No. 1-15-2923 Fifth Division August 26, 2016

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

SHARON E. JONES, ) ) Appeal from the Circuit Court Plaintiff-Appellant, ) of Cook County. ) v. ) No. 13 M1 303116 ) LIVE NATION ENTERTAINMENT, INC., and ) The Honorable UNITED CENTER JOINT VENTURE, ) Larry G. Axelrood, ) Judge Presiding. Defendants ) ) (Live Nation Entertainment, Inc., Defendant-Appellee). ) ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.

OPINION

¶1 This appeal arises out of a negligence action in which plaintiff, a concert attendee,

brought suit against defendant Live Nation Entertainment, Inc. (Live Nation), the promoter,

for injuries she sustained at one of its concerts. On a prior interlocutory appeal, this court

ordered defendant Live Nation to answer plaintiff’s written interrogatories concerning the

foreseeability that injuries could occur as a result of the actions of its performers. While the

interlocutory appeal was pending, the trial court granted summary judgment to defendant No. 1-15-2923

Live Nation. Although we subsequently ordered additional discovery, the trial court denied

plaintiff’s motion for reconsideration and the ordered discovery never occurred.

¶2 On this appeal, plaintiff argues (1) that the trial court erred in granting summary

judgment to defendant on grounds that it owed no duty to her because defendant Live Nation,

as lessee of the United Center for the Kanye West/Jay Z concert, “possessed” the area where

plaintiff was injured and (2) that the trial court abused its discretion by denying plaintiff’s

motion for reconsideration because the trial court erred in finding that defendant did not

possess the area and because the trial court did not allow this court’s discovery order to come

to fruition.

¶3 For the following reasons, we find that the trial court abused its discretion by denying

plaintiff’s motion for reconsideration, and we reverse.

¶4 BACKGROUND

¶5 Plaintiff Sharon Jones filed her initial negligence complaint on November 20, 2013,

alleging that she sustained injuries after falling into a “crowd surge” at the United Center in

Chicago toward the end of a “Watch the Throne” concert promoted by defendant Live

Nation. The “crowd surge,” which is a mass of people attempting to “rush the stage,” resulted

after the performers encouraged the crowd to leave their assigned seats and “come on down”

to party. Plaintiff alleges that a man bumped into her, knocking her down a flight of stone

steps, causing injuries to her legs, back, neck, and head. Defendant Live Nation promoted the

concert, and defendant United Center Joint Venture (United Center JV) owned the venue

where the concert occurred.

¶6 On February 25, 2014, plaintiff filed an amended complaint that alleged that the

performers in the “Watch the Throne” show “encouraged the crowd to leave their assigned

2 No. 1-15-2923

seats and move down the aisles toward the stage without any direction, assistance or

guidance from the designated ushers” and that “upon the conclusion of the show [plaintiff]

proceeded to make her way from her seat *** intending to exit the United Center” but was

caught in the resulting “human tsunami” and was “knocked from her feet to the stairs”

causing her injuries. The amended complaint alleges two counts of negligence, one against

defendant Live Nation and one against defendant United Center JV. The count against

defendant Live Nation alleges that defendant “acted in a reckless and careless manner

without regard for the safety of their audience when they knew or should have known that

any movement by a majority of their audience at the same time in the same direction would

create a hazard” and that plaintiff sustained her injuries as a direct and proximate result of

defendant’s negligence.

¶7 On April 7, 2014, plaintiff served written interrogatories on defendant Live Nation

including interrogatory No. 4, which asked:

“Has this Defendant been named as a party to any other lawsuits allegedly arising

from events which occurred during other performances by this Defendant within the

last five years, and since the date of this occurrence? Please provide the caption, case

number, county and state of filing, and the current status of each matter.”

Interrogatory No. 5 asked:

“Has this Defendant received notice of any claims of alleged injury named arising

from events which occurred during other performances within the last five years, and

since the date of this occurrence? Please provide the name of the person making the

claim, his or her attorney’s name and address, and the status of said claim.”

3 No. 1-15-2923

¶8 On May 9, 2014, defendant Live Nation responded, objecting to interrogatory No. 5 on

the ground that it was “vague, overbroad in time and scope, and [sought] information that is

neither relevant to the subject matter involved in the pending action nor reasonably

calculated to lead to the discovery of admissible evidence.” Defendant Live Nation objected

to interrogatory No. 4 on the same ground, additionally stating that “lawsuits against Live

Nation are a matter of public record.”

¶9 On June 27, 2014, plaintiff filed a motion to compel responses to written discovery,

asking the trial court to compel defendant Live Nation to respond to interrogatory Nos. 2, 4,

5, 6, 7, 8, 11, 12, and 13.

