Motion 12-Plaintiff's Response to Defendant's 2-615 Motion to Dismiss in Car Accident Case

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Plaintiff's Response to Defendant's Motion to Dismiss

Harvey L. Walner & Associates, Ltd., 123 N. Wacker Drive, Suite 880, Chicago, Illinois 60606, (312) 782-8550, Attorney Code No. 10263, Shelby H. Kanarish.

INTRODUCTION

On May 3, 2007, Plaintiff, BARBARA KRZYZANOWSKI, Special Administrator of the Estate of RYSZARD KRZYZANOWSKI, filed a two count Complaint against WEST BELMONT DIALYSIS, (hereinafter referred to as “BELMONT”) alleging that on or about October 29, 2005, Plaintiffs decedent sustained severe disabling injuries which resulted in his death after he was struck by an unknown vehicle while crossing the street to enter Defendant's property. Defendant is arguing that 1) they owed no duty of care to the Plaintiffs decedent because they did not own the premises in issue- West Belmont Avenue, 2) that Illinois law states no duty exists for injuries to a pedestrian on a city street even if the landowner is providing a means of ingress and egress and 3) that they owed no duty to warn of the obvious risk of crossing the street and is moving for its Motion to Dismiss pursuant to § 5/2- 615 of the Illinois Code of Civil Procedure.

ARGUMENT

A party may move to strike all or part of an opponent's pleading, either as to substance or to form pursuant to § 5/2- 615 of the Illinois Code of Civil Procedure. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proven which would entitle the pleader to relief. Ogle v. Fuiten, 102 Ill.2d 356, 466 N.E.2d 224 (1984). The Defendant, BELMONT, filed a Motion to Dismiss based on the fact that they owed no duty of care to the Plaintiff's decedent as he was crossing the street to enter Defendant's property as Illinois law states no duty exists for injuries to a pedestrian on a city street. Further, they argue that they owed no duty of care to warn of the obvious danger of crossing the street. The Defendant cites Laufenberg v. Golab, 108 Ill.App.3d 133 (1982), which holds that a landowner does not owe a legal duty to a patron when there is an independent factor that causes harm beyond the control of the defendant. In Laufenberg, the plaintiff was struck by a car while crossing the street after leaving the defendant's premises.

In the instant case, Plaintiffs decedent was struck by an automobile as he was crossing the street to enter Defendant's premises. There is a long standing rule in Illinois that states certain “special relationships” may give rise to an affirmative duty to aid or protect another against unreasonable risk of physical harm, such as the relationship at issue in this case, between a business invitor and business invitee. Marshall v. Burger King Corp., 222 Ill.2d 422, 856 N.E. 2d 1048 (2006). The Marshall court states that it is reasonably foreseeable, given the pervasiveness of automobiles , roadways and parking lots, that business invitees will be placed at risk by automobile -related accidents. Id. at 442. In Blue v. St. Clair Country Club, 7 Ill.2d 359, N.E. 2d 31, the court held that what is required to be foreseeable is the general character of the event or harm, not its precise nature or manner of occurrence.

There is a parking lot located directly across the street from Defendant's entrance for all of its customers, which is in the middle of the street. This lot is owned by Defendant and used for patients who come to Defendant's dialysis unit. The Defendants chose to place the parking lot across the street, an inconvenient location for their patients who are already disabled coming to the office for appointments at such odd times as 4:30 AM, as in this case. Therefore customers of BELMONT cross in the middle of the street with no crosswalk present to enter Defendant's premises. The accident occurred at 4:30 AM, with no lights visible to warn of oncoming cars. It is reasonably foreseeable that with no crosswalk present and no warning signs instructing patients to cross at the corner of Belmont Avenue, automobileaccidents could happen with patients crossing in the middle of traffic. This is not an independent factor that caused harm to the decedent, but a direct cause of placing Defendant's parking lot in the middle of the street, directly across from Defendant's entrance. Defendant was on notice that its customers would be forced to cross in the middle of the street. Also, because of the special relationship between Defendants and the decedent, they owed the decedent a duty of reasonable care. The issue then is whether the Defendants breached that duty, which is a question for the jury, not the judge, to decide provided there is a genuine issue of material fact regarding that issue.

CONCLUSION

In conclusion, a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proven which would entitle the pleader to relief. It was reasonably foreseeable that accidents could occur and the Defendants owed the decedent a duty of reasonable care based on their special relationship. For the reasons stated above, Defendant's Motion to Dismiss should be dismissed.

Wherefore, the Plaintiff, BARBARA KRZYZANOWSKI, Special Administrator of the Estate of RYSZARD KRZYZANOWSKI, by and through her attorneys, HARVEY L. WALNER & ASSOCIATES, LTD., prays that the Defendant's, WEST BELMONT DIALYSIS CENTER, Motion to Dismiss pursuant to 735 ILCS § 5/2- 615 be denied.

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