Thiede v. Tambone

• Decision Date: 17 April 1990
• Docket Number: No. 2-89-0797,2-89-0797
• Citation: 553 N.E.2d 817,143 Ill.Dec. 110,196 Ill.App.3d 253
• Parties: , 143 Ill.Dec. 110 Randy THIEDE, Plaintiff-Appellant, v. John R. TAMBONE, et al., Defendants-Appellees (The City of Woodstock, Defendant).
• Court: United States Appellate Court of Illinois

Page 817

553 N.E.2d 817

196 Ill.App.3d 253, 143 Ill.Dec. 110

Randy THIEDE, Plaintiff-Appellant, v. John R. TAMBONE, et al., Defendants-Appellees (The City of Woodstock, Defendant).

No. 2-89-0797.

Appellate Court of Illinois Second District.

April 17, 1990.

Rehearing Denied May 17, 1990.

Wisch & Dyer, Ltd., Greenbaum & Leavitt, Chicago, for Randy thiede.

Thomas K. Gerling, Brydges, Riseborough, Morris, Franke & Miller, Waukegan, Kevin J. Luther, Heyl, Royster, Voelker & Allen, Rockford, for John R. Tambone, Patricia Tambone, Better Living Institute, Inc. and City of Woodstock.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Randy Thiede, appeals from the circuit court's denial of his motion for reconsideration; plaintiff's motion had requested that the court reverse its earlier order granting summary judgment for defendants, John R. Tambone, Patricia Tambone, and the Better Living Institute, Inc., on plaintiff's negligence claim. Plaintiff contends the trial court erred in granting summary judgment for defendants because defendants owed plaintiff a statutory duty to maintain and repair the sidewalk abutting their property. Plaintiff further contends defendants' duty arose because they had assumed a special use of the public sidewalk. Alternatively, plaintiff claims that defendants themselves created the defect in the sidewalk and are, therefore, liable to plaintiff for his injuries resulting from falling on the defective area. We reverse the judgment and remand the cause because plaintiff presented sufficient evidence to raise a genuine issue of material fact, viz., whether defendants themselves caused or contributed to the defective condition of the sidewalk. Defendant, the City of Woodstock, is not a party to the instant appeal.

Defendant Better Living Institute, Inc. (BLI), has owned a house located at 329 Dean Street, Woodstock, Illinois, since approximately 1968. The house contains two apartments and is located on the east side of the street. Defendant John R. Tambone is a shareholder in BLI. In a deposition, Tambone testified that there were no other shareholders except possibly his wife, defendant, Patricia Tambone.

A driveway from Dean Street provides access to and parking for defendants' property. The driveway intersects with the public sidewalk which runs along Dean Street. Photographs contained in the record established that at this intersection the public walk has disintegrated and appears to be comprised of crumbled pavement or gravel. The portion of the driveway to the east of the walk, leading onto the property, appears to be similarly deteriorated and composed of a similar texture, while the portion of the driveway to the west of the walk, leading to the street, appears to be somewhat intact. On the northerly and southerly edges of the driveway, the sidewalk surface resumes, thus forming a lip or slightly raised portion of pavement.

On May 27, 1986, at approximately 10 p.m., plaintiff went out to jog. Plaintiff ran in a northerly direction on the sidewalk on the east side of Dean Street. As plaintiff entered the portion of the public walk which crossed defendants' driveway at 329 Dean Street, he noticed the pavement was not cement. Plaintiff proceeded across the drive, and his left toe caught the lip of the walk where the pavement resumed. Plaintiff fell and sustained serious injuries.

Plaintiff's second amended complaint against the Tambones and BLI alleged that defendants had a duty to use the driveway and the public sidewalk which crossed it so as not to create unsafe conditions for pedestrians and to repair defects of which they had notice. Plaintiff further alleged that defendants negligently disregarded their duties in that their use of the sidewalk created an unsafe condition; that defendants had notice of the sidewalk's defects and failed to maintain and repair the drive and the walk; that defendants failed to warn pedestrians of the dangerous and defective condition of the sidewalk; and defendants' failure to maintain and repair the driveway constituted a violation of a Woodstock city ordinance. Lastly, plaintiff asserted that defendants' negligence caused his injuries.

Defendants did not file an answer to plaintiff's second amended complaint but moved for summary judgment, claiming that no genuine issue of material fact existed and that they were entitled to summary judgment as a matter of law. In support of their motion, defendants stated that plaintiff's second amended complaint failed to allege any duty or negligent act recognized in Illinois. Additionally, defendants provided plaintiff's deposition.

