Target must continue to defend itself in a liability suit after a federal judge refused to dismiss the complaint of a family whose child was injured riding an unsold skateboard inside a Vernon Hills store.

On May 21, 2015, Donald and Jodi Gutterman filed a complaint in Cook County Circuit Court accusing Target and skateboard maker Bravo Sports of negligence, product liability and premises liability in connection with a May 26, 2013, injury their child, Madison, suffered while using a Krytponics Classic Torpedo skateboard in the store.

Seeking at least $100,000, the Guttermans said Madison “sustained several and permanent injuries and was caused to undergo medical, surgical and nursing care and has been caused to suffer pain, disability, disfigurement and loss of a normal life.”

On June 26, Target filed to have the case removed to federal court in Chicago. Bravo consented to the removal in a filing the same day.

In an opinion issued Feb. 2, U.S. District Judge John Z. Lee denied Target’s motion to dismiss the two counts of ordinary negligence and premises liability it faced in the original complaint.

Target claimed the Guttermans raised duplicative claims that were not separate causes of action. However, Lee, citing precedent, including Hickey v. Target, a 2014 case in the same court, explained how “courts have recognized the independence of these two claims and have highlighted the different elements required to prove each one.”

In that case, the court acknowledged and accepted the interconnection. Since “Hickey alleges that Target breached this duty under both ordinary negligence and premises liability theories, even though Hickey’s response to Target’s motion focuses on premises liability, because her complaint can be read to include an ordinary negligence theory,” Lee reviewed Target’s arguments with respect to that theory.

“Moreover,” Lee wrote, “the Illinois Pattern Jury Instructions undermine Target’s argument, as they contain separate instructions for negligence and premises liability claims.”

Later in the opinion, Lee noted Target also contended the complaint “contains two overlapping claims; however, the permissibility of alternative pleading is well-established.”

Target also argued a skateboard in and of itself is not a dangerous condition that exposes the retailer to a premises liability claim. Specifically, Target said the law regulates fixtures, not moveable objects. Yet in the 1994 Illinois Appellate ruling on Page v. Blank, “the court considered whether a hammer and nails given to a twelve-year-old child constituted a dangerous condition,” Lee wrote. “While ultimately holding that they were not a dangerous condition, this was because the objects were not ‘inherently dangerous’ and the child was capable of recognizing risks that might arise from their use. The court’s holding was not based on whether the hammer and nails were fixtures on the premises.”

Illinois courts, Lee continued, “have considered whether spilled laundry detergent, a ditch, a wooden pallet on the ground, a treadmill and a swimming pool were dangerous conditions giving rise to liability.”

As there is no requirement the claim focus only on a fixture of the property, Lee said the Guttermans have indeed “alleged a condition under a premises liability claim.”

The Guttermans are represented by attorneys Kenneth C. Apicella and Timothy R. Keenan, of the firm of Drost, Gilbert, Andrew & Apicalla, of Palatine.

Representing Target is Rombert M. Burke, of Johnson & Bell, of Chicago. Bravo Sports is represented by Donald J. O’Meara Jr., of Pretzel & Stouffer, of Chicago.

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Johnson & Bell, Ltd. Pretzel & Stouffer

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