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.
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
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