¶ 10 On July 8, 2014, plaintiff’s motion was granted in part by Judge James Snyder. 1 The

record contains neither a transcript nor a bystander’s report of the July 8 hearing. The written

order, dated July 8, 2014, compelled defendant Live Nation to answer interrogatory Nos. 2,

4, 5, 11, and 13. However, interrogatory Nos. 4 and 5 were both modified to limit their scope.

Interrogatory No. 4 was modified to state:

“Live Nation shall identify all performance based lawsuits filed against Live

Nation in the United States in the 5 years prior to the occurrence and since.”

This modification limited the scope of interrogatory No. 4 to only the United States.

Interrogatory No. 5 was modified to state:

“Live Nation shall identify all claims for injuries made against it based in its

performances in the United States in the 2 years prior to the event and since.”

1 We provide the trial judge’s name here only because defendant’s motion for reconsideration was later heard by a different judge.

4 No. 1-15-2923

This modification limited the interrogatory to the United States and also reduced the

applicable time span from five years “prior to the event and since” to only two years “prior to

the event and since.”

¶ 11 Following these modifications, defendant Live Nation filed a motion on July 23, 2014,

asking the trial court to reconsider its July 8 order. Attached to the motion was the affidavit

of Jan Berger, defendant’s vice president of risk management, in which he averred that “there

are approximately 500 claims pending against defendant in jurisdictions around the United

States,” that “[i]n 2013 alone, Live Nation opened 227 claims/lawsuits,” that “claims are not

categorized by specific claim type” and that complying with the order would cause defendant

Live Nation to “suffer a massive burden involving time, effort, and expense, as well as a

disruption of business operations.” The motion additionally argued that “sweeping discovery

requests are considered an abuse of discretion.”

¶ 12 On August 4, 2014, defendant’s motion for reconsideration was heard before Judge Jerry

Esrig, a different judge than the judge who had entered the July 8 discovery order. The

appellate record contains the transcript of that hearing, which shows that defendant argued

(1) that plaintiff failed to establish that the answer to the interrogatories would be relevant to

the case and (2) that compliance would create an undue burden as shown by Berger’s

affidavit. Since the trial judge was not at the prior hearing, he inquired if, during the July 8

hearing, defendant Live Nation had been aware of the number of claims that would be

involved in answering the interrogatory. Defendant Live Nation responded that, during the

July 8 hearing, it did not have that information, and instead it had objected on “relevance and

other grounds.” The trial court then inquired if, during the July 8 hearing, defendant Live

Nation agreed to the content of the order. Defendant responded that it had only “agreed to the

5 No. 1-15-2923

language in the order after the judge ruled.” However, plaintiff responded that the language

of the July 8 order was a result of the two parties, at the judge’s direction, going into the hall

to “work this out.” The trial court then denied defendant’s motion for reconsideration, and

defendant’s attorney asked the trial court to hold her in friendly contempt. After a discussion

among both attorneys and the judge as to how to structure an order of friendly contempt, the

trial court ordered that “[t]he law firm Merlo Kanofsky Gregg & Machalinski, Ltd. [(Merlo),]

is hereby held in contempt for failure to comply with the July 8, 2014 order and fined $1.00

per day until compliance.”

¶ 13 On August 6, 2014, Merlo filed a notice of appeal, which stated in full:

“Defendant/Appellant, LIVE NATION ENTERTAINMENT, INC., hereby appeals to

the Appellate Court of Illinois, First District, pursuant to Illinois Supreme Court Rule

304(b)(5), the order entered August 4, 2014 holding Merlo Kanofsky Gregg &

Machalinsky Ltd. in contempt and fining it $1 per day, and the order entered July 8,

2014, compelling Live Nation Entertainment, Inc. to answer plaintiff’s interrogatory nos.

4 and 5. Copies of the August 4, 2014 order and the July 8, 2014 order are attached

hereto.

Defendant-Appellant prays that the orders appealed from be reversed or such other

relief as Defendant-Appellant is entitled to by law.”

¶ 14 On the subsequent interlocutory appeal, defendant Live Nation argued (1) that the circuit

court erred in compelling it, in the July 8 order, to answer plaintiff’s interrogatory Nos. 4 and

5, (2) that the circuit court erred in the August 4 order by denying its motion to reconsider,

and (3) that the circuit court erred in the August 4 order by holding its law firm in contempt

for failure to comply with the July 8 discover order. Jones v. Live Nation Entertainment, Inc.,

6 No. 1-15-2923

, ¶ 15. Specifically, defendant Live Nation challenged the

discovery order on the ground that the ordered discovery was not relevant and would create

an undue hardship, as measured by time, effort, and expense. Jones,

, ¶ 23.

