Opinion
No. 99 C 725.
January 10, 2000.
MEMORANDUM OPINION AND ORDER
This is a garden-variety slip-and-fall case. Plaintiff Vernon Varner, a citizen of Iowa, was injured on February 5, 1997, when he slipped and fell on an alleged patch of "black ice" at a gas station in Waukegan, Illinois. Named as Defendants are the owner of the gas station, Amoco Oil Company, a Maryland corporation with its principal place of business in Chicago, Illinois, and Karen Johnson, a citizen of both Illinois and Wisconsin, who operated the gas station pursuant to a written lease. Plaintiff's Amended Complaint, which contains three counts, alleges negligence against Amoco (Count I) and Johnson (Count II) for their improper maintenance of the premises, and further alleges th at Johnson's conduct, in particular, was "willful and wanton" and th us warrants an award of punitive damages (Count III). Because Plaintiff requests damages in excess of $75,000, the court has jurisdiction over this dispute under 28 U.S.C. § 1332.
Both Defendants seek summary judgment. Amoco contends that, as landlord, it was not obligated to maintain the driveways of the gas station. In any event, Amoco asserts it did not, and had no reason to, know of the allegedly unsafe condition. Johnson, who seeks summary judgment solely on Count III of the Amended Complaint, argues the undisputed facts demonstrate that her conduct does not justify a punitive damages award under Illinois law. For the reasons stated below, the court grants both motions.
FACTUAL BACKGROUND
The facts that follow are taken from the Local Rule 56.1 statements of Amoco and Johnson, supplemented where necessary with the underlying depositions, affidavits, and documents attached thereto. Plaintiff has not filed a response to either Defendant's 56.1 statement, nor has Plaintiff filed any additional facts of his own. Thus, according to Local Rule 56.1(b)(3)(B), "all material facts set forth in the statement required of the moving party will be deemed admitted. . . ."
In 1995, Amoco leased to Johnson a gasoline service station located at Belvedere and Greenbay Roads in Waukegan, Illinois (the "Gas Station"). (Amended Complaint, Count I, ¶ 1.) Pursuant to the written lease between the parties (Exhibit 4 (the "Lease") to Statement of Facts in Support of Amoco's Motion for Summary Judgment ("Amoco's Statement of Facts")), the Lessee shall: (1) "keep the Premises, together with the adjoining sidewalks and entrance driveways, in good repair, appearance, and order" (Lease, at ¶ 9(b)); (2) "perform necessary upkeep and maintenance to the Premises, and in so doing shall follow guidelines outlining proper maintenance which Lessor may from time to time provide to Lessee" (Id., at ¶ 9(d)); and (3) "keep the Premises, including adjoining areas, alleys, and sidewalks, in clean, safe, and healthful condition" (Id., at ¶ 9(e)).
According to Johnson, she and her employees fulfilled these obligations. It was normal practice for Gas Station personnel to inspect the premises twice a day. (Statement of Facts in Support of Karen Johnson's Motion for Summary Judgment ("Johnson's Statement of Facts"), at ¶ 33.) If an employee discovered a spill of any kind, the employee was expected to clean it with an "Oil Dry" product, rather than attempting to wash the spill away with a hose. (Johnson's Statement of Facts, at ¶ 31.) Johnson acknowledged in her deposition that water does not "strip away oil" and would "only make [the spill] more slippery." (Johnson Dep. at 71.) From June 1996 until the Lease terminated in April 1997, C. Paige Thomason, an Amoco Sales Operations Manager and liaison to the Gas Station, visited the Gas Station approximately once a month to confirm that Johnson was complying with various agreements, including the Lease. (Amoco's Statement of Facts, at ¶ 40; Johnson's Statement of Facts, at ¶ 26.)
