Burke v. Grillo

• Court: Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: Burke v. Grillo, 590 N.E.2d 964, 227 Ill.App.3d 9, 169 Ill.Dec. 45 (Ill. App. 1992)
• Decision Date: 01 April 1992
• Docket Number: No. 2-91-0739,2-91-0739
• Parties: , 169 Ill.Dec. 45 Nellie M. BURKE, Plaintiff-Appellant, v. Nick GRILLO et al., Defendants-Appellees. Second District

Page 964

590 N.E.2d 964

227 Ill.App.3d 9, 169 Ill.Dec. 45

Nellie M. BURKE, Plaintiff-Appellant, v. Nick GRILLO et al., Defendants-Appellees.

No. 2-91-0739.

Appellate Court of Illinois,

Second District.

April 1, 1992.

Howard S. Miller, Thomas J. Stiberth, Howard S. Miller and Associates, Elgin, for Nellie M. Burke.

Michael Resis, Querrey & Harrow, Ltd., Chicago, John G. Foreman, Querrey, Harrow & Callahan, P.C., Geneva, Julie L. Trester, Querrey & Harrow, Ltd., Chicago, for Nick Grillo.

Larry A. Mancini, Thomas J. Long, O'Reilly, Cunningham, Norton & Mancini, Wheaton, for City of Elgin.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, Nellie M. Burke, appeals from an order of the circuit court of Kane County which granted the motions for summary judgment filed by defendants, the City of Elgin (City) and Nick Grillo. Plaintiff has raised three issues on appeal: (1) whether Grillo, plaintiff's landlord, owed a duty to plaintiff to maintain in a reasonably safe condition the area where she fell; (2) whether the City owed plaintiff a duty to maintain in a reasonably safe condition the area where she fell; and (3) whether the City had constructive notice of the defective condition on the property so that it was not immune from liability pursuant to section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill.Rev.Stat.1989, ch. 85, par. 3-102).

Plaintiff filed her complaint against defendants on May 3, 1990. Plaintiff alleged that, on May 12, 1989, she was injured when she fell onto a sidewalk because of a defective condition of the sidewalk. In count I, plaintiff alleged that the City was negligent because it had a duty "to exercise reasonable care and diligence to keep and maintain the public sidewalk in a reasonably safe condition for ordinary use" but "caused or permitted the said sidewalk to be and remain in a poor state of construction in that it was not level with the grade of the area around it so that it was unsafe for public use."

In count II, plaintiff alleged that defendant Grillo "owned, managed, controlled and maintained" the property at 821 Bode Road in Elgin, Illinois. She alleged that he had a duty to keep and maintain his property in a reasonably safe condition but "caused or permitted the property to be and remain in a poor state of construction and disrepair in that he allowed the property to exist with a large difference in grade between the grass and the sidewalk." Plaintiff sought damages for her injuries from both defendants.

Each of the defendants filed an answer to the complaint. Grillo filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1005) on January 4, 1991. Grillo alleged that the area where plaintiff fell was not located upon premises which he owned. He alleged that a plat of survey certified by a registered land surveyor showed that the area of the "dip" was approximately seven feet from his premises. He argued that, as the plaintiff's fall did not occur upon property owned by him, there was no factual issue regarding any duty owed to plaintiff. Grillo attached a copy of a transcript of plaintiff's deposition, taken December 6, 1990, to the motion. He also attached the plat of survey.

The City filed its motion for summary judgment on January 17, 1991. The City argued that it had no duty to maintain its property for pedestrians injured while walking on property outside of designated crosswalks or walkways. It also contended that, even if a duty existed, there was no liability on its part because it did not have actual or constructive notice of the defect as required by section 3-102 of the Act (Ill.Rev.Stat.1989, ch. 85, par. 3-102). The City attached to its motion a copy of the transcript of plaintiff's deposition, a copy of the transcript of Grillo's deposition, taken November 15, 1990, and the amended affidavit of Melford Dahl.

In her deposition, plaintiff testified that she was 72 years old. She had lived for more than 10 years in an apartment in a 16-unit apartment building located at 821 Bode Road. She baby-sat for her granddaughter, Ryan Burke, while her daughter worked. On the day of the incident, she was outside in front of the apartment building with her granddaughter. Ryan was 5 1/2 years old at that time. Ryan was bouncing a beach ball, and the ball began rolling toward the street. Plaintiff began walking fast to get the ball. Her foot caught in a big dip next to the sidewalk. She fell and fractured her wrist. Plaintiff also stated that her glasses fell off when she fell. She wears glasses because she is nearsighted.