¶ 15 On December 2, 2014, while the interlocutory appeal was pending before this court,

defendant Live Nation filed a motion for summary judgment (735 ILCS 5/2-1005 (West

2014)) in the circuit court before Judge Esrig, seeking to dismiss plaintiff’s negligence claim

against it. Defendant Live Nation argued (1) that plaintiff’s injury was caused by an

independent act of a third party and there was no evidence that the fall was caused by a

crowd surge as alleged in plaintiff’s complaint and (2) that defendant owed no duty to the

plaintiff (a) because it was not the principal or employer of the artists performing at the

“Watch the Throne” concert and (b) because no special relationship existed between

defendant and plaintiff that would cause defendant to owe plaintiff a duty to act to prevent

the type of accident that occurred.

¶ 16 On February 20, 2015, plaintiff filed a response to defendant Live Nation’s motion for

summary judgment. She argued that defendant Live Nation was the possessor of the premises

and that she was an invitee and that, as such, defendant owed her a duty of care to “take

reasonable precautions to protect [her] from the unreasonable risk of harm” resulting from

“the conduct of [its] agents or the conduct of third parties.” In support, plaintiff set forth the

factors that an Illinois court must consider in determining whether a duty of care exists,

including the “foreseeability” and “likelihood” of the injury. 2 Plaintiff argued that it was not

2 The four factors relevant in determining whether a duty exists include “(1) the reasonable foreseeability of the injury, (2) the likelihood of injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.” Marshall v. Burger King Corp.,

(2006) (citing City of Chicago v. Beretta U.S.A. Corp.,

No. 1-15-2923

the independent act of a third party that caused her injuries, but rather the crowd surge upon

the darkened stairs and aisles, directly resulting from the performers’ “unsafe” invitation for

concert attendees to “leave their seats” in a disorderly manner and “throng to the main floor.”

Plaintiff alleges that defendant knew or should have known that this would occur yet failed to

take proper precautions.

¶ 17 On May 21, 2015, a third trial court judge, Judge Larry Axelrood, granted defendant’s

motion for summary judgment on the basis that defendant owed no duty to plaintiff. The trial

court found that there was “a question of fact for the jury as to whether the independent act of

the man who ran into Plaintiff was the sole proximate cause of her injury.” However, the trial

court then held: “there [was] no evidence in the record that Defendant had any control over

the artists or how they performed and the performers were not employees of Defendant.

Therefore, Plaintiff cannot establish that Defendant owed and breached a duty under the

theory of respondeat superior.” Finally, the trial court stated that, under premises liability,

plaintiff failed to establish that defendant Live Nation was the possessor of the venue, as

defendant Live Nation did not control the area where plaintiff’s injury occurred under its

contract with defendant United Center JV. Thus, the trial court found that defendant Live

Nation did not owe plaintiff a duty of care under either a theory of premises liability or

respondeat superior. In conclusion, the trial court found: “After reviewing the pleadings and

attachments, the Court finds that Plaintiff cannot establish any duty or breach of duty on the

part of the Defendant [Live Nation].”

351, 391 (2004), Ward v. K mart Corp.,

(1990), and Lance v. Senior,

(1967)).

8 No. 1-15-2923

¶ 18 On June 22, 2015, plaintiff moved for reconsideration of the trial court’s May 21, 2015,

order granting defendant’s motion for summary judgment, alleging an error in the trial

court’s application of the law with respect to duty. Plaintiff argued that defendant Live

Nation owed her a duty because (1) the rental agreement established that defendant Live

Nation had control over the venue and (2) defendant knew or should have known that the acts

of the performers were likely to create conditions that endangered the audience. Specifically,

plaintiff argued that “it is the foreseeable result of [the] invitation [to attendees to come down

to the main floor] which creates the duty.” Third, plaintiff argued that defendant Live

Nation’s refusal to answer certain discovery requests demonstrated that it knew or should

have known of the dangerous conditions created by the artists that it promoted and placed in

performance. Plaintiff implored the trial court to withhold entry of the order granting

summary judgment until the appellate court rendered its decision on the interrogatories.

¶ 19 On July 14, 2015, defendant Live Nation filed a response to plaintiff’s motion for

reconsideration, arguing that the trial court properly applied existing law in finding that

defendant owed no duty to plaintiff and that plaintiff’s motion was an attempt to make new

arguments that she did not raise earlier. Finally, defendant argued that “even if Plaintiff had

received the information sought in the disputed interrogatories, it would *** not change the

facts on which this Court granted summary judgment” because it would not “change Live

Nation’s responsibilities under the Rental Agreement.”

¶ 20 While plaintiff’s motion for reconsideration was pending, we issued a Rule 23 order 3

resolving defendant Live Nation’s interlocutory appeal, Jones,

.

