The trial court properly dismissed a complaint alleging that plaintiff was
injured by a public nuisance when she fell in a pothole in a mall parking
lot in which defendant once had an interest, since defendant had no
ownership interest in the parking lot at the time plaintiff fell or when
defendant was the property manager of the mall and the contract
defendant had to maintain the parking lot terminated four years before
plaintiffs fall when defendant sold its interest in the mall to a third party.
Appeal from the Circuit Court of Madison County, No. 11-L-245; the Hon. David A. Hylla, Judge, presiding.
John Dale Stobbs and Andrew K. Carruthers, both of Stobbs, Sinclair & Carruthers, Ltd., of Alton, for appellant.
Scott D. Bjorseth and David A. Schott, both of Hoagland, Fitzgerald & Pranaitis, of Alton, for appellee.
Presiding Justice Spomer concurred in the judgment and opinion. Justice Goldenhersh dissented, with opinion.
¶ 1 The plaintiff, Mercedena Burns, appeals from the order of the circuit court of Madison County dismissing her three-count complaint filed against the defendant, Simon Properties Group, LLP, also known as Simon Property Group (Illinois), L.P., after she fell in a pothole and sustained injuries in a parking lot at the Alton Square Mall (mall). For the reasons which follow, we affirm the decision of the circuit court.
¶ 2 On January 1, 2011, the plaintiff was a customer at the mall. After making some purchases, she returned to her car, which was parked in the east parking lot in front of the Macy's store. On her way to the car, she tripped and fell in a pothole near the rear of her car. The plaintiff broke two bones in her left leg and incurred medical bills in excess of $90, 000. The defendant owned the mall and was responsible for parking lot maintenance from 1996 until 2007 when it sold its ownership interest to Coyote Alton Mall, L.P. (Coyote).
¶ 3 On April 19, 2012, the plaintiff filed an amended complaint against the defendant asserting that she was injured by a public nuisance. Count I alleged creation and maintenance of a nuisance; count II alleged negligent creation of a nuisance; count III alleged wilful and wanton conduct in creation of a nuisance. The plaintiff's complaint alleged that from 1996 until 2007, the defendant allowed the mall parking lot to fall into disrepair due to lack of maintenance, that the defendant had a duty to maintain the mall parking lot in a reasonably safe condition for use by the customers of the stores located in the mall, and that the condition of the parking lot continued unabated until after the plaintiff was injured. The complaint further alleged that the condition of the mall parking lot posed an unreasonable risk to the safety of the mall customers and that the defendant knew of the hazardous condition of the parking lot in 2007 when it conveyed the property to Coyote and knew, or was reckless in not knowing, that Coyote had borrowed heavily and did not have the capital to renovate the parking lot (Coyote went into receivership in 2011). According to the plaintiff, the defendant was aware that the parking lot was hazardous because there were numerous falls by store patrons during the period when the defendant owned the mall. Therefore, the plaintiff concluded that the condition of the east parking lot and the danger it created constituted a public nuisance and this public nuisance was created by the defendant's failure to maintain the parking lot.
¶ 4 On May 11, 2012, the defendant filed a motion to dismiss the plaintiff's complaint under section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)) and under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2010)). In the motion, the defendant argued that the plaintiff had failed to allege sufficient facts to demonstrate the existence of a public right, as required to allege a cause of action for public nuisance, and that the right alleged by the plaintiff, the right not to be negligently injured, was instead a private right. Alternatively, the defendant argued that it did not owe a duty to the plaintiff because it never owned the parking lot where the plaintiff fell and it did not possess, occupy, or control the parking lot during the time that the plaintiff fell. Attached to the motion to dismiss was the affidavit of Paul Grossman, senior litigation paralegal for the defendant, which admitted that in 2007, the defendant maintained the parking lots surrounding and belonging to the mall. The affidavit further set forth that at no time did the defendant own the parcel of land occupied by Macy's or the east parking lot on which the plaintiff fell. The affidavit stated that since August 1, 2007, the defendant "has not maintained, owned, possessed, or controlled the parking lots surrounding and belonging to [the mall], including but not limited to, the parking lot alleged in Plaintiff's complaint." The defendant also attached to its motion information from Madison County showing that Macy's/May Properties was the owner of the parking lot where the plaintiff fell. Ultimately, the trial court entered an order dismissing the plaintiff's complaint pursuant to section 2-615 of the Code, finding that the plaintiff did not state a cause of action for public nuisance. The plaintiff appeals.
¶ 5 In reviewing the dismissal of a complaint under either section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) or section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)), we apply a de novo standard of review. Dopkeen v. Whitaker, 399 Ill.App.3d 682, 684 (2010); R-Five, Inc. v. Shadeco, Inc., 305 Ill.App.3d 635, 639 (1999). A motion to dismiss under section 2-615 tests the legal sufficiency of the complaint, whereas a motion to dismiss under section 2-619 admits the legal sufficiency of the complaint but asserts an affirmative defense outside the complaint that serves to defeat the cause of action. Kean v. Wal-Mart Stores, Inc., 235 Ill.2d 351, 361 (2009). Under either section, we are to accept all well-pleaded facts as true and draw all reasonable inferences from the facts in favor of the nonmoving party. Dopkeen, 399 Ill.App.3d at 684.
¶ 6 A public nuisance is defined as the "doing of or the failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public." (Internal quotation marks omitted.) City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 370 (2004). In order for there to be a sufficient pleading in a public nuisance cause of action, the pleading must "allege a right common to the general public, the transgression of that right by the defendant, and resulting injury." Id. at 369. More specifically, the pleading must allege facts in support of the following four distinct elements of a public nuisance claim: (1) the existence of a public right; (2) a substantial and unreasonable interference with that right by the defendant; (3) proximate cause; and (4) injury. Id.
¶ 7 The first element that must be alleged is the existence of a right common to the general public. Id. at 370. The supreme court has defined "public right" as follows:
" 'The interference with a public right is the sine qua non of a cause of action for public nuisance. However, not all interferences with public rights are public nuisances. The nuisance must affect an interest common to the general public, must produce a common injury, or be dangerous or injurious to the general public, or it must be harmful to the public health, or prevent the public from a peaceful use of their land and the public streets, or there must be some direct encroachment on public property.' " Id. at 373 (quoting 58 Am. Jur. 2d Nuisances § 39 (2002)).
A public right is " 'collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.' " Id. (quoting Restatement (Second) of Torts § 821B cmt. g (1979)). A nuisance becomes public when it occurs in a public place or where the public frequently congregates or where members of the public are likely to come within the range of its influence. 58 Am. Jur. 2d Nuisances § 30 (2010). The nuisance is also considered a public nuisance when it affects a place where the public has a legal right to go, such as a park, street, or alley, and if the conduct or condition necessarily annoys, offends, or injures those who come ...