Ford v. Round Barn True Value, Inc.

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-06-1008 NRel

Case Date: 09/05/2007

Preview:NO. 4-06-1008 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed Eff. 9/5/07

SHANNON W. FORD, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Champaign County ROUND BARN TRUE VALUE, INC., d/b/a ) No. 05L243 SUNNYCREST TRUE VALUE; BODY FIRM, ) INC., d/b/a GOLD'S GYM; and DANIEL ) Honorable MARK McCULLEY, d/b/a GOLD'S GYM, ) Jeffrey B. Ford, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In October 2005, plaintiff, Shannon W. Ford, filed a three-count negligence suit against defendants, Round Barn True Value, Inc., doing business as Sunnycrest True Value (True Value); Body Firm, Inc., doing business as Gold's Gym; and Daniel Mark McCulley, doing business as Gold's Gym (Body Firm and McCulley are hereinafter collectively referred to as Gold's Gym), for his injury sustained in True Value's parking lot after he had worked out at Gold's Gym. In January 2006, Gold's Gym filed a

motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619 (West 2004)). After a March 2006 hearing, the trial court In June 2006, True Value

granted Gold's Gym's motion to dismiss. filed a motion for summary judgment.

After an October 2006

hearing, the court granted summary judgment in favor of True Value.

Plaintiff appeals, contending the trial court erred by granting (1) Gold's Gym's motion to dismiss and (2) True Value's motion for summary judgment. We affirm.

I. BACKGROUND According to plaintiff's deposition, on October 20, 2003, he had been a member of Gold's Gym on Colorado Avenue in Urbana, Illinois, for approximately a year and half. Between 7

and 9 p.m. that evening, plaintiff rode his motorcycle to Gold's Gym to work out. After driving around Gold's Gym's parking lot

and observing no empty parking spaces, plaintiff rode his motorcycle into True Value's parking lot, which was adjacent to Gold's Gym. lot. True Value was closed when plaintiff entered the parking Plaintiff parked his motorcycle in True Value's parking lot He had parked at True Value when at

and went into Gold's Gym.

Gold's Gym on about 20 times prior to that evening. While plaintiff had never discussed parking at True Value with anyone at Gold's Gym or True Value, Gold's Gym had a sign posted on its front door and bulletin board that stated the following: "ATTENTION MEMBERS: TRUE VALUE HAS BEEN KIND ENOUGH TO LET US USE THEIR PARKING LOT--SO PLEASE DO NOT ABUSE THIS PRIVILEGE. PLEASE ONLY PARK ON THE EAST SIDE OF THE - 2 -

LOT BEFORE 6PM SO THEY HAVE ROOM FOR THEIR CUSTOMERS. THANK YOU FOR BEING COURTEOUS, AND REMEMBER TO SHOP TRUE VALUE FOR ALL YOUR HOUSEHOLD NEEDS." (Emphases in original.) After

Plaintiff worked out for about 30 to 45 minutes. the workout, plaintiff returned to his motorcycle.

He started

the motorcycle and proceeded to the parking lot's exit that faced Philo Avenue at a speed of between 10 to 15 miles per hour. plaintiff approached the exit, he slowed down to around three miles per hour to watch for oncoming traffic. several potholes with gravel around them. feet away from the gravel when he saw it. He then spotted As

Plaintiff was about 10 Plaintiff continued to

brake and drove to the left side of one of the potholes to avoid it. On the exit's decline to the street, plaintiff's motorcycle

caught some gravel from the pothole, which caused the motorcycle to tilt toward the left. Plaintiff put his left foot down to

brace the motorcycle and jammed his left tibia against the concrete. Plaintiff was able to keep the motorcycle up and put Plaintiff then fell off the motorcycle He had suffered a fracture to his

the kickstand down.

because he could not walk. tibial plateau.

At the time of the accident, it was dusk, the

weather was warm and clear, and the pavement was dry. Plaintiff also stated he had driven through the area - 3 -

where the accident had occurred on prior visits to Gold's Gym. He also indicated he was aware a motorcycle could slip and slide on gravel at low speeds. In his deposition, Lance Cooper, the True Value manager and son of the owners, testified he was aware of a pothole existing on October 20, 2003, but did not have any recollection of loose gravel inside or around the pothole. Lance described

the pothole as shallow and estimated it at no more than an inch in depth. The parking lot was paved with blacktop and could have

had broken blacktop, which Lance defined as granules of blacktop. The pothole was located in an area that sloped to the street. After Lance became aware of plaintiff's accident, he inspected the area of the parking lot where the accident occurred. Lance

stated the pothole was of shallow depth and that he had personally driven over it. He did see loose blacktop in the area but

did not consider it to be a potential hazard. Lance also indicated he drove a motorcycle and had driven it on True Value's parking lot in the area at issue before October 20, 2003. He denied having encountered loose blacktop or Lance believed encountering loose blacktop He

having any problems.

