The opinion
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by Reporter of
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Appellate Court Date: 2022.03.28
09:38:34 -05'00'
Godair v. Metro East Sanitary District, 2021 IL App (5th) 200160
Appellate Court DONNA K. GODAIR, Plaintiff-Appellant, v. THE METRO EAST
Caption SANITARY DISTRICT, Defendant-Appellee.
District & No. Fifth District
No. 5-20-0160
Filed March 17, 2021
Decision Under Appeal from the Circuit Court of Madison County, No. 16-L-382; the
Review Hon. Sarah D. Smith, Judge, presiding.
Judgment Affirmed.
Counsel on Edward W. Unsell and Joshua R. Evans, of Unsell Law Firm, P.C., of
Appeal East Alton, for appellant.
Brian M. Funk, of O’Halloran Kosoff Geitner & Cook, LLC, of
O’Fallon, for appellee.
Panel JUSTICE MOORE delivered the judgment of the court, with opinion.
Presiding Justice Boie and Justice Welch concurred in the judgment
and opinion.
OPINION
¶1 The plaintiff, Donna K. Godair, appeals the circuit court of Madison County’s granting of
defendant, the Metro East Sanitary District’s, motion for summary judgment in her personal
injury action. For the following reasons, we affirm the circuit court’s dismissal of the plaintiff’s
case.
¶2 I. BACKGROUND
¶3 The Metro East Sanitary District (district) is a non-home rule Illinois sanitary district
formed pursuant to the Sanitary District Act of 1917 (70 ILCS 2405/0.1 et seq. (West 2016))
for the purpose of developing, constructing, and maintaining hundreds of miles of ditches,
levees, and drainage systems for the Metro East area. At the time of the plaintiff’s accident,
she lived on Sunset Drive in Granite City, Illinois. The district owns property located directly
behind the plaintiff’s home on Sunset Drive to the east. A chain-link fence is located in the
plaintiff’s backyard, which runs parallel to the district’s property.
¶4 Running parallel immediately east of the chain-link fence is a dirt pathway that serves as a
utility easement and maintenance road (maintenance road) for the district, as well as various
other utility companies. Also running parallel immediately east of the maintenance road is
Nameoki drainage ditch (ditch). The district uses the maintenance road to allow access for its
tractors and heavy machinery to mow and make repairs to the ditch. The ditch is large, being
45 feet wide and 20 feet deep. Between the maintenance road and the ditch is the ditch edge.
This area generally consists of uneven ground and taller grass and weeds. It is not mowed or
beaten down like the maintenance road. Finally, the Madison County Transit (MCT) owns,
operates, and maintains a paved bike path/walking path (paved path) with signage that runs
throughout Granite City. A section of this paved path goes through the district’s property where
the plaintiff was injured. This paved path runs parallel to the maintenance path. However, the
paved path is located on the opposite side of the ditch from that of the maintenance path.
¶5 Some of the district employees were deposed in the discovery stage of this matter. The
employees testified that the ditch is used solely for drainage purposes. The district did not
construct any signs or other markings to indicate whether or not pedestrians were allowed or
forbidden to use the maintenance road, the edge of the ditch, or the ditch itself. The district
never received any complaints about the property where the plaintiff was injured. The district
was unaware of the soft ground condition that the plaintiff claims caused her injury. The district
does not intend for pedestrians to use its property. The employees instruct pedestrians who are
discovered on the property to leave.
¶6 Godair also gave deposition testimony in this matter. She testified that she knew the district
owned the property where her accident occurred. She also testified that she never received
permission to be on the property and was unaware of anyone that has ever received permission
from the district to be on the property. She was not aware of anyone else who had fallen into
the ditch or fallen on the maintenance road nor was she aware of anyone complaining about
the condition of the district’s property.
¶7 Godair also testified regarding how her injury occurred. She stated that on March 26, 2015,
she was with her two young grandchildren, ages three and seven, in the backyard of the home
on Sunset Drive. Godair, along with the two children, exited the backyard and walked onto the
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district’s maintenance road. She testified that the three of them walked along the road near the
chain-link fence on the opposite side of the maintenance road away from the ditch because she
knew the ditch could be dangerous.
