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08/30/94 DOROTHY SMOLEK AND LOUIS SMOLEK v. K.W.

August 30, 1994

DOROTHY SMOLEK AND LOUIS SMOLEK, PLAINTIFFS-APPELLANTS,
v.
K.W. LANDSCAPING, DEFENDANT (OLLMAN TOWN HOMEOWNERS ASSOCIATION, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 91-L-1965. Honorable Edward R. Duncan, Judge, Presiding.

Doyle, Quetsch, Colwell

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff Dorothy Smolek's personal injury action against defendants, the Ollman Town Homeowners' Association (Association) and K.W. Landscaping (K.W.), arose from injuries she sustained after stepping into a hole on the Association's property. Dorothy's husband, plaintiff Louis Smolek, commenced an action against defendants for loss of consortium. At the close of plaintiffs' case, the circuit court of Du Page County granted defendants' motions for directed verdicts. On appeal, plaintiffs argue that they presented evidence sufficient to allow the jury to conclude that the Association had constructive notice of the dangerous condition that existed on its property.

Plaintiffs lived in the West Lake Town Home Complex in Glendale Heights. The Association managed this complex. They purchased the town home in 1978 and became members of the Association. The Association owns and maintains the lawn that is adjacent to plaintiffs' town home. The lawn is one of the common areas of the town home complex.

At about 8 a.m. on September 30, 1989, Dorothy took one of her dogs for a walk. Plaintiffs owned two dogs. Dorothy walked each one separately, taking each one for a walk about five or six times per day. She took the same route daily for about three years. She would walk out of the back door, onto the lawn, and on top of a berm. This berm was about 50 feet from her home. The top of the berm was flat, and she typically walked the dogs around the several trees that are on the berm. On the day in question, she walked out of the back door and onto the lawn. As she was walking on top of the berm, her left foot got caught in a hole, and she fell forward. According to plaintiff, the hole was about four to eight inches deep. It was shaped like an oval and was about 18 inches long and 12 inches wide.

Dorothy testified that she did not see the hole as she was walking because the surrounding grass grew up over it and had concealed it. She was able to get up and free her foot from the hole. As she attempted to step down from the berm, her left foot gave, and she slid down the hill.

Dorothy further testified that there was a crab apple tree at the location of the hole in which she tripped. This tree was removed either in the autumn of 1988 or the spring of 1989. However, in the three years that Dorothy walked her dogs in this area, she never noticed any holes. She also testified that she did not know if the association knew of the existence of the hole prior to the accident.

Louis Smolek testified that he was at home at the time of the accident and went to Dorothy's aid after hearing her yell for help. About one week after the accident, Dorothy described to Louis the location of the hole. Initially, Louis could not locate the hole, but he eventually found it on another occasion. Louis stated that there were tree roots, wood chips, and vegetation inside of the hole and that the hole varied from four to eight inches in depth. He also stated that there used to be a crab apple tree at the location of the hole and thatsomeone removed the tree either in the autumn of 1988 or the spring of 1989. Neither Louis nor Dorothy complained to the Association about the hole and neither measured its dimensions. Louis did not know whether the Association knew of the hole's existence prior to the accident.

Kenneth Wellhausen testified that he is the president of defendant K.W. In 1989, K.W. contracted with the Association to perform lawn maintenance services for the town home complex. Pursuant to the contract, K.W. employees cut, fertilized, and raked the lawn. The lawn care season was from April 1 to October 31, and the contract required K.W. to rake the lawn and clean up other debris every spring and every autumn. Before K.W. and the Association executed the contract, K.W. offered, for $1,500, to repair, with soil and grass seed, damaged and sunken turf. The Association declined the offer.

At the close of plaintiffs' case, the trial court granted both defendants' motions for directed verdicts. The court found that the Association had neither actual nor constructive notice of the existence of the hole. Plaintiff timely appealed from the order granting the Association's motion for a directed verdict. K.W. is not a party to this appeal.

Plaintiff's contend that they presented evidence sufficient to allow a jury to determine whether the Association had constructive notice of the existence of the hole. The relationship between the Association and plaintiffs is most akin to that of a landlord and tenant. The Association owned and maintained the area in question as a common area for the use of the residents of the town home complex. Therefore, the Association had the duty to exercise reasonable care to keep the premises over which it maintained control for the common use of the residents in a reasonably safe condition. ( Williams v. Lincoln Tower Associates (1991), 207 Ill. App. 3d 913, 916, 152 Ill. Dec. 814, 566 N.E.2d 501.) A person or entity in the Association's position will be liable for an injury to a person lawfully in such a common area that results from a breach of this duty. ( Williams, 207 Ill. App. 3d at 916.) In order to demonstrate that a defendant breached its duty of maintaining the premises under its control in a reasonably safe condition, it is necessary to establish that the defendant had actual or constructive knowledge of the existence of the dangerous condition that caused the injury. Gengler v. Herrington (1991), 219 Ill. App. 3d 6, 11, 161 Ill. Dec. 864, 579 N.E.2d 412.

Plaintiffs do not claim that the association had actual knowledge of the existence of the hole. Generally, if a plaintiff is relying on proof of constructive notice, she must establish that the dangerous condition existed for a sufficient time or was so conspicuous that the defendant should have discovered the condition through the exerciseof reasonable care. ( Burke v. Grillo (1992), 227 Ill. App. 3d 9, 18, 169 Ill. Dec. 45, 590 N.E.2d 964; Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 556, 16 Ill. Dec. 758, 375 N.E.2d 865.) Also, a defendant who has notice of facts which would cause a reasonable person to inquire further may be charged with having notice of other facts that might have been discovered after a reasonable inquiry. ( Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 774.) Generally, whether a defendant is deemed to have constructive notice of the existence of a dangerous condition on its property is a question of fact. However, a directed verdict in the defendant's favor is appropriate if the evidence, viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary finding based on that evidence could ever stand. Mazzone v. Chicago & North Western Transportation Co. (1992), 226 Ill. App. 3d 56, 62, 168 Ill. Dec. 232, 589 N.E.2d 632.

Plaintiffs first argue that the evidence was sufficient to allow the jury reasonably to conclude that the hole existed for a sufficiently long time to impute notice to the Association. Both plaintiffs testified that, in either the autumn of 1988 or the spring of 1989, someone removed a crab apple tree that stood in the same location as the hole. Plaintiffs claim that the jury could reasonably infer that ...


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