3 A Rule 23 order is “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e)(1) (eff. July 1, 2011).

9 No. 1-15-2923

On June 26, 2015, this court affirmed Judge Snyder’s July 8, 2014, order, directing defendant

Live Nation to comply with discovery, and we vacated “the civil contempt finding and the $1

a day fine imposed by the trial court on the Merlo law firm.” Jones,

, ¶ 34. In full, we found: “With respect to the July 8 order, defendant failed to

provide a record sufficient to show error. With respect to the August 4 order, we cannot

conclude that the second trial court abused its discretion by refusing to vacate the discovery

order entered by an earlier judge.” Jones,

, ¶ 34. Specifically, we

found that “the trial court did not abuse its discretion in ordering the interrogatories to be

answered when an issue in the case is [defendant Live Nation’s] knowledge of the risk of

injury when defendant [Live Nation] encouraged the crowd to leave their seats and approach

the stage.” Jones,

, ¶ 1. We stated:

“Plaintiff’s complaint alleges, among other things, that defendant ‘acted in a reckless and

careless manner without regard for the safety of their audience when they knew or should

have known that any movement by a majority of the audience at the same time in the

same direction would create a hazard.’ Part of plaintiff’s proof in this negligence action

based on that allegation would be notice and knowledge. As a result, plaintiff would need

to know what the defendant knew about what happens when it encourages a crowd to

leave their seats and move down towards the stage. Therefore, we cannot say that the trial

court abused its discretion ordering the production of information that would show what

knowledge the defendant had. If defendant provides the claims requested, plaintiff would

have the information to determine that knowledge.” Jones,

,

¶ 23.

10 No. 1-15-2923

¶ 21 On July 21, 2015, plaintiff filed a reply in the trial court in which she stated that the trial

court had denied her “emergency motion[4] seeking to supplement her motion to reconsider

with the Appellate Court’s Rule 23 opinion.” Plaintiff stated that the trial court denied her

emergency motion because the appellate court order was not precedential “except to ***

support the law of the case.” Plaintiff argued that the appellate order “demonstrates that the

law of the case was that she was indeed entitled to discovery” because the discovery

concerns the foreseeability of her injuries.

¶ 22 On September 16, 2015, despite knowledge of our order, Judge Axelrood denied

plaintiff’s motion for reconsideration, finding (1) that defendant “did not have control over

the section of the [venue] where Plaintiff’s injury occurred” and (2) that, because “Plaintiff

argue[d] for the first time that Defendant’s refusal to answer certain discovery demonstrates

it knew or should have known of the dangerous conditions created by the artists,” the trial

court would “not address arguments that could have been brought during an earlier

proceeding.” Overall, the trial court found “that it properly applied existing law with respect

to whether Defendant owed a duty to Plaintiff.”

¶ 23 On October 14, 2015, plaintiff timely filed a notice of appeal, pursuant to Illinois

Supreme Court Rules 303 (eff. Jan. 1, 2015) and 304(a) (eff. Feb. 26, 2010), seeking

reversals of (1) the trial court’s May 21, 2015, order, granting summary judgment to

defendant Live Nation and (2) the trial court’s September 16, 2015, order, denying plaintiff’s

motion for reconsideration.

4 Plaintiff’s emergency motion to supplement her motion for reconsideration does not appear in the record.

11 No. 1-15-2923

¶ 24 ANALYSIS

¶ 25 On this appeal, plaintiff argues (1) that the trial court erred in granting summary

judgment to defendant on grounds that it owed no duty to her because defendant Live Nation,

as lessee of the United Center for the Kanye West/Jay Z concert, “possessed” the area where

plaintiff was injured and (2) that the trial court abused its discretion by denying plaintiff’s

motion for reconsideration of summary judgment because the trial court erred in finding that

defendant did not possess the area and because the trial court did not allow this court’s

ruling, compelling discovery, to come to fruition. For the following reasons, we find that it

was an abuse of discretion for the trial court to deny plaintiff’s motion for reconsideration.

¶ 26 I. Standard of Review

¶ 27 Plaintiff raises two different claims on appeal—contesting (1) the trial court’s grant of

summary judgment in favor of defendant Live Nation and (2) the trial court’s denial of

plaintiff’s motion for reconsideration—which require different standards of review. Redmond

v. Socha,

(2005) (“[A] standard of review applies to an individual issue,

not to an entire appeal. Each question raised in an appeal is subject to its own standard of

review.”).