¶8 Godair’s grandson then ran toward the edge of the ditch and said he was “going to go down
the hill.” Godair chased after the boy leaving the maintenance road and going onto the edge of
the ditch. Godair testified that the ground at the edge of the ditch was soft and that the ground
compressed or “sunk” underneath her foot. She denied there being a hole.
¶9 EMS personnel who responded to the plaintiff’s injury also gave deposition testimony.
Both of the EMS personnel who were deposed testified that the plaintiff told them that she had
“slipped in the mud.”
¶ 10 On March 22, 2016, the plaintiff filed her complaint, alleging, inter alia, that the district’s
failure to properly maintain its property caused her injury, that the district knew or should have
known of the dangerous condition, and that the district had a duty to maintain its property “in
a reasonably safe condition for persons lawfully on said premises including the [p]laintiff
herein.”
¶ 11 In response, the district answered the plaintiff’s complaint by denying the allegations. The
district went on to raise two affirmative defenses. The first was that the district is a local public
entity, and thus, if it owed any duty to the plaintiff, it only owed such a duty as set forth in the
Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/1-101 et seq. (West 2016)). Specifically, under section 3-102 of the Tort
Immunity Act (id. § 3-102), a local public entity is not liable for the plaintiff’s injuries unless
the plaintiff proves the district had actual or constructive notice of the condition. Further, that
the district only has a duty to maintain its property for those people that are intended and
permitted users of the property, and the district maintained that plaintiff was neither an
intended nor permitted user. Second, the district raised the affirmative defense of contributory
negligence in that the district alleged that the plaintiff, inter alia, failed to keep a proper lookout
and failed to avoid an open and obvious condition.
¶ 12 Following the initial filings of the parties, the plaintiff served a request to admit facts on
the district pursuant to Illinois Supreme Court Rule 216 (eff. July 1, 2014). The district failed
to timely respond within 28 days as required by Rule 216(c). Ill. S. Ct. R. 216(c) (eff. July 1,
2014). As a result, the plaintiff moved for the circuit court to deem all the facts contained in
the request to admit admitted. The district responded that the plaintiff had agreed to extend the
deadline for its response to the requests; however, the district could not produce any evidence
to support that contention. As a result, the circuit court entered an order on December 15, 2016,
admitting the plaintiff’s first request to admit facts “as filed.”
¶ 13 Of particular relevance to the issues on appeal is request to admit number 6, which reads
as follows: “On the West side of said parcel, Defendant has a grass covered path extending
from Saint Claire Avenue to Terminal Avenue (hereinafter ‘parkway’), which runs North by
South.” Following the circuit court’s entry of the order deeming the plaintiff’s request to admit
facts as admitted, the district filed a motion requesting that the circuit court strike the word
“parkway” from the plaintiff’s request to admit facts on the basis that it constituted an improper
legal conclusion. On February 28, 2018, following briefing from the parties, the circuit court
denied the request to strike as the objection was deemed by the court to be untimely. In the
order denying the district’s request to strike the term “parkway,” Judge William Mudge stated:
“It should be pointed out that no request specifically asked the defendant to admit that the area
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in question is, in fact, a parkway. Plaintiff merely described areas that she chose to call a
parkway—‘(hereinafter parkway)’—within requests that requested the defendant to admit
other facts.” (Emphasis in original.)
¶ 14 During the interim between the initial service of the plaintiff’s request to admit on the
district and the circuit court’s decision in February 2018 to deny the district’s request to strike
the term “parkway,” numerous filings were made by the parties. The majority of these involve
aspects relating to discovery and related discovery disputes. We will not discuss these filings
in detail here as they are not relevant to our analysis of the issues before us. However, there
were a few noteworthy filings to the matters at hand.
¶ 15 On May 25, 2017, the plaintiff filed a motion for partial summary judgment alleging that
the facts of the case were not disputed and that plaintiff had established that the district owed
her a duty, breached that duty, and the breach caused her injuries. The motion further alleged
that there were no facts to support the district’s affirmative defenses.
