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06/13/96 JOHN H. WOTIZ v. C. RICHARD GRUNY

June 13, 1996

JOHN H. WOTIZ, PLAINTIFF-APPELLANT,
v.
C. RICHARD GRUNY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County. No. 94-L-134. Honorable William G. Schwartz, Judge, presiding.

The Honorable Justice Rarick delivered the opinion of the court: Welch, J., concurs. Justice Chapman, dissenting:

The opinion of the court was delivered by: Rarick

The Honorable Justice RARICK delivered the opinion of the court:

Plaintiff, John H. Wotiz, appeals from the entry of summary judgment granted by the circuit court of Jackson County in favor of defendant, C. Richard Gruny. We affirm.

On December 16, 1993, Wotiz, a retired chemistry professor and social acquaintance of Gruny, attempted to return some catalogues he had borrowed from Gruny. Gruny had told Wotiz he did not need to return the catalogues, but Wotiz felt he should anyway. When no one answered the door, Wotiz decided to place the catalogues in Gruny's mailbox located to the right of the front door on the side of the house. There were, however, several outgoing letters in the mailbox. Wotiz tried to put the catalogues behind the envelopes, but some of the letters fell out of the box and into a flower bed below. In retrieving the letters from the bed, Wotiz slipped on a board, causing him to fall on his knees. The board was in fact a laminate sink cut-out sitting on top of four terra cotta pillars, which in turn were resting on a piece of plywood. All of the pieces together served as a shelter for cat food bowls. The shelter was located in the corner of the flower bed formed by the house and porch. Wotiz admitted seeing the laminate board but did not know it was resting on anything other than the ground because ivy covered the edges of the board. Wotiz ultimately required surgery on his left knee to remove torn cartilage. Wotiz filed a complaint against Gruny, alleging Gruny negligently failed to exercise reasonable care to correct a dangerous condition on his premises or warn others of the condition. Gruny responded with a motion for summary judgment, claiming that Wotiz became a trespasser once he entered the flower bed. The trial court granted the motion for summary judgment, finding no duty to one who "takes it upon himself or herself to rummage in the foliage of the property."

Wotiz argues on appeal that the trial court erred in granting Gruny's motion for summary judgment. Specifically, Wotiz contends that the court failed to construe the facts liberally in favor of him and incorrectly stated the law. Wotiz believes he was an "invitee" at all times and, therefore, was owed a duty of reasonable care to maintain the property in a reasonably safe manner, extending to the flower bed. Gruny counters that an owner or occupier of land is not liable to anyone for injuries resulting from conditions which would prompt no anticipation of an unreasonable risk of harm.

In an appeal from the granting of summary judgment, the only issue before the reviewing court is whether all the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Jewish Hospital v. Boatmen's National Bank, 261 Ill. App. 3d 750, 754, 633 N.E.2d 1267, 1272, 199 Ill. Dec. 276 (1994); Maxton v. Garegnani, 255 Ill. App. 3d 291, 294, 627 N.E.2d 723, 726, 194 Ill. Dec. 386 (1994). While Wotiz believes there exists a genuine issue of triable fact as to what status he occupied in entering the flower bed, we conclude that the trial court correctly determined that Gruny was entitled to summary judgment as a matter of law.

An owner or occupier of land is not liable to anyone for harm resulting from conditions on the premises which prompt no anticipation of an unreasonable risk of harm. Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 329, 383 N.E.2d 177, 181, 22 Ill. Dec. 701 (1978); West v. Faurbo, 66 Ill. App. 3d 815, 819, 384 N.E.2d 457, 459, 23 Ill. Dec. 663 (1978). In other words, no one is expected to guard against harm from events which are not reasonably anticipated at all or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded. Cunis v. Brennan, 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619 (1974); West, 66 Ill. App. 3d at 819, 384 N.E.2d at 459. The creation of a legal duty requires more than a mere possibility of occurrence. Cunis, 56 Ill. 2d at 376, 308 N.E.2d at 619; see also Hoffman v. Vernon Township, 97 Ill. App. 3d 721, 724, 423 N.E.2d 519, 521, 53 Ill. Dec. 135 (1981). Relevant factors in determining the existence of an obligation to act reasonably for the protection of a plaintiff include the foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against such an injury, and the consequence of placing that burden on the defendant. Swope v. Northern Illinois Gas Co., 251 Ill. App. 3d 850, 853, 623 N.E.2d 841, 843, 191 Ill. Dec. 251 (1993); West, 66 Ill. App. 3d at 819, 384 N.E.2d at 459. Here the burden is unreasonable. At the time of injury, Wotiz was in a flower bed, an area traditionally avoided by everyone. The shelter was located in the back corner of the bed by the house and posed only a slight risk of injury. Wotiz's stepping on the board and injuring himself was not reasonably foreseeable. We agree with the trial court that Gruny owed no duty to anyone who took it upon himself to enter into the foliage of a flower bed.

For the aforementioned reasons, we affirm the judgment of the circuit court of Jackson County.

Affirmed.

WELCH, J., concurs.

The Honorable Justice CHAPMAN, dissenting:

Plaintiff is neither a federal felon nor some petty robber of rhododendrons, concerns which apparently influenced both the trial court and the majority ...


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