PREMISES LIABILITY UPDATE
F. Slip and Fall on Municipal Property
1. Fall on Sidewalk Owned by City but Allegedly Appropriated by Adjacent Property Owner. Homeowner’s Acts of Raking Leaves, Mowing Around and Salting During Winter Do Not Give Rise to a Duty to Ensure the Safe Condition of a Public Sidewalk.
Gilmore v. Powers, 403 Ill. App. 3d 930, 934 N.E.2d 564, 343 Ill. Dec. 240 (1st Dist. 2010) – The plaintiff fell on a walkway that straddled a city-owned parkway in front of the defendants’ home.
Plaintiff contended that the defendants owed her a duty to maintain the walkway which traverses the city owned parkway in front of their home in a safe condition. Although plaintiff conceded that the walkway was located on a parkway owned by the city, she nevertheless argued that defendants, as adjacent property owners, owed such a duty of care because she claims defendants appropriated the parkway for their own use by mowing the grass growing upon it, raking leaves from it, and crossing it daily in order to get from the sidewalk to the street.
Plaintiff also claimed that defendants were obligated to maintain the walkway in a safe condition because it provided a means of ingress and egress from the property.
Although a private landowner owes a duty of care to provide a reasonably safe means of ingress and egress from his property (Burke v. Grillo, 227 Ill. App. 3d 9, 16, 590 N.E.2d 964, 169 Ill. Dec.
45 (2d Dist. 1992); Dodd v. Cavett Rexall Drugs, Inc., 178 Ill. App. 3d 424, 432, 533 N.E.2d 486, 127 Ill. Dec. 614 (1st Dist. 1988)), he generally owes no duty to ensure the safe condition of a public sidewalk or parkway abutting that property. Burke, 227 Ill. App. 3d at 16; Evans v. Koshgarian, 234 Ill. App. 3d 922, 925, 602 N.E.2d 27, 176 Ill. Dec. 720 (1st Dist. 1992); Thiede v. Tambone, 196 Ill. App. 3d 253, 260, 553 N.E.2d 817, 143 Ill. Dec. 110 (2d Dist. 1990).
Plaintiff contends that this foregoing general rule does not apply in this case because the defendants assumed control over the parkway at issue. The Court agreed with the proposition that an abutting landowner may be held responsible for the condition of a public sidewalk or
parkway if he assumes control of it for his own purposes. However, an assumption of control for purposes of determining a duty of care must consist of affirmative conduct which prevents the public from using the property in an ordinary manner, such as blocking the land, parking on it, or using it to display goods. No duty to maintain city-owned property arises when a landowner merely maintains the property by mowing grass or shoveling and salting it in the winter. Burke, 227 Ill. App. 3d at 15-16; Evans, 234 Ill. App. 3d at 926; Dodd, 178 Ill. App. 3d at 433.
Thus, defendants did not appropriate the city-owned sidewalk for their own use and the city ordinances did not give rise to a duty on the part of the owners of sidewalk. Therefore, defendants were entitled to summary judgment.
2. Municipality Maintained Alley – Tort Immunity Act Did Not Apply Because Plaintiff Was a Permitted and Intended User of Alley
Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 929 N.E.2d 680, 341 Ill. Dec. 26 (1st Dist. 2010) – Plaintiff decided to dispose of a weed in the yard waste disposal bin provided to her by the City of Evanston. Plaintiff's yard waste bin, along with disposal containers for recycling and trash, sit outside plaintiff's property along a city-owned alley. Plaintiff proceeded down a path through her backyard to the gate to enter the alley. When she reached the gate, plaintiff scanned the area to make sure there were no depressions or other impediments in the alley. Prior to stepping out into the alley, plaintiff heard an ice cream truck driving along the alley and turned to locate the vehicle. She then stepped out into the alley and tripped in a “softball-sized”
depression in the unimproved alley, causing her to fall and suffer injuries to her elbow. Plaintiff's partner testified at trial that she had unsuccessfully complained to the City about the condition of the alley for years.
Plaintiff prevailed at trial and the City appealed.
The Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq., limits the common law duties of municipalities. Marshall v. City of Centralia, 143 Ill. 2d 1,5, 570 N.E.2d 315, 155 Ill. Dec. 802 (1991); Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882, 181 Ill. Dec. 631 (1993). Section 3-102(a) of the Act provides in pertinent part:
[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.