Plaintiff initially stated that she did not know how big the hole was and could not describe the size of the hole. She later indicated, however, that the hole was approximately 2 1/2 to 3 inches deep and was 2 1/2 to 3 feet long. She stated that she walked on the sidewalk in front of her apartment building on a daily basis. She had never noticed the dip prior to the date of the incident "because the grass was growing up there." She did not know anyone who had fallen in that area prior to the May 12, 1989, incident. She testified that Grillo cut the grass in front of the apartment and that Grillo maintained the grass on a regular basis. Grillo or his son shoveled the sidewalk in front of the apartment building.

In his deposition, Grillo testified that he or his son cut the grass at the apartment building. They mowed the part of the lawn which contained the dip. To his knowledge, no one else had ever fallen at that spot.

Photographs of the property were identified by plaintiff during her deposition, and copies of the photographs were attached to the transcript of the deposition. The photographs and the plat of survey show that a sidewalk runs from the front door of the apartment building to the street. There is grass growing on either side of the sidewalk. Another sidewalk runs parallel to and right next to the street in front of the building. A portion of the grassy area next to this sidewalk belongs to the City. Plaintiff pointed out on the photographs that she fell close to the sidewalk next to the street, on the property owned by the City.

Dahl stated in his affidavit that he was city engineer for the City. He further stated:

"2. That in my capacity as City Engineer, I am familiar with the records maintained by the CITY OF ELGIN with respect to defects which were found to exist on property owned by the City.

3. That a review of these records reveals that, prior to May 12, 1989, the CITY OF ELGIN had never received any notice of a defect existing on or about the property owned by the City adjacent to 821 Bode Road and had no actual knowledge of any defect existing at that location.

4. That there are in excess of five hundred (500) miles of sidewalks and parkways in the CITY OF ELGIN."

Plaintiff filed a response to each defendant's motion for summary judgment. Attached to her response to the City's motion were the affidavits of Howard Burke, plaintiff's husband, and Sandra Burke, plaintiff's daughter. Both Sandra and Howard stated that they were familiar with the area in which plaintiff "alleges to have fallen." Both affidavits also stated that "this area contains a rut approximately two and a half feet long, eight inches wide and four inches deep" and that the rut existed in this area of the premises for more than a year prior to plaintiff's fall. Plaintiff argued that, based on these facts, the City had constructive notice of the condition given the description of the condition and the length of time it existed.

Both defendants filed a reply to plaintiff's argument, and a hearing regarding both defendants' motions for summary judgment was subsequently held. The court granted summary judgment to both defendants. This timely appeal followed.

On appeal, plaintiff first argues that summary judgment should not have been entered in favor of Grillo because the area in which she fell was a common area controlled and maintained by Grillo. She contends, relying on Smith v. Rengel (1981), 97 Ill.App.3d 204, 52 Ill.Dec. 937, 422 N.E.2d 1146, that Grillo therefore owed her a duty to keep and maintain this area in a reasonably safe condition even though it was just beyond the premises actually owned by Grillo.

Grillo argues that summary judgment was properly granted in his favor, noting that summary judgment is proper when the undisputed facts demonstrate that a defendant owed the plaintiff no duty. He asserts that he owed no duty to plaintiff in this cause because the facts established that he did not own the property abutting the public sidewalk or cause the "dip" next to the sidewalk where plaintiff fell. He contends that, under these circumstances, he had no duty to maintain or repair the property which was under the control of a municipality. He relies on Thiede v. Tambone (1990), 196 Ill.App.3d 253, 143 Ill.Dec. 110, 553 N.E.2d 817, Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill.App.3d 424, 127 Ill.Dec. 614, 533 N.E.2d 486, and Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill.App.3d 532, 58 Ill.Dec. 203, 430 N.E.2d 145.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party to summary judgment is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill.2d 152, 165, 154 Ill.Dec. 606, 568 N.E.2d 827; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact which should be tried. (Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) In making this determination, the evidence is to be construed strictly against the moving party and liberally in favor of the opponent. Tersavich v. First National Bank & Trust (1991), 143 Ill.2d 74, 80-81, 156...