Hollenbeck v. City of Tuscola

• Decision Date: 13 March 2017
• Docket Number: NO. 4-16-0266,4-16-0266
• Citation: 72 N.E.3d 880,2017 IL App (4th) 160266
• Parties: Laurie Ann HOLLENBECK, Plaintiff-Appellant, v. The CITY OF TUSCOLA and Leon Kinney, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 160266

72 N.E.3d 880

Laurie Ann HOLLENBECK, Plaintiff-Appellant,

v.The CITY OF TUSCOLA and Leon Kinney, Defendants-Appellees.

NO. 4-16-0266

Appellate Court of Illinois, Fourth District.

March 13, 2017

Jeffrey J. Cocagne (argued) and Jeffrey D. Frederick, of Frederick & Hagle, of Urbana, for appellant.

Jennifer L. Turiello (argued), of Peterson, Johnson & Murray–Chicago, LLC, of Chicago, for appellee City of Tuscola.

Michael A. Walsh (argued), of Erickson, Davis, Murphy, Johnson & Walsh, Ltd., of Decatur, for appellee Leon Kinney.

OPINION

PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.

¶ 1 In July 2015, plaintiff, Laurie Ann Hollenbeck, filed a second amended complaint against defendants, the City of Tuscola (Tuscola or City) and Leon Kinney, to recover for injuries suffered in a fall on city property. In December 2015 and January 2016, the trial court granted summary judgment in favor of Tuscola and Kinney, respectively.

¶ 2 On appeal, plaintiff argues the trial court erred in granting summary judgment in favor of defendants. We affirm.

¶ 3 I. BACKGROUND

¶ 4 This appeal arises from an occurrence on November 1, 2012, at 408 East Barker Street in Tuscola, Illinois. Plaintiff had lived in a rental home at 406 East Barker Street since the middle of August 2012. Kinney owned the home next door at 408 East Barker Street. On the date in question, plaintiff stepped into a deep hole located on land adjacent to 408 East Barker Street, causing her to fall and suffer injuries.

¶ 5 In July 2015, plaintiff filed a second amended complaint against defendants. In count I (Tuscola), plaintiff alleged Tuscola owned the parkway located adjacent to 408 East Barker and had a duty to maintain it in a reasonably safe condition and exercise ordinary care to see the property was reasonably safe for lawful users. Plaintiff alleged Tuscola breached that duty by allowing a metal catch basin lid to become "significantly depressed and lower than the turf and ground located in its immediate vicinity, causing a depression to form." Plaintiff alleged Tuscola (1) negligently failed to have any inspection plan to inspect the catch basin; (2) knew or should have known there was an unreasonably dangerous depression; (3) failed to level out the depression; (4) failed to warn of its existence by placing appropriate warning signs in the area of the lid; (5) failed to keep the catch basin free from debris, including lawn clippings, leaves, and trash; and (6) failed to clean the catch basin lid of any debris so it would be visible to pedestrians walking across the right-of-way. Plaintiff alleged that, as a direct and proximate result of Tuscola's negligence, she "stepped in a large depression that was covered with grass, leaves and debris that covered a storm drain or a catch basin cover, causing her to fall and seriously injure herself." Plaintiff claimed she endured medical and hospital expenses, physical and emotional pain and suffering, loss of enjoyment of life, caretaking expenses, and disfigurement.

¶ 6 In count II (Kinney), plaintiff alleged Kinney had a duty to exercise ordinary care when he undertook mowing and yard maintenance of the right-of-way at 408 East Barker Street. Plaintiff alleged he breached that duty when he (1) negligently failed to notify Tuscola to have the depression leveled out so the catch basin was flush with the surrounding lawn; (2) failed to fill in and warn of the depression; (3) violated Tuscola ordinance by allowing grass he maintained to be in excess of eight inches; (4) caused large clumps of grass to be cut, which covered the catch basin cover and "camouflaged or covered it with excessive thick coverings of dead and mowed grass, rendering the existence of the cover to be invisible to the naked eye"; and (5) failed to warn of the existence of the depression by placing warning signs or covering the hole.

¶ 7 In July 2015, Kinney filed his answer to the second amended complaint. In August 2015, Tuscola filed its answer and affirmative defenses. In its first affirmative defense, Tuscola stated plaintiff had a duty to exercise ordinary care for her own safety but negligently failed to keep a proper lookout where she was walking, walked in an area not intended for pedestrian use, and failed to observe an open and obvious condition. In its second affirmative defense, Tuscola stated plaintiff's claims are barred by the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2014)).

