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Leavitt v. BNSF Railway Co.

February 8, 2007


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


This is a negligence action arising from an incident in which Plaintiff Patricia Leavitt(hereinafter, "Leavitt") fell after stepping on a water meter pit cover that Defendant the Village of Posen (hereinafter, "Posen") owned and maintained Posen has moved for summary judgment. For the reasons stated herein, Defendant's Motion for Summary Judgment is DENIED.


The following facts are taken from the parties' Local Rule 56.1 submissions. The facts are undisputed, unless specifically stated otherwise. Because this is a summary judgment motion, all reasonable inferences are settled in the non-movant's favor.

On the morning of October 22, 2004, Leavitt was walking with a co-worker along Western Avenue in the Village of Posen. On their way to a nearby restaurant, the pair first followed a short stretch of sidewalk abutting a commercial building. The sidewalk ended, however, at the lot of Posen resident Mac Wilson ("Wilson"). Leavitt and her co-worker continued over the curbside grass, following what Leavitt characterizes as a "well worn path" and what Posen characterizes as "matted grass." Wilson, who willingly allows the public to cross his yard because there is no sidewalk, had no objection to Leavitt walking on his land.

Along Leavitt's trajectory, in Wilson's yard, Posen kept a water meter pit approximately 39 inches deep and 21 inches in diameter, which housed the water meter for Wilson's residence. A metal lid covered the meter pit. On October 21, 2004, Posen employee Ron Szczecina ("Szczecina") had removed and replaced the meter pit cover in the process of reading Wilson's meter. When Leavitt stepped on the cover on October 22, 2004, while crossing in front of Wilson's house, it gave way, causing her to fall.

Leavitt and her husband, Paul Swanson, (collectively, the "Plaintiffs") allege Posen was negligent in failing to maintain, inspect, and repair the meter pit cover; failing to replace and secure the cover; creating or allowing a dangerous condition to exist; and failing to warn of the allegedly dangerous condition.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view all the evidence and any reasonable inferences therefrom in the light most favorable to the nonmoving party. Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).


"In an action for negligence, the plaintiff must set out sufficient facts establishing the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach." Rowe v. State Bank of Lombard, 125 Ill.2d 203, 214 (Ill. 1988). Posen contests Plaintiffs' evidence of duty and breach and additionally claims statutory immunity against Plaintiffs' failure to warn claim.

A. Duty of Care

Whether a duty exists is a question of law for the court to determine. Lee v. Chicago Transit Authority, 152 Ill.2d 432, 446 (Ill. 1992). At common law, the duty owed to persons entering upon the land of another depended upon classification of the entrant into one of three categories: invitee, licensee, or trespasser -- with the first of these requiring the highest standard of care and the last the lowest. Miller v. General Motors Corp., 207 Ill.App.3d 148, 153-54 (4th Dist. 1990). In 1984 the Illinois Legislature modified this regime so that the duty owed to an invitee or a licensee is now the same -- ordinary care. Illinois Premises Liability Act, 740 ILCS 130/2 (West 2002). The duty owed to trespassers, however, remains only not to injure them willfully or wantonly. Miller, 207 Ill.App.3d at 159.

Posen argues that Leavitt was trespassing on Wilson's property when she fell, and that since the water meter pit was on Wilson's property to service Wilson's house, Posen derivatively enjoys Wilson's privilege against simple negligence liability to trespassers. Consequently, Posen ...

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