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Barr v. Frausto

Court of Appeals of Illinois, Third District

October 13, 2016

KEVIN BARR, Plaintiff-Appellant,
DEANNA FRAUSTO and THE CITY OF JOLIET, Defendants The City of Joliet, Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 13-L-355 The Honorable Michael J. Powers, Judge, presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Kevin Barr, filed a suit for negligent property maintenance against defendants, Deanna Frausto and the City of Joliet (City), to recover damages for injuries he sustained on City property when he stepped into a hole on a grass-covered parkway and fell. Both defendants filed motions for summary judgment. After hearings, the trial court granted the motions. Plaintiff appeals, but only challenges the trial court's grant of summary judgment for the City. We affirm the trial court's judgment.

         ¶ 2 FACTS

         ¶ 3 In July 2012, plaintiff and his wife went for a morning walk in Joliet, Will County, Illinois, near their home. Plaintiff was wearing running shoes, and he and his wife were walking on the sidewalk at a leisurely pace. A woman who was walking her dog on the same sidewalk approached from the opposite direction. Plaintiff and his wife stepped off the sidewalk and onto the grass-covered parkway (the grassy area in front of or to the side of a house, between the sidewalk and the road). The parkway was located to the side of Deanna Frausto's residence and was owned by the City. While plaintiff was walking on the parkway, he stepped into a hole, fell, and injured his knee or leg.

         ¶ 4 In May 2013, plaintiff filed the instant negligent property maintenance action against Frausto and the City. The complaint was later amended. During pretrial proceedings, summary judgment was granted for Frausto after the trial court found that she did not owe a duty to prevent harm to others on property owned by the City.

         ¶ 5 After summary judgment was granted for Frausto, the City filed its own motion for summary judgment. The matter was fully briefed by the parties in the trial court. Attached to parties' filings were various supporting documents, including several depositions, photographs of the site and of the hole, and the affidavit of plaintiff's expert witness. The evidence presented in those supporting documents can be summarized as follows.

         ¶ 6 Plaintiff testified in his deposition to many of the background facts set forth above. In addition to those facts, plaintiff stated that the accident occurred on a Sunday morning shortly after 7 a.m. The weather was nice that day, and it was sunny and completely light out. Plaintiff and his wife walked or rode their bikes on that same route about once a week when the weather permitted. Plaintiff and his wife had lived in that area for about six years, and plaintiff was familiar with the area, although he had never walked on that parkway before. Prior to that time, plaintiff had never seen anyone performing maintenance, doing construction, digging, or cutting the lawn on that particular parkway.

         ¶ 7 As plaintiff and his wife were walking on the sidewalk that morning and the woman was approaching from the other direction with her dog on a leash, plaintiff nudged or told his wife to move over onto the parkway. The dog was not barking, threatening, or menacing in any way, but the woman and her dog were taking up the entire sidewalk. Plaintiff and his wife both moved to the right onto the parkway. Plaintiff was closer to the sidewalk, and his wife was closer to the road. That summer was very dry, and the grass on the parkway was like straw and was trampled down. As the woman with the dog went past, plaintiff took one or two more steps on the parkway and then stepped into the hole.

         ¶ 8 Plaintiff was wearing a size 9 or 9½ running shoe at the time and his entire foot and part of his leg went into the hole, up to his ankle or shin. The ground was dry and the hole was not muddy. Plaintiff fell forward and injured his knee or leg. The woman who was walking the dog did not stop, and plaintiff did not know who the woman was. Plaintiff's wife had to help him because he could not pull his foot out of the hole. Plaintiff sat there for a short time while his wife went home and got the van. When she returned, plaintiff and his wife went home, and plaintiff put ice on the injured area. After a short time, plaintiff decided to go to the hospital.

         ¶ 9 Plaintiff did not know that the hole was there and had no idea how the hole had formed. Plaintiff was unsure whether anything had prevented him from seeing the hole that morning and stated that the grass might have been covering it. Plaintiff insisted that he was watching where he was going at the time of the injury and stated that he had only glanced at the dog for a moment. As a result of the accident, plaintiff missed a significant amount of time from work and suffered some lasting effects from his injury.

         ¶ 10 Deanna Frausto, the person who owned the house to the side of where the accident occurred, testified in her deposition that she lived at that location for the past 18 years. Frausto and her live-in boyfriend, Michael Trimmer, mowed, raked, and edged the lawn on that particular parkway. Frausto and Trimmer used a push mower to mow the grass in that area. During that time of summer, the weather was very hot and dry, and the grass had patches of brown and green areas. Frausto and Trimmer did not mow the grass as often during that time period because the grass was so dry. Although Frausto owned the house at that location, she did not own the parkway property in front of and to the side of the house.

         ¶ 11 Frausto first became aware of the hole on the parkway when she received a letter from plaintiff's attorney after the injury occurred. Frausto had no knowledge of the hole in that location prior to receiving the letter and did not notice any other holes in the parkway. Upon checking, Frausto found a hole in the parkway to the side of her house and assumed that it was the hole to which the letter referred. In Frausto's opinion, the hole looked like an oversized snake hole-it was small in width, probably not wide enough for ...

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