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Barr v. Frausto

Court of Appeals of Illinois, Third District

October 13, 2016

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

          Rule 23 order filed September 2, 2016

          Motion to publish allowed October 13, 2016

         Appeal from the Circuit Court of Will County, No. 13-L-355; the Hon. Michael J. Powers, Judge, presiding.

         Affirmed.

          Adam J. Zayed, of Joliet, for appellant.

          Gregory Smith, of Joliet, and Michael D. Bersani, of Hervas, Condon & Bersani, P.C., of Itasca, for appellee.

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

          OPINION

          CARTER, JUSTICE

         ¶ 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 the 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 ...


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