¶ 16 The district then moved for leave to file an amended answer and additional affirmative
defenses. The circuit court granted the district’s motion, and on August 8, 2017, the district
amended its answer to include four additional affirmative defenses based on the Tort Immunity
Act. The district also added a counterclaim against the plaintiff for criminal trespass.
¶ 17 All of this legal maneuvering led to the circuit court entering an agreed order on March 28,
2018, which instituted a briefing schedule that had been agreed to by the parties. The schedule
allowed for time for the parties to file their final cross-motions for summary judgment,
memoranda of law in support of their positions, and any necessary responses or replies.
¶ 18 Following the entry of this order, Judge Mudge ceased presiding over the case, and Judge
David Hylla was assigned to handle the matter moving forward. The plaintiff moved for a
substitution of Judge Hylla pursuant to section 2-1001(a)(2) of the Code of Civil Procedure
(735 ILCS 5/2-1001(a)(2) (West 2018)). That motion to substitute judge was granted, and
Judge Sarah Smith was assigned to the case in Judge Hylla’s place.
¶ 19 On September 27, 2019, the district filed its motion for summary judgment as to the
plaintiff’s negligence claims, in which it argued the following: (1) the plaintiff was a
trespasser, (2) the plaintiff was not an intended and/or permitted user of the edge of the ditch
for purposes of the Tort Immunity Act (745 ILCS 10/3-102(a) (West 2016)), (3) the district
did not owe the plaintiff a duty based on traditional duty factors, (4) the district did not breach
any duty even if one existed, and (5) the district was absolutely immune from liability pursuant
to the Tort Immunity Act (id.), because it did not have actual and/or constructive notice of the
soft ground that the plaintiff claims caused her to fall.
¶ 20 On October 10, 2019, the district filed its response to the plaintiff’s motion for partial
summary judgment. The district responded to the plaintiff’s allegations by again denying it
owed any duty to the plaintiff or, in the alternative, it denied that it breached any duty owed to
the plaintiff. It further denied that the district had admitted the area where the plaintiff fell was
a “parkway,” and it reasserted its affirmative defenses based in the Tort Immunity Act (id.).
¶ 21 On October 22, 2019, the plaintiff filed a reply brief. As an exhibit, she included an
affidavit in support of her partial summary judgment. That affidavit stated that she retrieved
her grandson, who was on the edge of the ditch. Then, while still on the edge of the ditch or
“parkway,”
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“the ground under my foot sank as the ground along the parkway slid toward the ditch,
the ground at the top of the ditch slid toward the bottom of the ditch, the ground on the
slope slid toward the bottom. The ground sliding toward the ditch caused me to slip
down the drainage ditch with the ground sinking under my foot. It was like quick sand
[sic] once the ground start[ed] giving way.”
¶ 22 On October 24, 2019, the circuit court heard arguments on the pending summary judgment
motions and took the matters under advisement. On May 13, 2020, the circuit court rendered
its ruling in favor of the district, granting its motion for summary judgment. This order was
thoroughly detailed, spanning nearly five pages, and explained the court’s ruling regarding the
various issues raised by the parties. Specifically, the circuit court first found that the plaintiff
was not a trespasser due to the fact that no ordinances prohibited her from entering the property
and no signs prohibited her from entering the property. Second, the court found the
maintenance road and edge of the ditch did not meet “the legal definition of a parkway” as
alleged by the plaintiff. The circuit court included a footnote regarding this finding, which
noted that even if the court had determined the edge of the ditch to be a parkway, the district
still would be entitled to summary judgment as a matter of law because a “[m]unicipality’s
duty of care does not extend to customary parkway conditions, even when those conditions
may be characterized as ‘slightly dangerous.’ [The] [p]laintiff did not allege she was injured
by a ‘pitfall, trap, or snare’ on the parkway. Instead, she alleges and testifies that she was
injured when the ground was ‘soft,’ and ‘sunk like quicksand.’ ”
¶ 23 The court next looked to whether the plaintiff was a permitted and intended user pursuant
to the Tort Immunity Act. Id. § 3-102. The court here found that while the plaintiff was a
permitted user of the maintenance road, she was not an intended user due to the fact that the
district had constructed the maintenance road not for the purpose of allowing pedestrians to
traverse its property but, instead, so that the district could maintain and access the ditch with
the vehicles necessary to complete the maintenance work. The court relied on Illinois case law
that instructed courts to examine the “physical manifestations of the property to determine its
intent such as lighting, signs, special markings, hand rails [sic], and curbs to determine whether
this was intended for use by pedestrians.” See, e.g., Wojdyla v. City of Park Ridge, 148 Ill. 2d
417, 426 (1992). Finding that the district’s property lacked any physical manifestations that
would welcome pedestrians other than a curved lip/apron on either side of the maintenance
road and that a paved bike path/walking path rests on the opposite side of the ditch that is
designated for pedestrians, the intent for pedestrians to use the maintenance road was not
evident.
