IL appeals court: Waukegan restaurant can be sued for not stopping car from crashing through storefront window

A state appeals panel has ruled a customer who was injured when he was struck by a car that crashed through a Waukegan restaurant’s front window can sue the restaurant for failing to install protective bollards to prevent the car from driving through the storefront.

According to court documents, Darius King was ordering food at Taqueria El Paraiso on North McAree Road in Waukegan in August 2020. A Nissan Murano crashed through the wall and windows at the restaurant’s front entrance, striking and injuring King. He sued the driver, with whom he later settled.

He also sued the restaurant owner, later stricken as a defendant by agreed order. But his lawsuit proceeded against the restaurant itself, as King alleged they were negligent because they allowed people to park in front of the building without erecting sufficient protective barriers.

In December 2022, Lake County Circuit Court Judge Jorge Ortiz granted summary judgment to the restaurant. King challenged that ruling before the Illinois Second District Appellate Court.

Justice Christopher Kennedy wrote the panel’s opinion, filed April 9; Justices Robert McLaren and Ann Jorgensen concurred.

The panel said Judge Ortiz found the restaurant did owe King a duty of care, but said King nonetheless failed to show the business proximately caused his injuries. Ortiz said King cited no law that would’ve forced the restaurant to construct barriers or redesign its parking lot. The judge further said the driver should be seen as an independent, intervening cause and said King failed to offer expert testimony supporting his assertion barriers or a different parking setup would’ve prevented his injuries.

“Before turning to King’s several arguments, we note that defendant’s summary judgment motion was limited to the negligence elements of duty and proximate cause and that this appeal concerns only the element of proximate cause,” Kennedy explained. “We offer no opinion on the element of breach or defendant’s ultimate liability in this suit.”

On appeal, King successfully argued the car crash “was reasonably foreseeable,” pointing to a 2006 Illinois Supreme Court opinion, Marshall v. Burger King, in which a similar car crash killed a restaurant patron. That opinion, Kennedy wrote, established “that what must be foreseeable is not the precise nature or manner of the occurrence but only the general character of the event or harm.”

Citing a long record of negligent automobile crashes being deemed foreseeable, as well as the Marshall opinion’s specific statements on restaurants and car collision, the panel said the Taqueria incident “was not so extraordinary as to make it an unforeseeable intervening act as a matter of law.”

The panel further said Judge Ortiz improperly found King was obligated to provide expert testimony, saying that bar isn’t required for “an ordinary negligence case” to survive a summary judgment motion.

Kennedy then explained a judge can decide whether duty exists. But questions of whether a defendant breached that duty or if that breach can be shown to have caused a plaintiff’s injuries are factual disputes for a jury.

“A reasonable jury could find that several measures could have prevented his injuries,” Kennedy wrote, such as a no-parking zone immediately in front of the building or orienting the spaces parallel to the building instead of perpendicular, making it unlikely for a driver who loses control to enter the restaurant.

“Regarding protective barriers, there is no doubt that measures exist, such as installing certain bollards or substantially reinforcing the restaurant’s front wall, that could have prevented” the collision, Kennedy wrote. “Whether defendant was required to take such measures is a different question — a question of breach — and, as mentioned previously, we offer no opinion on that matter. We conclude only that it is not speculation or conjecture to assert that protective barriers could have slowed, stopped or deflected” the car and prevented King’s injuries.

The panel also rejected the restaurant’s argument it only created a condition that made the injuries possible, saying King “created a triable issue of fact” on whether the restaurant could or should have taken more extensive preventive measures. It reversed Judge Ortiz’s ruling and remanded for further proceedings.

This article was first published in Cook County Record.

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