Thiede v. Tambone

Citations: 553 N.E.2d 817; 196 Ill. App. 3d 253; 143 Ill. Dec. 110; 1990 Ill. App. LEXIS 524Docket: 2-89-0797

Court: Appellate Court of Illinois; April 17, 1990; Illinois; State Appellate Court

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Randy Thiede, the plaintiff, appeals the circuit court's denial of his motion for reconsideration regarding a summary judgment favoring defendants John R. Tambone, Patricia Tambone, and the Better Living Institute, Inc. Thiede argues that the court erred by granting summary judgment, asserting that the defendants had a statutory duty to maintain the sidewalk adjacent to their property. He contends this duty arose from their special use of the public sidewalk and claims that they created the defect leading to his injuries from a fall. The appellate court reversed the judgment and remanded the case, finding that Thiede presented sufficient evidence to raise a genuine issue of material fact about whether the defendants caused or contributed to the sidewalk's defective condition.

The case involves a property owned by the Better Living Institute, Inc. at 329 Dean Street, which has deteriorated sidewalk conditions at the intersection with the driveway. On May 27, 1986, while jogging, Thiede tripped on a lip created by the uneven pavement at this intersection, resulting in serious injuries. His complaint alleges that the defendants failed to maintain safe conditions, had notice of the sidewalk's defects, and violated city ordinances related to sidewalk maintenance. The City of Woodstock is not a party to the appeal.

Plaintiff claimed that defendants' negligence led to his injuries. Defendants sought summary judgment, asserting there were no material facts in dispute and that the plaintiff's complaint failed to establish any recognized duty or negligent act under Illinois law. They supported their motion with the plaintiff's deposition. In response, the plaintiff submitted his affidavit and photographs of the driveway and sidewalk. After extensive written arguments and an oral hearing on January 26, 1989, the trial court ruled in favor of the defendants, noting the plaintiff did not provide evidence linking vehicle traffic on the driveway to the sidewalk's condition.

The plaintiff subsequently filed a motion for reconsideration, including affidavits from two residents who described the sidewalk's condition and claimed that driveway traffic contributed to its deterioration. Defendants contested these affidavits, arguing they lacked sufficient factual support. In a June 27, 1989 opinion, the court reiterated that while the affidavits detailed the sidewalk's condition, they did not establish how the defect was created, thus upholding the summary judgment.

The appellate review involved assessing whether defendants owed a duty of care concerning the public sidewalk adjacent to their property. Illinois law dictates that summary judgment is an extraordinary remedy, only granted when the movant's right to judgment is clear. The trial court must determine the existence of material factual issues, construing the record against the movant and favorably towards the nonmovant. The nonmovant is expected to present sufficient facts that could support a favorable judgment, without the need to prove their case outright.

Plaintiff argues that City of Woodstock ordinances require defendants to maintain and repair their driveway where it intersects with the public sidewalk, and that failure to comply with these ordinances results in liability for any injuries caused by such neglect. The plaintiff further claims that defendants' use of the sidewalk for their driveway creates a duty to maintain the sidewalk and avoid unsafe conditions. Specifically, plaintiff asserts that the current defective condition of the sidewalk, attributed to the defendants' actions, necessitates either repair or adequate warnings for pedestrians. 

The analysis of defendants' statutory duty is complicated by the absence of the actual municipal ordinance in the submissions, preventing judicial notice under section 8-1002 of the Code of Civil Procedure. Despite this, the plaintiff's brief summarizes the relevant ordinance provisions, including requirements for driveway construction and maintenance. Notably, the ordinance mandates that driveways must not create hazards or obstructions and must be kept in good repair where they cross sidewalks. However, the court finds that even if the ordinance is accurately represented, it does not explicitly impose liability on property owners for injuries resulting from violations. Unlike other ordinances that clearly assign liability to abutting property owners for lack of repair, this ordinance lacks such explicit language. Additionally, the plaintiff argues that the ordinance serves as a public safety measure, implying a duty of care towards individuals like the plaintiff.