¶ 8 Multiple discovery depositions were taken in this case. The evidence indicated the area where plaintiff fell was a grassy strip of land owned by Tuscola and referred to either as a parkway or a right-of-way. Further, she stepped on what has been called a catch basin lid or cover.

¶ 9 Plaintiff testified she has lived at 406 East Barker Street since August 2012. At approximately 4:30 p.m. on November 1, 2012, plaintiff attempted to catch up with her husband, who was taking a walk. She took a step into some leaves, "heard a crunch of my ankle and hit my palms on the ground." She was not aware of the presence of a catch basin cover at the time she stepped on it, and she stated the cover was not loose when she stepped on it. Plaintiff's ankle began throbbing and it was "very painful." She eventually went to the emergency room because "the pain wouldn't stop and the swelling kept getting bigger." Plaintiff underwent surgery in March 2013 and February 2014. She had not sought medical treatment regarding her ankle since April 2014. She still has problems standing and can no longer play with her children in the yard.

¶ 10 James Hollenbeck testified he was unaware of the storm drain in the parkway in front of Kinney's house before his wife's accident on November 1, 2012. He estimated the top of the storm drain lid sat "probably eight to nine inches" below ground level.

¶ 11 James Hoel, Tuscola's city administrator, testified the catch basin at 408 East Barker Street is owned and maintained by Tuscola. He stated there are two types of storm drains in Tuscola—those connected to curb inlets on paved streets and those associated with the catch basins on oil-and-chip streets. The road at 408 East Barker Street is an oil-and-chip street, and the "grade of the street and the grade of the adjacent land is such that water flows to these open catch basins." When he examined the catch basin in December 2012, he found it to be "a depression in the ground" in an "obvious drainage area" with a "metal cast iron lid on it." He stated there was no written or verbal policy to inspect and maintain the catch basins in a routine manner.

As a matter of practice, homeowners mow the grass around the catch basin.

¶ 12 Dennis Cruzan, Tuscola's city services foreman, testified the catch basin "catches dirt and holds it to keep it from going in the storm sewer." Prior to November 1, 2012, there was no formal inspection program to inspect the catch basins to ensure the drains were open and clear. The grass surrounding the basin helps act as a filter and "keeps everything from covering the lid, so they usually stay clean most of the time." He has noticed some drain covers sit lower than the grass around them, which creates a depression. He was not aware of any recognized industry standards regarding the proper depth of a catch basin lid relative to the surrounding turf. Cruzan stated Tuscola has a policy to remove debris from the catch basin covers if they are clogged and not allowing water to drain. He also stated it was not the city's responsibility to maintain the right-of-way or parkway, including mowing the grass or raking leaves, where the catch basin was located.

¶ 13 Jeff Smith, a street department employee, testified Tuscola has no written policy concerning routine inspections of catch basins. He stated he cleaned leaves off the basin at 408 East Barker Street approximately two months prior to the incident. On December 4, 2012, Smith went to the subject area and observed two inches of leaves and "a little mud" atop the catch basin lid. He also checked for any holes around the lid but found nothing.

¶ 14 Cody Mann, a street department employee, testified he regularly checks the catch basins on streets with curbs and gutters. However, he does not check catch basins on the oil-and-chip roads "very often."

¶ 15 Craig Hastings, Tuscola's chief of police, testified the police department is charged with enforcing the city's high-grass ordinance. He stated he was at Kinney's property at 408 East Barker Street on September 24, 2012, and observed tall grass. He could not recall ever seeing the catch basin covered in mud or with leaves.

¶ 16 Leon Kinney testified he owned the home at 408 East Barker Street, but no one lived there. He stated a neighbor would mow the lawn as needed. Prior to the accident, Kinney stated he last mowed the lawn in the middle of October 2012. He had received a letter from the City in October 2012 instructing him to cut the grass. He never removed any leaves to clear the drain because "it's the city's property, not mine."

¶ 17 George Fidler testified he offered to mow the grass at 408 East Barker Street in 2010 or 2011. He was aware of the catch basin located in the parkway of Kinney's property.

¶ 18 In August 2015, Tuscola filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014) ). Tuscola contended it owed no duty to protect plaintiff from the catch basin setting at a lower grade than the surface from which it was to drain water or from the natural accumulation of grass and leaves on the catch basin cover. Tuscola also asserted the location and condition of the catch basin and the surrounding area was open and obvious and plaintiff's own negligence in failing to keep a proper lookout was the sole proximate cause of her fall and resulting injuries.

¶ 19 In October 2015, Kinney filed...