¶ 24 Finally, the circuit court found that, even if the court had found the plaintiff to be a
permitted and intended user of the maintenance road, the plaintiff’s case could not succeed
because as a matter of law she was unable to meet the traditional duty factors required in a
lawsuit based in negligence. The court specifically found that the plaintiff could not satisfy the
third and fourth factors of “the magnitude of the burden of guarding against the injury” and
“the consequences of placing that burden on the defendant” because the district maintained
hundreds of miles of drainage ditches and, thus, eliminating the hazard complained of in this
case would be an “unduly oppressive (if not impossible) obligation on the [d]efendant.”
¶ 25 Following the circuit court’s ruling, the plaintiff filed this timely appeal.
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¶ 26 II. ANALYSIS
¶ 27 The plaintiff comes before this court arguing that the circuit court erred in granting
summary judgment in favor of the district. In doing so, the plaintiff raises a number of specific
issues in the circuit court’s May 13, 2020, order to support this general contention, specifically:
(1) “Whether [Illinois] Supreme Court Rule 216 requires the trial court to accept as true the
facts in [the] [p]laintiff’s [r]equest to [a]dmit,” (2) “Whether a question of fact existed such
that [s]ummary [j]udgment was improper,” (3) “Whether the trial court erred in finding no duty
existed,” and (4) “Whether the trial court erred in finding as a matter of law [the] [p]laintiff is
not an intended user [of the district’s property under the Tort Immunity Act].”
¶ 28 “To properly state a cause of action for negligence, the plaintiff must establish that the
defendant owed [her] a duty of care, a breach of that duty, and an injury proximately caused
by the breach. [Citation.] The question of whether the defendant owed the plaintiff a duty of
care is a question of law to be determined by the court. [Citation.] Where the record only
presents a question of law, a trial court may properly enter a motion for summary judgment.”
Marshall v. City of Centralia, 143 Ill. 2d 1, 6 (1991).
¶ 29 Therefore, in order for the district to be liable for the plaintiff’s injuries, the plaintiff has to
demonstrate that the district owed her a duty under the circumstances of this case. We find that
the plaintiff has failed to establish that the district owed her a duty. Further, the plaintiff in her
appellate brief offers no direct argument as to why the circuit court’s finding that she failed to
meet the traditional duty factors was in error. Instead, the plaintiff’s argument on appeal
focuses on the issue of the status of the property, particularly whether it should be deemed a
“parkway.” In fact, the plaintiff believes the court’s determination that the edge of the ditch
was not a parkway is determinative of the issue of the propriety of summary judgment (e.g.,
“Following Supreme Court Rule 216 would make the remainder of the trial court’s decision
moot and require trial on the issues of breach and damages in this case.”). On this point, the
plaintiff is incorrect.
¶ 30 The circuit court not only found that the edge of the ditch did not constitute a “parkway”
in the legal sense but further found that, even assuming that it was, summary judgment in favor
of the district was still proper because the plaintiff was not injured by a “pitfall, trap, or snare.”
To this, the plaintiff makes no response or argument in her appellate brief. In other words, the
plaintiff offers to this court no reasoning as to how the determination of this piece of property
as a “parkway” allows her claim to be successful.