¶ 28 Summary judgment is proper where the pleadings, depositions, admissions, and affidavits

on file, viewed in the light most favorable to the nonmoving party, reveal that there is no

genuine issue as to any material fact and the moving party is entitled to a judgment as a

matter of law. Murray v. Chicago Youth Center,

(2007). The Illinois

Supreme Court has held that “[i]t is a drastic means of disposing of litigation, and this court

has a duty to construe the record strictly against the movant and liberally in favor of the

nonmoving party.” Murray,

. “Summary judgment should not be allowed

12 No. 1-15-2923

unless the moving party’s right to judgment is clear from doubt, because plaintiffs are not

required to prove their cases at the summary judgment stage.” Murray,

. As

a result, summary judgment is not appropriate (1) if “there is a dispute as to a material fact”

(Jackson v. TLC Associates, Inc.,

(1998)), (2) if “reasonable persons

could draw divergent inferences from undisputed material facts” (Jackson,

), or (3) if “reasonable persons could differ on the weight to be given the relevant factors”

of a legal standard (Calles v. Scripto-Tokai Corp.,

(2007)). The standard

of review is de novo for a trial court’s grant of a motion for summary judgment. Murray,

. De novo consideration means we perform the same analysis that a trial judge

would perform. Khan v. BDO Seidman, LLP,

(2011).

¶ 29 The purpose of a motion to reconsider is to bring to a court’s attention (1) newly

discovered evidence, (2) changes in the law, or (3) errors in the court’s previous application

of existing law. North River Insurance Co. v. Grinnell Mutual Reinsurance Co.,

(2006); Chelkova v. Southland Corp.,

(2002). A

reconsideration motion is not the place “to raise a new legal theory or factual argument.”

North River,

. “ ‘Trial courts should not allow litigants to stand mute,

lose a motion, and then frantically gather evidentiary material to show that the court erred in

its ruling.’ [Citation.]” North River,

(quoting Landeros v. Equity

Property & Development,

(2001)). As a result, legal theories and

factual arguments not previously made are waived. North River,

.

“The allowance of new matter in a motion to reconsider is subject to the trial court’s

discretion and should not be permitted without a reasonable explanation of why it was not

made available at the time of the original hearing.” In re Paternity of Rogers,

No. 1-15-2923

750, 756 (1998). The standard of review is an abuse of discretion for a trial court’s denial of

a motion to reconsider. Avenaim v. Lubecke,

(2004). A trial court’s

decision is considered an abuse of discretion only when it is arbitrary, fanciful, or

unreasonable or where no reasonable person would take the view adopted by the trial court.

People v. Dunmore,

(2009).

¶ 30 Turning to the chronology of the case at bar, the trial court granted summary judgment

for defendant Live Nation during the pendency of this court’s interlocutory appellate review

of issues concerning plaintiff’s written interrogatories. After this court issued its Rule 23

order (Jones,

) compelling defendant Live Nation to answer

those interrogatories, the trial court denied plaintiff’s motion for reconsideration of the

summary judgment order. It is well-settled that “[o]nce the jurisdiction of the appellate court

attaches” upon the filing of a notice of appeal, “the trial court retains jurisdiction of a case to

hear and determine only those matters which are independent of and unrelated to that portion

of the proceedings that pends on appeal.” (Emphasis added.) Brown Leasing, Inc. v. Stone,

(1996) (citing Home Savings & Loan Ass’n v. Samuel T. Isaac &

Associates, Inc.,

(1981), and cited with approval in Childs v. Pinnacle

Health Care, LLC,

(2010)). The pendency of an interlocutory

appeal “restrains the trial court from entering any order which would change or modify the

order on appeal or that would have the effect of interfering with the review of that order.”

(Emphasis added.) Witters v. Hicks,

(2003). Here, the trial court

contravened that rule and denied plaintiff’s motion for reconsideration despite this court’s

order necessitating discovery, the results of which we deemed integral to “plaintiff’s proof in

this negligence action.” Jones,

, ¶ 23.

14 No. 1-15-2923

¶ 31 II. Negligence

¶ 32 For the following reasons, we conclude that the trial court abused its discretion by

denying plaintiff’s motion to reconsider her negligence claim against defendant Live Nation.

¶ 33 The Illinois Supreme Court has long recognized that, “[i]n general, every person owes a

duty of ordinary care to guard against injuries to others. [Citation.] A person who breaches

this duty is deemed negligent and may be held financially liable if his conduct proximately

causes injury to another.” Karas v. Strevell,

(2008). To succeed on a

negligence claim, a plaintiff must prove (1) that the defendant owed the plaintiff a duty of

care, (2) that the defendant breached that duty, (3) that the plaintiff suffered an injury, and (4)

that the plaintiff’s injury was proximately caused by the defendant’s breach of duty. Calles,

; Harlin v. Sears Roebuck & Co.,

(2006); Simmons v.

American Drug Stores, Inc.,

(2002). With respect to the second prong,

the trial court did not analyze breach of duty as a stand-alone element in its order granting

summary judgment for defendant Live Nation because it found that no duty of care existed in

the first place. With respect to the third prong, it is not disputed on this appeal that plaintiff

sustained injuries from her fall. Thus, we focus on prongs one and four below.

