Hammond v. Sbc Communications, Inc.

Decision Date14 April 2006
Docket NumberNo. 1-04-3157.,1-04-3157.
Citation850 N.E.2d 265
PartiesDennis HAMMOND and Lenora Hammond, Plaintiffs-Appellants, v. SBC COMMUNICATIONS, INC. (SBC), a Delaware Corporation, Ameritech Corporation, a Delaware Corporation, and Illinois Bell Company, d/b/a Ameritech Illinois, Defendants-Appellees (Rick Ekstrom, Sue Ekstrom, and Catherine Coleman, Administrator of the Estate of Elmer Hartje, Deceased, Defendants).
CourtUnited States Appellate Court of Illinois

John R. Wienold, Larry Amoni, Wienold & Amoni, Aurora, for Plaintiffs-Appellants.

Steven P. Handler, Joseph G. Fisher, Shana W. Peretz, McDermott Will & Emery LLP, Chicago, for Defendants-Appellees.

Robert A. Clifford, Heather A. Begley, Clifford Law Offices, Chicago (Robert P. Sheridan, of counsel), for Plaintiffs-Appellants.

Donald L. Woods, Brown, Hay & Stephens, LLP, Springfield, for Amicus Curiae Illinois Telecommunications Association.

Jessica Aspen, Assistant General Counsel, Exelon Business Services Company, Chicago, Richard Thometz, Nicor Gas Company, Naperville, for Amicus Curiae.

Justice FITZGERALD SMITH delivered the opinion of the court:

Plaintiff Dennis Hammond was seriously injured in a motor vehicle accident involving a fallen tree. In an amended complaint filed in the circuit court of Cook County against defendants SBC Communications, Inc. (SBC), a Delaware corporation (SBC); Ameritech Corporation, a Delaware corporation (Ameritech); and Illinois Bell Telephone Company, d/b/a Ameritech Illinois (Illinois Bell), among others, plaintiffs Dennis and Lenora Hammond sought damages for personal injuries and loss of consortium.1 After hearing cross-motions for summary judgment, the circuit court granted judgment in favor of defendants. Plaintiffs appeal, contending that defendants were negligent for failing to clear the tree from land along the highway in which defendants hold an easement. Plaintiffs also contend that the court improperly denied their requests for admission of facts pursuant to Illinois Supreme Court Rule 216. 134 Ill.2d R. 216. Defendants have filed a joint brief in response. Additionally, Illinois Telecommunications Association, Commonwealth Edison, and Nicor Gas Company have filed an amicus curiae brief in support of the judgment for defendants. We affirm.

On May 28, 1998, around 10 p.m., Dennis Hammond was driving south on Illinois Route 47 in Plato Township, in Kane County, Illinois. After plaintiff had passed the intersection with Bahr Road, a tree that stood on the southwest corner of the intersection allegedly fell across Route 47 and caused permanent physical injuries to plaintiff when his vehicle either struck the tree or was struck by the tree.

Plaintiffs' six-count amended complaint, which was filed in February 2003, alleges that defendants SBC, Ameritech, and Illinois Bell (collectively, defendants)2 owe a duty to the motoring public as holder of a right-of-way easement in land on the west side of Route 47. Elmer Hartje was the owner of property on the southwest corner of the Route 47 and Bahr Road intersection.3 Defendants obtained the easement from Elmer and Hazel Hartje in 1963 for the right to construct, reconstruct, operate and maintain their telephone lines.

The amended complaint alleges that, on the day in question and "for approximately 50 years prior thereto, the decedent Elmer Hartje owned possessed, maintained, operated, controlled or had right to control the certain land and premises located at the southwest corner of Bahr Road and said Illinois Route 47, which * * * contained a certain tree * * * approximately 37 to 38 feet west of the center line of Route 47 at that location * * * [and] said tree was visibly slanting, leaning or bending so that its trunk and/or branches were extending over Illinois Route 47 while such highway was being used by the motoring public," including plaintiff. The tree in question allegedly was "within 35 feet of an Ameritech service box and said service box was approximately 35 to 40 feet west of the center line of Route 47."

Specifically, the amended complaint alleges that defendants SBC, Ameritech, and Illinois Bell:

"as a possessor of land and particularly as a possessor of land along a highway, owed the plaintiff and other members of the motoring public a duty to use reasonable care for the protection of travelers on the highway to prevent an unreasonable risk of harm for those travelers on the highway arising from a condition of said tree or trees near the highway. Further, said defendants had a duty to inspect all trees which might be in such dangerous condition as to endanger travelers."