¶ 31 While the plaintiff’s failure to offer any direct arguments, as to how the district owed her
a duty under the traditional duty factors or how deeming the property a “parkway” allows her
claim to be successful or creates a triable issue of fact, could be deemed to result in forfeiture
of these issues, 1 we nevertheless address them below.
¶ 32 First, we will examine the traditional duty factors because if no duty is owed, then the
plaintiff’s negligence claim cannot be successful. The Illinois Supreme Court in Bruns v. City
of Centralia outlined the law that governs how our analysis must be conducted in the present
case:
1
Argument must contain the contentions of the appellant, the reasons therefor, and the citation of
authorities; points not argued in an opening brief are forfeited and shall not be raised in the reply brief,
in oral argument, or in a petition for rehearing. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).
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“Here, the underlying facts are not in dispute. The only issue is whether, under
those facts, the City owed a duty to plaintiff. Whether a duty exists is a question of law
for the court to decide. [Citation.] ‘In the absence of a showing from which the court
could infer the existence of a duty, no recovery by the plaintiff is possible as a matter
of law and summary judgment in favor of the defendant is proper.’ [Citation.] We
review summary judgment rulings de novo. [Citation.]
In resolving whether a duty exists, we ask ‘whether defendant and plaintiff stood
in such a relationship to one another that the law imposed upon defendant an obligation
of reasonable conduct for the benefit of plaintiff.’ [Citation.] Four factors guide
our duty analysis: (1) the reasonable foreseeability of the injury, (2) the likelihood of
the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the
consequences of placing that burden on the defendant. [Citations.] The weight to be
accorded these factors depends upon the circumstances of a given case. [Citation.]
Under section 3-102 of the *** Tort Immunity Act ***, a local public entity, like
the City here, ‘has the duty to exercise ordinary care to maintain its property in a
reasonably safe condition.’ 745 ILCS 10/3-102 (West 2012). The Tort Immunity Act
did not create this duty; it merely codified the duty that existed at common law.
[Citation.] Thus, in determining whether the City’s general duty of care set forth in
section 3-102 extended to the risk at issue in this case—the defective sidewalk—we
look to the common law. [Citation.]
One common law construct relevant here is the ‘open and obvious rule.’ Generally,
under this rule, ‘a party who owns or controls land is not required to foresee and protect
against an injury if the potentially dangerous condition is open and obvious.’ ” Bruns
v. City of Centralia, 2014 IL 116998, ¶¶ 13-16.
¶ 33 Before we continue with our analysis of the factors, we quickly discuss how the “open and
obvious rule” applies to our analysis in the present matter.
¶ 34 The ditch and the ditch’s edge would have constituted an open and obvious condition. The
ditch involved in this case is not a typical ditch that runs alongside of a roadway or walkway
that may be covered up or hidden by tall grass or weeds. Instead, this is a large drainage ditch
that acts to direct a significant amount of water safely through the city. The ditch is 45 feet
wide and 20 feet deep. Thus, the ditch would have been an open and obvious danger. The
plaintiff acknowledged as much in her deposition testimony:
“Q. When you were walking, why were you walking closer to the fence?
A. For the kids’ safety.
Q. And that’s because there’s a ditch with a deep slope right there, correct?
A. Yes.
Q. And if you fall in that, you can injure yourself, correct?
A. Yes.”
¶ 35 Thus, as readily admitted by the plaintiff, she recognized the ditch on the day of the
accident, further recognized it posed a danger due to its “deep slope,” and walked on the
opposite side of the maintenance road away from the ditch’s edge to avoid any possible danger
or subsequent injury. Only once her grandson strayed off the maintenance road and onto the
ditch’s edge did she leave the safety of the maintenance road to retrieve the child and save him
from possible injury.
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¶ 36 “The existence of an open and obvious danger is not an automatic or per se bar to the
finding of a legal duty on the part of a defendant.” Id. ¶ 19. Our supreme court further explained
how the existence of an open and obvious condition may impact a court’s duty analysis:
“ ‘In assessing whether a duty is owed, the court must still apply traditional duty
analysis to the particular facts of the case.’ [Citations.] Application of the open and
obvious rule affects the first two factors of the duty analysis: the foreseeability of
injury, and the likelihood of injury. [Citation.] Where the condition is open and
obvious, the foreseeability of harm and the likelihood of injury will be slight, thus
weighing against the imposition of a duty.” Id.
