Mentesana v. LaFranco

• Decision Date: 31 May 1979
• Docket Number: E-Z,No. 78-647,78-647
• Citation: Mentesana v. LaFranco, 73 Ill.App.3d 204, 391 N.E.2d 416, 29 Ill.Dec. 153 (Ill. App. 1979)
• Parties: , 29 Ill.Dec. 153 Bina MENTESANA, Plaintiff-Appellant, v. Leo LaFRANCO, Individually and d/b/a Leo'sGo Service Station, Defendant- Appellee.
• Court: Appellate Court of Illinois

Page 416

391 N.E.2d 416

73 Ill.App.3d 204, 29 Ill.Dec. 153

Bina MENTESANA, Plaintiff-Appellant, v. Leo LaFRANCO, Individually and d/b/a Leo's E-Z Go Service Station, Defendant- Appellee.

No. 78-647.

Appellate Court of Illinois, First District, Fourth Division.

May 31, 1979.

Rehearing Denied July 9, 1979.

Marshall I. Teichner, Ltd., Chicago (Philip J. Rock, Chicago, of counsel), for plaintiff-appellant.

Walter H. Djokic, Pretzel, Stouffer, Nolan & Rooney, Chicago (Robert Marc Chemers and Joseph B. Lederleitner, Chicago, of counsel), for defendant-appellee.

ROMITI, Justice:

The plaintiff brought this action alleging she suffered personal injuries when she slipped on some ice while crossing filling station premises to reach another street. The trial court granted summary judgment for the defendant ruling that at the time of injury the plaintiff was a licensee and defendant owed her only a duty to refrain from wilful and wanton conduct.

We affirm.

The only evidence before the court when it ruled on the defendant's motion for summary judgment was that contained in the depositions of the plaintiff and the individual defendant, Leo LaFranco (hereinafter defendant). On December 22, 1974 there was a very heavy snowfall in Chicago. The next day it was very cold. There was snow all over. While people removed some snow, it was impossible to clear it all.

The defendant owned a filling station at the northwest corner of Addison and Harlem, facing on Addison. After the snow, the defendant used a snow plow to plow off his property since snow could put him out of business. As he always did, he dumped the snow between two utility poles which were situated on the westernmost part of the property. This area was next to a sloping section which once had been used as a driveway for the gas station. The pictures of the service station indicate that this is the only area of the property where the snow would not block access either to the garage, the shop or the pumps. The mound of snow was between five and six feet high and about that wide at the base. The plaintiff herself stated in her deposition that it was too cold for them to clear it all; even the water was ice.

At about 9:20 a. m. on December 23, 1974 the plaintiff left her home to go to her dress shop which was about three blocks away. She walked along Addison and then because she was in a hurry (her shop opened at 9:30 promptly) she cut across the defendant's property. She usually took this short cut. She was not the only one who did. The defendant stated in his deposition that in December about 20 to 30 people daily trespassed, that is, they just walked across the property and were not there for business purposes. He did not try to stop them.

As noted, the plaintiff customarily cut across the service station premises, apparently leaving the public sidewalk when she reached the utility poles to cut diagonally across for a few feet and then walk in front of the office area and from there diagonally across to the other corner of the gas station. On this particular morning she began to cut across near the mound of snow. She saw that the surface she was walking on had something smooth on it coming from the pile of snow but thought it was water. Instead it was ice and she slipped and fell and injured herself.

The plaintiff brought suit against the defendant alleging that the defendant carelessly and negligently:

"(a) Improperly maintained, managed, operated and controlled said premises including the sidewalk so that as a direct and proximate result thereof, the Plaintiff was injured.

(b) Maintained, controlled, managed and operates said premises including the sidewalk in a dangerous and hazardous condition although they knew or in the exercise of ordinary care should have known of said condition.

(c) Allowed the said premises including the sidewalk to be in a dangerous and defective condition in that they allowed and permitted it to become slippery due to an accumulation of debris thus causing the same to become dangerous and unsafe.

(d) Failed to correct the defective and unsafe condition of said premises.

(e) Failed to warn Plaintiff that the said premises was in a dangerous and unsafe condition.

(f) Failed to use due care in inspecting the condition of said premises.

(g) Otherwise so carelessly and negligently operated, controlled and maintained their said premises and sidewalk in such a manner as to cause injury to the Plaintiff herein."

The trial court on December 1, 1977 entered a summary judgment for the defendant, ruling that the plaintiff was a licensee, and therefore the defendant only owed a duty to refrain from wilful and wanton conduct. The plaintiff filed her notice of appeal on Tuesday, January 3, 1978.

I.