745 ILCS 10/3-102(a) (West 2008). A municipality thus owes a duty of ordinary care only to those who are both intended and permitted users of municipal property. 745 ILCS 10/3-102(a) (West 2008). “[A]n intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user.” Boub v. Township of Wayne, 183 Ill. 2d 520, 525, 702 N.E.2d 535, 234 Ill. Dec. 195 (1998).
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A municipality’s duty in these circumstances depends on whether the use of the property was a permitted and intended one. Whether a particular use of property was permitted and intended is determined by examining the nature of the property itself. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 162-63, 651 N.E.2d 1115, 209 Ill. Dec. 667 (1995). In this case, both parties agreed that plaintiff was a “permitted” user of the alley; the only issue for the Court to decide was whether plaintiff was also an “intended” user.
The Court found that the City established a policy that required its residents to place their trash, recycling, and yard waste containers in the alley, which is municipal property. The policy expressly stated that the City will not pick up the refuse from private property; residents must use the City property. As such, the First District found the plaintiff to be a permitted and intended user of the alley and affirmed the trial court’s judgment against the City because it owed a duty to the plaintiff to maintain its property in a reasonably safe condition.
3. Municipality Maintained Sidewalk –Tort Immunity Act Applied Because Sidewalk Increased the Usefulness of Public Property Intended to Be Used for Recreation
Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287, 929 N.E.2d 61, 340 Ill. Dec. 757 (2d Dist. 2010) – Plaintiff filed suit against the Village of Clarendon Hills because she slipped and fell on ice and snow while walking on a public sidewalk near a public park. The Village filed a Motion to Dismiss claiming immunity under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act. 745 ILCS 10/3-102(a) (West 2008). The trial court granted the Village’s Motion to Dismiss and the Second District affirmed. Section 3-106 of the Act provides immunity for local public entities under the following circumstances:
Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.
745 ILCS 10/3-106 (West 2008) (Emphasis added).
The question for the Appellate Court was whether the sidewalk where the plaintiff fell was
“intended or permitted to be used for recreational purposes” within the meaning of section 3-106. The Court held that it was because the sidewalk increased the usefulness of the public property intended or permitted to be used for recreational purposes (the park). As such, the Second District affirmed the Village’s immunity under the Act.
Jeffrey T. Bash
- Associate
Jeff began his career at Heyl Royster by clerking in the Urbana and Edwardsville offices. While in law school, Jeff clerked for Saint Louis University's Office of the General Counsel - Health Services and was a legal intern for the General Counsel of Charter
Communications. Following graduation in 2003, he joined the firm in the Edwardsville office. Jeff is a native of Peoria, Illinois.
Jeff concentrates his practice in the defense of asbestos litigation in Illinois and Missouri. He has taken a lead role in coordinating the defense of a large number of claims filed against a fiber-supplier defendant, among others. Jeff is responsible for the analysis of potential liability based upon product supply and alleged usage of materials in which the asbestos fiber is used. In addition, he has taken the lead in pressing defense issues such as forum non conveniens, products liability statutes of repose and medical causation. Jeff has drafted and argued numerous dispositive motions including motions to dismiss and motions for summary judgment. In addition, Jeff has defended the firm's clients in numerous depositions of plaintiffs, co-workers, medical providers and experts.
He also has extensive experience defending the firm's clients in benzene exposure claims, including taking depositions of fact and expert witnesses, developing defense strategies, arguing dispositive motions, and negotiating settlements.
Jeff further concentrates his practice in professional liability matters including defending physicians, nurses and health care entities.
Jeff is a member of the Madison County, Illinois State, Missouri State and American Bar Associations.
Significant Cases
Ratermann v. Tri-County Elec. Co-op., Inc., 229 Ill. 2d 658, 897 N.E.2d 263, 325 Ill. Dec. 15 (Jury Trial, Marion County, 2009) - Not guilty verdict for electric utility where plaintiffs claimed a power surge resulted in a home fire. Plaintiffs relied upon res ipsa loquitor and plaintiffs' cause and origin expert maintained there was physical evidence of a massive high voltage surge of electricity causing simultaneous fires in two breaker panels.
Professional Associations
Madison County Bar Association
St. Clair County Bar Association
Bar Association of Metropolitan St. Louis
Illinois State Bar Association
The Missouri Bar
American Bar Association Court Admissions
State Courts of Illinois and Missouri
United States District Court, Southern District of Illinois
United States District Court, Eastern District of Missouri
Education
Juris Doctor - Health Law Certificate, Saint Louis University School of Law, 2003
Bachelor of Arts-Sociology, University of Illinois, 2000
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