Plaintiff cites Duncavage v. Allen, where the appellate court established that a building owner's violations of building code ordinances created a duty to maintain common areas safely, directly linking such violations to the death of a tenant. This case emphasized that the purpose of the building code was to protect public safety. Additionally, in Gula v. Gawel, the court determined that violating city ordinances can serve as prima facie evidence of negligence if the ordinance aims to protect individuals or property. However, the current case presents a distinction between building safety codes and municipal regulatory ordinances. Municipalities have a nondelegable duty to maintain public ways, as noted in Horrell v. City of Chicago and Repinski v. Jubilee Oil Co. The court concluded that the ordinance in question does not serve as a public safety measure and does not impose liability on the defendants for injuries related to its violations.

The court then evaluated whether defendants had a common-law duty to maintain the public sidewalk adjacent to their driveway, with the plaintiff arguing that the defendants assumed special use of the sidewalk and were therefore liable for injuries from a broken sidewalk. Merely alleging a duty is insufficient; the plaintiff must provide facts to establish a legal duty. The court noted that whether a legal duty exists is a question of law. The trial court determined that the plaintiff did not provide adequate facts to support a duty on the part of the defendants under either theory presented. Generally, landowners do not have a duty to maintain or repair public sidewalks, but this principle changes if they appropriate the sidewalk for business purposes. In Dodd v. Cavett Rexall Drugs, Inc., the court ruled that a business occupier must ensure reasonable safety for access to their business but does not have a general duty to ensure pedestrian safety on adjacent municipal sidewalks.

The court established that when an occupier appropriates a public sidewalk for personal use, it incurs a duty to maintain the sidewalk's safety. However, for this duty to be applicable, the occupier must take affirmative actions that block or restrict public access to the sidewalk, such as obstructing it, parking on it, or using it for business purposes. In this case, the court found no duty to maintain the sidewalk, as the plaintiff's store had alternative access points and the sidewalk remained open for public use. Although the defendants were determined to be using the property for business purposes, they did not demonstrate any appropriation of the sidewalk that would trigger a maintenance obligation.

The court also addressed the plaintiff's argument that the defendants' use of the sidewalk as part of their driveway contributed to its defective condition. Generally, landowners are not liable for the repair of public sidewalks, but they must not create unsafe conditions that interfere with normal use. The court referenced a precedent where a business's negligent use of a sidewalk led to injuries, emphasizing that while the city is responsible for sidewalk repairs, the business had a duty not to contribute to dangerous conditions. The court concluded that the defendants did not create or worsen any defects in the sidewalk. The burden remained on the defendants to avoid making a pre-existing defect worse, and evidence suggested that the sidewalk's condition had deteriorated during their occupancy.

Defendants argue that the plaintiff has not demonstrated that they used the driveway and sidewalk at 329 Dean Street or that their use caused the sidewalk's defective condition. They assert that the precedent set in *Barker* does not establish liability for nonresident landowners who do not use or are unaware of the condition of the sidewalk. Citing *Repinski v. Jubilee Oil Co.*, they point out that the court ruled a landowner is not liable for defects in a public sidewalk unless they have assumed special use or caused the defect. The *Repinski* decision emphasized that landowners have no duty to maintain public sidewalks abutting their property unless they actively create defects.

However, the analysis reveals that both *Repinski* and *Barker* involved jury considerations regarding whether the defendants contributed to the sidewalk's condition. In this case, the plaintiff has presented sufficient evidence, including photographs showing a significant change in the sidewalk's condition at the defendants' driveway and affidavits describing heavy traffic and deterioration related to the driveway. Although one affidavit improperly concluded that this traffic caused the damage, an inference can be drawn from the presented facts.

There is also evidence suggesting that the use of the sidewalk and driveway was with the defendants' knowledge and permission, which the defendants did not effectively rebut. Viewing the facts favorably for the plaintiff, the court concludes that the defendants had a duty to prevent defective conditions and repair them, suggesting potential liability for the plaintiff's injuries. The plaintiff is not required to conclusively prove his case at this stage but must present enough evidence to warrant a trial. Consequently, the trial court's grant of summary judgment for the defendants was deemed incorrect, leading to a reversal and remand for further proceedings.