¶ 34 A. Duty of Care

¶ 35 The duty of care is the crux of this case. The trial court granted summary judgment on the

basis that there was no evidence to support defendant Live Nation’s duty to plaintiff under

theories of respondeat superior or premises liability. However, the trial court also precluded

plaintiff from obtaining such evidence by preempting this court’s order compelling defendant

Live Nation to answer plaintiff’s written interrogatories. Without the information from

discovery, there was, at the very least, an issue of material fact as to whether or not defendant

15 No. 1-15-2923

Live Nation owed plaintiff a duty of care. For the reasons we explain below, the trial court

prematurely granted summary judgment and abused its discretion by denying plaintiff’s

motion for reconsideration after plaintiff promptly notified the trial court of this court’s order

in Jones,

, compelling defendant Live Nation to furnish answers

to her interrogatories.

¶ 36 “Duty is a question of law.” McKenna v. AlliedBarton Security Services, LLC,

(citing Peters v. Riggs,

). The Illinois

Supreme Court has held that the “ ‘touchstone of this court’s duty analysis is to ask whether a

plaintiff and a defendant stood in such a relationship to one another that the law imposed

upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.’ ”

(Emphasis added.) Simpkins v. CSX Transportation, Inc.,

(quoting

Marshall,

); see also Krywin v. Chicago Transit Authority,

(2010); Forsythe v. Clark USA, Inc.,

(2007). The word

“relationship” is a proxy “for the sum of four factors: (1) the reasonable foreseeability of the

injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against

the injury, and (4) the consequences of placing that burden on the defendant.” Simpkins,

. Four axiomatic relationships give rise to an affirmative duty of care:

“ ‘common carrier and passenger, innkeeper and guest, custodian and ward, and possessor of

land who holds it open to the public and member of the public who enters in response to the

possessor’s invitation.’ ” Simpkins,

(quoting Marshall,

).

¶ 37 With respect to the fourth relationship, the principles of premises liability were set forth

by the Illinois Supreme Court in LaFever v. Kemlite Co.,

(1998). A possessor

16 No. 1-15-2923

of premises has a duty to guard against harm to an invitee. LaFever,

. “A

person is a business invitee on the land of another if (1) the person enters by express or

implied invitation; (2) the entry is connected with the owner’s business or with an activity

conducted by the owner on the land; and (3) the owner receives a benefit.” Sameer v. Butt,

(2003) (citing Leonardi v. Bradley University,

(1993)). This court has previously found that a concert attendee is a business invitee for

purposes of determining duty of care. Roth v. Costa,

(1995).

Moreover, “[o]ne who does an act or carries on an activity upon land on behalf of the

possessor is subject to the same liability, and enjoys the same freedom from liability, for

physical harm caused thereby to others upon and outside of the land as though he were the

possessor of the land.” Restatement (Second) of Torts § 383 (1965).

¶ 38 Nevertheless, while “an independent ‘direct relationship’ between parties may help to

establish the foreseeability of the injury to [a] plaintiff *** [it] is not an additional

requirement to establishing a duty.” Simpkins,

. The Illinois Supreme

Court has recognized that “ ‘every person [or business entity] owes a duty of ordinary care to

all others to guard against injuries which naturally flow as a reasonably probable and

foreseeable consequence of an act, and such a duty does not depend upon contract, privity of

interest or the proximity of relationship, but extends to remote and unknown persons.’ ”

Simpkins,

(quoting Widlowski v. Durkee Foods,

(1990) (collecting cases)); see also Forsythe v. Clark USA, Inc.,

(2007) (collecting cases); Kahn v. James Burton Co.,

(1955). “Thus, if a

course of action creates a foreseeable risk of injury, the individual [or business entity]

17 No. 1-15-2923

engaged in that course of action has a duty to protect others from such injury.” (Emphasis

omitted.) Simpkins,

.

¶ 39 Defendant Live Nation argues, and the trial court agreed, that there was no special

relationship between defendant Live Nation and plaintiff that would give rise to a duty of

care. Specifically, defendant Live Nation advances the argument in its response brief that it

owed no duty of care to plaintiff for two reasons: (1) under the rental agreement between

defendant Live Nation and United Center JV (rental agreement), (a) defendant Live Nation

was not obligated to ensure the safety of, or provide security for, spectators; it supplied

security and safeguarded ingress and egress exclusively for its performers; and (b) defendant

Live Nation was a licensee with limited control over the venue, not a leaseholder in full

possession of the area where plaintiff was injured; and (2) defendant Live Nation did not

employ or control the performers who invited thousands of concert attendees, from all

seating areas in the venue, to rush the stage. By contrast, plaintiff argued in her motion for

reconsideration that the trial court erred in its application of existing law with respect to duty.

