APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
514 N.E.2d 68, 161 Ill. App. 3d 127, 112 Ill. Dec. 672
Appeal from the Circuit Court of Du Page County; the Hon. Robert D. McLaren, Judge, presiding. 1987.IL.1459
JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Plaintiff, Gail Burns, appeals from a summary judgment entered for defendant, Addison Golf Club, Inc., in an action in which plaintiff sought the recovery of damages for injuries sustained when she tripped on the exposed root of a tree on defendant's property. Plaintiff contends: (1) that the defendant failed to carry its burden of proof that the tree root was in a natural condition at the time of the injury, leaving a disputed issue of fact; and (2) that the trial court erred in finding, as a matter of law, that defendant owed no duty of reasonable care to plaintiff to warn or protect her from the natural condition of the tree root on defendant's golf course.
In her complaint, plaintiff alleged that on June 2, 1984, while playing golf on defendant's premises, she walked on a well-traveled path from the fourth green to the fifth tee and that her spiked golf shoe caught against the exposed root of a tree, causing her to fall and injure her foot. The complaint alleged that defendant was negligent in permitting the tree roots to remain exposed, by failing to remove or cover them and to level out the rough and uneven terrain, and by neglecting to provide barriers or warning signs near the tree. Plaintiff further alleged that as a proximate cause of defendant's negligence she sustained injury for which she was entitled to damages.
Defendant's motion for summary judgment essentially asserted that it owed no duty to plaintiff to safeguard her against tripping over the exposed root of a tree which was a natural condition of the golf course premises. The trial court considered the pleadings, depositions and affidavits submitted by the parties and determined, as a matter of law, that defendant had not breached its duty of care to plaintiff, as the exposed tree root was a natural condition which did not constitute a legal defect or hazard that could support a cause of action for negligence in this case.
Plaintiff contends first that summary judgment was improper on that ground as defendant had failed to establish that the exposed root was a natural condition, thus raising a disputed question of fact and making summary judgment inappropriate. Plaintiff argues that it was defendant's burden to establish that the root was in a natural condition, as it was the moving party for summary judgment. Defendant responds that it was plaintiff's burden to produce a prima facie case that defendant owed her a duty of care in answer to defendant's motion for summary judgment.
When a plaintiff appeals from a summary judgment granted to a defendant, the question on review is whether there is a genuine issue as to any material fact. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201.) Summary judgment is proper only where the indisputed evidence, when construed most strongly against the moving party, establishes that he is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201.) Although plaintiff, as the party opposing summary judgment, is not required to prove her case at this stage, she must provide a factual basis under which she would be entitled to judgment. (Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273.) On a defendant's motion for summary judgment, plaintiff has an affirmative duty to bring forth facts and evidence of a cognizable cause of action. 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273.
Under the circumstances of this case, we conclude that to avoid summary judgment plaintiff was required to show that she was injured as a result of an unnatural condition of defendant's premises. (See McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 551, 400 N.E.2d 16.) While plaintiff argues that in viewing the evidence in the light most favorable to her, whether the protruding tree root upon which she tripped was a natural or unnatural condition is a question for the trier of fact, we do not agree.
Alan Caskey, Ph.D., a person familiar with the design, construction, maintenance, and operation of golf courses, at plaintiff's request, viewed photographs of the tree in question and submitted an affidavit in these proceedings. Caskey stated that "the roots of a silver maple tree have a tendency to surface during drought conditions" and that "the conditions of the roots as shown in [the photographs] would require months of drought and foot traffic." No other evidence was offered by plaintiff suggesting that the condition of the tree root upon which plaintiff tripped was in an unnatural condition at that time. Uncontradicted facts contained in an affidavit must be taken as true for the purpose of a motion for summary judgment. (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 39, 496 N.E.2d 281, appeal denied (1986), 113 Ill. 2d 557.) The fact that foot traffic by plaintiff and other users of the golf course may have contributed to the exposure of the roots of the tree does not conflict with our Conclusion that no material issue of fact remained as to the natural condition of the place of plaintiff's injury. See Spirn v. Joseph (1986), 144 Ill. App. 3d 127, 129-30, 493 N.E.2d 1197; Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173, 488 N.E.2d 679; Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 899, 438 N.E.2d 241.
Plaintiff next contends that the trial court erred in determining as a matter of law that the tree roots did not constitute a legal defect or hazard which could sustain a cause of action for negligence.
We note initially that the occurrence upon which plaintiff's purported cause of action is based occurred prior to the September 12, 1984, effective date of the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.) and it is not applicable here. (Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 485 N.E.2d 478.) The common law duty of care to be considered provides that the owner of business premises has a duty to his invitees to exercise ordinary care in the use and maintenance of his property and to warn of dangerous latent conditions. Corcoran v. ...