2018 IL App (2d) 170249 



argument between Matthews and plaintiffs while they were at the front entrance and to separate

Matthews and plaintiffs by time and space. “Measures easily could have been taken to protect

[plaintiffs] against the apparent danger.” Osborne, 312 Ill. App. 3d at 149. In this case, the

magnitude of the burden of guarding against plaintiffs’ injuries and the consequences of placing

that burden on Maxum were slight. Accordingly, the trial court properly determined that Maxum

owed plaintiffs a duty to protect plaintiffs from Matthews’ criminal attack.

¶ 78                                  B. Plaintiffs’ Appeal

¶ 79                   1. Directed Finding in Favor of Serafin and Topor

¶ 80     Plaintiffs argue that the trial court erred by directing a finding in favor of Serafin and

Topor.

¶ 81     First we note that plaintiffs failed to include a proper statement of the standard of review,

in violation of Illinois Supreme Court Rule 341(h)(3) (eff. Nov. 1, 2017) (“The appellant must

include a concise statement of the applicable standard of review for each issue, with citation to

authority, either in the discussion of the issue in the argument or under a separate heading placed

before the discussion in the argument.”).

¶ 82     In a bench trial, a motion for a directed finding is governed by section 2-1110 of the Code

of Civil Procedure. 735 ILCS 5/2-1110 (West 2016). Under that statute, the trial court must

“weigh the evidence, considering the credibility of the witnesses and the weight and quality of

the evidence.” Id. Thus, “the trial court does not view the evidence most favorably to the

plaintiff but, rather, (1) determines whether the plaintiff has made out a prima facie case, then (2)

weighs the evidence, including that which favors the defendant.”            Zankle v. Queen Anne

Landscaping, 311 Ill. App. 3d 308, 311 (2000). “If, after weighing the evidence, the court

decides that evidence necessary to [the] plaintiff’s prima facie case has been negated, the court

should grant the motion for a directed finding and enter judgment for the defendant.” Orbeta v.

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2018 IL App (2d) 170249 



Gomez, 315 Ill. App. 3d 687, 690 (2000). We will not reverse a trial court’s ruling on a motion

for a directed finding unless it is contrary to the manifest weight of the evidence. Id.

¶ 83   Plaintiffs note that their complaint alleged that Serafin and Topor breached their duty to

protect plaintiffs by negligently failing to provide them with a safe means of egress and by

negligently failing to properly train and supervise Maxum’s security guards.

¶ 84   Generally, a corporate director or officer is not liable for the negligence of the

corporation unless he actively participated in the wrongful conduct or had sufficient knowledge

thereof. Zahl v. Krupa, 399 Ill. App. 3d 993, 1013-14 (2010) (citing McDonald, 1 Ill. App. 3d at

357-58).

¶ 85   Here the trial court found that plaintiffs failed to establish a prima facie case, because

there was no evidence that Topor and Serafin actively participated in the alleged negligent acts.

The trial court also found that, at the time of the incident, Topor was no longer involved in

Maxum’s management and Serafin, while a bit more involved, had delegated the job to Jarosz.

In addition, the trial court found that there was no evidence that either Topor or Serafin knew

that Jarosz was incompetent or that he was not properly hiring or training security personnel.

The record supports these findings. Topor testified that he was not involved in the business and

that he “put everything up to [Serafin] and after we hired [Jarosz], all up to [him].” Topor also

testified that he would not be surprised if Jarosz “handed down the reins” of security to someone

else. Serafin testified that he allowed Jarosz to make security decisions and that he trusted his

judgment. Accordingly, the trial court’s decision granting Topor and Serafin’s motion for a

directed finding is not against the manifest weight of the evidence.

¶ 86   Plaintiffs do not contend that they established a prima facie case that Topor and Serafin

actively participated in or had sufficient knowledge of the negligent failure to properly train and

supervise Maxum’s security guards or provide a safe means of egress. Instead, plaintiffs contend

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2018 IL App (2d) 170249 



that Topor and Serafin should be individually liable because they “delegated all duties of security

to their employee, Frank Jarosz, *** knowing that he had no background in security [and]

without offering him any training in security.” However, this contention is forfeited because

plaintiffs offer no relevant authority to support it.

¶ 87    Although plaintiffs cite Zahl and Lowell Hoit & Co. v. Detig, 320 Ill. App. 179 (1943), to

support their argument, these cases actually support the trial court’s directed finding. In Zahl,

this court rejected the plaintiff’s argument that the defendants should have exercised greater

oversight over the president of the defendant corporation, who gambled away the plaintiff’s

investment, because “directors of necessity devolve upon subordinate officers the ‘immediate

management of the particular business.’ ” Zahl, 399 Ill. App. 3d at 1024 (quoting Lowell Hoit,

320 Ill. App. at 182). In Lowell Hoit, this court affirmed a finding of no liability against

corporate officers in their individual capacities, stating that, “of necessity, it becomes proper that

[corporate directors] entrust to subordinate and executive officers the discretionary powers which

usually and ordinarily appertain to the immediate management of the particular business.”

Lowell Hoit, 320 Ill. App. at 181-82. Similarly, here, Topor and Serafin entrusted security to

Jarosz. Thus, Zahl and Lowell Hoit support the trial court’s decision in this case.

