Stackhouse v. Royce Realty & Mgmt. Corp., 2–11–0602.

• Decision Date: 04 June 2012
• Docket Number: No. 2–11–0602.,2–11–0602.
• Citation: 361 Ill.Dec. 278,970 N.E.2d 1224,2012 IL App (2d) 110602
• Parties: Cathy STACKHOUSE, Plaintiff–Appellee, v. ROYCE REALTY AND MANAGEMENT CORPORATION, Defendant–Appellant (Lakemoor Country Club, Inc., d/b/a Lakemoor Golf Course, Defendant).
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110602

970 N.E.2d 1224

361 Ill.Dec. 278

Cathy STACKHOUSE, Plaintiff–Appellee,

v.ROYCE REALTY AND MANAGEMENT CORPORATION, Defendant–Appellant (Lakemoor Country Club, Inc., d/b/a Lakemoor Golf Course, Defendant).

No. 2–11–0602.

Appellate Court of Illinois, Second District.

June 4, 2012.

Thomas H. Boswell, Timothy G. Shelton, Hinshaw & Culbertson LLP, Chicago, for appellant.

John A. Kornak, Mark J. Vogg, Thomas J. Popovich, Law Offices of Thomas J. Popovich, P.C., McHenry, for appellee.

OPINION

Justice SCHOSTOK delivered the judgment of the court, with opinion.

[361 Ill.Dec. 281]¶ 1 On April 26, 2008, the plaintiff, Cathy Stackhouse, was severely injured when a tree located on the property of the defendant Lakemoor Country Club, Inc. (Lakemoor), fell and struck her. The plaintiff filed a complaint against Lakemoor and its manager, the defendant Royce Realty and Management Corporation (Royce), sounding in negligence. A jury returned a verdict in the plaintiff's favor, finding the defendants equally responsible. Royce filed a motion for a judgment notwithstanding the verdict ( n.o.v.), which the trial court denied. Royce appeals from that order,¹ arguing that (1) it owed no duty to the plaintiff and (2) its breach of any purported duty was not the proximate cause of the plaintiff's injuries. We affirm.

¶ 2 On July 24, 2008, the plaintiff filed a complaint against the defendants, sounding in negligence. The complaint alleged that, on April 26, 2008, the plaintiff was walking on a path next to the golf course that was owned by Lakemoor and managed by Royce. While she was walking, a tree collapsed and fell on her, causing her severe injuries. The complaint alleged that the defendants were negligent because they (1) improperly maintained the golf course and failed to reasonably inspect it; (2) failed to remove a tree “with a propensity for falling and injuring the Plaintiff and others”; (3) permitted the tree to remain on the golf course property; and (4) failed to warn the plaintiff of the dangerous condition of the tree.

¶ 3 Between September 27 and October 8, 2010, the trial court conducted a jury trial on the plaintiff's complaint. The plaintiff testified that she lived at 190 Windward in Lakemoor, which was adjacent to the Lakemoor Golf Course. She had worked for Royce in 2002 as manager of the golf course pro shop. One of her responsibilities was “keeping an eye out” to make sure that the workers were doing their jobs. While working for Royce she knew Cesar Lopez, who was the golf course superintendent.

¶ 4 On July 10, 2006, she heard a noise outside her home. The next morning she saw that a huge tree had fallen across a golf cart path near the thirteenth tee of the golf course. When she looked at the tree stump, she thought the wood inside the stump looked unusual—like sponge or Styrofoam rather than solid wood. Since the inside of the tree looked so unusual, she took a series of photographs of the tree in anticipation of talking to someone at the golf course about the tree. Shortly after the tree fell, the plaintiff met with Lopez. She told him that she thought the tree was rotten and that maybe he should have it checked out. He told her that he would have “someone check them.” She was satisfied with the answer and had no reason not to believe him.

¶ 5 On April 26, 2008, at approximately 5:30 p.m., the plaintiff went behind her house to take her dog for a walk. The weather was windy. As she was walking near the thirteenth tee, a tree limb struck her on her back between her shoulders, throwing her forward, facedown onto the ground. She was subsequently transported to a hospital via helicopter.

¶ 6 Kevin Plencner testified that, since 2004, he had been the vice president of Royce. His duties included supervising Lopez. He expected Lopez to check the trees on the golf course to determine if they were healthy. Plencner would be concerned if a tree fell on the golf course, because it might kill or seriously injure someone. He would want Lopez to investigate why a tree fell, because there was a potential that it might happen with another tree at the same location. Plencner testified that, if Lopez did not have the expertise to determine why a particular tree fell on the golf course, he expected Lopez to hire an arborist to make that determination.