while slowing down on a motorcycle could present a hazard.

was unaware of any other accidents resulting from the pothole at issue and had no knowledge of anyone complaining about the pothole. - 4 -

We note other depositions were taken and included in the record but are not necessary to our resolution of the issues on appeal. On October 19, 2005, plaintiff filed a three-count negligence complaint against True Value and Gold's Gym. In

November 2005, True Value filed an answer and asserted three affirmative defenses to plaintiff's complaint. In January 2006,

Gold's Gym filed a section 2-619 motion to dismiss, asserting it did not own, maintain, or control the parking lot on which plaintiff was injured. by McCulley. Attached to the motion was an affidavit

In the affidavit, he stated that, at the time of

the accident, True Value allowed customers visiting Gold's Gym to use its parking lot. Neither he nor Body Firm had any ownership Additionally, neither he

interest in True Value's parking lot.

nor Body Firm had ever requested, performed, or paid for any upkeep, maintenance, or repairs on True Value's parking lot. Plaintiff filed a response to the motion to dismiss but did not attach any counteraffidavits or in any other way challenge McCulley's affidavit. After a March 2006 hearing, the trial

court granted Gold's Gym's motion to dismiss. In June 2006, True Value filed a motion for summary judgment, asserting (1) it had no duty to warn because the gravel was an open and obvious condition, (2) it did not owe plaintiff a duty of reasonable care because he was a trespasser, (3) the - 5 -

gravel was not an unreasonably dangerous condition, and (4) True Value did not have actual or constructive notice of the dangerous condition. In September 2006, plaintiff filed a response to True

Value's summary judgment motion, to which he attached his affidavit. In his affidavit, plaintiff indicated he was going to exit

onto Colorado Avenue, not Philo Avenue as he had stated in his deposition. He also stated that, when he first observed the Plaintiff

pothole, he did not see the gravel strewn around it.

noted he only saw the pothole from 10 feet away, not the gravel. He went to the left to avoid the pothole and redirected his attention toward the traffic on Colorado Avenue. While he was

able to avoid the pothole, he could not avoid the gravel around it. Immediately before encountering the gravel, his attention In October 2006,

had been on the traffic on Colorado Avenue.

True Value filed a motion to strike plaintiff's affidavit. In October 2006, the trial court held a joint hearing on True Value's motion for summary judgment and its motion to strike plaintiff's affidavit. While the court did not expressly

state it was striking plaintiff's affidavit, the court declared plaintiff was bound by his deposition testimony. The court

further found True Value did not owe plaintiff a duty because the condition was open and obvious and that plaintiff was a trespasser at the time of the accident. In accordance with its

findings, the court granted summary judgment in favor of True - 6 -

Value.

This appeal followed. II. ANALYSIS A. Gold's Gym's Motion To Dismiss Plaintiff first asserts the trial court erred in

granting Gold's Gym's motion to dismiss. With a motion to dismiss under section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2004)), the movant admits the legal sufficiency of the plaintiff's complaint but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim. Such a motion presents a question of law, and

thus our review of the trial court's ruling on the motion is de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, Moreover, in ruling on a section 2-619 motion to

236 (2006).

dismiss, a court may consider pleadings, depositions, and affidavits. When affidavits in support of the motion have not been

challenged or contradicted by appropriate methods, the court deems admitted the facts stated in the supporting affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262, 807 N.E.2d 439, 447 (2004). To prevail in a negligence action, a plaintiff's complaint must set forth facts establishing the existence of (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) an injury proximately caused by that breach. Marshall v. Burger King Corp., 222 Ill. 2d 422, 430, 856 N.E.2d - 7 -

1048, 1053 (2006).

Citing Hanks v. Mount Prospect Park District,

244 Ill. App. 3d 212, 217-18, 614 N.E.2d 135, 139 (1993), in its motion to dismiss, Gold's Gym asserted plaintiff could not establish it owed him a duty because his injury occurred on land owned by and under the control of True Value. In Hankes, 244

Ill. App. 3d at 213, 614 N.E.2d at 136, the plaintiff was struck by a car when crossing a private parking lot owned by another party after she had been playing on a playground owned by defendant that was directly south of the parking lot. The court found

the defendant did not owe a duty to plaintiff because the injury occurred on land that was not owned or controlled by the defendant. Hanks, 244 Ill. App. 3d at 218, 614 N.E.2d at 139. Plaintiff contends this case is distinguishable from Hanks and Gold's Gym owed him a duty based upon its status as a landowner and other common-law principles. Generally, "[a] landowner has a duty to provide a safe means of ingress and egress to his premises for his invitees." Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902, 735 N.E.2d 758, 764 (2000). Depending on the particular facts of the case,

that duty may extend beyond the precise boundaries of such premises. Abdo v. Trek Transportation Co., 221 Ill. App. 3d 493,

497, 582 N.E.2d 247, 251 (1991). With sidewalks, a landowner will not ordinarily be held liable for injuries sustained on a public sidewalk under a - 8 -

municipality's control, even where the sidewalk may also be used for ingress or egress to the landowner's premises. Friedman v.