¶ 88    Plaintiffs also cite Peck v. Cooper, 112 Ill. 192 (1884), Chicago Title & Trust Co. v.

Munday, 297 Ill. 555 (1921), McDonald, and Miller v. Simon, 100 Ill. App. 2d 6 (1968). In Peck

and Miller, the corporate defendants were found individually liable after they personally directed

the actions giving rise to the tortious conduct. Peck, 112 Ill. at 194 (the president of a bus

company was held personally liable for the passengers’ injuries after the president gave a direct

order to the company’s drivers to eject passengers based on their race); Miller, 100 Ill. App. 2d at

9-10 (the corporate officers were held personally liable for trespass after they personally directed

the removal of trees and topsoil and the placement of gravel and parking signs onto the plaintiff’s

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2018 IL App (2d) 170249 



land). In this case, Topor and Serafin did not direct the actions giving rise to plaintiffs’ injuries.

Therefore, Peck and Miller are distinguishable from this case.

¶ 89     In Munday, a receiver sued the directors of a bank for negligent supervision of two bank

officers who defrauded the bank. Munday, 297 Ill. at 558. The receiver alleged that the directors

did not manage, supervise, or investigate the officers even though they knew that the officers

were “dishonest and incompetent and that they were managing and conducting the business

dishonestly and incompetently.” Id. at 560. In this case, there was no evidence that Topor or

Serafin knew or believed that Jarosz or the bouncers were incompetent. Therefore, Munday is

distinguishable from this case.

¶ 90     Finally, in McDonald, the appellate court identified a dangerous condition where a

plaintiff had stepped onto a parkway and fallen into a hole 12 inches deep and 2 feet wide.

McDonald, 1 Ill. App. 3d at 350. The court affirmed a finding of individual liability against the

defendant, who was the president, sole shareholder, and manager of a tavern and bowling alley.

Id. at 348, 358. The evidence showed that the defendant ordered the work done on his property

that caused the hole and he knew that the hole was there. Id. at 349-50. Thus, the court held,

“the negligence charged *** [was] part of the general mode of operation of the corporate

business under [the defendant’s] sole power of direction and control.” Id. at 358. In this case,

neither Topor’s nor Serafin’s power or control caused the negligent conduct. Thus, McDonald is

distinguishable from this case.

¶ 91                            2. Finding of Contributory Negligence

¶ 92     Finally, Oberjat argues that the trial court erred by finding her 50% comparatively at

fault.

¶ 93     A person is contributorily negligent when he or she acts without the degree of care that a 


reasonably prudent person would have used for his or her own safety under like circumstances,
	

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and such action is a proximate cause of his or her injury. Logan v. U.S. Bank, 2016 IL App (1st)

152549, ¶ 20. We will not disturb a trial court’s finding of contributory negligence unless it is

against the manifest weight of the evidence. Walker v. Chicago Housing Authority, 2015 IL App

(1st) 133788, ¶ 47. We give great deference to the trial court’s findings of fact, because the trial

court is in a superior position to observe the witnesses’ testimony, to judge their credibility, and

to determine the weight their testimony and other evidence should receive. Id. A finding is

against the manifest weight of the evidence only if the opposite conclusion is apparent or if the

finding appears to be arbitrary, unreasonable, or not based on the evidence. Id.

¶ 94   Here, the trial court found Oberjat 50% contributorily negligent in two ways: (1) “she

interjected herself into the argument between Mr. Matthews and Mr. Cooke. Her actions did not

de-escalate the verbal dispute, but escalated it by her aggressive actions toward an angry man

who she did not know. Further, she admitted she did not know what was going on. Yet she

testified that she ‘stormed’ out of the bar, placed herself between the two men, pointed her finger

in the face of Mr. Matthews, and demanded to know what the m…f… was going on. She used

foul language which escalated the argument. These actions are not the actions of a woman

exercising reasonable care for her own safety. She directed Mr. Matthews’ attention to her when

there was not need to do so”; and (2) when she “saw Mr. Matthews running toward her car, but

in Mr. Cooke’s direction, she ran directly at Mr. Matthews with her arms outstretched in attack

mode. When Mr. Matthews reached Ms. Oberjat’s car, she was at the driver’s door about to get

in. Mr. Cooke was at the passenger door. *** A reasonably careful person does not charge an

angry man in a dark parking lot within a minute of a loud argument with that man. There was an

alternate route to safety. Ms. Oberjat was contributorily negligent when she did not take the

safer action.”



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¶ 95   These findings are supported by the record. The evidence indicates that Oberjat went

“storming” outside to see “what the f***” was going on” and placed herself between Cooke and

Matthews. Oberjat also pointed her finger at Matthews. When Oberjat went to her car with

Cooke, she stood at the driver’s-side door of her car with her keys in her hand and, when she saw

Matthews run toward Cooke, who was on the opposite side of the car, she ran, arms stretched

out, at Matthews. Oberjat admitted that, when Matthews ran toward her car, he was headed for

Cooke, not her. In light of this evidence, we cannot say that the trial court’s finding that Oberjat

was 50% contributorily negligent is against the manifest weight of the evidence.

¶ 96                                  III. CONCLUSION

¶ 97   For the reasons stated, we affirm the trial court’s order.

¶ 98   Affirmed.




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