from Circuit Court of Douglas County No. 13L2. Honorable
Karle E. Koritz, Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court,
with opinion. Justices Holder White and Steigmann concurred
in the judgment and opinion.
TURNER, PRESIDING JUSTICE
1 In July 2015, plaintiff, Laurie Ann Hollenbeck, filed a
second amended complaint against defendants, the City of
Tuscola (Tuscola or City) and Leon Kinney, to recover for
injuries suffered in a fall on city property. In December
2015 and January 2016, the trial court granted summary
judgment in favor of Tuscola and Kinney, respectively.
2 On appeal, plaintiff argues the trial court erred in
granting summary judgment in favor of defendants. We affirm.
3 I. BACKGROUND
4 This appeal arises from an occurrence on November 1, 2012,
at 408 East Barker Street in Tuscola, Illinois. Plaintiff had
lived in a rental home at 406 East Barker Street since the
middle of August 2012. Kinney owned the home next door at 408
East Barker Street. On the date in question, plaintiff
stepped into a deep hole located on land adjacent to 408 East
Barker Street, causing her to fall and suffer injuries.
5 In July 2015, plaintiff filed a second amended complaint
against defendants. In count I (Tuscola), plaintiff alleged
Tuscola owned the parkway located adjacent to 408 East Barker
and had a duty to maintain it in a reasonably safe condition
and exercise ordinary care to see the property was reasonably
safe for lawful users. Plaintiff alleged Tuscola breached
that duty by allowing a metal catch basin lid to become
"significantly depressed and lower than the turf and
ground located in its immediate vicinity, causing a
depression to form." Plaintiff alleged Tuscola (1)
negligently failed to have any inspection plan to inspect the
catch basin; (2) knew or should have known there was an
unreasonably dangerous depression; (3) failed to level out
the depression; (4) failed to warn of its existence by
placing appropriate warning signs in the area of the lid; (5)
failed to keep the catch basin free from debris, including
lawn clippings, leaves, and trash; and (6) failed to clean
the catch basin lid of any debris so it would be visible to
pedestrians walking across the right-of-way. Plaintiff
alleged that, as a direct and proximate result of
Tuscola's negligence, she "stepped in a large
depression that was covered with grass, leaves and debris
that covered a storm drain or a catch basin cover, causing
her to fall and seriously injure herself." Plaintiff
claimed she endured medical and hospital expenses, physical
and emotional pain and suffering, loss of enjoyment of life,
caretaking expenses, and disfigurement.
6 In count II (Kinney), plaintiff alleged Kinney had a duty
to exercise ordinary care when he undertook mowing and yard
maintenance of the right-of-way at 408 East Barker Street.
Plaintiff alleged he breached that duty when he (1)
negligently failed to notify Tuscola to have the depression
leveled out so the catch basin was flush with the surrounding
lawn; (2) failed to fill in and warn of the depression; (3)
violated Tuscola ordinance by allowing grass he maintained to
be in excess of eight inches; (4) caused large clumps of
grass to be cut, which covered the catch basin cover and
"camouflaged or covered it with excessive thick
coverings of dead and mowed grass, rendering the existence of
the cover to be invisible to the naked eye; and (5) failed to
warn of the existence of the depression by placing warning
signs or covering the hole.
7 In July 2015, Kinney filed his answer to the second amended
complaint. In August 2015, Tuscola filed its answer and
affirmative defenses. In its first affirmative defense,
Tuscola stated plaintiff had a duty to exercise ordinary care
for her own safety but negligently failed to keep a proper
lookout where she was walking, walked in an area not intended
for pedestrian use, and failed to observe an open and obvious
condition. In its second affirmative defense, Tuscola stated
plaintiff's claims are barred by the provisions of the
Local Governmental and Governmental Employees Tort Immunity
Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq.
8 Multiple discovery depositions were taken in this case. The
evidence indicated the area where plaintiff fell was a grassy
strip of land owned by Tuscola and referred to either as a
parkway or a right-of-way. Further, she stepped on what has
been called a catch basin lid or cover.
9 Plaintiff testified she has lived at 406 East Barker Street
since August 2012. At approximately 4:30 p.m. on November 1,
2012, plaintiff attempted to catch up with her husband, who
was taking a walk. She took a step into some leaves,
"heard a crunch of my ankle and hit my palms on the
ground." She was not aware of the presence of a catch
basin cover at the time she stepped on it, and she stated the
cover was not loose when she stepped on it. Plaintiff's
ankle began throbbing and it was "very painful."
She eventually went to the emergency room because "the
pain wouldn't stop and the swelling kept getting
bigger." Plaintiff underwent surgery in March 2013 and
February 2014. She had not sought medical treatment regarding
her ankle since April 2014. She still has problems standing
and can no longer play with her children in the yard.
10 James Hollenbeck testified he was unaware of the storm
drain in the parkway in front of Kinney's house before
his wife's accident on November 1, 2012. He estimated the
top of the storm drain lid sat "probably eight to nine
inches" below ground level.
11 James Hoel, Tuscola's city administrator, testified
the catch basin at 408 East Barker Street is owned and
maintained by Tuscola. He stated there are two types of storm
drains in Tuscola-those connected to curb inlets on paved
streets and those associated with the catch basins on
oil-and-chip streets. The road at 408 East Barker Street is
an oil-and-chip street, and the "grade of the street and
the grade of the adjacent land is such that water flows to
these open catch basins." When he examined the catch
basin in December 2012, he found it to be "a depression
in the ground" in an "obvious drainage area"
with a "metal cast iron lid on it." He stated there
was no written or verbal policy to inspect and maintain the
catch basins in a routine manner. As a matter of practice,
homeowners mow the grass around the catch basin.
12 Dennis Cruzan, Tuscola's city services foreman,
testified the catch basin "catches dirt and holds it to
keep it from going in the storm sewer." Prior to
November 1, 2012, there was no formal inspection program to
inspect the catch basins to ensure the drains were open and
clear. The grass surrounding the basin helps act as a filter
and "keeps everything from covering the lid, so they
usually stay clean most of the time." He has noticed
some drain covers sit lower than the grass around them, which
creates a depression. He was not aware of any recognized
industry standards regarding the proper depth of a catch
basin lid relative to the surrounding turf. Cruzan stated
Tuscola has a policy to remove debris from the catch basin
covers if they are clogged and not allowing water to drain.
He also stated it was not the city's responsibility to
maintain the right-of-way or parkway, including mowing the
grass or raking leaves, where the catch basin was located.
13 Jeff Smith, a street department employee, testified
Tuscola has no written policy concerning routine inspections
of catch basins. He stated he cleaned leaves off the basin at
408 East Barker Street approximately two months prior to the
incident. On December 4, 2012, Smith went to the subject area
and observed two inches of leaves and "a little
mud" atop the catch basin lid. He also checked for any
holes around the lid but found nothing.
14 Cody Mann, a street department employee, testified he
regularly checks the catch basins on streets with curbs and
gutters. However, he does not check catch basins on the
oil-and-chip roads "very often."
15 Craig Hastings, Tuscola's chief of police, testified
the police department is charged with enforcing the
city's high-grass ordinance. He stated he was at
Kinney's property at 408 East Barker Street on September
24, 2012, and observed tall grass. ...