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Nida v. Spurgeon

Court of Appeals of Illinois, Fourth District

October 30, 2013

MARCIA NIDA, Plaintiff-Appellant,
v.
MARLENE SPURGEON, Individually and as Administratrix of the Estate of LORENE D. HART, Defendant-Appellee.

Held[*]

Summary judgment was properly entered for defendant landlord in an action for the injuries plaintiff suffered when she was walking on the driveway of the property she had rented from defendant and a piece of the driveway broke and she fell, since plaintiff had been aware of the deteriorated condition of the driveway from the time she rented the property, defendant was entitled to presume plaintiff would be cautious when she encountered the open and obvious condition, plaintiff did not suggest how defendant could have guarded against the injury, nor did she claim the driveway violated any housing regulation, and an injury-proof driveway could not have been provided, regardless of the material or grade.

Appeal from the Circuit Court of Sangamon County, No. 11-L-194; the Hon. Leo Zappa, Judge, presiding.

Jason B. McGary and Hania Sohail (argued), both of Strong Law Offices, of Peoria, for appellant.

Craig L. Unrath and Natalie D. Thompson (argued), both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.

Panel JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.

OPINION

KNECHT, JUSTICE.

¶ 1 On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against defendant, Marlene Spurgeon, individually and as administratrix 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 administratrix 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-today 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

ΒΆ 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 ...


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