The accident resulting in this lawsuit occurred on the morning of February 5, 1997. (Johnson's Statement of Facts, at ¶ 5.) According to the National Oceanic and Atmospheric Administration's National Climatic Data Center, the weather in Chicago that morning was 31 degrees Fahrenheit at 6:00 a.m. and 30 degrees Fahrenheit at 9:00 a.m. (Id., at ¶ 13.) At some point between 7:30 and 8:15 a.m., James Shipman ("Shipman") was driving his car through Waukegan with Plaintiff in the front passenger seat and Plaintiff's then-wife, Mary Varner ("Mary"), in the rear passenger seat. (Amoco's Statement of Facts, at ¶ 13; Johnson's Statement of Facts, at ¶ 12.) Shipman, an attorney, was representing Plaintiff, also an attorney, in an action brought against Plaintiff by Abbott Laboratories ("Abbott") (Amoco's Statement of Facts, at ¶ 11), and the three were en route to Abbott to review records. (Id., at ¶ 12.) Before reaching Abbott, though, Shipman pulled into the Gas Station to purchase gas and replenish the car's supply of windshield-wiper fluid. (Id., at ¶ 13, 14, 17.)
After Shipman pulled his car up to the gas pumps, Plaintiff exited the car to retrieve the wiper fluid. (Id., at ¶ 19.) A few minutes later, Plaintiff, approaching the right front fender of the car with wiper fluid in hand, suddenly slipped and fell. (Id., at ¶ 19, 20.) Mary, who witnessed Plaintiff fall, immediately told Shipman that Plaintiff was on the ground, and the two exited the car to tend to him. (Id., at ¶ 21.) When they reached Plaintiff, he was lying on the pavement with blood around his head. (Id., at ¶ 22.) Mary asked Plaintiff if he was "okay," and Plaintiff responded that he thought he was. (Mary Varner Dep. at 23.) Notwithstanding this response, Plaintiff has a very limited recollection of that morning's events. (Amoco's Statement of Facts, at ¶ 25.) Plaintiff required nine staples to close his head wound, but "avoided any more serious injury." (Shipman Dep. at 10.) Plaintiff, with Mary, joined Shipman at Abbott that afternoon to review the records. (Shipman Dep. at 23.)
Shipman claims that, upon in specting the area around Plaintiff, he noticed a two to three square foot patch of "black ice" marked by traces of a pinkish- or reddish-colored fluid. (Id., at ¶ 27.) By "black ice," Shipman is referring to ice that had formed from frozen water and assumed the color of the underlying pavement, as opposed to white or opaque ice resulting from compacted snow. (Id.) According to his deposition, it is Shipman's "impression" that "somebody had tried to wash off some spilled automotive fluid of some type and in the process had created th is hazardous condition." (Shipman Dep. at 17.) Shipman, however, did not see a hose or faucet anywhere near the area where Plaintiff fell. (Amoco's Statement of Facts, at ¶ 29.) Mary, on the other hand, does not recall a patch of ice, but does remember a pinkish-colored fluid, that she concluded was not blood, in the crack s of the concrete around Plaintiff. (Mary Varner Dep. at 33-35, 110.) Shipman has no knowledge, and the record does not otherwise demonstrate, how long the alleged patch of "black ice" had been on the Gas Station driveway prior to Plaintiff's fall. (Amoco's Statement of Facts, at ¶ 29.) If the patch did exist, there is no evidence that any other person had slipped on it. (Id., at 34.)
After tending to Plaintiff, Shipman went into the Gas Station office and spoke with Roger Taylor, a Gas Station employee. (Johnson's Statement of Facts, at ¶ 23.) According to Johnson, Taylor assumes a supervisory or managerial role in her absence. (Johnson Dep. at 52.) From the cashier's desk, where Taylor was positioned, one can see the area where Plaintiff fell. (Id. at 30.) Shipman asked Taylor to confirm his awareness of the alleged patch of "black ice." (Johnson's Statement of Facts, at ¶ 23.) According to Shipman, Taylor did not respond to this request. (Id.) When Shipman was asked in his deposition if Taylor acknowledged that there was "a small patch of ice," Shipman responded, "He didn't unless we assume by not answering my question when I confronted him with that that he confirmed it. He didn't articulate that he knew there was a patch of ice there." (Shipman Dep. at 48.)
