Date: 02-02-2018

Case Style:

Case Number: 16-4033

Judge: Rovner

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Bill Gibbs and Matt Jenkins

Defendant's Attorney: Elizabeth A. Boratto, Jennifer Kunze Schwendener and Andrew K. Miller

Description: While Beebe and Lucas Roh were at
Starbucks on Rush Street in Chicago, Illinois with their two
sons Alexander and Marcus, a wood and metal stanchion fell
onto Marcus Roh’s finger. Marcus’s injured finger had to be
amputated that same day. Beebe sued Starbucks Corporation
2 No. 16-4033
in state court on behalf of Marcus, claiming its negligence
caused Marcus’s injury. Invoking federal diversity jurisdiction,
Starbucks removed the case to federal court, where the district
court granted summary judgment in favor of Starbucks. Beebe
appeals, and we affirm, concluding, as did the district court,
that any duty Starbucks may have owed Marcus was abrogated
by his parents’ presence with him in Starbucks at the
time of the accident.
I.
The day Marcus injured his finger, the Roh family was
visiting a recently opened Starbucks store in downtown
Chicago at the busy corner of Oak and Rush Streets. In its other
stores, Starbucks has used varying approaches to encourage
line formation and control crowds in the store; these methods
include lightweight metal floor baskets placed strategically
throughout the store, coffee stands, and occasionally (depending
on customer traffic) stanchions with a round base and
retractable belts that can connect to adjacent stanchions (like
those often seen at airports and crowded venues).
This particular Starbucks, however, commissioned an
individual named Paul D. Punke to create custom metal
stanchions for placement within the store to direct the flow of
customer traffic. Punke had previously worked for Potbelly
Sandwich Shops, salvaging reclaimed furniture and artifacts
for their metal stanchions, which were ordinarily made from
salvaged posts from 1800's-era iron fences or stair posts. The
Potbelly stanchions were connected by heavy chains and
welded to a base attached to the floor so the weight of the
chain did not tip the stanchion over.
No. 16-4033 3
In contrast to the stanchions affixed to the floor that Punke
had created for Potbelly’s, the stanchions in the Oak and Rush
Starbucks were freestanding. Although the testimony on the
precise reason is disputed, the parties agree that Starbucks
initially did not want to affix the stanchions to the floor—either
because it intended to first establish traffic patterns or simply
for aesthetic reasons and to retain flexibility to move them
when necessary. Whatever the reason, instead of welding a
base that could be affixed to the floor, Punke added a heavy
concrete base to the stanchions that could be removed at a later
time if Starbucks wanted to permanently affix them to the
floor. The stanchions were then used with ropes to control the
traffic in the new store, as shown in this picture from the
record:
(Defendant’s Motion for Summary Judgment, Dkt. 51, Exhibit
E.)
4 No. 16-4033
The Roh family visited the new Oak and Rush store on
February 9, 2013, approximately two months after it opened.
At that time, Marcus was three years old, and Alexander was
five. Lucas and Beebe walked with the boys past the stanchions
and ordered drinks. After receiving their coffee, the family
went to the second floor to use the restrooms. When they
returned to the main level and were exiting the store, Beebe
and Lucas heard their son Marcus begin crying. Lucas, who
had heard a loud noise immediately preceding Marcus’s cries,
saw that one of the stanchions had been knocked to the
ground. He picked up a screaming Marcus and the entire
family went immediately to their car parked out front and took
Marcus to the Lurie Children’s Hospital emergency room.
Shortly thereafter, Marcus was taken by ambulance to the
University of Chicago Medicine Comer Children’s Hospital,
where the Rohs thought doctors may be able to save Marcus’s
damaged finger.
The finger, however, could not be saved. Marcus’s left
middle finger was surgically amputated. Marcus also injured
his left index finger, which was treated with the insertion of a
pin that was later removed.
Although neither Beebe nor Lucas saw what caused the
stanchion to fall and have never asked their sons what happened
that day, the record establishes that the boys were
playing on the rope and stanchions. Marcus remembers little
in terms of specifics, but did answer in the affirmative when
asked at his deposition whether he was “playing on a pole that
day.” His older brother Alexander testified that he thought
they were playing on the poles because they were bored, and
he thinks he was swinging on the ropes. Judd Luckey, a
No. 16-4033 5
Starbucks barista working that day, recalled that the boys were
“jungle gyming” on the stanchions, and that one of the boys
climbed up onto the stanchion while his brother was “hanging
on the rope.” Another barista working that day, Nicole
