Dodd v. Cavett Rexall Drugs, Inc.

• Decision Date: 30 December 1988
• Docket Number: No. 88-0961,88-0961
• Citation: 178 Ill.App.3d 424,127 Ill.Dec. 614,533 N.E.2d 486
• Parties: , 127 Ill.Dec. 614 Wanda L. DODD, Plaintiff-Appellant, v. CAVETT REXALL DRUGS, INC., Irma T. Elmore, Alvah T. Martin, individually and/or as Trustees under the Last Will and Testament of Grover C. Elmore, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 486

533 N.E.2d 486

178 Ill.App.3d 424, 127 Ill.Dec. 614

Wanda L. DODD, Plaintiff-Appellant, v. CAVETT REXALL DRUGS, INC., Irma T. Elmore, Alvah T. Martin individually and/or as Trustees under the Last Will and Testament of Grover C. Elmore Defendants-Appellees.

No. 88-0961.

Appellate Court of Illinois First District, First Division.

Dec. 30, 1988.

Farrell & Associates, Ltd., Palos Heights (Mary K. Farrell, Noreen M. Daly, of counsel), for plaintiff-appellant.

Orner & Wasserman, Ltd., Chicago (Esther Joy Schwartz, Mary A. Mazurk, of counsel), for defendant-appellee Rexal.

Tressler, Soderstrom, Maloney & Priess, Chicago (Shaun McParland, Jean E. Faulhaber, of counsel), for defendant-appellee Elmore & Martin.

Justice QUINLAN delivered the opinion of the court:

Plaintiff, Wanda L. Dodd, filed a complaint in the circuit court of Cook County seeking damages for personal injuries sustained when she fell on a sidewalk adjoining the Cavett Rexall Drug store, which was leased from the estate of Grover C. Elmore and was located in the Grover C. Elmore Plaza. The suit named Cavett Rexall Drugs, Inc., and Irma T. Elmore and Alvah T. Martin, individually and/or as Trustees under the Last Will and Testament of Grover C. Elmore, as defendants. Ultimately the circuit court entered summary judgment in favor of all defendants and, thereafter, denied the plaintiff's motion for rehearing. Plaintiff now appeals to this court. We affirm.

On December 5, 1983, plaintiff drove to Cavett Rexall Drugs (Cavett) sometime between noon and three in the afternoon. Cavett was located at the south end of the Grover C. Elmore Plaza, a shopping center containing approximately ten to twelve stores. The shopping center was owned by the estate of the late Grover C. Elmore. Cavett leased its store from defendants Irma T. Elmore and Alvah T. Martin, trustees for Grover Elmore's estate.

Elmore Plaza faced the west side of Oak Park Avenue in Tinley Park, Illinois. The south end of Elmore Plaza, where Cavett was located, bordered 171st street. There were diagonal parking spaces along Oak Park Avenue and also along 171st street. Additionally, there were sidewalks between the parking spaces and the buildings in the plaza. Plaintiff parked her car in one of the spaces along 171st street, which was approximately six spaces down from the entrance to Cavett. She then walked east on the sidewalk and entered Cavett. When she left Cavett, she walked west on the same sidewalk. As she was walking toward her car, she stepped in a hole in the sidewalk and fell.

Subsequently, plaintiff, as noted above, filed a complaint at law in the circuit court of Cook County, which contained two counts. Count I alleged that defendant Cavett was in possession of, operated and maintained a building in Elmore Plaza where it operated a drugstore and that it:

"expressly and impliedly invited members of the general public to enter the * * * drugstore and to use the adjoining sidewalk and parking lot for the purpose of purchasing retail goods, and it then and there became the duty of the Defendant * * * to keep and maintain its building and the adjoining sidewalk and parking lot in a reasonably safe condition so that persons lawfully on the premises and the adjoining sidewalk and parking lot * * * would not be injured."

Plaintiff charged that Cavett negligently failed to perform these duties, and as a direct and proximate result of this negligence, plaintiff fell and suffered personal injuries.

Count II alleged that defendants Irma T. Elmore and Alvah T. Martin, individually and/or as Trustees under the Last Will and Testament of Grover C. Elmore,

"by their ownership of the property and their acquiescence in the use of said property then and there expressly and impliedly invited members of the general public to enter the drugstore and the adjoining sidewalk and parking lot for the purpose of purchasing retail goods, it then and there became the duty of the Defendants * * * to supervise and control the maintenance of the premises and the adjoining parking lot and sidewalk so that those using the said sidewalk and parking lot for the purpose of purchasing retail goods would not be injured."