When Johnson arrived at work later that morning, Taylor told her about the incident. (Johnson's Statement of Facts., at ¶ 27.) Johnson testified that, to her knowledge, nobody spilled automotive fluid on the driveway, or hosed down the driveway, within twenty-four hours prior to Plaintiff's fall. (Id., at ¶ 28.) At approximately 11:30 a.m., Johnson called Amoco to report that someone had fallen; she does not recall exactly whom she called. (Johnson Dep. at 22.) Thomason, the Amoco liaison, did not learn about Plain tiff's fall until some time in March 2000, a full year after this suit was filed. (Amoco's Statement of Facts, at ¶ 42.)
On February 4, 1999, Plaintiff filed a negligence claim against Amoco (Count I), Johnson (Count II), Dennis Robb (Johnson's father, see Johnson Dep. at 70) (Count III), and Denny Amoco (an assumed name of a business being run by Johnson, see id.) (Count IV). The claims alleged th at each Defendant:
(a) permitted and allowed ice to accumulate in an unnatural manner on the walkway due to the manner in which it cleaned the surface of its service area; (b) caused and permitted an unnatural accumulation of ice to remain on the service area for an unreasonably long period of time; (c) invited and allowed its customers, including Plaintiff, to use said service area when it knew or should have known that it was unsafe and dangerous to do so due to the unnatural accumulation of ice; (d) failed to make a reason able inspection of said service area; (e) failed to warn persons, such as the plaintiff, lawfully thereon, that there was an unnatural accumulation of ice on the service area; and (f) failed to provide a reasonably safe path around said accumulation of ice thereby causing Plaintiff to deliberately encounter said dangerous condition.
Complaint, Count I, ¶ 5, Count II, ¶ 5, Count III, ¶ 5, Count IV, ¶ 5.
On August 8, 2000, Amoco moved for summary judgment on Count I, arguing that (1) it, as landlord, was not obligated, pursuant to the Lease, to maintain the driveways of the Gas Station; (2) any evidence as to the cause or origin of "black ice" was speculative; and, (3) it did not know about the alleged patch of "black ice" and it is not reasonable to conclude that it should have known. On August 24, 2000, Plaintiff amended his complaint (the "Amended Complaint"), dismissing Counts III and IV (thus terminating the case as to Dennis Robb and Denny Amoco), and adding Count III against Johnson for punitive damages, alleging that her or her agents' conduct in "attempting to clean transmission fluid or other oil off the driveway in sub-freezing temperature with water (knowing that water would make the surface more slippery or turn into ice), creating a patch of `black ice,'" was "in wanton disregard for the safety of others." On September 25, 2000, Johnson moved for summary judgment on Count III of the Amended Complaint arguing that the underlying facts do not support a punitive damages award under Illinois law.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). It is the movant's burden to establish the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether any genuine issues of material facts exist, the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Flores, 182 F.3d at 514. An issue is genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." See Carter v. American Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998). If the nonmoving party bears the burden of proof on an issue, she must offer sufficient evidence to show the existence of each element of her case and cannot rest on the pleadings alone to defeat a motion for summary judgment. See Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999).
II. Amoco's Motion
As already noted, Amoco's motion for summary judgment on Count I of Plaintiff's Amended Complaint has three bases: that (1) Amoco, as landlord, was not obligated to maintain the driveways and walkways of the Gas Station; (2) Plaintiff's evidence as to the cause or origin of "black ice" is speculative; and (3) Amoco did not know about the alleged condition and it is not reasonable to conclude that Amoco should have known about the condition.
The court focuses first on Amoco's argument of landlord immunity. In order to recover on a theory of negligence against a landlord, a plaintiff must show that the landlord owed him a duty. The question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court. See Roberson v. J.C. Penney Co., 251 Ill. A pp. 3d 523, 526, 623 N.E.2d 364, 366 (3d Dist. 1993). Generally, the rule in Illinois is that "the tenant who is in possession, not the landlord, is liable for injuries sustained by third persons because of a failure to keep the property in repair." Wright v. Mr. Quick, Inc., 109 Ill.2d 236, 238, 486 N.E.2d 908, 909 (1985). "The basic rationale for lessor immunity has been that the lease is a conveyance of property which ends the lessor's control over the premises, a prerequisite to the imposition of tort liability." Id. In Wright, for example, the employee of a sublessee/franchisee fast-food restaurant (Great Eight) sued the sub lessor/ franchisor (Mr. Quick) of the restaurant after she slipped and fell in the Great Eight parking lot. The Supreme Court of Illinois held that "once Mr. Quick wholly demised the property to Great Eight, the tort duty fell only upon Great Eight as tenant in possession." Id. at 239-40, 486 N.E.2d 908, 909.
