Luu v. Kim

Citations: 752 N.E.2d 547; 323 Ill. App. 3d 946; 256 Ill. Dec. 667Docket: 1-00-2210

Court: Appellate Court of Illinois; June 19, 2001; Illinois; State Appellate Court

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In the case of Donald Luu, as Father and Next Friend of Billy Luu, a Minor, v. Peter Kim, Edmund Kim, and others, the Appellate Court of Illinois affirmed the trial court's decision to grant summary judgment in favor of all defendants. The lawsuit arose from injuries sustained by nine-year-old Billy Luu after he became entangled in a conveyor belt at P-K Mall. The plaintiff's father sued the mall's landlords and the conveyor manufacturer, claiming several points of negligence including: the landlords' failure to foresee harm under the Kahn doctrine; their breach of a duty of reasonable care; their negligence as the proximate cause of injuries; the improper exclusion of a mechanical engineer's affidavit; and the liability of Buschman Conveyors as the apparent manufacturer and for negligent design.

On the day of the incident, Billy was left in the mall with instructions not to wander far. Accompanied by his cousin, he accessed an open stairwell leading to a storage area where the conveyor belt was located. The conveyor was not visible from the stairs, and following the activation of the machine, Billy was injured. Medical reports indicated Billy suffered multiple fractures and severe head trauma. The court concluded that the defendants were not liable, emphasizing that the plaintiff did not sufficiently demonstrate negligence or foreseeability of harm by the landlords or the manufacturer.

Edmund Kim served as the real estate manager and partial owner of P-K Mall in November 1995, where he licensed portions of the premises for retail activities. He testified that his father, Peter Kim, did not sign vendor license agreements nor manage P-K Mall on a daily basis. The management office was responsible for maintaining the second-floor storage area, and vendors needed a separate rental agreement to use that space. Kim indicated that he communicated to vendors that the conveyor belt was intended solely for moving merchandise and was unaware of any incidents involving items getting caught in it, nor did he know of an automatic stop mechanism for the belt. Throughout his tenure since summer 1993, Kim noted that the conveyor belt functioned properly except for necessary tightening. He acknowledged that vendors sometimes used a device to prop open the storage room door and observed graffiti in that area, though he did not know its origin. Kim confirmed that vendors might bring their children to the mall but had not personally seen them on the second floor. He had interacted with a child named Billy Luu in the video game area in the early '90s. Following an accident involving Billy, Kim took steps to enhance safety by posting caution signs and securing the conveyor belt's control button. 

Harry Lake, the operating partner for the landlords of P-K Mall, testified that the landlord's responsibilities were limited to the exterior maintenance of the shopping center, and they were not responsible for the second-floor storage area unless there were structural issues. Ronald Knoerzer’s deposition revealed that the Buschman Company, which manufactured and assembled conveyor belts, provided operating instructions created under its engineering department's direction. In 1999, the defendant-manufacturer filed a counterclaim alleging negligence against Donald and Sophia Luu for failing to supervise their child and against Peter Kim, Eddie Kim, and P-K Mall for negligent maintenance. Additional parties, including Harry Lake and the Pilsen Park Shopping Center entities, were also accused of failing to exercise proper care to prevent injury. By June 1999, the defendants had filed a motion responding to Buschman's counterclaim, and all parties sought summary judgment, culminating in a hearing on November 19, 1999.

On November 19, 1999, during a hearing, the plaintiff's counsel acknowledged having an affidavit about a defective conveyor belt but did not present it, expecting the hearing to be postponed. The judge emphasized that merely indicating an expert's opinion was insufficient and required the affidavit to be part of the hearing materials. The judge allowed 60 days for the plaintiff to present additional evidence, including depositions and documents, regarding the defendant's status as mere component parts manufacturers. The judge later ruled that, as a matter of law, the plaintiff's son, Billy Luu, was a trespasser at the time of the accident, and the defendant-landlords owed him no duty beyond refraining from willful misconduct, establishing no proximate cause for his injuries. Consequently, summary judgment was granted for the defendants.