Paradis, remembers seeing Marcus and Alexander running
around near the stanchions.
Jen Turner, who was the store manager for the Oak and
Rush Starbucks, had expressed some concern about the
stanchions on the final walkthrough of the store before it
opened. At that time, she mentioned to the district manager,
regional director, regional vice president, and several individuals
from the design team (all there for the walkthrough) that
although the stanchions were beautiful they should consider
having them affixed to the floor so they would not have to
worry about them falling over. Later Turner herself bruised her
leg badly when she attempted to step over the stanchions and
caught her foot in the rope, pulling the stanchion onto her leg.
She e-mailed the district manager and the facility manager at
the time to inform them that the stanchion had bruised her leg.
Beebe Roh initiated this action on behalf of Marcus in
Illinois state court, alleging that Starbucks was negligent by
failing to safely maintain its premises, to adequately secure the
stanchion, to properly inspect it to ensure its stability, to warn
patrons of the potential danger posed by the stanchion, or to
realize that minor patrons would not appreciate the risk posed
by the unsecured stanchion. Starbucks removed the action to
federal court under the diversity statute, see 28 U.S.C.
§§ 1332, 1441, (given Marcus’s injuries the amount in controversy
exceeds $75,000 and there is complete diversity of
citizenship—Starbucks is incorporated in Washington with its
6 No. 16-4033
principal place of business in Seattle, and Beebe is a citizen and
resident of Illinois).
The district court granted Starbucks’ motion for summary
judgment, concluding that under Illinois law, Marcus’s parents
Beebe and Lucas, not Starbucks, bore the responsibility to
protect Marcus from the obvious danger posed by playing on
the unsecured stanchions. The district court also denied Beebe
Roh’s motion for reconsideration, clarifying that the claim
against Starbucks failed under either an “active negligence” or
“premise liability” theory.
II.
We review the district court’s grant of summary judgment
de novo, examining the record in the light most favorable to
Roh and construing all reasonable inferences from the evidence
in her favor. E.g., Anderson v. Liberty Lobby Inc., 477 U.S. 242,
255 (1986); Reed v. Freedom Mortgage Corp., 869 F.3d 543, 547
(7th Cir. 2017). Summary judgment is proper when there are
no genuine disputes of material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a
diversity case such as this one, where neither party raises a
conflict of law issue, federal courts apply the law of the state in
which they sit. Am. Family Mut. Ins. Co. v. Williams, 832 F.3d
645, 648 (7th Cir. 2016).
To state a cause of action for negligence under Illinois law,
a plaintiff must establish the existence of a duty, the defendant’s
breach of that duty, and that the breach proximately
caused the plaintiff’s resulting injuries. Mt. Zion State Bank &
Trust v. Consol. Commc’ns, Inc., 660 N.E.2d 863, 868 (Ill. 1995).
Here the primary issue is whether Starbucks owed Marcus Roh
No. 16-4033 7
any duty to protect him from the stanchion that toppled onto
his finger. We conclude, as did the district court, that any duty
owed Marcus by Starbucks was abrogated by his parents’
presence with him in the store that day.
Whether a duty exists in a given case is a question of law to
be determined by the court. Ward v. K Mart Corp., 554 N.E. 2d
223, 226 (Ill. 1990). Illinois courts have recognized that the
concept of duty in negligence cases is “‘involved, complex, and
indeed nebulous,’” id. (quoting Mieher v. Brown, 301 N.E.2d
307, 308 (Ill. 1973)), but have identified the following factors
critical to the inquiry: (1) the foreseeability of the injury; (2) the
likelihood of the injury; (3) the difficulty of guarding against it;
and (4) the consequences of putting the burden to guard
against it on the defendant. Ward, 554 N.E.2d at 226–27; Harlin
v. Sears Roebuck & Co., 860 N.E.2d 479, 484 (Ill. App. Ct. 2006).
Because Illinois has rejected the attractive-nuisance doctrine,
generally landowners or occupiers in Illinois owe no
greater duty to small children than the duty owed to adults.
Kahn v. James Burton Co., 126 N.E.2d 836, 841 (Ill. 1955); Perri v.
Furama Rest., Inc., 781 N.E.2d 631, 635 (Ill. App. Ct. 2002).
Instead, in premises-liability cases involving injury to a child,
“the true basis of liability [is] the foreseeability of harm to the
child.” Kahn, 126 N.E.2d at 842. A child’s injury will be deemed
foreseeable to the landowner if (1) the owner or occupier
knows or should know that children habitually frequent the
property; (2) a defective structure or dangerous condition is
present on the property; (3) the defective structure or dangerous
condition is likely to injure children because they are
incapable, due to their age and immaturity, of appreciating the
risk involved; and (4) the expense and inconvenience of