¶ 7 Lopez testified that he was employed by Royce as the golf course superintendent when both the 2006 and the 2008 trees fell. He knew the plaintiff because she had worked at the golf course in 2002. She lived near the thirteenth tee. The backyard of her home was adjacent to the area where the trees fell in 2006 and 2008. He did not recall having a conversation with the plaintiff about the tree that fell in 2006, but it was possible that the conversation took place. He had the tree that fell in 2006 removed. He did not contact an arborist or do anything else to determine why that tree had fallen.

¶ 8 David Boone, a certified arborist, testified that he visited Lakemoor on May 13, 2008, to determine why the limb from the tree at issue had struck the plaintiff. He determined that the 2006 and 2008 trees, which were both cottonwoods, failed because of structural weaknesses due to excessive decay. The cause of the decay was an aggressive fungus called ganoderma applanatum. The most common way for ganoderma applanatum to be introduced into a tree is via the root system. He determined the cause of the failure of the 2008 tree by using a mallet, a drill, and a measuring device.

¶ 9 Boone stated that the two trees stood approximately three to four feet from one another. If you stood between the trees, you could touch both at the same time. When trees of the same species are close together, it is fairly common for their root systems to join together. Boone believed that the 2006 tree transmitted the ganoderma fungus to the 2008 tree, thus causing that tree to fail as well. Boone also noted that the 2008 tree was close to several cart paths. One path was approximately 15 feet from the tree while another path was 27 feet from the tree.

¶ 10 Boone further testified that, had a certified arborist been called to Lakemoor in July 2006 to investigate the 2006 tree failure, the arborist would have noted the fruiting bodies on the trunk of the tree, observed the rot, and determined that the rot was what caused the tree to fail. The arborist would also have looked at the 2008 tree and evaluated it for structural soundness. Had the arborist evaluated the structural soundness of the 2008 tree, he or she would have decided, given the tree's location, the target potential, and the amount of structural decay present at that time, that the tree probably should be removed. Boone explained that the “target potential” meant that the tree would be considered an unreasonable risk because there was a high traffic potential with the proximity of the tee box and the surrounding cart paths. Boone acknowledged that the winds were strong on the day that the tree fell. However, he testified that, due to the diseased condition of the tree, it “could have fallen with no wind at all.”

¶ 11 On cross-examination, Boone acknowledged that in reviewing a photograph taken of the tree before April 26, 2008, he could not see the presence of any “fruiting bodies.” He could identify no other external evidence of disease; to the contrary, the tree had a healthy canopy of leaves. He testified that a tree can appear to be biologically healthy even when it is structurally unsound. The diseased condition of the tree might have been externally apparent, at best, six months to a year prior to the accident.

¶ 12 Dr. Bruce Allison, who was a professor in forest and wildlife ecology, testified that the only sure way to discover internal disease afflicting a tree before it falls is to employ a structural integrity analysis, using a resistograph, a drill, sound waves, and a mallet. As to the tree at issue, he testified that the tree's decay did not by itself cause the tree to fall. Rather, “extraordinary forces” working together—including heavy wind, an insufficient amount of remaining wood, and the tree's leafy crown—caused the tree to fall.

¶ 13 At the close of the plaintiff's case, the defendants moved for a directed verdict, which the trial court denied. At the close of trial, the jury returned a verdict in the plaintiff's favor and awarded her $4,529,322.34. The defendants made an oral motion for a judgment n.o.v., which the trial court denied. Royce subsequently filed a written motion for a judgment n.o.v., arguing that it owed no legal duty to the plaintiff. The trial court denied Royce's motion. The trial court explained that whether Royce owed the plaintiff a duty should be determined under traditional negligence principles. The trial court found that Royce had a duty to exercise reasonable care on the basis of its knowledge of the existence of a dangerous condition. The trial court additionally found that Royce had voluntarily assumed a duty to check the tree at issue when Lopez told the plaintiff that he would have “someone check them.” Further, there was sufficient evidence for the jury to determine that Royce's breach of its voluntarily assumed duty was the proximate cause of the plaintiff's injuries. Following the trial court's ruling, Royce filed a notice of appeal.

¶ 14 At the outset, we consider whether we have jurisdiction of Royce's appeal. The plaintiff argues that we do not, because Royce did not file a notice of appeal within 30 days after the trial court denied the defendants' oral motion for a judgment n.o.v. Royce insists that it complied with section 2–1202(b) of the Code of Civil Procedure (the Code) (735 ILCS 5/2–1202 (West 2010)) and timely filed its notice of appeal within 30 days of the denial of its written posttrial motion.

¶ 15 Section 2–1202 of the Code provides in pertinent part:

“(b) Relief desired after trial in jury cases, heretofore sought by reserved ...