On December 20, 1999, the plaintiff sought reconsideration, arguing the need for a trier of fact to assess the duty owed and proximate cause. A supporting memorandum with Seiji Joji’s affidavit was filed on January 28, 2000. Joji, a licensed mechanical engineer, asserted that the conveyor system was defective due to a lack of safety measures and concluded it was unsafe for operation. During a June 7, 2000 hearing, the judge ruled to strike Joji's affidavit but indicated that even if it were accepted, it would not alter the judgment. The plaintiff's motion for reconsideration was subsequently denied. On June 15, 2000, the court denied the defendant-manufacturer's motion to strike Joji's supplemental affidavit but upheld previous summary judgments. The plaintiff appealed multiple orders, which were affirmed. 

The appellate court applied a de novo standard when reviewing the summary judgment, noting that it would not reverse the trial court's ruling unless there was an abuse of discretion.

Summary judgment is warranted when the available evidence—pleadings, depositions, admissions, and affidavits—demonstrates no genuine issue of material fact exists, allowing the moving party to obtain judgment as a matter of law. The primary objective is to ascertain the existence of a triable issue of fact, not to resolve factual disputes. If reasonable individuals could draw different inferences from undisputed facts, summary judgment should be denied. At this stage, the court must interpret evidence against the movant and favorably for the nonmovant. The nonmoving party is not required to prove their case at this point but must present a factual basis supporting their claim.

In the case under discussion, the plaintiff asserts that, according to Kahn v. James Burton Co., the presence of a child, Billy, was foreseeable. However, the defendant-landlords argue that even if foreseeability is established, they should still prevail because their actions were not the legal cause of Billy's injuries. The Kahn case, involving a child's injury from unsecured lumber, examined whether a lumber company could have anticipated children climbing on the lumber. Although Kahn did not explicitly address landlord duties to children, it set a precedent regarding foreseeability.

Generally, children do not possess greater rights to enter others' property than adults, and their age does not automatically impose a duty on property owners to ensure their safety, unless specific conditions are met: knowledge of children frequenting the property, presence of a hazardous condition, likelihood of injury due to age-related immaturity, and minimal cost to remedy the hazard compared to the risk. In this case, the court concludes that the plaintiff has not satisfied the first criterion of foreseeability. There is no evidence that the defendants knew or should have known that children frequented the second-floor storage room or operated the conveyor belt. Testimony regarding vendors' families visiting the mall does not suffice to demonstrate foreseeability. Additionally, there is no indication that children had previously operated the conveyor belt or were aware of its location, nor does the presence of graffiti sufficiently establish that children frequented the area.

No testimony establishes when, how often, or by whom the graffiti markings were placed, nor is there evidence indicating that children were responsible. Kim's awareness of the graffiti does not demonstrate knowledge on the part of the defendants, as referenced in Benamon v. Soo Line R.R. Co. To prove negligence, the plaintiff must show duty, breach of that duty, and proximate injury, as outlined in Quintana v. City of Chicago. Proximate cause involves cause in fact and legal cause, illustrated by First Springfield Bank v. Galman, where the Illinois Supreme Court ruled that while the defendants' actions were a cause in fact of the injury, they were not the legal cause, as it was not foreseeable that a violation of a no-parking sign would lead to the pedestrian's actions that resulted in injury. The rationale from First Springfield applies to this case, affirming the trial court's decision to grant summary judgment for the defendant-landlords. The plaintiff's argument regarding the stricken affidavit of Seiji Joji is considered moot, as the trial court had initially ruled it was improperly presented and lacked sufficient compliance with procedural rules. Although the court later reconsidered and allowed the affidavit, the defendant-landlords maintain that the issue is moot. Additionally, the plaintiff claims the defendant-manufacturer is liable for injuries due to the negligent design of conveyor belt components under apparent manufacturer theory.

Plaintiff alleges a defect in the design of the conveyor belt existed when the parts left the manufacturer's premises. The defendant asserts it did not negligently design the conveyor belt, and the doctrine of apparent manufacturer, which holds a company liable for injuries caused by a product it represents as manufactured, does not apply. This doctrine imposes liability on a company that induces the public to believe it is the actual manufacturer, based on its reputation. The defendant admits it sold the conveyor parts but denies responsibility for the overall system design. There is no evidence presented that the conveyor belt posed an unreasonable risk of harm. The plaintiff's claim stems from a child being injured when the conveyor belt was activated with a door left open, but this does not demonstrate a defect. The plaintiff must establish that a specific defect caused an unreasonable risk of harm, which he has failed to do. Consequently, the court affirms the summary judgment in favor of the defendant.