There exists a not able exception, however, to the doctrine of lessor immunity. If a lessor "retains control of a portion of the leased premises, it has the duty to use ordinary care in maintaining the retained portion in a reasonably safe condition." Evans v. United Bank of Ill., N.A. Trust, 226 Ill. App.3d 526, 530, 589 N.E.2d 933, 936 (2d Dist. 1992) (citing Rowe v. State Bank, 125 Ill.2d 203, 220, 531 N.E.2d 1358, 1366 (1988)). If the landlord assumes such a duty, otherwise absent, common law liability may arise from the negligent performance of this voluntary undertaking. See Lamkin v. Towner, 138 Ill.2d 510, 519, 563 N.E.2d 449, 452 (1990). The Wright court briefly discussed this exception to the landlord immunity doctrine, see Wright, 109 Ill.2d at 239, 486 N.E.2d at 909 ("The only exception relevant here provides that if the landlord, by covenant with its tenant, has assumed the obligation to keep the premises in repair, third persons who suffer injury can look to the landlord as well as to the tenant."), but concluded that it did not apply because the tenant in possession had explicitly agreed in its lease and franchise agreement to keep and maintain the establishment, including the parking area, in good repair, see id. at 240, 486 N.E.2d at 910.
Plaintiff insists that, unlike the defendant in Wright, Amoco did assume a duty to make the Gas Station's driveways and walkways safe for third persons and, thus, its actions fall within the relevant exception to the landlord immunity doctrine. First, Plaintiff argues, the Lease evidences Amoco's desire to retain a significant level of control over the Gas Station's operations. For example, pursuant to the Lease, Johnson was obligated to (a) not use, store, rent, or sell upon the premises any items which in Amoco's sole discretion would offend the public, and (b) use Amoco's trademarks only in accordance with Amoco's image policy. Second, Plaintiff contends, Amoco assumed control over the driveways of the Gas Station by sending one of its employees, C. Paige Thomason, to repeatedly inspect the premises. In her affidavit, Thomason testified that she "visited the dealership about once every month . . . and attempted to confirm that the dealer was in compliance with various agreements between the dealership and [Amoco]." See Thomason Aff. at ¶ 3. Thomason further testified that "if [she] observed anything of an unsafe nature [during one of her inspections], [she] would bring the condition to the attention of the dealership management." Id. at ¶ 5.
For legal support, Plaintiff exclusively relies on the case of Demos v. Ferris-Shell Oil Co., N o. 1-99-1027, 2000 WL 1521617 (Ill.App.Ct. 1st Dist. Oct. 12, 2000), which has not been released for publication, and is therefore subject to revision or withdrawal. See Supplemental Response Brief. In Demos, a customer of a service station sued the landlord/owner (Shell Oil Company ("Shell")) of the station, in addition to its tenant/operator (Ferris), for injuries he suffered when a tire he was attempting to inflate with the station's free air hose exploded. Id., at *1. The court recognized the doctrine of landlord immunity, but held that Shell had voluntarily undertook to maintain the airline and compressor. Id., at *6 ("The facts indicate that Shell assumed a duty to provide safety at the Ferr is station."). According to the Demos court, Shell assumed such a duty because it (1) conducted inspections of the service station at least once a month; (2) recommended that the tenant remove the pay air machine that was located on the premises and replace it with the compressor; (3) provided training for the employees so that they would be aware of any unsafe conditions; and (4) provided warning signs throughout the station alerting customers to any possible hazards, and specifically, had placed a warning label on the compressor. Id.