City of Chicago, 333 Ill. App. 3d 1070, 1073, 777 N.E.2d 430, 433 (2002). However, if the landowner appropriates the sidewalk for

its own use, the landowner then has a duty to insure the sidewalk is safe. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill. App. 3d In cases where the land-

424, 432, 533 N.E.2d 486, 491 (1988).

owner has been held to have appropriated a sidewalk for its own use, the courts have found the owner performed an affirmative act of appropriation. 491. Dodd, 178 Ill. App. 3d at 432, 533 N.E.2d at

Plaintiff cites two such sidewalk cases. In McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d

345, 348, 272 N.E.2d 369, 371 (1971), the plaintiff was injured when she stepped into a hole in a parkway owned by the city and located across a public sidewalk from the parking lot maintained by the defendant for its tavern and bowling patrons. The side-

walk adjacent to the defendant's parking lot was regularly used by the defendant's patrons for parking purposes, which blocked it for normal use by the patrons. 272 N.E.2d at 374. McDonald, 1 Ill. App. 3d at 352,

The McDonald court noted plaintiff had

exercised the only means of egress made available by the defendant. McDonald, 1 Ill. App. 3d at 353, 272 N.E.2d at 374.

Additionally, the owner of the business testified he had known of a defect at issue for some time. McDonald, 1 Ill. App. 3d at

- 9 -

350, 272 N.E.2d at 372. In Cooley v. Makse, 46 Ill. App. 2d 25, 27, 196 N.E.2d 396, 397 (1964), the plaintiff fell some two or three feet from a tavern's concrete steps on a brick walk that was on a city-owned easement. The brick walk was a means of ingress and egress to

the tavern building as it provided the only access to the front door. Cooley, 46 Ill. App. 2d at 28, 30, 196 N.E.2d at 397-98.

The Cooley court found the normal use of the tavern's entrance by an invitee presupposed the normal use of the brick walk where the plaintiff was injured. at 399. Cooley, 46 Ill. App. 2d at 32, 196 N.E.2d

Both the tenant tavern owner and the landlord knew or Cooley, 46 Ill.

should have known of the brick walk's condition. App. 2d at 31, 196 N.E.2d at 398-99.

In this case, we are not dealing with an accident on an adjacent public sidewalk or other public property as in Coley and McDonald. Hanks. We have an accident on adjacent private property as in

McCulley stated in his affidavit that True Value allowed As

customers of Gold's Gym to use True Value's parking lot.

plaintiff stated in paragraph six of both counts against Gold's Gym, True Value controlled and maintained the parking lot. McCulley's affidavit also indicated Gold's Gym did not in any way participate in the maintenance or repairs of True Value's parking lot. Moreover, no facts were alleged that Gold's Gym's in any

way altered True Value's parking lot, interfered with True - 10 -

Value's control and/or maintenance of its property, or treated True Value's parking lot as its own. Thus, the facts indicate

True Value retained all control and maintenance of the parking lot and Gold's Gym was merely given permission to have its customers use True Value's parking lot. We disagree with plain-

tiff that Gold's Gym's communication of True Value's permission to use its parking lot was an affirmative act of appropriation. We also disagree Hanks is distinguishable because Gold's Gym informed its customers they could park on True Value's parking lot. Accordingly, we find Gold's Gym did not owe a duty to

plaintiff as the adjacent property owner. Moreover, we agree with Gold's Gym that plaintiff has forfeited his other arguments challenging the trial court's dismissal by failing to cite authority as required by Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). See In re

Estate of Doyle, 362 Ill. App. 3d 293, 301, 838 N.E.2d 355, 36263 (2005). Thus, we find the trial court did not err by granting Gold's Gym's motion to dismiss. B. True Value's Motion for Summary Judgment Plaintiff also contends the trial court erred by granting True Value's summary-judgment motion. A grant of summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no - 11 -

genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West

2004); Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 214-15, 850 N.E.2d 183, 195 (2006). While summary judgment

aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and thus should be allowed only when the right of the moving party is clear and free from doubt. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43, 809 N.E.2d 1248, 1256 (2004). We review de novo the trial court's See Governmental

grant of a motion for summary judgment.

Interinsurance Exchange, 221 Ill. 2d at 215, 850 N.E.2d at 195. In determining whether a defendant owed plaintiff a duty, courts consider the following: (1) the reasonable

foreseeability and (2) the likelihood of injury, and (3) the magnitude of the burden on the defendant in guarding against injury and (4) the consequences of placing that burden on the defendant. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389, 706 When a plaintiff alleges an injury

N.E.2d 441, 446 (1998).

caused by a condition on a defendant's property while on the property as an invitee, this court analyzes the foreseeability factor under section 343 of the Restatement (Second) of Torts (Restatement) (Restatement (Second) of Torts

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