GILMORE v. POWERS

• Decision Date: 13 August 2010
• Docket Number: No. 1-09-1478.,1-09-1478.
• Citation: 403 Ill.App.3d 930,343 Ill.Dec. 240,934 N.E.2d 564
• Parties: Sandra GILMORE, Plaintiff-Appellant, v. Christopher POWERS and Rachel Powers, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 930
934 N.E.2d 564
343 Ill.Dec. 240

Sandra GILMORE, Plaintiff-Appellant,
v.
Christopher POWERS and Rachel Powers, Defendants-Appellees.

No. 1-09-1478.

Appellate Court of Illinois,First District, Sixth Division.

Aug. 13, 2010.

934 N.E.2d 565

Meghan E. Preston, Rathbun, Cservenyak & Kozol, LLC, Attorneys at Law, Joliet, IL, for Appellant.

Bruce Farrel Dorn & Associates, Chicago IL, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

403 Ill.App.3d 930

343 Ill.Dec. 241

This matter comes before the court on the appeal of plaintiff Sandra Gilmore from an order of the circuit court granting summary judgment in favor of defendants, Christopher and Rachel Powers. In her complaint, plaintiff sought recovery for personal injuries which she sustained while moving defendants' personal belongings from a moving van to defendants' home. Plaintiff alleged that she fell on a stone walkway which straddled the city-owned parkway in front of defendants' house. Defendants argued that they owed plaintiff no duty

403 Ill.App.3d 931

to maintain the walkway in a safe condition because the area which it straddled was owned, not by them, but by the City of Evanston. The circuit court agreed with defendants and granted summary judgment in their favor. For the reasons articulated below, we affirm.

BACKGROUND

The evidence in this case is not in dispute. Defendants own a home in Evanston that is fronted on the north side of Payne Street, a public right-of-way that runs from east to west. A public-owned sidewalk lies parallel to Payne Street, also running from east to west. Between the street and the public sidewalk lies a parkway, a strip of grassy land running parallel between the street and the sidewalk. A stone walkway transverses the parkway, running north to south.

Plaintiff is a co-owner of a moving company that was hired by defendants to move their belongings from California to their home on Payne Street. On the day of the move, the movers parked the moving van on Payne Street and unloaded from there. Alternate access to defendants' house was also available by parking in the alley that ran perpendicular to the street and formed the western boundary of defendants' property. While the plaintiff's workers were moving defendants' belongings into the house, the workers crossed over the parkway by walking down metal ramps extending down from the back of the truck. When the move was completed, the ramps were placed back into the truck. As the moving company was finishing its work, plaintiff injured her foot while on the walkway which crosses the parkway.

934 N.E.2d 566

343 Ill.Dec. 242

On September 21, 2007, plaintiff filed the instant lawsuit against defendants for her injuries alleging that her injuries were the proximate result of the defendants' failure to maintain “their property” in a condition that was safe for invitees such as herself. Plaintiff specifically asserted that defendants violated this duty by failing to inspect “their property” for hazardous conditions, permitting the walkway to remain in a dangerous condition, failing to fix the walkway after becoming aware of its dangerous condition, and failing to properly maintain the walkway on the property.

Defendants filed a motion for summary judgment arguing that they owned no duty to maintain the walkway because it was not located on their property but on the parkway, the area between the curb of the street and the sidewalk, which is owned by the City of Evanston. They also asserted that they in no way assumed a duty to maintain the walkway. With respect to this motion, both parties cited to a transcript of the deposition of Sat Nager, a senior engineer with the City of Evanston's Division of Transportation, Public Works, who

403 Ill.App.3d 932

averred that the city owns the parkway upon which the walkway at issue is located. He further stated that walkways on parkways are prevalent throughout the city. Nager said that he had no record of when the walkway at issue in this case was installed, but that walkways are generally installed by individual homeowners, not the city. Nager stated that it is his understanding that when a walkway falls into disrepair, the owners of the property take responsibility to replace the stones “[m]ost of the time,” but that he was aware of no legal obligation for homeowners to do so. He also claimed that the city is in the practice of replacing the walkways if they are contiguous to a street which is being repaired by the city.

The defendants also submitted separate affidavits in support of their motion for summary judgment each averring that they neither installed nor maintained the walkway at issue and never used the parkway to the exclusion of others. They both claimed that they merely cut the grass on the parkway and raked leaves off of it. Defendant Chris Powers also repeated these claims during a deposition, a transcript of which was attached to the motion, and further stated that he recommended to plaintiff that the movers park the moving van in the alley behind the home and unload there because it was closer to the house and thus would be more convenient for them. In her deposition, a transcript of which was also attached, Rachel Powers stated that she walked on the walkway multiple times a day as she walked to and from her car, which she parked on the street.

