Summary Judgment Granted in Case Where Missing Element of Cause of Action; Lohmeier v. ABM Lakeside, Inc.

The Illinois Appellate Court has affirmed a decision by a Cook County Circuit Court judge regarding the plaintiff’s failure to offer evidence to satisfy an element of a cause of action. In that respect, the trial judge entered summary judgment, which has now been affirmed by the higher court.

In November 2008, John Lohmeier was with a friend at a doctor’s appointment on the 11th floor of a Chicago office building.  While there, Lohmeier requested and obtained a key to gain access to the men’s bathroom. The bathroom was located in a common area at the end of the hallway. The restroom had a step up near the doorway.

When Lohmeier opened the door and took a step, he caught his foot on the step.  He fell onto the bathroom floor, sustaining injuries to his knee, shoulder and mouth. A lawsuit was filed because of his injuries. At Lohmeier’s deposition, he testified that he had not seen a sign on the wall across from the door warning incoming patrons of the step. That sign was the only warning sign in the bathroom.

In March 2009, Lohmeier returned to the building to take pictures of the restroom where he was injured.  Those photographs showed a warning sign declaring “Caution – Step up” which was placed on the wall immediately inside the door before the step that caused Lohmeier’s fall.  There was no damage to the sign, and Lohmeier was unable to explain where it ought to have been.

In June 2009, there was evidence that the building’s staff engineer — for unstated reasons — rehung the warning sign.

Lohmeier’s lawsuit named several defendants, including ABM Lakeside, Inc. to recover damages for his injuries. The lawsuit brought against ABM was for negligence under the theory of premises liability. It was alleged in the lawsuit that ABM chose not to report that the sign was missing. However, the trial judge granted summary judgment for ABM without explaining its rationale, and Lohmeier appealed.

On appeal, the court began by stating that because it reviewed summary judgment decisions, de novo, it was immaterial that the trial court failed to state its rationale. The court added that since Illinois has adopted the Restatement (Second) of Torts, an owner or occupier of land owes a reasonable duty of care to its invitees.

In order for a defendant to be deemed an owner-occupier or possessor of land, he must occupy the land with the intent to control it.  Williams v. Seibert Landscape, Co.  The Williams court held that the ability to exclude people from the property or to direct how it is used, is the applicable test of control of the property.

Lohmeier claimed that ABM had control over the restroom because ABM, under its contract, must exclude patrons from the bathrooms while the bathrooms are being cleaned.  The court rejected this argument, stating that Lohmeier had, in focusing on who controlled the bathroom, “failed to consider whether ABM actually occupied the land.”

As a result of Lohmeier’s choosing not to argue that ABM exercised control over the property where his injuries occurred or pointed to any evidence suggesting that ABM had exclusive control over the area, Lohmeier failed to raise any genuine issue of material fact concerning ABM’s duty to him.  Accordingly, the appellate court affirmed the trial court’s summary judgment.

 John Lohmeier v. ABM Lakeside, Inc., 2012 IL App. (1st) 12-0880U.

Kreisman Law Offices has been handling personal injury matters for individuals and families for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Bellwood, Mount Prospect, Palatine, Berkeley, Burr Ridge, Oakbrook Terrace, Yorkfield, Westchester, Park Ridge, Riverdale, Chicago (Jackson Park), Cicero and Forest Park, Ill.

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