The amended complaint alleges defendants were negligent because they failed, among other things, to inspect, trim or remove the tree at issue, or to clear or keep cleared trees and other obstructions along Route 47.

Shortly after the amended complaint was filed, SBC and Ameritech filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 2002). A short time later, plaintiffs filed the first of two sets of requests to admit facts or the genuineness of documents pursuant to Rule 216 (134 Ill.2d R. 216), to which defendants filed responses and objections.

In May 2004, Illinois Bell moved for summary judgment, noting the pending motion to dismiss of its affiliates, SBC and Ameritech, and asserting that judgment in its favor would require a similar judgment in favor of SBC and Ameritech. Later, plaintiffs filed the second set of Rule 216 requests for admission, followed by their motion for summary judgment.

On September 17, 2004, after hearing argument on the cross-motions for summary judgment, the court granted Illinois Bell's motion, found that the judgment applied to SBC and Ameritech, and entered judgment in favor of those defendants and against plaintiffs. In its oral rulings, the court found, essentially, that the easement, by its plain language, was of a "limited nature" and, accordingly, defendants' rights and duties were limited to only that which was necessary to fulfill the specific purposes of the easement: that is, defendants did not have a right or a corresponding duty to remove a tree that did not interfere with their facilities. The court also found that, based on the highway right-of-way, the State was the dominant estate holder rather than defendants.

In its written order entered that day, the court: denied plaintiffs' motion for summary judgment; entered summary judgment on all counts in favor of Illinois Bell, SBC, and Ameritech; and found that ruling rendered moot SBC and Ameritech's section 2-619 motion to dismiss with no substantive ruling on that motion having been made. The court also denied plaintiffs' Rule 216 motions and granted defendants' good-cause motions. This appeal followed.

I

On appeal, the central contention raised by plaintiffs is that defendants owe a duty to the motoring public to clear trees from property along the highway in which defendants have an easement. We disagree with that contention.

Summary judgment should be granted where the pleadings, depositions, affidavits, admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); Vesey v. Chicago Housing Authority, 145 Ill.2d 404, 411, 164 Ill.Dec. 622, 583 N.E.2d 538 (1991); Swope v. Northern Illinois Gas Co., 251 Ill.App.3d 850, 853, 191 Ill.Dec. 251, 623 N.E.2d 841 (1993). The grant of summary judgment is reviewed de novo. McMahon v. Hines, 298 Ill.App.3d 231, 235, 232 Ill.Dec. 269, 697 N.E.2d 1199 (1998). A complaint sounding in negligence must allege facts sufficient to show the existence of a duty, a breach of that duty, and injury to the plaintiff which is proximately caused by that breach. Gouge v. Central Illinois Public Service Co., 144 Ill.2d 535, 542, 163 Ill.Dec. 842, 582 N.E.2d 108 (1991); McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 26, 180 Ill.Dec. 758, 607 N.E.2d 1271 (1992). The existence of a duty is a question of law to be determined by the court. Gouge, 144 Ill.2d at 542, 163 Ill.Dec. 842, 582 N.E.2d 108; see also Miller v. Highway Commissioner of North Otter Township Road District, 344 Ill.App.3d 1157, 1164, 279 Ill.Dec. 925, 801 N.E.2d 599 (2003). In making such determination the court considers "whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff." Gouge, 144 Ill.2d at 542, 163 Ill.Dec. 842, 582 N.E.2d 108.

To determine the existence of a duty in a particular case, the court must weigh the reasonable foreseeability of the injury, the reasonable likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Gouge, 144 Ill.2d at 542, 163 Ill.Dec. 842, 582 N.E.2d 108; Polak v. Person, 232 Ill. App.3d 505, 510, 173 Ill.Dec. 836, 597 N.E.2d 810 (1992). Although the foreseeability of the injury is an important factor in deciding whether a duty exists, it is not solely determinative of that question. Hutchings v. Bauer, 149 Ill.2d 568, 571, 174 Ill.Dec. 850, 599 N.E.2d 934 (1992); Polak, 232 Ill.App.3d at 511-12, 173 Ill. Dec. 836, 597 N.E.2d 810. Rather, the foreseeability of harm must be balanced against the burdens and consequences resulting from the recognition of a duty. Hutchings, 149 Ill.2d at 571, 174 Ill.Dec. 850, 599 N.E.2d 934. Absent a showing from which the court can infer the existence of a duty, summary judgment in favor of the defendant is proper. Swope, 251 Ill.App.3d at 853-54, 191 Ill.Dec. 251, 623 N.E.2d 841.

Plaintiffs assert that the terms of the easement grant defendants not only the right to use of the property, but,...

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