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Doak v. City of Moline

July 13, 2001

PEGGY DOAK, PLAINTIFF
v.
THE CITY OF MOLINE, A MUNICIPAL CORPORATION, DEFENDANT-THIRD PARTY PLAINTIFF-APPELLANT
v.
RYAN L. ROWE, THIRD PARTY DEFENDANT-APPELLEE



Appeal from the Circuit Court of the 14th Judicial Circuit Rock Island county, Illinois, No. 99-L-126 Honorable Ronald C. Taber, Judge Presiding

The opinion of the court was delivered by: Justice Slater

UNPUBLISHED

The defendant, the City of Moline (the City), appeals from an order of the circuit court granting third party defendant Ryan Rowe's motion to dismiss. On appeal, the City argues that the trial court erred in:

(1) granting Rowe's motion to dismiss; and

(2) denying its requests to amend the pleadings.

For the following reasons, we affirm.

The record reflects that on August 31, 1998, the plaintiff, Peggy Doak, was jogging in the vicinity of 14th Street and 23rd Avenue in Moline, Illinois, when she allegedly tripped and fell on an uneven and sunken portion of the sidewalk. As a result of the fall, Doak claims that she sustained serious injuries. The sidewalk where Doak was allegedly injured was adjacent to and abutting Rowe's property.

On July 22, 1999, Doak filed suit against the City of Moline alleging that it failed to properly maintain its sidewalks and allowed the sidewalk to be in a defective and dangerous condition. The City of Moline subsequently filed a third party complaint against Rowe for failing to discharge his duties to maintain the sidewalk pursuant to city ordinance. That ordinance provides, in part:

"It shall be the responsibility of the abutting property owner to maintain the sidewalk as to proper alignment, grade and surface." Moline Municipal Code § 28-3104 (eff. February 24, 1998).

On February 4, 2000, Rowe filed a motion to dismiss. 735 ILCS 5/2--615 (West 1998). After a hearing, the trial court found: (1) the City of Moline had a non-delegable duty to maintain its sidewalks; and (2) the City's ordinance attempted to place that duty on abutting landowners. Therefore, the court held that the ordinance was unenforceable and granted Rowe's motion to dismiss.

On appeal, the City first argues that the trial court erred in granting Rowe's motion to dismiss. Specifically, it contends that the ordinance is a valid exercise of its police power and therefore legally imposes an affirmative duty on Rowe to maintain the sidewalk. To support this contention, it cites to City of Carbondale v. Brewster, 78 Ill. 2d 111, 398 N.E.2d 829 (1979).

A trial court may dismiss a complaint where the pleadings show that the plaintiff can prove no set of facts that would entitle him to relief. See 735 ILCS 5/2--615 (West 1998). Appellate courts will review a motion to dismiss on a de novo basis. Toombs v. Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993).

We find the City's argument to be without merit. In Brewster, our Supreme Court held that an ordinance requiring a landowner to remove ice and snow from the sidewalk abutting their property was a valid exercise of police power. Brewster, 78 Ill. 2d at 118, 398 N.E.2d at 833. In so holding, the court noted:

"The burden is not so manifestly disproportional or unrelated to a legitimate classification as to amount to unjust discrimination. The expenditure of time and effort, and perhaps expense, which the ordinance exacts is incidental to the enjoyment of ...


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