Appeal from Circuit Court of Sangamon County No. 11L194 Honorable Leo Zappa, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.
¶ 1 On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against defendant, Marlene Spurgeon, individually and as adminstratrix of the estate of Lorene D. Hart, for injuries suffered at a rental property owned by defendant. In November 2012, defendant filed a motion for summary judgment. In February 2013, the trial court granted the motion for summary judgment, concluding defendant did not owe a duty of care to plaintiff.
¶ 2 Plaintiff appeals, arguing the trial court erred in granting defendant's summary judgment motion. Plaintiff contends defendant owes her a duty of care and factual issues exist as to whether a dangerous condition was open and obvious and de minimis. We affirm.
¶ 3 I. BACKGROUND
¶ 4 A. Plaintiff's Complaint
¶ 5 On August 10, 2011, plaintiff filed a two-count complaint against defendant, individually and as adminstratrix of the estate of Hart, for injuries suffered at a rental property owned by defendant and located on Gaule Road in the Village of Rochester. Plaintiff alleged, on August 23, 2009, she was a tenant at the property and was walking on the property's driveway when a piece of the driveway broke and she fell, injuring herself. Plaintiff alleged defendant was negligent for failing to warn plaintiff about the condition of the driveway, failing to repair the driveway, and permitting the driveway to exist in a "state of disrepair."
¶ 6 B. Discovery
¶ 7 1. Plaintiff's Deposition
¶ 8 At her deposition, plaintiff testified she moved into the house on May 15, 2008. When she moved in, she performed a walk-through with defendant's children, Robert Spurgeon and Lisa Kaiser. During the walk-through, plaintiff asked about the driveway and Robert "said he was going to patch [it] or replace it." Plaintiff dealt with Robert and Lisa about the day-to-day affairs. Robert "took care of maintenance" at the property and delivered water to the cistern. She testified she requested defendant repair the driveway "at least five times" and her requests "were always oral." She testified Robert repaired the air conditioning once but did not mention other maintenance requests. On one occasion when Robert delivered water, he "bottomed out" and said "he needed to get that driveway fixed or someone's going to really tear up their car." Plaintiff testified she or another resident mowed the grass and she never attempted to "clean up or sweep out any of the broken pieces" in the driveway. A garage and a cattle gate were on the property and defendant and her family "were in and out on the driveway a lot." She observed them use the driveway "probably 20 [or] 25 times" during the time she lived there. They would use the driveway "when they had to come and check on the cows, or when they would switch the cows, or if they needed the garage." She admitted she stopped paying rent in April 2009 and was given an eviction notice in August 2009.
¶ 9 On August 23, 2009, she walked down the driveway to the mailbox. The sun was out but she did not know what time of day it was. The driveway was made up of "asphalt, old asphalt." She walked in a manner to avoid broken pieces of asphalt, she described this as a zigzag" route. As she was walking back up the driveway she "stepped on the asphalt, the piece broke, and [her] ankle snapped." She fell in the area between a telephone pole beside the driveway and the mailbox at the bottom of the driveway. The broken piece of asphalt was about the size of a football.
¶ 10 2. Defendant's Deposition
¶ 11 Defendant testified her mother, Lorene D. Hart, had lived in the house for 70 years before plaintiff moved in. Plaintiff was the first renter at the house. The driveway was never paved and when defendant's father was alive he "would just put bucket tar and sweep it down the driveway" and then "put pea gravel on top of it." It had been more than 10 years since this had been done. Defendant's adult children, Robert and Lisa, were responsible for overseeing the property. Defendant retained the "last say" but most decisions were handled by them. They would have been able to take care of resurfacing the driveway without her approval. She stored a tractor and miscellaneous items in a garage on the property.
¶ 12 3. Lisa Kaiser's Deposition
¶ 13 Lisa testified she is defendant's eldest daughter and assisted in managing the rental property. The driveway had been "broke up" for years and she described it as being loose gravel next to the road and then "asphalt crumbles up through the driveway." She never considered the pieces of broken asphalt to be hazardous or a danger. She went on to the property with her son to repair a piece of soffit, and she "might go into the garage to get stuff because we had stuff out there that was left from my grandmother's house." She did not know whether plaintiff requested Robert to repair the ...