The defendant has moved to dismiss the appeal on the grounds it was not timely filed. Supreme Court Rule 303(a) ( Ill.Rev.Stat.1977, ch. 110A, par. 303(a)), provides that a notice of appeal must be filed within thirty days after entry of judgment; this is jurisdictional and cannot be waived. However, section 1.11 of "an Act to revise the law in relation to the construction of the statutes" (Ill.Rev.Stat.1977, ch. 131, par. 1.11), provides that:

"The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded."

In the instant case, the thirty day period normally would have ended on December 31. But December 31 was a Saturday so under the statute it must be excluded. January 1 was a Sunday; January 2 was a legal holiday. Accordingly, the notice of appeal being filed on January 3 was timely filed. Pettigrove v. Parro Construction Corp. (1963), 44 Ill.App.2d 421, 194 N.E.2d 521; Sarro v. Illinois Mutual Fire Insurance Co. (1962), 34 Ill.App.2d 270, 181 N.E.2d 187, Leave to appeal denied.

II.

The plaintiff in this case has sought to recover from the defendant, claiming only that the defendant was negligent in his dealings towards the plaintiff. This, as the lower court ruled, is insufficient.

As stated in Trout v. Bank of Belleville (1976), 36 Ill.App.3d 83, 86, 343 N.E.2d 261, 264:

"Under Illinois law the duty of a landowner with respect to a person who comes upon the premises varies according to the status of the person. (Gartley v. Chicago Housing Authority, 28 Ill.App.3d 705, 329 N.E.2d 252; 28 I.L.P. Negligence §§ 51, 56, and 60 (1957).) It has long been settled that a landowner has a duty to exercise reasonable care for the safety of an invitee. (Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Milauskis v. Terminal R.R. Association, 286 Ill. 547, 122 N.E. 78.) To a trespasser, however, the landowner owes only the duty not to willfully and wantonly injure him and to use ordinary care to avoid injuring him after he is discovered in a place of danger. (Briney v. Illinois Central R.R. Co., 401 Ill. 181, 81 N.E.2d 866.) The owner's duty to a licensee is the same as his duty to a trespasser (Pauckner v. Wakem; Jones v. 20 North Wacker Drive Building Corp., 332 Ill.App. 382, 75 N.E.2d 400); the licensee will be able to recover only by showing an injury willfully and wantonly inflicted. Pauckner v. Wakem; Schoen v. Harris, 108 Ill.App.2d 186, 246 N.E.2d 849."

This rule has been recently reaffirmed by such cases as Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282 and Walton v. Norphlett (1977), 56 Ill.App.3d 4, 13 Ill.Dec. 886, 371 N.E.2d 978.

The trial court here found that the plaintiff was a licensee rather than a mere trespasser on the basis that habitual acquiescence in a trespass may constitute a license for persons to go upon the land if the tolerance is so pronounced as to be tantamount to permission. (Trout v. Bank of Belleville (1976), 36 Ill.App.3d 83, 343 N.E.2d 261.) However, even in cases of habitual acquiescence by the landowner, a person on the premises because of such tolerance who is injured thereon will not be able to recover by showing mere negligence on the part of the landowner but only by showing wilful and wanton conduct. Illinois Central Railroad Co. v. Eicher (1903), 202 Ill. 556, 67 N.E. 376; Trout v. Bank of Belleville (1976), 36 Ill.App.3d 83, 343 N.E.2d 261.

The plaintiff, however, contends that even though she was merely a licensee she can recover because the defendant was actively negligent, citing Moore v. Ohio Oil Co. (1926), 241 Ill.App. 388. The defendant responds that the claim of "active negligence" is not properly before the court since it was not set forth in the complaint. We are inclined to agree that the complaint does not adequately allege a claim for "active" negligence. However, the judgment was rendered on a motion for summary judgment. The defendant was at all times aware that the plaintiff was seeking to recover because she slipped on ice and that she was claiming the ice was caused by the snow he had piled in the corner of the property. Pleadings are to be liberally construed (Ill.Rev.Stat.1977, ch. 110, par. 33; Fisher v. Holt (1977), 52 Ill.App.3d 164, 9 Ill.Dec. 936, 367 N.E.2d 370; Morse v. Nelson (1977), 48 Ill.App.3d 895, 6 Ill.Dec. 638, 363 N.E.2d 167, Leave to appeal denied; Fanning v. LeMay (1967), 38 Ill.2d 209, 230 N.E.2d 182), and courts readily permit them to be amended unless the other party would be prejudiced thereby. (Merrill v. Drazek (1978), 58 Ill.App.3d 455, 16 Ill.Dec. 17, 374 N.E.2d 792; Blazina v. Blazina (1976), 42 Ill.App.3d 159, 1 Ill.Dec. 164, 356 N.E.2d 164; Banks v. United Insurance Co. of America (1975), 28 Ill.App.3d 60, 328 N.E.2d 167; Goshey v. Dunlap (1973), 16 Ill.App.3d 29, 305 N.E.2d 648; Able v. Pure Oil Co. (1972), ...