Appellate Court Holds Owners Not Responsible for Trip/Fall in Roadway

June 2015

By Molly P. Connors

In a recent case, Caracci v. Patel, 2015 IL App (1st) 133897, the First District Appellate Court upheld summary judgment in favor of the defendant strip mall owners on the plaintiff's premises liability claims. The plaintiff alleged she was injured when she tripped and fell in a pothole while walking to a store in the Grand Plaza strip mall in Franklin, Illinois. The plaintiff parked her car in an area adjacent to the strip mall, and she was in the process of crossing a common roadway when her accident occurred. The land on which she fell was owned by AVG Partners I, LLC ("AVG") and leased to Kmart Corporation ("Kmart"). The northern portion of the roadway was owned by SuperValu, Inc. ("SuperValu"). Defendants Nathu Patel, Ishwar Dhimar, and Amit Patel owned the strip mall.

The defendants had a contract with SuperValu. Pursuant to the contract, the defendants paid 22.5 percent of the maintenance costs for SuperValu's parking lot, and SuperValu allowed strip mall customers to park in the lot. The defendants did not have a contract with AVG, but AVG granted an easement on its part of the roadway for the general public and utilities. The easement was not granted specifically to the defendants. The lease between AVG and Kmart required AVG to maintain all driveways, sidewalks, streets, and parking areas in a safe condition.

The plaintiff brought a negligence claim against the strip mall owners, alleging they appropriated the roadway where she fell; assumed a duty to maintain and repair the roadway; breached their duty to provide a reasonably safe means of ingress and egress to the stores in the strip mall; and breached their contractual duty to maintain the roadway. The defendants filed third-party complaints against AVG and Kmart.

The strip mall owners filed a motion for summary judgment on the basis they did not own or maintain the land where the plaintiff fell, and the property was owned and maintained by AVG. The trial court granted the defendants' motion, finding AVG owned the property and the defendants had not appropriated the roadway for their own use, nor did they have any contractual obligation to maintain the roadway.

The First District upheld summary judgment in favor of the defendants. First, the court addressed whether the defendants appropriated the roadway. The court cited case law stating landowners owe a duty to provide reasonably safe ingress and egress from their property, but owe no duty to ensure the safety of a public roadway abutting that property. The plaintiff relied upon an exception to that general rule, which applies when the landowner appropriates, or assumes control of, the public roadway.

The court found no evidence the defendants appropriated the roadway because they did not prevent the public from using the roadway and it was not the sole means of ingress or egress to the stores in the strip mall. The plaintiff maintained the defendants appropriated the roadway by hiring someone to remove garbage and plow it in the winter, but the court cited First District precedent stating acts of maintenance are insufficient to show appropriation. Third, the court stated there was no evidence supporting the plaintiff's allegation the defendants repaired the pothole after the accident.

Second, the court held the plaintiff could not rely upon its expert's affidavit to show the defendants breached their duty to provide reasonably safe ingress and egress to the stores in the strip mall. The affidavit contained several factually-unsupported legal conclusions, and under Illinois law, an expert witness may not testify to legal conclusions.

Finally, the court found no evidence the defendants assumed a contractual duty to maintain the section of roadway at issue. The defendants' contract with SuperValu did not pertain to that section of roadway. The only contract pertaining to that section was the contract between AVG and Kmart, which stated AVG was responsible for maintenance.

This case is beneficial for property owners facing premises liability allegations due to accidents on land adjacent to their property, particularly store owners facing claims relating to accidents in parking lots. It shows property owners can hire companies to remove garbage and plow snow from land without incurring liability for appropriating that land. Even if the plaintiff is walking to stores owned by the defendant, the defendant can avoid liability by not preventing the general public from using the adjacent land and ensuring there are alternate means of ingress and egress.

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2015/1stDistrict/1133897.pdf