¶ 37 Thus, as we turn to examine the first two of the duty factors, we consider the open and
obvious nature of the ditch. Because the danger of the ditch is open and obvious, as testified to
by the plaintiff, the foreseeability of the injury and likelihood of injury are slight. One would
expect an adult to be aware of the danger a large drainage ditch and its “deep slope” poses and
to stay sufficiently away from its edge to avoid falling or slipping into it. In fact, that is the
action the plaintiff testified she was taking initially. Unfortunately, the young child with her
escaped from the plaintiff’s control and strayed from the safety of the maintenance road
resulting in the plaintiff choosing to leave the safety of her position to prevent the child from
sustaining injury. While the act of recognizing a danger and leaving the safety of one’s position
to help prevent injury to another is courageous and commendable, it does not result in an
exception to the open and obvious rule. One might argue that the plaintiff may have been
distracted by her grandson’s safety, but that type of distraction is not so foreseeable as to create
an exception on the part of the district that would result in imputing liability. Further, the
evidence demonstrates the opposite to be true. Here, the plaintiff was not distracted from the
open and obvious condition by a different condition or potential danger. Instead, the plaintiff
had her attention focused directly on the danger posed by the open and obvious condition and
was reacting directly to it in order to protect her grandchild. See, e.g., id. ¶¶ 19-35 (the supreme
court briefly summarizes and reviews numerous distraction cases, noting that “the distraction
exception will only apply where evidence exists from which a court can infer that plaintiff was
actually distracted” and “plaintiff should not be allowed to recover for self-created distractions
that a defendant could never reasonably foresee” (internal quotation marks omitted)); see also
Sollami v. Eaton, 201 Ill. 2d 1, 16-17 (2002) (exception did not apply to the open and obvious
danger of “rocket-jumping” on trampoline because no evidence was presented tending to show
the plaintiff was distracted).
¶ 38 Additionally, to the extent that the plaintiff argues that the actual “condition” was not the
ditch but was the soft ground and therefore was not open and obvious, we disagree. Inherent
in the dangers of large ditches, creeks, rivers, and similar bodies of water is the fact that the
ground near the edge of these may be soft, loose, slippery, or give way, and this is especially
true in cases such as this where the ditch is a large drainage ditch that has varying degrees of
levels of water and has a “deep slope” or steep sides. Anywhere there is a moving body of
water and steep edges, the risk is that getting too close to those edges might result in just the
type of accident that occurred here. One cannot separate the edge of the body of water from
the body of water when considering how that body of water poses a danger to those who
encounter it.
¶ 39 Additionally, we note an important fact specific to this case. This piece of property is
situated between two roadways, St. Clair Avenue and Terminal Avenue. MCT owns, operates,
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and maintains a paved bike path/walking path with signage that runs through Granite City.
This paved path goes through the district’s property where the plaintiff was injured. It runs
parallel with the maintenance path but is located on the other side of the ditch. Given that MCT
has already provided a safe marked pathway through the district’s property that allows
individuals to safely navigate the property only a short distance away, it is even more
unforeseeable that an individual would, instead, choose to take an unmarked dirt pathway that
abuts a large drainage ditch.
¶ 40 We now turn our attention to the remaining two duty factors, “the magnitude of the burden
of guarding against the injury” and “the consequences of placing that burden on the defendant.”
These were the two factors that the circuit court in its order specifically found weighed heavily
against the plaintiff’s position. We agree. Thus, even if one did not find the condition that
injured the plaintiff to be open and obvious, the plaintiff’s case would still fail, and summary
judgment would still be appropriate due to these two factors alone.