¶ 40 First, the focal point of defendant’s argument and the trial court’s analysis on the issue of

duty was the rental agreement, which divides and allocates between defendants Live Nation

and United Center JV rights and obligations regarding security and medical personnel,

signage, crowd control, insurance, and more for the “Watch the Throne” concerts. However,

plaintiff was not a party to this rental agreement. Plaintiff, who was invited by Live Nation to

a Live Nation-promoted event, which featured two artists that Live Nation placed in

performance, had a relationship with defendant Live Nation. The rental agreement has no

bearing on plaintiff’s right to bring suit against defendant Live Nation for her injuries. Equal

Employment Opportunity Comm’n v. Waffle House, Inc.,

(2002) (“It goes

18 No. 1-15-2923

without saying that a contract cannot bind a nonparty.”). Any dispute concerning the

apportionment of liability or contract dispute regarding the particular areas of the venue of

which defendant United Center JV did or did not relinquish control, would be for Live

Nation and United Center JV to resolve. Thus, as plaintiff was not a party to the rental

agreement, the trial court abused its discretion by using it to determine plaintiff’s rights.

¶ 41 Defendant cites Hougan v. Ulta Salon, Cosmetics & Fragrance, Inc.,

, for the proposition that the terms of a lease agreement are relevant to the

determination of whether a duty is owed to a third party. In Hougan, a vehicle jumped a curb

and struck the plaintiff while she was standing on the sidewalk outside a storefront owned by

Fridh Corporation and leased by defendant Ulta Salon. Hougan,

. The trial court granted summary judgment for defendant Ulta Salon because it owed no

duty to protect the plaintiff outside of the building that it leased. Hougan,

. As plaintiff argues in her reply brief, Hougan is distinguishable on its face

because, in the case at bar, plaintiff’s injuries “occurred on the premises leased (or licensed)

to Live Nation.” (Emphasis in the original.) Second, even if defendant Live Nation were not

in control of the exact area in which plaintiff was knocked down the steps, that fact would be

relevant, but not determinative of defendant Live Nation’s ultimate liability. Premises

liability is not the only theory under which plaintiff may recover.

¶ 42 Second, defendant Live Nation argues that it is shielded from liability because it lacked

an agency relationship with the “Watch the Throne” performers and thus had no control over

one performer’s decision to say, “I want everybody to come downstairs to the main floor.

We’re going to turn this into an MF party. We’re all going to get in trouble for this. Come on

19 No. 1-15-2923

down.” 5 To reiterate what this court previously held in Jones,

,

¶ 23:

“Plaintiff’s complaint alleges, among other things, that defendant ‘acted in a reckless

and careless manner without regard for the safety of their audience when they knew or

should have known that any movement by a majority of the audience at the same time in

the same direction would create a hazard.’ Part of plaintiff’s proof in this negligence

action based on that allegation would be notice and knowledge. As a result plaintiff

would need to know what the defendant knew about what happens when it encourages a

crowd to leave their seats and move down towards the stage. If defendant provides the

claims requested, plaintiff would have the information to determine that knowledge.”

¶ 43 In this case, the record lacks evidence to show that defendant Live Nation had knowledge

or notice that its performers would expressly induce a situation in which thousands of concert

attendees would rush the main floor because the trial court did not abide by this court’s order

for defendant Live Nation to answer plaintiff’s written interrogatories concerning

foreseeability. Shifting the focus away from premises liability and respondeat superior, even

if defendant Live Nation was not in possession of the area in which plaintiff sustained

injuries, and not in control of the performer’s interactions with the crowd, the question

remains whether defendant Live Nation was on notice that this type of “crowd surge” and, in

turn, plaintiff’s type of injury, were foreseeable. Defendant Live Nation would be uniquely in

possession of this knowledge, while plaintiff would not be privy to the risk. In his affidavit,

Jan Berger, defendant’s vice president of risk management, averred that “there are

approximately 500 claims pending against defendant in jurisdictions around the United

5 This quotation appears in plaintiff’s direct examination.

20 No. 1-15-2923

States.” If, for example, a number of those claims involved the same or similar scenario that

occurred in the case at bar, these events may be reasonably foreseeable and defendant Live

Nation may have owed plaintiff a duty of care. Defendant argues that “a person’s duty can

extend no further than the person’s [or business entity’s] right, power, and authority to

implement it.” Adams v. Northern Illinois Gas Co.,

(2004). However, if the

event that caused plaintiff’s injury was a foreseeable phenomenon, defendant Live Nation

may have had a duty to protect concert attendees from its recurrence.

¶ 44 In sum, there was a dispute of material fact with respect to the duty of care that defendant

Live Nation owed plaintiff, which would have been resolved had the trial court permitted

defendant Live Nation to comply with this court’s discovery order on June 26, 2015. Thus,

we reverse the trial court’s denial of plaintiff’s motion for reconsideration and remand for

further proceedings in light of our opinion today and our prior Rule 23 order.