Demosis clearly distinguishable on its facts, however, primarily because Shell exercised particular control over the compressor, the very product which caused the plaintiff's injuries. Robert Gierenger, Shell's territory manager, had required Ferr is to "remove the pay air machine that was located on the premises and replace it with [the] compressor." Id. at *2. Moreover, unlike Thomason, who checked generally to see whether Johnson was fulfilling her obligations under the Lease, "whenever Shell's sales representatives visited the station [which was at least once a month and as often as once a week,] they would insure that the warning decals were in place [on the compressor] and would make sure that Ferris put them up if they were not." Id. at *6. In the present case, while Thomason testified that she would bring to Johnson's attention anything of "an unsafe nature," see Thomason Aff. at ¶ 5, it was Johnson who "had responsibility to perform day-to-day maintenance or repairs [such as the] clean up of any spills on the property, including the driveway near the pumps." See Thomason Aff. at ¶ 4. This level of control over the driveway did not approach that exhibited by Shell in Demos.
While Plaintiff did not cite Evans v. United Bank of Illinois, N.A., Trust, 226 Ill. App.3d 526, 589 N.E.2d 933 (2d Dist. 1992), which involved a similar slip-and-fall, the court finds it worthwhile to distinguish this decision as well. See also Giger v. Mobil Oil Corp., 823 F.2d 181 (7th Cir. 1987) (affirming summary judgment ruling in favor of landlord because, inter alia, Mobil did not control the premises where plaintiff had slipped and fallen on a patch of ice). In Evans, the plaintiff slipped and fell on ice and snow in a shopping-center parking lot, and sued, not the tenant of one of the stores, but the owner of the entire complex, alleging that she was negligent in allowing or causing anunnatural accumulation of snow and ice on her property. Id. at 528, 589 N.E.2d at 935. The lease between the defendant/landlord and each individual tenant stated that the lessee "shall be responsible for snow removal from walks, driveways, and parking spaces." Id. The Second District Appellate Court reversed the circuit court's grant of summary judgment in favor of the landlord because the record was not clear as to whether the property leased to the individual tenants actually included the common areas, such as the parking lot where the plaintiff slipped and fell. Id. at 532, 589 N.E.2d at 937 ("The leases state that the demised premises consisted of an area of square feet, but they do not specify whether the area included the sidewalks outside the stores or the parking lot."). In the present case, though, Amoco did not lease to Johnson part of a whole; it leased its entire gas station. While the Lease, like the one in Evans, merely stated square footage, the court has no doubt that the "Premises" leased to Johnson included the driveway near the gas pumps where Plaintiff fell. The Plaintiff has not offered evidence, or made any argument, to lead the court to believe otherwise.
In sum, then, Plaintiff has not raised a genuine issue of material fact as to whether Amoco exercised the requisite control over the Gas Station's driveways, and, therefore, the court grants Amoco's motion for summary judgment. Because the court believes that summary judgment is warranted on landlord immunity grounds, it is unnecessary to address the other two aspects of Amoco's motion.
Plaintiff would have fared no better in its claim against Amoco if it had argued that such claim was based on either actual or apparent agency principles, as opposed to an exception to the landlord immunity doctrine. On this point, the case of O'Banner v. McDonald's Corp., 173 Ill.2d 208, 670 N.E.2d 632 (1996) is rather instructive. See also Giger v. Mobil Oil Corp., 823 F.2d 181 (7th Cir. 1987) (affirming decision that no agency relationship existed between Mobil and Branding, the tenant-in-possession of the Mobil plant where plaintiff slipped and fell). In O'Banner, the plaintiff sued the McDonald's Corporation under principles of agency after he fell in the restroom of a McDonald's franchise. O'Banner, 173 Ill.2d at 209, 670 N.E.2d at 633. The Supreme Court of Illinois did not take issue with the First District Appellate Curt's rejection of the plaintiff's actual agency argument due to language in the relevant franchise agreements. It nevertheless reversed the Appellate Court's decision that a material fact existed as to the franchisee's status as apparent agent. Id. at 214, 670 N.E.2d at 635. The Supreme Court determined that there was no evidence to indicate that the plaintiff reasonably relied on the alleged agency when entering the McDonald's restaurant. Id.