Plaintiff also alleged that Elmore and Martin negligently failed to perform these duties and as a direct and proximate result of this negligence, plaintiff fell and suffered personal injuries. On both counts, plaintiff sought as damages an amount in excess of the minimum required for the law division, plus costs.

Defendant Cavett filed an answer to count I of plaintiff's complaint and admitted that it leased a store and that it possessed, maintained and controlled the area within the store, but denied that it possessed, maintained or controlled the building or sidewalk where plaintiff fell. Defendants Elmore and Martin also filed an answer and in their answer they admitted that they owned the Grover C. Elmore shopping plaza, including the building leased by Cavett, as trustees under the last will and testament of Grover C. Elmore, but denied that they owned the property individually. Further, they also admitted responsibility for all duties imposed by law, but denied breaching those duties.

Plaintiff then served interrogatories on defendant Cavett and on defendants Elmore and Martin. All of the defendants were asked:

"Was this defendant [referring to the party served] in control of the premises in question at the time and at the situs of the occurrence complained of? If 'yes', was such control exclusive; if 'no', who do you contend shared control or had exclusive control?"

Defendants Elmore and Martin answered, "No. Cavett Rexall Drugs, Inc., in possession." Defendant Cavett answered, "This defendant admits that it leased a certain store premises at the described location. * * * This defendant specifically denies that it controlled the described sidewalk. This defendant denies that the sidewalk was on or within any property leased by this defendant."

All defendants were also asked to, "State the full name and address of all persons or businesses or entities with any type of ownership or possessive interest in the premises complained of and the nature of such interest." Defendants Elmore and Martin answered, "None." Defendant Cavett answered, "This defendant admits that it leased a store premises at the described location. This defendant denies that the sidewalk described in the complaint was on or within any property leased by this defendant."

Affidavits were later filed in connection with the motion for summary judgment. One affidavit was filed by B.A. Fenger, who had been an Illinois Registered Land Surveyor for fifty years. Fenger stated he had conducted a survey of the property on which the Grover C. Elmore shopping plaza was located and that based on his "surveyance," he had concluded that the sidewalk bordering the south end of the plaza, where plaintiff fell, was not part of the shopping plaza property.

Irma Elmore also filed an affidavit. Her affidavit said that the sidewalk in issue was not the only path into the Cavett building and that the sidewalk was used by the general public and was not used exclusively for ingress to and egress from Cavett. In addition, she said there was no entrance to Cavett adjacent to the sidewalk.

Irma Elmore also gave a deposition in the case, where she testified that she managed the property where the shopping plaza was located and supervised any repair work. She said the repair work that had been done on the property included roof repairs and cleaning of the gutters. She did not, she stated, remember whether the sidewalks were put in at the same time that the buildings were constructed or not. Furthermore, she said that while she had seen that the repair work was done, it was the tenant's responsibility to clean debris from the sidewalk or to remove snow.

Elmore further testified that if a sidewalk was in need of repair, she would not know unless someone reported it to her or she saw it. The trust for her late husband's estate had, she stated, hired a contractor to automatically shovel the parking lot when there were two or more inches of snow, but the contractor was not under orders to repair the sidewalks. When asked hypothetically who would be responsible for sidewalk repairs, Elmore responded, "We would generally do it because we felt that it would be for the interest of the public whether it was our obligation or not." However, Elmore said she was unaware of anyone ever performing any sidewalk repairs.

A deposition was also taken from Robert Allen Przybyla, the manager of Cavett at the time that defendant had her accident. He said in his deposition that the parking area to the south of the plaza, where plaintiff parked her car, was probably used ninety percent of the time by Cavett customers. He also said that Cavett was responsible for removing snow from the parking lot and for shoveling the sidewalks. Przybyla did not know whose responsibility it was to clean up debris around the building, but acknowledged that he did clean up bottles and other trash so that no one got hurt. He also remembered, he said, that in the winter he put salt on the sidewalk around Cavett, including the sidewalk where plaintiff fell. He did not remember any repairs being done to the sidewalk and he had never received any complaints concerning the condition of the sidewalk or reports that anyone fell on the sidewalk. He stated that he usually checked the sidewalk every day and cleaned up any debris or dangerous objects.

The trial court, on the basis of these affidavits and depositions, granted summary judgment in favor of the defendants. Specifically, the court said in entering its order that it found no evidence that any of the defendants controlled the sidewalk. As to Cavett, the court found that merely shoveling or sweeping the sidewalk did not create a duty to maintain the sidewalk, and further found that there was no evidence...