Appeal from the Circuit Court of Cook County 06 L 11107 Judge Presiding JUSTICE McBRIDE delivered the judgment of the court, with opinion.
The opinion of the court was delivered by: Honorable Jennifer Duncan-Brice,
Justices Cahill and R. E. Gordon concurred in the judgment and opinion.
A dead tree limb fell from a public forest preserve onto a car traveling on an adjacent road. The motorist filed a negligence action, but the trial court entered summary judgment for the forest preserve (735 ILCS 5/2-1005 (West 2004)), on grounds that it did not owe the motorist a duty of care to maintain its property. The motorist appeals.
Plaintiff Darryl L. Belton,*fn1 of Hammond, Indiana, was injured on December 30, 2005, at about 8:30 p.m. while driving his 2005 Pontiac G6 sedan westbound through Calumet City, Illinois, on 159th Street, which was also known as River Oaks Drive due to its proximity to River Oaks shopping center. The road was controlled by the Illinois Department of Transportation (hereinafter Department of Transportation) or Calumet City. Directly north of the road was land that was mostly undeveloped and maintained as the Green Lake forest preserve by defendant Forest Preserve District of Cook County (hereinafter District). Belton was driving past the public recreational area toward Torrance Avenue when a large, dead limb fell from a cottonwood tree onto his vehicle. He was transported from the scene to the hospital with injuries including a fractured vertebra and his car was towed away. The driver of the vehicle immediately following Belton's Pontiac saw what occurred.
Belton sued the District, but not Calumet City or the Department of Transportation, in the circuit court of Cook County. In count I of his second amended complaint, Belton sought compensation for personal injuries and property damage caused by the District's negligence, based on allegations that he was on "a public thoroughfare," it is "common knowledge *** that dead trees and associated limbs are structurally unsound and at an extreme risk for collapse or fall" and it is "routine for property owners containing trees which adjoin or are near to public roadways to inspect trees and create 'safe zones' to ensure trees and limbs do not fall onto public roadways." He alleged the District "had a duty under [sic] to exercise ordinary care to maintain its property and prevent dead tree limbs or dead trees from falling onto adjoining roadways." He further alleged, "The cost of a visual inspection of trees adjoining roadways would have been minimal, and should have been employed at the Green Lake Woods area." Also, the tree and specific limb which fell onto his vehicle were so rotten or decayed for a "substantial period" that it would have been obvious from a "drive-by visual inspection" that they "posed immediate threats to the public," and because of the limb's "open and obvious position adjoining River Oaks Drive," the District "should have known of [its defective] condition." Finally, "The catastrophic consequences of the [District's] failure to inspect its trees were foreseeable, known, and greatly outweighed the practicability and cost of inspection." In count II of the second amended complaint, Belton alleged a statutory violation, but he withdrew this claim, and in prior complaints he had alleged willful and wanton conduct, but he did not allege this theory in the pleading at issue on appeal.
The parties' discovery included deposing John Raudenbush, a 27-year employee of the District, and his supervisor, Richard D. Newhard, who had been with the District for 36 years. Both men had degrees in natural resources management and were recognized by the International Society of Arborists as certified arborists. Their testimony established that District employees pruned and removed vegetation if it would impede mowing operations or was in recreational areas such as picnic grounds and could pose a hazard to users of the preserve. Most of the resource management employees working in the Green Lake area in 2005 had gone through the time-consuming process of becoming certified arborists and were formally trained to determine whether trees were potentially hazardous. Indications of a potential hazard would include dead wood or branches, a lack of any bark, fungus growth, a compromised root system, erosion, and whether the tree would cause damage to individuals or personal property if it failed. Only about 10% of the District's property holdings were for recreational use, such as picnicing, and in the other areas the District normally adhered to its statutory mission to preserve, protect, and restore natural areas by allowing vegetation to remain undisturbed as a habitat for fungi, birds, and insects. The District relied on its employees, staff, and the public to identify trees needing pruning or removal, instead of devoting employees exclusively to the task of inspecting vegetation. The District followed up on every report of a potential hazard and heightened its own scrutiny after storms. This had been its practice throughout Newhard's 36 years with the District, other than an inspection initiative made in the early 1970's to locate and eradicate diseased Dutch elm trees. Raudenbush was not aware of any motorist being struck by a falling tree other than Belton. Newhard had not seen the tree at issue, but had been informed by the District's real estate licensing engineer that the cottonwood was in the right-of-way granted to the Department of Transportation. As a general rule, the District limited its maintenance to its property, and in instances where a right-of-way had been granted, the grantee took responsibility. There would be liability issues if the District personnel worked on other property. If it appeared that maintenance was needed on an adjacent right-of-way or private land, the District would try to contact the party responsible. The District routinely used Sidwell Maps, which showed all the roads within the county, whether there was a right-of-way, and who was responsible for maintenance.