For similar reasons, agency arguments would have failed in this case. As for actual agency, the Lease makes quite clear that "neither Lessee nor any other person performing any duties or engaging in any work at the request of Lessee upon the Premises shall be deemed to be an employee or agent of the Lessor." (Lease, at ¶ 21(a).) Plaintiff has not raised any evidence of conduct running contrary to this "independent business" provision of the Lease. Cf. O'Banner v. McDonald's Corp., 273 Ill. A pp. 3d 588, 653 N.E.2d 1267 (1st Dist. 1995) ("There are no facts in the record which would indicate that this agreement was not followed, despite the extensive obligations placed upon the restaurant's operations by and in favor of McDonald's Corporation through its various agreements with the franchisee."), rev'd on other grounds, 173 Ill.2d 208, 670 N.E.2d 632 (1996). And, with respect to apparent agency, there is no evidence in the record to suggest that Plaintiff, his wife, or Shipman chose to enter the Gas Station, as opposed to any other gas station that they may have passed in Waukegan, because of its affiliation with Amoco.
III. Karen Johnson's Motion
The court next turns to Johnson's motion for summary judgment on Count III of Plaintiff's Amended Complaint. Johnson argues that "[b]ased on the undisputed facts and the law of Illinois, the incident from which this case arises does not meet the requirements for the imposition of punitive damages." See Karen Johnson's Memorandum in Support of Motion for Summary Judgment ("Johnson's Memorandum in Support"), at 1. Illinois courts do not favor punitive damages, see, e.g., Loitz v. Remington Arms Co., 138 Ill.2d 404, 414, 563 N.E.2d 397, 401 (Ill. 1990), but they will impose punitive damages when "torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others." Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 384 N.E.2d 353, 359 (1978). Where, as here, the plaintiff alleges that the defendant engaged in "willful and wanton" misconduct, see Response to Karen Johnson's Motion for Summary Judgment as to Count III ("Plaintiff's Response to Johnson"), at 1, Illinois courts will award punitive damages only if the defendant's conduct "approach[es] the degree of moral blame attached to intentional harm. . . ." Loitz, 138 Ill.2d at 416, 563 N.E.2d at 402.
Plaintiff insists that, for four reasons, "a reasonable jury could assess the facts and conclude that Karen Johnson and her agents pursued a course of action which was indeed willful and wanton." Plaintiff's Response to Johnson, at 1. First, Plaintiff claims that "Johnson, or her agents, had previously been informed of the allegedly dangerous condition and chose to disregard it." Id. at 5. Second, Plaintiff contends that "Defendant, or her agents, participated in the creation of, or acquiesced in, the creation of the dangerous condition." Id. Third, Plaintiff argues that "Johnson and/ or her employees knew that someone could be injured if the dangerous condition existed as alleged, and had constructive notice of the condition by virtue of the cashier's proximity and sight line to the area in question." Id. And, finally, Plaintiff alleges that "Johnson, or her agents, intentionally removed a safety device, or deliberately chose not to use a safety device which would have amerliated [sic] the dangerousness of the condition." Id.
Plaintiff's only bases, though, for these allegations are: (1) Shipman's and Mary's testimony regarding the pinkish- or reddish-colored fluid on the pavement where Plaintiff fell; (2) Shipman's, but not Mary's, recollection of a patch of "black ice;" (3) Shipman's "impression" that "somebody had tried to wash off some spilled automotive fluid of some type and in the process had created this hazardous condition," Shipman Dep. at 17 (emphasis added); and, (4) Johnson's testimony that "water . . . would only make [an oil spill] more slippery," Johnson Dep. at 71. This sparse evidence leaves blatant gaps. First, while he includes Johnson in all four of the above allegations, Plaintiff provides the court with no reason to believe that Johnson did know, or even could have known, of the "allegedly dangerous condition." In fact, Johnson has testified that she did not arrive at the Gas Station on February 5 until after Plaintiff had fallen, and had no idea whether anyone may have spilled fluid on, or hosed off, the driveway during the 24 hour period prior to Plaintiff's fall. Second, Plaintiff provides the court with no evidence that Roger Taylor, or any other of Johnson's agents, had been previously informed of the alleged patch of ice. Third, Plaintiff has also failed to provide any evidence that Roger Taylor, or any other of Johnson's agents, "participated in the creation" of the alleged patch of "black ice." The lack of any direct or corroborative evidence in support of his allegations arguably casts a shadow over Plaintiff's negligence claim and, in this court's view, defeats his claim against Johnson for punitive damages. See Koukoulomatis v. Disco Wheels, Inc., 127 Ill. A pp. 3d 95, 101, 468 N.E.2d 477, 482 (1st Dist. 1984) ("It is well established that mere conjecture or surmise is insufficient to establish a genuine issue as to negligence.").