The circuit court granted the defendants' motion for summary judgment in a written order without explanation. Plaintiff now appeals.

ANALYSIS

On appeal, plaintiff contends that the circuit court erred in granting summary judgment in favor of defendants. Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2006). “In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent.” Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). Summary judgment

343 Ill.Dec. 243

934 N.E.2d 567

procedure is to be “encouraged as an aid in the expeditious disposition of a lawsuit,” but is a “drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free from doubt.” The decision to

403 Ill.App.3d 933

grant a motion for summary judgment is reviewed de novo. Adams, 211 Ill.2d at 43, 284 Ill.Dec. 302, 809 N.E.2d 1248. The issue of whether a party owes a duty to another party is a question of law to be determined by the court. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill.App.3d 424, 432, 127 Ill.Dec. 614, 533 N.E.2d 486 (1988).

On appeal, plaintiff contends that defendants' owed her the duty to maintain the walkway which transverses the owned parkway in front of their home in a safe condition. Although she concedes that the walkway is located on a parkway owned by the city, she nevertheless argues that defendants, as adjacent property owners, owed such a duty of care because she claims they appropriated the parkway for their own use by mowing the grass growing upon it, raking leaves from it, and crossing it daily in order to get from the sidewalk to the street. Plaintiff also claims that defendants were obligated to maintain the walkway in a safe condition because it provided a means of ingress and egress from the property. We disagree that defendants owed a duty of care regarding the condition of the walkway.

Although a private landowner owes a duty of care to provide a reasonably safe means of ingress and egress from his property (Burke v. Grillo, 227 Ill.App.3d 9, 16, 169 Ill.Dec. 45, 590 N.E.2d 964 (1992); Dodd, 178 Ill.App.3d at 432, 127 Ill.Dec. 614, 533 N.E.2d 486; Decker v. Polk Brothers, 43 Ill.App.3d 563, 565, 2 Ill.Dec. 432, 357 N.E.2d 599 (1976); McDonald v. Frontier Lanes, Inc., 1 Ill.App.3d 345, 351, 272 N.E.2d 369 (1971); Cooley v. Makse, 46 Ill.App.2d 25, 30, 196 N.E.2d 396 (1964); Stedman v. Spiros, 23 Ill.App.2d 69, 81, 161 N.E.2d 590 (1959)), he generally owes no duty to ensure the safe condition of a public sidewalk or parkway abutting that property (Burke, 227 Ill.App.3d at 16, 169 Ill.Dec. 45, 590 N.E.2d 964; Evans v. Koshgarian, 234 Ill.App.3d 922, 925, 176 Ill.Dec. 720, 602 N.E.2d 27 (1992); Thiede v. Tambone, 196 Ill.App.3d 253, 260, 143 Ill.Dec. 110, 553 N.E.2d 817 (1990); Dodd, 178 Ill.App.3d at 432, 127 Ill.Dec. 614, 533 N.E.2d 486; Schuman v. Pekin House Restaurant & Lounge, 102 Ill.App.3d 532, 534, 58 Ill.Dec. 203, 430 N.E.2d 145 (1981); Repinski v. Jubilee Oil Co., 85 Ill.App.3d 15, 21, 40 Ill.Dec. 291, 405 N.E.2d 1383 (1980); Decker, 43 Ill.App.3d at 565, 2 Ill.Dec. 432, 357 N.E.2d 599; Cooley, 46 Ill.App.2d at 30, 196 N.E.2d 396; Stedman, 23 Ill.App.2d at 83, 161 N.E.2d 590).

Plaintiff contends that this foregoing general rule does not apply in this case because defendants assumed control over the parkway at issue. We agree with the proposition that an abutting landowner may be held responsible for the condition of a public sidewalk or parkway if he assumes control of it for his own purposes. Burke, 227 Ill.App.3d at 16-17, 169 Ill.Dec. 45, 590 N.E.2d 964; Evans, 234 Ill.App.3d at 925, 176 Ill.Dec. 720, 602 N.E.2d 27; Thiede, 196 Ill.App.3d at 260, 143 Ill.Dec. 110, 553 N.E.2d 817; Dodd, 178 Ill.App.3d at 432, 127 Ill.Dec. 614, 533 N.E.2d 486; Decker, 43 Ill.App.3d at 566, 2 Ill.Dec. 432, 357 N.E.2d 599; McDonald, 1 Ill.App.3d at 352, 272 N.E.2d 369; Cooley, 46 Ill.App.2d at 30, 196 N.E.2d 396. However, an assumption of control for purposes of determining a duty of care must consist of affirmative conduct which prevents the public from using the property in an ordinary manner such as blocking the land, parking on it, or using it to display goods. Dodd, 178...