¶ 41 The unrefuted testimony was that the district maintained hundreds of miles of drainage
ditches throughout the city. In a somewhat analogous case, DiBenedetto v. Flora Township,
153 Ill. 2d 66 (1992), a municipality was sued following the death of a driver who accidentally
drove off of the roadway into a drainage ditch. Essentially, the plaintiff argued in the complaint
that the city failed to maintain drainage ditches in a way where drivers who left the roadway
would not be severely injured. Id. at 70. The supreme court held that the city owed no duty in
the case because
“[n]either a township nor a municipality is an insurer against all accidents occurring
on the public way. Just as a municipality is only required to maintain its streets and
sidewalks for their normal and intended uses, a township is only required to maintain
the traveled way, shoulders, and drainage ditches according to their normal and
intended uses.” (Emphasis added.) Id. at 71-72.
The court went on to hold that the burdens and consequences of a municipality having to
protect against such injuries or accidents was simply too great for a legal duty to arise. Id. at
72.
¶ 42 While the facts of DiBenedetto differ from the case at hand, the outcome is the same. Where
a public entity is responsible for maintaining hundreds of miles of ditches, or sidewalks, or
roadways, it only has a duty to do so according to their normal and intended uses. Id.; see also
Warchol v. City of Chicago, 75 Ill. App. 3d 289, 294 (1979). To hold otherwise, and require
municipalities and public entities to prevent against injuries such as the one alleged in the
present case, would simply place too great a burden on the entities as the magnitude of
protecting against such injuries would be essentially impossible.
¶ 43 The plaintiff attempts to lessen the anticipated burden on the district by arguing that the
district would not have to maintain all of the edges of the drainage ditches but merely would
have to place signs warning of the hazard or prohibiting entry by pedestrians. The plaintiff
points to certain testimony of the district’s employees that suggests that placing the signs, in
and of itself, would not be difficult. While we acknowledge that act of placing signs alone may
not be too great a burden (although it would surely be a significant undertaking), when one
considers the costs of placing signs up and down hundreds of miles of drainage ditches and
maintaining those signs, the burden increases substantially. This also fails to recognize that
signs will be ineffective in situations such as this where the plaintiff was aware of the dangers
of the ditch.
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¶ 44 Thus, because the plaintiff has failed to establish that the district owed her a duty of care
under the circumstances of her injury, summary judgment in favor of the district was
appropriate. Thus, we affirm the circuit court in granting the district’s motion for summary
judgment and dismissing the action.
¶ 45 Though we have already affirmed the circuit court’s order, we now briefly address the
contention that the circuit court erred in finding that the edge of the ditch was not a “parkway.”
¶ 46 First, we must simply state that the circuit court was correct in finding that the edge of a
large drainage ditch does not constitute a “parkway.” While this may be common sense, we
will briefly elaborate.
¶ 47 As discussed by our supreme court in Marshall, 143 Ill. 2d 1, parkways are generally
thought to be grass covered parcels of land between the sidewalk and the street that beautify
the street, but that are also used by pedestrians in a limited number of instances. A parkway
has also been defined as a “ ‘landscaped strip of land paralleling or running in the center of a
thoroughfare.’ ” Barnhisel v. Village of Oak Park, 311 Ill. App. 3d 108, 112 (1999) (quoting
Webster’s Third New International Dictionary 1642 (1993)). The quintessential parkway is
that where a landscaped strip of land is surrounded by a sidewalk and a curb that runs adjacent
to the street. Importantly,
“[w]hile parkways are not constructed with the intention of accommodating the
kind of pedestrian traffic that is commonly associated with sidewalks, parkways have
historically been used by pedestrians in a number of limited instances: i.e., to enter a
car that is parked at the curb; to retrieve mail from a mailbox; to reach a neighbor’s
house across the street; to board a bus; to stand on so that others can pass you on the
sidewalk; to cut the lawn; to trim the shrubs; and to rake the leaves.” Marshall, 143 Ill.
2d at 10.
¶ 48 Obviously, the edge of the ditch here has no similarities whatsoever to a parkway. The area
is not landscaped, there is no adjacent sidewalk or paved roadway, there are no mailboxes or
trees, and there is no area where vehicles are parked or accessed. None of the homeowners
walk on the edge of the ditch to trim bushes or rake leaves.
