Appeal from Circuit Court of Champaign County No. 07L153 Honorable Richard P. Klaus, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Turner concurred in the judgment and opinion.
On September 8, 2010, the trial court granted defendant Jack Young's motion for summary judgment. Plaintiffs Steven and Amber Garcia appeal, arguing the court erred in granting defendant's motion because defendant owed plaintiff a duty to warn Steven Garcia about and protect him from dangerous conditions on defendant's property. We affirm.
In July 2007, the Garcias filed a two-count complaint against Young. In count I of the complaint, Steven sought damages for injuries he suffered after falling in a pothole on a private street owned by defendant. In count II of the complaint, Amber sought damages for loss of consortium because of her husband Steven's injuries. According to the complaint, Steven lived in the Village of Ludlow on Young Street in a rental property owned by Young. Young also owned Young Street, which was a private drive.
According to the complaint, prior to the incident in question, Steven had informed Young that Young Street was in a state of disrepair and constituted a hazard. Steven alleged Young had a duty to exercise reasonable care to keep the road in reasonably safe condition for individuals lawfully on the property. The Garcias alleged Young breached this duty by failing (1) to repair the potholes in the road, (2) to mark and identify the potholes, (3) to secure the area where the potholes were located, and (4) to warn the Garcias about the pothole. Although not noted in the complaint, Stephen's injury allegedly occurred when he entered the road to attempt to save his stepson from an approaching vehicle.
On June 15, 2010, Young filed a motion for summary judgment and a memorandum in support of his motion. For purposes of the motion for summary judgment, Young did not dispute the existence, location, or size of the pothole complained of by plaintiffs.
According to the memorandum in support of defendant's motion, Steven's injuries allegedly resulted when he stepped in a pothole approximately two feet in diameter and eight inches deep. In arguing for summary judgment, Young relied on the "open and obvious" doctrine. Young argued neither the "deliberate encounter" exception nor the "distraction" exception applied to the Garcias' claim.
In July 2010, the Garcias filed a response to Young's motion for summary judgment. The Garcias' response noted Young Street was a gravel road at the time of the incident. According to the response, Young occasionally put down new gravel, leveled out the gravel with a tractor, and placed "road pack" in the area of the potholes. The Garcias noted Young testified in his deposition he knew people walked on the road and he had concerns about children being in the street because they might get run over.
On September 8, 2010, the trial court held a hearing on Young's motion for summary judgment. The trial court noted it had Young's motion for summary judgment and a memorandum in support thereof, the Garcias' response to the motion, Young's reply to the Garcias' response, and deposition transcripts.
The trial court found the pothole clearly was an "open and obvious" condition as a matter of law. The court also found neither the "deliberate encounter" exception nor the "distraction" exception applied in this case. As a result, the court granted Young's motion for summary judgment.