Belton's tree expert Jeffrey Ling was also deposed. Ling had approximately 25 years' experience, was a registered consulting arborist, owned and operated a commercial tree care company in Fort Wayne, Indiana, and worked as a consultant for attorneys, golf courses, municipalities, developers, architects, homeowners, and corporate facility managers. Ling also had or was (1) teaching landscape management and urban forestry at Indiana Vocational Technical College, (2) leading professional seminars, and (3) conducting training for the Indiana Urban Forestry Council's Tree Tenders program, which is a volunteer association of private citizens who are trained to recognize and report hazardous trees to their local parks department or municipality. Ling indicated the tree was visibly infected with Ganoderma fungus for five or six years before Belton's accident, there were no leaves on the upper half of its crown, and these were problems that could have been seen from a vehicle moving at "a very high rate of speed" on 159th Street and would have warranted further inspection. In Ling's opinion: (1) given the condition of the tree, whoever was responsible for maintaining it should have done more prior to Belton's injury, and (2) the District fell below the standard of urban forestry and arboriculture as Ling understood it by not having a systematic inspection system to identify diseased trees that "had targets," meaning that if all or part of the tree failed, a person could be injured. In Fort Wayne, they inventoried the public trees with the help of computer software that allowed them to assign a unique address to each one, using GPS, GIS, a street address, or the relation to the nearest crossroads. Ling agreed that cataloging trees in a park would be a lot more work than cataloging trees along a public street that were spaced at regular intervals and could be identified by their street address. Park trees would need to measured by hand, identified by species, and associated with a specific location. Ling based his criticism of the District on what Belton's attorney told him about the District's practices, two paragraphs that were read to him from the transcript of a District employee's deposition, and a site visit. Ling, however, visited only the specific area, had never consulted for the District, and did not know the extent of its property holdings, what types of facilities it maintained, how many acres it maintained, how many trees were on its property, how many public roadway miles bordered its property, how many people it employed, its statutory mission, or that it was a municipal corporation.
The District's expert Mark Duntemann was the owner and sole employee of an urban forest consulting company and his primary business was inventorying trees for municipalities and developing forestry management policies for government agencies. Based on a survey taken of the area, a site visit, certain photographs, and deposition transcripts, it was his opinion that the District was not responsible for the 70-foot tree that failed; because it was approximately 30 inches in diameter, and all but 4 inches of the trunk was within the 50-foot right-of-way from the centerline of 159th Street, meaning that either the Department of Transportation or Calumet City was responsible for maintaining it. The District had approximately 37,000 wooded acres, and based on Duntemann's inventory experience, he estimated the District's holdings encompassed 500,000 or more trees. In his opinion, a "windshield survey" from a moving vehicle to look for hazardous trees would have been inadequate, and the appropriate method would be to circumvent the tree, visually inspecting it and "sounding" it with a mallet to detect decay. In his opinion, the District relied on "a highly trained professional staff to *** look at trees and make a determination of risks associated with the trees," this "system works well for them," and it was his recommendation that they continue to follow it. The District should not have done anything differently to prevent the tree from falling on Belton's vehicle. He did not know whether a "windshield inspection" from 159th Street in the two years prior to Belton's injury would have identified the tree as one with potential structural defects. Because he did not know how many miles of roads bordered the District's property, Duntemann could not estimate the cost of performing a windshield inspection, but based on the size of the District's holdings and his inventory experience, he knew "it would be expensive." When Duntemann visited the site in early December 2008 and on January 9, 2009, he observed that some entity other than the District had pruned trees in the area and had inspected and marked the tree at issue and others in its vicinity for removal. He knew that, "for decades," "pretty much every suburb in the Chicago area" has had a right-of-way maintenance agreement with the Department of Transportation for the state routes going through their towns and he believed Calumet City was no exception.
