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Caracci v. Patel

Court of Appeals of Illinois, First District, Third Division

April 29, 2015

JUDY CARACCI, Plaintiff-Appellant,
v.
NATHU J. PATEL, ISHWAR D. DHIMAR and AMIT N. PATEL, Defendants-Appellees

Page 461

Appeal from the Circuit Court of Cook County. No. 10 L 8766. Honorable Kathy M. Flanagan, Judge Presiding.

For APPELLANT: Edward Adam Czapla, Paul W. Grauer, Of Counsel, Paul W. Grauer & Associates, Schaumburg, IL.

For APPELLEE: Ellen J. O'Rourke, Kenneth E. Klimczak, Of Counsel, Bruce Farrel Dorn & Associates, Chicago, IL.

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

OPINION

Page 462

MASON, JUSTICE.

[¶1] Plaintiff-appellant Judy Caracci filed a complaint against defendants-appellees Nathu J. Patel, Ishwar D. Dhimar and Amit N. Patel (collectively, defendants), seeking damages for injuries she sustained when she tripped and fell in a shopping center parking lot. The circuit court entered summary judgment in favor of defendants. On appeal, Caracci contends that the trial court erred in granting summary judgment because (1) defendants appropriated the roadway where Caracci fell, (2) defendants assumed a duty to maintain and repair the roadway, (3) defendants breached their duty to provide a reasonably safe means of ingress and egress to the stores in the property they owned, and (4) defendants breached their contractual duty to maintain the roadway. Caracci further contends that the trial court erred in denying her motion to strike defendants' amended answer. Finding no merit to Caracci's arguments, we affirm the judgment of the circuit court of Cook County.

[¶2] BACKGROUND

[¶3] On August 2, 2008, Caracci tripped and fell in a pothole on her way to one of the retail stores in the Grand Plaza strip mall in Franklin Park, Illinois. The strip mall is owned by defendants and is part of a shopping center complex that also included a Jewel grocery store and a Kmart retail store at the time of Caracci's fall. Caracci parked her car in a parking area that was across a common roadway from the strip mall. While crossing the roadway, she stepped into a hole and fell, sustaining injuries to her right shoulder.

[¶4] On July 20, 2010, Caracci filed a negligence action against defendants and one of the retail stores in the strip mall, seeking $50,000 in damages. The retail store's motion for summary judgment was granted. Defendants filed a third-party complaint against AVG Partners I, LLC (AVG), the owner of the parcel where the Kmart store was located, and Kmart Corporation. Kmart filed a counterclaim against AVG.

[¶5] On the plat of survey, the parcel owned by SuperValu, Inc., where Jewel is located is identified as Lot 1, the parcel owned by AVG that was leased to Kmart is Lot 4, and the parcel containing the strip mall is Lot 5. A covered walkway runs along the eastern edge of the strip mall and marks the eastern boundary of Lot 5. A roadway runs along the eastern edge of Lot 5, adjacent to the walkway. The northern portion of this roadway is on Lot 1, while the southern portion is on Lot 4. The pothole where Caracci fell was located in the portion of the roadway that is on Lot 4, the parcel owned by AVG.

[¶6] Defendants had a maintenance agreement with SuperValu under which they were required to contribute 22.5% to the cost of maintaining SuperValu's parking lot. In exchange, SuperValu granted ...


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