Nida v. Spurgeon
| Decision Date | 30 October 2013 |
| Docket Number | No. 4–13–0136.,4–13–0136. |
| Citation | 2013 IL App (4th) 130136,998 N.E.2d 938,376 Ill.Dec. 228 |
| Parties | Marcia NIDA, Plaintiff–Appellant, v. Marlene SPURGEON, Individually and as Administratrix of the Estate of Lorene D. Hart, Defendant–Appellee. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Jason B. McGary and Hania Sohail (argued), Strong Law Offices of Peoria, fpr appellant.
Craig L. Unrath and Natalie D. Thompson (argued), Heyl, Royster, Voelker & Allen, Peoria, for appellee.
¶ 1 On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against defendant, Marlene Spurgeon, individually and as administratrix of the estate of Lorene D. Hart, for injuries suffered at a rental property owned by defendant. In November 2012, defendant filed a motion for summary judgment. In February 2013, the trial court granted the motion for summary judgment, concluding defendant did not owe a duty of care to plaintiff.
¶ 2 Plaintiff appeals, arguing the trial court erred in granting defendant's summary judgment motion. Plaintiff contends defendant owes her a duty of care and factual issues exist as to whether a dangerous condition was open and obvious and de minimis. We affirm.
¶ 5 On August 10, 2011, plaintiff filed a two-count complaint against defendant, individually and as administratrix of the estate of Hart, for injuries suffered at a rental property owned by defendant and located on Gaule Road in the Village of Rochester. Plaintiff alleged, on August 23, 2009, she was a tenant at the property and was walking on the property's driveway when a piece of the driveway broke and she fell, injuring herself. Plaintiff alleged defendant was negligent for failing to warn plaintiff about the condition of the driveway, failing to repair the driveway, and permitting the driveway to exist in a “state of disrepair.”
¶ 8 At her deposition, plaintiff testified she moved into the house on May 15, 2008. When she moved in, she performed a walk-through with defendant's children, Robert Spurgeon and Lisa Kaiser. During the walk-through, plaintiff asked about the driveway and Robert “said he was going to patch [it] or replace it.” Plaintiff dealt with Robert and Lisa about the day-to-day affairs. Robert “took care of maintenance” at the property and delivered water to the cistern. She testified she requested defendant repair the driveway “at least five times” and her requests “were always oral.” She testified Robert repaired the air conditioning once but did not mention other maintenance requests. On one occasion when Robert delivered water, he “ bottomed out” and said “he needed to get that driveway fixed or someone's going to really tear up their car.” Plaintiff testified she or another resident mowed the grass and she never attempted to “clean up or sweep out any of the broken pieces” in the driveway. A garage and a cattle gate were on the property and defendant and her family “were in and out on the driveway a lot.” She observed them use the driveway “probably 20[or] 25 times” during the time she lived there. They would use the driveway “when they had to come and check on the cows, or when they would switch the cows, or if they needed the garage.” She admitted she stopped paying rent in April 2009 and was given an eviction notice in August 2009.
¶ 9 On August 23, 2009, she walked down the driveway to the mailbox. The sun was out but she did not know what time of day it was. The driveway was made up of “asphalt, old asphalt.” She walked in a manner to avoid broken pieces of asphalt, she described this as a “zigzag” route. As she was walking back up the driveway she “stepped on the asphalt, the piece broke, and [her] ankle snapped.” She fell in the area between a telephone pole beside the driveway and the mailbox at the bottom of the driveway. The broken piece of asphalt was about the size of a football.
¶ 11 Defendant testified her mother, Lorene D. Hart, had lived in the house for 70 years before plaintiff moved in. Plaintiff was the first renter at the house. The driveway was never paved and when defendant's father was alive he “would just put bucket tar and sweep it down the driveway” and then “put pea gravel on top of it.” It had been more than 10 years since this had been done. Defendant's adult children, Robert and Lisa, were responsible for overseeing the property. Defendant retained the “last say” but most decisions were handled by them. They would have been able to take care of resurfacing the driveway without her approval. She stored a tractor and miscellaneous items in a garage on the property.
¶ 13 Lisa testified she is defendant's eldest daughter and assisted in managing the rental property. The driveway had been “broke up” for years and she described it as being loose gravel next to the road and then “asphalt crumbles up through the driveway.” She never considered the pieces of broken asphalt to be hazardous or a danger. She went on to the property with her son to repair a piece of soffit, and she “might go into the garage to get stuff because we had stuff out there that was left from my grandmother's house.” She did not know whether plaintiff requested Robert to repair the driveway and she had “never heard him say that the driveway had to be repaired because of [plaintiff's] request.”
¶ 15 In November 2012, defendant filed a motion for summary judgment. Defendant argued (1) she did not owe a duty of care because plaintiff fell in a public right-of-way, (2) the driveway condition was open and obvious, and (3) “plaintiff has failed to produce any evidence that the broken piece of asphalt is anything other than ‘ de minimus.’ ” Defendant attached an affidavit from Kaiser, a survey plat of the property, and, later, a copy of the lease.
¶ 16 Kaiser's affidavit states (1) she is “familiar with the plat of the subject property‘; (2) she “personally performed a measurement in this case of the distance between Gaule Road and the location of the utility pole on the property”; (3) “[T]the distance between the utility pole and the mailbox in this case is 8.5 feet”; and (4)
¶ 17 The lease provides for monthly rent of $550. It does not include a provision stating who is responsible for repairs but states the security deposit would be refunded if, among other things, “an inspection shows no damage beyond ordinary wear and tear.”
¶ 19 In February 2013, the trial court issued its written order and granted defendant's summary judgment motion. The court found the case presented no question of material fact the driveway's defect was concealed from plaintiff and no evidence defendant “took any efforts to control or make any repairs on the subject driveway prior to the fall.” It found the “evidence is undisputed in this case that the area where plaintiff fell was on a public right-of-way.” It concluded as a matter of law (1) the condition was open and obvious, and (2) the de minimis rule applies based on the fact it was a rural driveway and “the speculative nature of plaintiff's testimony about the size of the alleged defect.”
¶ 20 This appeal followed.
¶ 22 Plaintiff appeals, arguing the trial court erred in granting defendant's motion for summary judgment. Plaintiff argues defendant owed her a duty of care because (1) “a private landowner owes a duty of care to provide a reasonably safe means of ingress and egress from their property,” (2) defendant (a) made a promise at the time of the lease to repair the condition of the driveway and (b) voluntarily undertook to render a service to repair the driveway, (3) the condition was not open and obvious, and (4) the de minimis rule does not apply. Defendant argues she did not owe plaintiff a duty because (1) where plaintiff fell was located in a public right-of-way, (2) she had no obligation to repair or maintain the driveway, (3) the condition of the driveway was obvious and existed at the time of the lease, and (4) plaintiff “failed to produce any evidence that the broken piece of asphalt was anything other than de minimis.”
¶ 23 We consider the parties' specific arguments as interrelated issues affecting a landlord's duty of care to a tenant. We address them accordingly and conclude defendant did not owe a duty of care to plaintiff.
¶ 25 Section 2–1005 of the Code of Civil Procedure provides summary judgment shall be granted “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 (West 2012). “The purpose of summary judgment is not to try a question of fact but simply to determine if one exists.” Forsythe v. Clark USA, Inc., 224 Ill.2d 274, 280, 309 Ill.Dec. 361, 864 N.E.2d 227, 232 (2007). “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.” Williams v. Manchester, 228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1, 9 (2008). “If the undisputed material facts...
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