Beebe Roh v. Starbucks Corporation

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.

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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.)

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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

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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

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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

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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

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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

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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.

For the foregoing reasons, we AFFIRM the entry of summary

judgment in favor of Starbucks Corporation.