Drawing all reasonable inferences in the light most favorable to Plaintiff, his claim really boils down to an allegation that Taylor, by virtue of his location at the cash register, had constructive notice of the alleged patch of ice, negligently failed to remove it, and, under principles of responde at superior, Johnson is liable for this negligence. Johnson insists that even if this remaining allegation were true, such conduct would not warrant a punitive damages award under Illinois law. Johnson's Memorandum in Support, at 1. In support of this argument, Johnson cites Loitz v. Remington Arms Co., 138 Ill.2d 404, 563 N.E.2d 397 (Ill. 1990) (refusing to award punitive damages where gun manufacturer knew of at least 94 prior accidents caused by allegedly defective firearms) and Stojkovich v. Monadnock Bldg., 281 Ill. App.3d 733, 666 N.E.2d 704 (1st Dist. 1996) (refusing to award punitive damages where plaintiff was injured in a stalled elevator even though elevator repair/maintenance company knew the elevator had previously stalled on numerous occasions and never ordered it taken out of service) as cases in which Illinois courts have refused to impose punitive damages on defendants whose conduct, in Johnson's opinion, was far more blameworthy.
The court agrees with Johnson. There is no evidence of injuries to other persons as a result of the alleged patch of ice. Nor has Plaintiff presented any evidence that Taylor, or any other person affiliated with the Gas Station, was apprized of the alleged hazard, and deliberately chose to ignore it. In sum, there is nothing in the record that suggests any conduct on the part of Johnson, or her agents, which would approach the degree of moral blame required under Loitz and Stojkovich.
Perhaps conceding the uphill battle he faces under Illinois' punitive damages jurisprudence, Plaintiff does not attempt to distinguish the cases cited by Johnson, and instead asks this court to focus on the Local Government and Governmental Employees Tort Immunity Act ("Tort Immunity Act "), 745 ILCS 10/ 3-106. Under the Tort Immunity Act, a local public entity is not liable for in juries if the liability is based on the "existence of a condition of any public property intended or permitted to be used for recreational purposes, including . . . parks . . . unless such local public entity . . . is guilty of willful and wanton conduct proximately causing such injury." Winfrey v. Chicago Park Dist., 274 Ill. App.3d 939, 944, 654 N.E.2d 508, 512 (1st Dist. 1995) (emphasis added) (citing 745 ILCS 10/ 3-106). While this case has nothing to do with the liability of a public entity, Plaintiff argues that the Tort Immunity Act decisions are relevant to his punitive damages claim because they help further define the terms "willful" and "wanton." Ironically, though, the "willful and wanton" standard under the Tort Immunity Act may be more restrictive than that for an award of punitive damages at common law because it requires "a `course of action,' indicating more than mere inaction." Winfrey, 274 Ill. A pp. at 945, 654 N.E.2d at 513. Moreover, in Winfrey, the one Tort Immunity Act case on which Plaintiff relies, the First District Appellate Court found that the defendant did not engage in "willful and wanton misconduct" because the plaintiff failed to allege, interalia, that defendants received complaints about ahole in the park district fence or that the defendant ignored, as opposed to fixed, the hole after inspecting the fence. Id. at 946, 654 N.E.2d at 514.
Because it finds that the Tort Immunity Act is irrelevant to Plaintiff's claim and that Johnson's conduct does not rise to the requisite level of culpability under Illinois punitive damages law, the court grants summary judgment to Johnson on Count III of Plaintiff's Amended Complaint.
CONCLUSION
For the foregoing reasons, the court grants both Amoco's (Doc. 12-1) and Johnson's (Doc. 21-1) respective motions for summary judgment.