8 No. 16-4033
remedying the defective structure or dangerous condition is
slight when compared to the risk to children. Id. at 485.
Although this test ordinarily applies where an injured
minor is trespassing or unaccompanied, it has been extended
to apply in situations like the Roh’s where the injured child is
accompanied by a parent. See Harlin. 860 N.E.2d at 485 (accompanied
minor injured on merchandise display cabinet); Perri,
781 N.E.2d at 634–38 (infant accompanied by parents injured
at defendant restaurant); Stevens v. Riley, 580 N.E.2d 160 (Ill.
App. 1991) (accompanied minor injured while a guest at
defendant’s home); Kay v. Ludwick, 230 N.E.2d 494 (Ill. App.
1967) (same). If the dangerous-condition test is satisfied—i.e.,
if the court finds that the injury was foreseeable to the
landowner—the landowner’s duty to the child may be abrogated
if the child is accompanied by a parent. This is because
“[t]he responsibility for a child’s safety lies primarily with its
parents, whose duty it is to see that his behavior does not
involve danger to himself.” Driscoll v. C. Rasmussen Corp., 219
N.E.2d 483, 486 (Ill. 1966); see also Mt. Zion Bank & Trust, 660
N.E.2d at 868. Thus, the landowner’s duty to a child is abrogated
if “the child was injured due to an obvious danger while
under the supervision of his or her parent, ‘or when the
parents knew of the existence of the dangerous condition that
caused the child’s injury.’” Harlin, 860 N.E.2d at 486 (quoting
Stevens, 580 N.E.2d at 167).
The Rohs maintain that Starbucks had a duty to prevent the
injury because neither they nor Marcus were aware of the
danger posed by the stanchions. They argue primarily that
summary judgment was improper because they could not have
anticipated that the stanchions might fall, and thus there is at
No. 16-4033 9
least a question of fact as to whether the danger posed by the
stanchions was “hidden,” such that Starbucks is liable for
Marcus’s injury.
But even when viewed most favorably to them, the facts do
not support the imposition of a duty on Starbucks. Both Beebe
and Lucas admit having observed the stanchions when they
entered Starbucks. They insist, however, that they were not
and could not have been aware of the dangerous nature of the
stanchions, and thus could not have exercised due care to
prevent Marcus’s injury. We are unconvinced by their suggestion
that the potentially dangerous nature of the clearly visible
stanchions was somehow hidden from them. As the district
court noted, it is a matter of common sense that serious injury
could result from climbing on the stanchions and swinging
from the ropes connecting them together. Beebe essentially
argues that they could not have foreseen the particular injury
that Marcus suffered. But no such specificity is required.
For example, in Sears, the Illinois appellate court considered
a negligence claim stemming from a fall when a two-year-old
was injured when she tripped and hit her head on a sharp
corner of an empty metal display stand in the Sears store. The
court rejected the plaintiff’s argument that the corner of the
display stand constituted a latent dangerous condition that a
two-year old could not be expected to appreciate. Sears, 860
N.E. 2d at 486. Despite the mother’s testimony that she did not
perceive anything dangerous about the display stand, the court
concluded that it was a “matter of common sense that two year
olds often fall and may get hurt when they land on noncircular
objects with metal at the bottom.” Id. at 487. Because the child’s
mother was aware of the display stand, it was irrelevant
10 No. 16-4033
whether the child could be expected to appreciate the danger
posed by the metal edge. Sears was not negligent simply
because the child’s mother “apparently saw no harm in letting
her daughter walk on her own near the display stand.” Id. at
487. It was also irrelevant whether the child’s mother could
have foreseen that particular injury; it was enough that she was
aware generally of the display stand’s existence and the
possibility that a toddler could trip and fall into it.
Likewise, the Rohs need not to have seen the particular
accident that befell Marcus and its disastrous results. It is
enough that the Rohs saw the stanchions, which were plainly
very heavy. That any parent could foresee that a child hanging
from the rope connecting the stanchions or otherwise playing
on and around them could be injured is sufficient to support
the conclusion that Starbucks did not breach any duty to
Marcus, who was engaged in an activity while under his
parents’ supervision that could obviously lead to injury of
some kind. See Ward, 554 N.E. 2d at 229 (“It is fundamental tort
law that before a defendant can be found to have been negligent,
it must first be determined that the defendant owed a
legal duty to the plaintiff.”).
A district court applying Illinois negligence law reached a
similar conclusion in Blackford v. Wal-Mart Stores, No. 07-437-