Discovery was still in progress when the District moved for summary judgment. The District contended that its property maintenance duties to the world were limited to the "intended and permitted" users of its property by the common law codified in section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a) (West 2004)) (hereinafter Tort Immunity Act), and that it owed no duty of care to a person who was on adjacent or abutting property when he was injured due to a condition on the public property. The District argued Belton could never establish the duty element of his negligence claim. To prevail on a tort claim, a plaintiff must establish that the defendant owed a duty of care to the plaintiff, the defendant breached this duty, and the plaintiff incurred injury proximately caused by the breach. Adams v. Northern Illinois Gas Co. 211 Ill. 2d 32, 43, 809 N.E.2d 1248, 1257 (2004). The existence of a duty is a question of law for a court to decide and the issues of breach and proximate cause are factual matters for a jury to decide. Adams, 211 Ill.2d at 43-44, 809 N.E.2d at 1257; Vega v. Northeast Illinois Regional Commuter RR. Corp., 371 Ill. App. 3d 572, 582, 863 N.E.2d 733, 742 (2007) (whether a duty of care is owed is appropriately resolved by the court in a summary judgment proceeding). Under Illinois law, the existence of a duty depends on whether the parties stand in such a relationship to each other that the law imposes on the defendant an obligation to act in a reasonable manner for the benefit of the plaintiff. Eckburg v. Presbytery of Blackhawk of the Presbyterian Church (USA), 396 Ill. App. 3d 164, 169, 918 N.E.2d 1184, 1190 (2009). To determine whether there is a duty, a court looks to relevant factors including the reasonable foreseeability of the injury, the reasonable likelihood of the injury occurring, the magnitude of the burden involved in guarding against the harm, and the consequences of placing that burden on the defendant. Adams, 211 Ill. 2d at 44, 809 N.E.2d at 1248; Eckburg, 396 Ill. App. 3d at 169, 918 N.E.2d at 1190. The foreseeability of the harm is balanced against the burden and consequences that would result from recognizing that a duty is owed by the defendant to the plaintiff. Hutchings v. Bauer, 149 Ill. 2d 568, 571, 599 N.E.2d 934, 935 (1992) (citing Lamkin v. Towner, 138 Ill. 2d 510, 522-23, 563 N.E.2d 449, 455 (1990)). The related question of the proper interpretation of the Tort Immunity Act is also a question of law to be resolved by a court and is also appropriately addressed in a summary judgment proceeding. Barnett v. Zion Park District, 171 Ill. 2d 378, 385, 665 N.E.2d 808, 811 (1996).
The trial court was persuaded by the District's no-duty-to-nonusers argument and did not reach the additional argument that the District was immunized from liability by section 3-106 of the Tort Immunity Act. 745 ILCS 10/3-106 (West 2004). See Vega, 371 Ill. App. 3d at 583, 863 N.E.2d at 742 ("the question of immunity does not arise unless it is shown that there is a duty owed"); Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 46, 697 N.E.2d 699, 708 (1998) ("The distinction between an immunity and a duty is crucial, because only if a duty is found is the issue of whether an immunity or defense is available to the governmental entity considered.").
On appeal, Belton argues the trial court misconstrued the scope of section 3-102 and should have recognized the District's common law duty to him to keep the roadway adjacent to the forest preserve reasonably safe for his use. In our de novo review, we consider whether the parties' pleadings, deposition transcripts, affidavits and any admissions, and exhibits on file show there is no genuine issue of material fact and that the District is entitled to judgment as a matter of law. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 383, 657 N.E.2d 887, 893 (1995); 735 ILCS 5/2-1005(c) (West 2006).
Local public entities will be held liable in tort for their ordinary negligence or willful and wanton conduct on the same basis as private tortfeasors unless the legislature has imposed conditions on such liability. LaMonte v. City of Belleville, 41 Ill. App. 3d 697, 705, 355 N.E.2d 70, 78 (1976); Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69, 799 N.E.2d 273, 276 (2003) ("Unless an immunity provision applies, [public entities] are liable in tort to the same extent as private parties."). In 1965, the Illinois legislature enacted the Tort Immunity Act to protect local public entities and their employees from liability resulting from the operation of government. Zimmerman, 183 Ill. 2d at 43, 697 N.E.2d at 707. Certain sections of the statute, such as 3-102, restate and codify duties existing at common law, and, with those sections as a backdrop, sections such as 3-106 limit or altogether immunize governmental units from liability in tort. 745 ILCS 10/3-102(a), 3-106 (West 2004); Wagner v. City of Chicago, 166 Ill. 2d 144, 152, 651 N.E.2d 1120, 1124 (1995) (certain sections codify and others immunize; section 3-102 codifies a local public entity's general duty at common law regarding the maintenance of its property); Boub v. Township of Wayne, 291 Ill. App. 3d 713, 717, 684 N.E.2d 1040, 1042 (1997) (section 3-102 simply restates and codifies common law principles; it is not a source of new duties or liabilities for negligent acts or omissions which did not ...