¶ 45 B. Proximate Cause

¶ 46 The trial court found, and we agree, that there was a dispute of material fact with respect

to the fourth prong of negligence, namely, proximate cause. To overcome a motion for

summary judgment, plaintiff must demonstrate that her injury was proximately caused by

defendant Live Nation’s breach of duty or, at the very least, that there is a genuine issue of

material fact surrounding that issue. See Calles,

. To begin with, “it is

axiomatic that proximate cause is ordinarily a question of fact to be decided by the jury.”

McKenna,

. Proximate cause is comprised of two

requirements: cause in fact and legal cause. McKenna,

.

“Cause in fact can be established if a defendant’s conduct can be deemed to be a substantial

factor in bringing about the injury. [Citation.] If reasonable minds could differ on whether the

21 No. 1-15-2923

conduct was a substantial factor, the question is ‘for the jury to decide.’ ” McKenna,

.

¶ 47 In the case at bar, plaintiff argues that defendant Live Nation’s performer instructed

concert attendees throughout all levels of the venue to leave their seats, without guidance, in

the dark, and come down to the lower level to have a party. Plaintiff argues that this was a

substantial factor in her injuries as she was knocked down in the midst of a “crowd surge”

that was the direct result of the “unsafe” request of defendant Live Nation’s performer.

Plaintiff alleges that this series of events may have been foreseeable by defendant Live

Nation, giving rise to a duty of care. If the ordered discovery shows this allegation to be true,

then plaintiff may be able to demonstrate that defendant Live Nation’s conduct was a

substantial factor in bringing about her injuries. Notably, in its order granting summary

judgment, the trial court found “there is a question of fact for the jury as to whether the

independent act of the man who ran into Plaintiff was the sole proximate cause of her injury”

or if her injury was attributable to the “crowd surge” and “chaotic” aisles at the venue. We

agree.

¶ 48 Next, legal cause is “a question of foreseeability, where one determines whether the

injury is of a type that a reasonable person would see as a likely result of his or her conduct.”

McKenna,

. The foreseeability prong is one that this court

examined on June 26, 2015, in Jones,

. As discussed above,

supra ¶¶ 35-44, there was a genuine issue of material fact with respect to defendant Live

Nation’s knowledge and/or notice that its performers would summon an entire venue of

people to the stage near the conclusion of the concert when those who did not desire to

partake in the “party” would attempt to exit the venue.

22 No. 1-15-2923

¶ 49 In sum, the proximate cause prong of the test for negligence weighs against both the grant

of summary judgment and the denial of plaintiff’s motion for reconsideration.

¶ 50 III. Waiver

¶ 51 Finally, defendant Live Nation’s argument that plaintiff waived her argument on the

motion for reconsideration is unavailing. On that motion, plaintiff argued that the trial court

erred in its application of the law on duty because, as confirmed by this court’s order in

Jones,

, whether defendant Live Nation had the alleged

knowledge and notice of its performers’ plans to encourage all concert attendees to rush the

main floor creates a genuine issue of material fact regarding duty. Defendant Live

Nation insists, and the trial court agreed, (1) that plaintiff’s argument on the motion for

reconsideration was waived because she did not introduce it during initial briefing for

summary judgment and (2) that, “even if Plaintiff had received the information sought in the

disputed interrogatories, it would *** not change the facts on which [the trial court] granted

summary judgment” because it would not “change Live Nation’s responsibilities under the

Rental Agreement.” These arguments are unpersuasive for two reasons. First, while it is true

that “ ‘[t]rial courts should not allow litigants to stand mute, lose a motion, and then

frantically gather evidentiary material to show that the court erred in its ruling’ ” (North

River,

(quoting Landeros v. Equity Property & Development,

)), that is not what happened here. Plaintiff promptly notified the trial court of

this court’s order once it was entered, compelling defendant Live Nation to supply answers to

interrogatories. Second, as discussed above, supra ¶ 40, the rental agreement does not bind

plaintiff, a nonparty. As such, the trial court abused its discretion when it refused to consider

this court’s Rule 23 order.

23 No. 1-15-2923

¶ 52 CONCLUSION

¶ 53 For the foregoing reasons, we find that the trial court abused its discretion when it denied

plaintiff’s motion for reconsideration, and we reverse and remand for further proceedings. In

sum, without the answers to plaintiff’s interrogatories, we cannot conclude as a matter of law

that defendant Live Nation owed no duty of care to plaintiff. The answers speak directly to

defendant Live Nation’s notice and knowledge of the frequency with which its performers

encourage a crowd of people to leave their seats and move down toward the stage and

concert attendees’ injuries that may result therefrom.

¶ 54 Reversed and remanded.

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