¶ 49 Despite the obviousness of this result, the plaintiff appeals to this court arguing that
somehow the district by failing to answer the plaintiff’s request to admit facts has admitted
that the edge of the ditch is a parkway. Rule 216 does allow for a court to deem facts admitted
which have been properly served on a party who fails to timely respond. Ill. S. Ct. R. 216 (eff.
July 1, 2014). That is what the circuit court did in this matter. However, here, the plaintiff
attempts to take advantage of the circuit court’s ruling and improperly interpret her own
requests to admit in order to achieve a result that she knows is not proper and could not be
obtained through any other method.
¶ 50 The plaintiff relies on her following request to support her contention on this issue: “6. On
the West side of said parcel, Defendant has a grass covered path extending from Saint Claire
Avenue to Terminal Avenue (hereinafter ‘parkway’), which runs North by South.” The
plaintiff’s position is that because the circuit court deemed this statement admitted, the edge
of the ditch has to be legally considered a parkway by the circuit court and this court. We
disagree.
¶ 51 Clearly, the fact that was requested to be admitted was that on the west side of the district’s
property, there existed a grass covered path that extended north and south from St. Claire
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Avenue to Terminal Avenue. That is the fact requested to be admitted and that is the only fact
the circuit court deemed admitted. The request does not ask the district to admit that “the grass
covered path extending from St. Claire Avenue to Terminal Avenue on the west side of the
district’s property legally constitutes a parkway.” That would be an improper request under
Rule 216 because it would be asking the district to admit a legal conclusion. See P.R.S.
International, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 235-42 (1998) (“requests to admit may
not include legal conclusions”). The use of the term “parkway” in the manner used in the
plaintiff’s request is irrelevant and is not binding on this case or the requests to admit. The
plaintiff could have just as easily used the term “pathway” or “walkway.”
¶ 52 Judge Mudge made this distinction very clear when he denied the district’s motion to strike
the term “parkway” from the request to admit. Judge Mudge stated:
“It should be pointed out that no request specifically asked the defendant to admit that
the area in question is, in fact, a parkway. Plaintiff merely described areas that she
chose to call a parkway—‘(hereinafter parkway)’—within requests that requested the
defendant to admit other facts.” (Emphasis in original.)
¶ 53 The edge of the ditch in this case where the plaintiff was injured is not a parkway, and no
court is bound to treat it as such simply because the plaintiff so chose to do so in her request
to admit.
¶ 54 Additionally, had the area been a parkway, summary judgment still would have been
appropriate. As stated in Marshall:
“[T]he duty of care with regard to parkways is not identical to the duty of care with
regard to sidewalks. Pedestrians who leave the sidewalk cannot assume that parkways
are free of defects or undulations as they otherwise could when traveling on the
sidewalk. Sidewalks are generally made of cement, while parkways are composed of
sod and earth and are therefore more susceptible to weather damage caused by rain and
snow. [Citation.] Municipalities cannot be held liable for parkway conditions which are
customary, even though such conditions may be slightly dangerous. [Citation.]
‘However a city has no right to maintain anything in the nature of a pitfall, trap, snare
or other like obstruction whereby the traveler, in yielding to the impulse of the average
person to cut across a corner in a hurry, may be injured ***.’ [Citation.]” (Emphasis
added.) Marshall, 143 Ill. 2d at 10-11.
¶ 55 The plaintiff has in no way alleged that the district allowed a “pitfall, trap, snare or other
like obstruction” (e.g., in Marshall, the pitfall was an open sewer manhole). Instead, the
plaintiff in this case has alleged “soft” ground that “sunk like quicksand.” Which is just the
type of condition referenced above by our supreme court when it acknowledged that “sod and
earth *** are therefore more susceptible to weather damage caused by rain and snow” and
“[m]unicipalities cannot be held liable for parkway conditions which are customary, even
though such conditions may be slightly dangerous.” Id. at 11.
¶ 56 III. CONCLUSION
¶ 57 For the foregoing reasons, we affirm the summary judgment dismissal by the circuit court.
¶ 58 Affirmed.
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