Schuman v. Pekin House Restaurant and Lounge

• Decision Date: 05 December 1967
• Citation: 102 Ill.App.3d 532,430 N.E.2d 145,58 Ill.Dec. 203
• Parties: , 58 Ill.Dec. 203 Sarah SCHUMAN, Plaintiff-Appellant, v. PEKIN HOUSE RESTAURANT AND LOUNGE, Quinn S. Fung, Kathleen Fung, Michigan Avenue National Bank of Chicago As Trustee Under Trust Agreement Dated
• Court: United States Appellate Court of Illinois

Page 145

430 N.E.2d 145

102 Ill.App.3d 532, 58 Ill.Dec. 203

Sarah SCHUMAN, Plaintiff-Appellant, v. PEKIN HOUSE RESTAURANT AND LOUNGE, Quinn S. Fung, Kathleen Fung, Michigan Avenue National Bank of Chicago As Trustee Under Trust Agreement Dated December 5, 1967 and Known as Trust No. 1268, Michigan Avenue National Bank of Chicago as Trustee Under Trust Agreement Dated December 1, 1976 and Known as Trust No. 2723, City of Chicago and Unknown Owners Defendants-Appellees.

No. 80-1612.

Appellate Court of Illinois, First District, Third Division.

Dec. 9, 1981.

Richter & Tucker, Ltd., Chicago, for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Lenard C. Swanson, William D. Serwer, of counsel), for defendants-appellees.

McGILLICUDDY, Justice:

The plaintiff, Sarah Schuman, brought this action for damages she suffered when she fell on a public sidewalk abutting the defendant Pekin House Restaurant in Chicago. Defendants Quinn S. Fung and Kathleen Fung are the beneficial owners of the land trust which owns the real estate upon which the restaurant is situated. The trial court entered summary judgment in favor of all defendants except the City of Chicago, and the plaintiff appealed. This action is pending against the City of Chicago.

In her complaint the plaintiff alleged that the sidewalk in front of the restaurant was "cracked, uneven, poorly and negligently patched and in a state of disrepair". She further asserted that the defendants ¹ allowed the sidewalk to remain in this state and that they repaired a portion of it in a poor and negligent manner which resulted in cracks and unevenness.

Defendants filed a motion for summary judgment in which they stated that they did not own the public sidewalk in front of the restaurant and that they had no duty to maintain it. In an affidavit accompanying the motion, Quinn S. Fung stated that at no time did anyone associated with the restaurant perform or secure the performance of any cement patching or repair work upon said sidewalk.

In her response to the motion for summary judgment, the plaintiff attached a portion of Quinn S. Fung's deposition in which he admitted that restaurant employees swept the sidewalk in front of the restaurant.

On April 22, 1980, the trial court entered its order of summary judgment. On appeal the plaintiff contends that this order was improper since the pleadings raised certain factual issues. The plaintiff contends that there was an issue of fact as to whether the defendants had a duty to repair the sidewalk; whether the defendants gratuitously assumed this duty; and whether the sweeping of the sidewalk by defendants' employees accentuated the unevenness and cracks in the sidewalk.

Summary judgment is properly granted when the pleadings, depositions and admissions on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill.Rev.Stat.1979, ch. 110, par. 57(3); Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535.) The right of the movant to summary judgment must be free from doubt, and any evidence in support of the motion must be strictly construed against the movant. Lesnik v. Estate of Lesnik (1980), 82 Ill.App.3d 1102, 38 Ill.Dec. 452, 403 N.E.2d 683.

The plaintiff first argues that the defendants owed her a duty to repair the cracks in the sidewalk. However, as a general rule, an owner or occupier of premises is not liable for personal injuries incurred on a public sidewalk under the control of a municipality. (Decker v. Polk Brothers (1976), 43 Ill.App.3d 563, 2 Ill.Dec. 432, 357 N.E.2d 599; Burns v. Kunz (1937), 290 Ill.App. 278, 8 N.E.2d 360.) Its only duty is to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk. (Repinski v. Jubilee Oil Co. (1980), 85 Ill.App.3d 15, 46 Ill.Dec. 278, 405 N.E.2d 1383.) Thus, the defendants had no duty to repair or maintain the public sidewalk.

Two cases cited by the...