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01/30/89 Richard D. Abernathy, v. Dynell Springs Company

January 30, 1989

RICHARD D. ABERNATHY, PLAINTIFF-APPELLANT

v.

DYNELL SPRINGS COMPANY, INC., D/B/A THE SABRE ROOM, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

534 N.E.2d 486, 179 Ill. App. 3d 138, 128 Ill. Dec. 304 1989.IL.89

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Plaintiff, Richard D. Abernathy, filed this action on September 4, 1980, in the circuit court of Cook County to recover damages for injuries sustained by him as a result of an automobile accident. Plaintiff named Thomas J. Oberleitner and Dynell Springs Company, Inc., d/b/a the Sabre Room, as defendants in this action. Plaintiff alleged in his complaint that Oberleitner was negligent in attempting to exit from the Sabre Room parking lot onto 95th Street, resulting in a collision of his motorcycle with Oberleitner's vehicle in the curb lane on 95th Street. Plaintiff further alleged that the Sabre Room was guilty of one or more of the following negligent acts: (1) caused to be erected a stone mason wall for decorative purposes; (2) allowed weeds and grass to grow adjacent to the wall which further obstructed the view of motor vehicle operators; (3) allowed the wall to be built so as to encroach upon the public right-of-way, and (4) failed to place adequate lighting and warning to the public regarding exiting vehicles.

Oberleitner was voluntarily dismissed on December 1, 1980, pursuant to a settlement. On April 4, 1981, the plaintiff filed an amended complaint adding Palos Township, the City of Hickory Hills and Cook County, alleging that they owned, operated, controlled, or maintained the roadway at/or about 8850 West 95th Street. Plaintiff filed a second-amended complaint on May 3, 1982. Subsequently, Palos Township, the City of Hickory Hills and Cook County moved for summary judgment, denying that they owned, operated, controlled, or maintained 95th Street, a State highway. Summary judgment was granted by the trial court on May 25, 1983, to Palos Township, the City of Hickory Hills and Cook County. On March 17, 1986, the Sabre Room filed a motion for summary judgment which was granted by the trial court on September 30, 1986. Plaintiff appeals that order.

On July 6, 1980, the plaintiff, Richard Abernathy, was injured at approximately 8850 West 95th Street in Palos Township in Cook County as he traveled west on 95th Street in the curb lane on his motorcycle. Plaintiff provided deposition testimony stating that while proceeding west on 95th Street there is a small hill that crests where the driveway of the Sabre Room parking lot meets 95th Street. Plaintiff stated that he saw a motor vehicle driven by Thomas Oberleitner exiting the driveway of the Sabre Room parking lot approximately 100 feet away. When he first saw the vehicle it was just starting to move but had not entered his lane. When the vehicle continued to move, the plaintiff attempted to go to his left to avoid the vehicle, but the left side of the driver's vehicle struck the right side of the plaintiff's motorcycle. Plaintiff acknowledged that he was never told that Oberleitner experienced difficulty seeing him prior to the accident.

Plaintiff maintains that a decorative stone wall, approximately four or five feet high, is located on each side of the Sabre Room driveway. A plat of survey revealed that the property line of the Sabre Room ended approximately 23 feet from the curb on 95th Street. The plat of survey further revealed that the last 9.58 feet of the stone wall closest to the street were located on property condemned by the State in 1940. Moreover, the wall ends approximately 13 feet from the curb. Therefore, it does not actually border 95th Street.

Arnold Muzzarelli, the owner of the Sabre Room, provided deposition testimony stating that the stone wall was erected prior to his purchasing the property in 1955. Moreover, he has not maintained or performed any work on the wall. Timothy McKeon, a witness to the accident, provided deposition testimony stating that when Oberleitner was exiting the Sabre Room parking lot, he initially stopped even with the wall and then entered the first lane on 95th Street prior to the collision. A potential expert witness provided an affidavit which contained his Conclusion that the stone wall was a major contributing cause of the accident. This affidavit, however, was struck by the trial court, and hence, is not part of the record.

Plaintiff argues that the trial court erred in granting summary judgment when there existed a genuine issue of material fact regarding whether the Sabre Room was negligent in violating a State statute and a Hickory Hills Township ordinance, and whether the stone wall was the proximate cause of the plaintiff's injuries. The defendant maintains that the entry of summary judgment was proper since it was supported by the pleadings, proofs and exhibits.

The purpose of a summary judgment proceeding is to determine whether a genuine issue of material fact exists. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) It is well settled that a motion for summary judgment will only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue of any material fact and the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.

We recognize that summary judgment is a drastic means of disposing of litigation, and therefore, should only be granted when the right of the moving party is free from doubt. (Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 339, 431 N.E.2d 62.) However, a motion for summary judgment will not be denied even if there are fact issues in dispute where the issues are not material to the essential elements of the cause of action or defense. Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 259, 512 N.E.2d 993; Shultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 805, 352 N.E.2d 310.

Plaintiff argues that the defendant, as the owner of the subject property, owed a common law duty of care to the plaintiff in the use of its property, and that the defendant breached his duty of care by allowing the stone wall to extend from his property onto the State highway limits. Therefore, he maintains that as a result of this breach, summary judgment should not have been granted. Plaintiff further argues that an issue of material fact existed regarding whether the stone wall was the proximate cause of the collision between Abernathy and Oberleitner. The defendant contends that it owed no legal duty to the plaintiff. To sufficiently state a cause of action for negligence, the plaintiff must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty and an ...


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