In opposition to defendants' motion, plaintiff offered his affidavit and the photographs of the driveway and sidewalk upon which he relied in his deposition.

Both parties submitted lengthy written argument, and the court heard oral argument on the motion for summary judgment on January 26, 1989. In ruling in defendants' favor, the trial court observed that plaintiff had failed to present evidence that vehicles using defendants' driveway had broken up the sidewalk.

Plaintiff timely filed a motion for reconsideration which included affidavits of two neighborhood residents. The residents attested to the condition of the sidewalk in front of 329 Dean Street, the large number of vehicles using the driveway and the constant deterioration of the sidewalk over time. One affiant offered his opinion that the traffic on defendants' driveway caused the damage to the sidewalk.

Defendants objected to plaintiff's affidavits, contending that the affidavits were inadequate and contained conclusions. Defendant submitted portions of defendant John R. Tambone's deposition.

In a written opinion filed June 27, 1989, the trial court stated:

"The Plaintiff is correct that the court had indicated to the Plaintiff at the time of the entry of the Order granting Summary Judgment that if the Plaintiff could establish facts or reasonable inferences from facts that the Defendants had caused the defect to the sidewalk-driveway causing the Plaintiff's fall that the Court would reconsider it's [sic ] ruling. The Courts [sic ] analysis of the affidavits presented on behalf of the Plaintiff is that the affidavits go to the condition of the sidewalk-driveway only, but do not state any fact or reasonable inferences that establish how the defect was created."

The trial court concluded that its earlier entry of summary judgment for defendants was correct; thus, it denied plaintiff's motion for reconsideration. Plaintiff's timely appeal ensued.

The rules and procedures governing motions for summary judgment are clear and well established in the State of Illinois. Most important among the considerations of the trial court facing such a motion is the fact that summary judgment is an extraordinary remedy and will be granted only when the movant's right to judgment is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) The trial court's task is to determine whether issues of fact which are material to the dispute exist. (See Puttman v. May Excavating Co. (1987), 118 Ill.2d 107, 112, 112 Ill.Dec. 722, 514 N.E.2d 188.) If the trial court determines that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then the granting of a summary judgment is proper. Ill.Rev.Stat.1987, ch. 110, par. 2-1005(c).

The procedure for considering a motion for summary judgment further requires that the trial court construe the record before it most strictly against the movant; conversely, the court must view the record in the light most favorable to the nonmovant. (Gagliardo v. Vodica (1978), 58 Ill.App.3d 1053, 1055, 16 Ill.Dec. 424, 374 N.E.2d 1302.) In determining whether a genuine issue of material fact exists, the nonmovant may rely on reasonable inferences drawn from the materials considered on the motion. Yakupcin v. Baker (1980), 83 Ill.App.3d 624, 627, 39 Ill.Dec. 278, 404 N.E.2d 869.

Lastly, but no less importantly, the nonmovant is not required to prove his case in opposition to the summary judgment but must simply establish sufficient facts which could arguably support judgment in his favor. Williams v. Alfred N. Koplin & Co. (1983), 114 Ill.App.3d 482, 487, 70 Ill.Dec. 164, 448 N.E.2d 1042.

The issue presented on appeal is whether the record establishes that defendants owe a duty of care, statutory or otherwise, to plaintiff with regard to the maintenance, repair and/or use of the public sidewalk which abuts their property. Plaintiff contends that certain ordinances of the City of Woodstock obligate defendants to maintain and repair their driveway where it crosses the public sidewalk; plaintiff further asserts that defendants' violation of these ordinances subjects defendants to liability for injuries which result from such failures. Apart from the ordinance's requirements, plaintiff claims that defendants' duty to maintain their driveway and the public sidewalk where it intersects the driveway arises from the fact that defendants have appropriated the public walk for their own use. Lastly, plaintiff states that defendants have a duty to refrain from creating unsafe conditions on the public sidewalk where it abuts their property. Plaintiff claims that defendants' use of the sidewalk as a portion of their driveway has caused its current defective condition, thus imposing upon defendants a duty to repair the defects or warn pedestrians of their existence. We will address plaintiff's theories seriatum.

At the outset of our analysis, we note that our consideration of defendants' statutory duty to maintain and repair the sidewalk, if any such duty exists, is seriously hampered by the fact that neither party has provided us with an actual copy of the municipal ordinance in question. We cannot take judicial notice pursuant to section 8-1002 of the Code of Civil Procedure (...