GPM, 2008 WL 905912 (S.D. Ill. Apr. 2, 2008). In Blackford, a
two-year old was injured when he climbed onto a floor buffing
machine inside the store. Like Beebe, the plaintiff in Blackford
(the child’s mother) argued that although she saw the floor
buffer she could not have anticipated that a child could
activate it or that it would pose any danger to a child when it
was not activated. Id. at 3. The court rejected the plaintiff’s
No. 16-4033 11
argument, noting that it was irrelevant whether she perceived
that the floor buffer was dangerous because common sense
dictated that a young child might be attracted to a machine and
discover “through play” a means to activate it. Id. at 4. See also
Stevens, 580 N.E.2d at 165–68 (affirming summary judgment for
landowner after toddler fell into stream on property because
although the stream was obscured by weeds, parents could be
expected to keep child away from area); Ludwick, 230 N.E.2d at
494 (dismissing suit for failure to state a claim given obvious
nature of danger posed to a four-year-old by a riding lawn
mower).
Beebe seeks to distinguish this line of cases, arguing that
Marcus’s injury more closely parallels the situation in Perri v.
Furama Restaurant, where an Illinois appellate court concluded
there was a genuine issue of material fact as to whether a
restaurant owner was negligent in placing a pot of hot tea on
a lazy susan without notifying parents at the table of the tea,
781 N.E.2d 631 (Ill. App. Ct. 2002). Perri, however, is inapplicable
here because there the parents were completely unaware
that the tea had been placed on the table, and therefore could
not have foreseen that their son might tip it over by spinning
the lazy susan on the table. Perri, 781 N.E.2d at 839 (“Even the
most vigilant parent cannot be omniscient[.]”). We reject the
Rohs’ attempt to characterize their apparent failure to fully
appreciate the danger posed by the stanchions as equivalent to
the plaintiff’s complete lack of awareness of the existence of the
teapot on the table in Perri. As Perri itself pointed out, a
parent’s duty to supervise absolves a defendant of liability
“where an injury is not foreseeable unless a parent or caretaker
12 No. 16-4033
fails to properly supervise a minor child”—which is precisely
what occurred here. Id.
Their insistence that Paul Punke did not intend the stanchions
to be unsecured does not change this analysis. First,
Punke did not testify, as the Rohs claim, that he recommended
the stanchions be affixed to the floor. Instead, he explained that
they had bolted similar stanchions to the floor in the past but
that the heavy concrete base was created to stabilize these
particular stanchions so they would not have to be bolted to the
floor. He specifically testified about the stanchions that he “felt
that they were safe” for “directing traffic” and that he would
not have sold them to Starbucks if he believed they were
unsafe or dangerous. The same is true of Jen Turner’s observation
to store executives that they could consider affixing the
stanchions to the floor and her subsequent injury when
stepping over them. Neither her casual observation about
affixing the stanchions nor the fact that she sustained an injury
when stepping over them rather than walking around them as
intended sheds light on Starbucks’ duty to an accompanied
minor whose parents saw the stanchions and understood their
intended purpose.
Thus, even when viewing the facts in the light most
favorably to the Rohs, there is no record support for the
assertion that Starbucks disregarded safety recommendations
or otherwise created a hazardous situation with the stanchions.
This conclusion also forecloses their skeletal argument that the
district court erred by failing to address what they characterize
as an alternative claim for “active negligence.”
No. 16-4033 13
If there were some evidence that the stanchions tipped
because they were faulty, unstable or otherwise hazardous
when being used according to their intended purpose, this
would be a different case. Here, however, it was plainly
evident to the Rohs that the heavy stanchions were intended to
control traffic flow in the store; their failure to prevent their
sons from climbing and playing on them led to Marcus’s
injury, not the breach of any duty on Starbucks’ part. As the
court in Driscoll observed, it “is always unfortunate when a
child gets injured while playing, but a person who is merely in
possession and control of the property cannot be required to
indemnify against every possible injury thereon.” 219 N.E.2d
at 79. The fact that Marcus tragically sustained a life-altering
injury does not change the fact that his parents, not Starbucks,
bore the duty of protecting him from harm arising from
playing on the stanchions, which they admit having seen when
they first entered the defendant’s premises.

Outcome: For the foregoing reasons, we AFFIRM the entry of summary
judgment in favor of Starbucks Corporation.

Plaintiff's Experts:

Defendant's Experts:

Comments: